Allahabad High Court
Iqbal Ahmad Qureshi vs State Of U.P. And Others on 29 January, 2020
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 30 Case :- WRIT - C No. - 2000 of 2009 Petitioner :- Iqbal Ahmad Qureshi Respondent :- State of U.P. and Others Counsel for Petitioner :- V.M. Zaidi,M J Akhtar Counsel for Respondent :- C.S.C.,Amit Sharma,Anil Sharma,Raj Mohan Saggi,V.K. Singh Hon'ble Pankaj Bhatia,J.
Order on Civil Misc. Impleadment Applications Two impleadment applications have been filed by Jogendra and one Manjeet Singh Bhatia, alleging that they are members of the Gram Sabha and, therefore, entitled to participate in the proceedings. They have made various allegations with regard to the fact that the land in question belongs to the Gaon Sabha. It was further argued that Gaon Sabha is not protecting the interest of the property of the Gaon Sabha and, therefore, the members have a right to participate.
The counsel for the proposed applicants Sri Anil Sharma has relied upon the judgment of this Court in the Case of Om Prakash Verma Vs. State of U.P.; [2014 (5) ADJ 427 (DB) (LB)], wherein this Court has recorded as under in para 14:-
"14. We may emphasize that the scheme contained in Section 122-B (1) and (2) not only empowers the Assistant Collector to act upon the information received from the Land Management Committee or from the local authority concerned but it empowers the Assistant Collector to act on the information received otherwise as well. The occurrence of word 'otherwise' in sub-section (2) of Section 122-B widens the source of information on which the Assistant Collector can act and take appropriate proceedings for eviction of unauthorized/illegal occupants. The initiation of proceedings by the Assistant Collector is not confined only on the information received from the Land Management committee or local authority concerned but the Assistant Collector can act and initiate proceedings on an information received by him 'otherwise' as well. The word 'otherwise' occurring in sub-section (2) of Section 122-B of the Act entitles even a third person i.e. a person other than the land management committee or a local authority to furnish information about unauthorized occupation of the gaon sabha land to the Assistant Collector, who on being satisfied that property has been damaged/misappropriated or is being illegally occupied, is duty bound to issue notice to such person."
Sri Sharma has further placed reliance upon the judgment of the Supreme Court in the case of Maharaj Singh v. State of Uttar Pradesh & Others; AIR 1976 SC 2602, wherein the Supreme Court has held in paragraph 21 as under:-
"21.Where a wrong against community interest is done, 'no locus standi' will not always be a plea to non-suit an interested-public body chasing the wrong-doer in court. In the case before us, Government, in the spacious sense of 'person aggrieved' is comfortably placed. Its right of resumption from the Gaon Sabha, meant to be exercised in public interest, will be seriously jeopardised if the estate slips into the hands of a trespasser. The estate belonged to the State, is vested in the Gaon Sabha for community benefit, is controlled by the State through directions to the Land Management Committee and is liable to be divested without ado any time. The wholesome object of the legislature of cautiously decentralised vesting of estates in local self-governing units will be frustrated, if the State, the watch-dog of the whole project, is to be a helpless spectator of its purposeful bounty being wasted or lost. It must act, out of fidelity to the goal of the statute and the continuing duty to salvage public property for public use. Long argument is otiose to make out a legal grievance in such a situation of peril and, after all, the star of processual actions pro bono publico has to be on the ascendant in a society where supineness must be substituted by activism if the dynamic rule of law is to fulfil itself. 'Locus standi' has a larger ambit in current legal semantics than the accepted, individualistic jurisprudence of old. The legal dogmas of the quiet past are no longer adequate to assail the social injustices of the stormy present. Therefore, the State, in the present case, is entitled to appeal under Section 96 of the Code of Civil Procedure."
Sri Anil Sharma, counsel for the proposed applicants argues that these two judgments covered the issue in question and in view of the findings recorded in the said to judgments, the applicants have a right to participate in the proceedings and be heard.
The first judgment relied upon by Sri Anil Sharma in the case of Om Prakash Verma (Supra) in paragraph no. 14 discusses the scope of powers that may be exercised by the Assistant Collector while exercising the powers under Section 122-B (1) and (2) to take action on the basis of information received otherwise as well. The word 'otherwise' was interpreted to include any information that the Assistant Collector may use for exercising the powers vested in the said Assistant Collector under Section 122-B (1) and (2). The said judgment does not apply to the facts of the present case, as it does not decide the rights of a person to participate in the proceedings and merely authorises the said persons to give information, which may be used by the Assistant Collector for exercising his vested powers.
The second judgment cited by Sri Sharma is in the case of Maharaj Singh (Supra). The Supreme Court considered the concept of 'locus standi' in the cases where community interest is involved. The Supreme Court held that a person cannot be non-suited on the ground of no locus standi if an interested public body chasing the wrong doer in the Court, approaches the Court. The Supreme Court further held in the concluding part that the State in the present case is entitled to file an appeal under Section 96 of the Code of Civil Procedure. I am afraid that the said judgment also will have no applicability with regard to the question to be decided as to whether the person approaching this Court is a necessary or a proper party, as the applicants cannot be termed as 'public body'.
The outcome of the litigation in question, does not in any way affect the proposed applicants. Further, in view of the fact that Land Management Committee is represented in this Court, I have no hesitation in holding that the applications filed by the two applicants are misconceived and are rejected.
Order On Writ Petition Heard Sri V.M. Zaidi, counsel for the petitioner, Sri Upendra Kumar Tripathi, counsel for the respondent-Gram Sabha and Standing Counsel for the State-respondents.
Sri V.M. Zaidi, counsel appearing on behalf of petitioner argues that the mutation entry long standing in favour of the ancestors of the petitioner was set aside, in exercise of powers under Section 33 of the Land Revenue Act, on the basis of an ex-parte report and without issuing any notice whatsoever to the petitioner, who had claimed rights over the property in question.
The said ex-parte order was challenged by the petitioner by filing a revision and the revision came to be dismissed on the ground that in cases where forgery is committed, principles of natural justice are not to be complied with.
The finding of forgery has been recorded in exercise of powers under Section 33 of the Land Revenue Act, only on the basis of an ex-parte report and thus it was incumbent upon the authorities concerned to have supplied a copy of the ex-parte report and it was further incumbent upon the authority concerned to have given a formal hearing prior to quashing the entries, which were long standing, as submitted by Sri V.M. Zaidi.
Sri V.M. Zaidi further argues that even otherwise on the grounds of forgery, entries could not have been quashed, as the question of forgery has to be established by evidence, which is lacking in the present case. Thus, in exercise of summary jurisdiction, the entries could not have been quashed on the grounds of forgery, as has been done by means of the impugned order.
I am impressed with the arguments of Sri V.M. Zaidi to the extent that any right vested in a person cannot be dislodged without complying with the principles of natural justice. I am fortified by the judgment of the Apex Court in the case of M/s. Dharampal Satyapal Ltd. vs. Deputy Commissioner of Central Excise, Gauhati & Ors, 2015 (8) SCC 519, wherein the Supreme Court has observed as under:-
"20. Though the aforesaid principles of natural justice are known to have their origin in Common Law, even in India the principle is prevalent from ancient times, which was even invoked in Kautilya's 'Arthashastra'. This Court in the case of Mohinder Singh Gill & Anr. v. The Chief Election Commissioner, New Delhi & Ors.[4] explained the Indian origin of these principles in the following words:
"Indeed, natural justice is a pervasive facet of secular law where a spiritual touch enlivens legislation, administration and adjudication, to make fairness a creed of life. It has many colours and shades, many forms and shapes and, save where valid law excludes, it applies when people are affected by acts of authority. It is the bone of healthy government, recognised from earliest times and not a mystic testament of judge-made law. Indeed from the legendary days of Adam - and of Kautilya's Arthashastra - the rule of law has had this stamp of natural justice, which makes it social justice. We need not go into these deeps for the present except to indicate that the roots of natural justice and its foliage are noble and not new-fangled. Today its application must be sustained by current legislation, case law or other extant principle, not the hoary chords of legend and history. Our jurisprudence has sanctioned its prevalence even like the Anglo-American system".
21. Aristotle, before the era of Christ, spoke of such principles calling it as universal law. Justinian in the fifth and sixth Centuries A.D. called it 'jura naturalia', i.e. natural law.
25. It is on the aforesaid jurisprudential premise that the fundamental principles of natural justice, including audi alteram partem, have developed. It is for this reason that the courts have consistently insisted that such procedural fairness has to be adhered to before a decision is made and infraction thereof has led to the quashing of decisions taken. In many statutes, provisions are made ensuring that a notice is given to a person against whom an order is likely to be passed before a decision is made, but there may be instances where though an authority is vested with the powers to pass such orders, which affect the liberty or property of an individual but the statute may not contain a provision for prior hearing. But what is important to be noted is that the applicability of principles of natural justice is not dependent upon any statutory provision. The principle has to be mandatorily applied irrespective of the fact as to whether there is any such statutory provision or not.
De Smith [8] captures the essence thus - "Where a statute authorises interference with properties or other rights and is silent on the question of hearing, the courts would apply rule of universal application and founded on plainest principles of natural justice".
Wade [9] also emphasizes that principles of natural justice operate as implied mandatory requirements, non-observance of which invalidates the exercise of power. In Cooper v. Sandworth Board of Works [10] the Court laid down that: '...although there is no positive word in the statute requiring that the party shall be heard, yet justice of common law would supply the omission of Legislature". Exhaustive commentary explaining the varied contours of this principle can be traced to the judgment of this Court in Managing Director, ECIL, Hyderabad & Ors. v. B. Karunakar & Ors.[11], wherein the Court discussed plenty of previous case law in restating the aforesaid principle, a glimpse whereof can be found in the following passages:
"20. The origins of the law can also be traced to the principles of natural justice, as developed in the following cases: In A. K. Kraipak v. Union of India, (1969) 2 SCC 262 : (1970) 1 SCR 457, it was held that the rules of natural justice operate in areas not covered by any law. They do not supplant the law of the land but supplement it. They are not embodied rules and their aim is to secure justice or to prevent miscarriage of justice. If that is their purpose, there is no reason why they should not be made applicable to administrative proceedings also especially when it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial ones. An unjust decision in an administrative inquiry may have a more far reaching effect than a decision in a quasi-judicial inquiry. It was further observed that the concept of natural justice has undergone a great deal of change in recent years. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the inquiry is held and the constitution of the tribunal or the body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice has been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case. The rule that inquiry must be held in good faith and without bias and not arbitrarily or unreasonably is now included among the principles of natural justice.
21. In Chairman, Board of Mining Examination v. Ramjee, (1977) 2 SCC 256, the Court has observed that natural justice is not an unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. The Courts cannot look at law in the abstract or natural justice as mere artifact. Nor can they fit into a rigid mould the concept of reasonable opportunity. If the totality of circumstances satisfies the Court that the party visited with adverse order has not suffered from denial of reasonable opportunity, the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures.
22. In Institute of Chartered Accountants of India v. L. K. Ratna, (1986) 4 SCC 537, Charan Lal Sahu v. Union of India, (1990) 1 SCC 613 (Bhopal Gas Leak Disaster Case) and C. B. Gautam v. Union of India, (1993) 1 SCC 78, the doctrine that the principles of natural justice must be applied in the unoccupied interstices of the statute unless there is a clear mandate to the contrary, is reiterated."
In his separate opinion, concurring on this fundamental issue, Justice K. Ramaswamy echoed the aforesaid sentiments in the following words:
"61. It is now settled law that the proceedings must be just, fair and reasonable and negation thereof offends Articles 14 and 21. It is well settled law that principles of natural justice are integral part of Article 14. No decision prejudicial to a party should be taken without affording an opportunity or supplying the material which is the basis for the decision. The enquiry report constitutes fresh material which has great persuasive force or effect on the mind of the disciplinary authority. The supply of the report along with the final order is like a post mortem certificate with putrefying odour. The failure to supply copy thereof to the delinquent would be unfair procedure offending not only Arts. 14, 21 and 311(2) of the Constitution, but also, the principles of natural justice."
28. In the case of East India Commercial Company Ltd., Calcutta & Anr. v. The Collector of Customs, Calcutta [15], this Court held that whether the statute provides for notice or not, it is incumbent upon the quasi-judicial authority to issue a notice to the concerned persons disclosing the circumstances under which proceedings are sought to be initiated against them, failing which the conclusion would be that principle of natural justice are violated. To the same effect are the following judgments:
a) U.O.I. & Ors. v. Madhumilan Syntex Pvt. Ltd. & Anr.[16]
b) Morarji Goculdas B & W Co. Ltd. & Anr. v. U.O.I. & Ors.[17]
c) Metal Forgings & Anr. v. U.O.I. & Ors.[18]
d) U.O.I. & Ors. v. Tata Yodogawa Ltd. & Anr.[19]
29. Therefore, we are inclined to hold that there was a requirement of issuance of show-cause notice by the Deputy Commissioner before passing the order of recovery, irrespective of the fact whether Section 11A of the Act is attracted in the instant case or not.
35. At the same time, it cannot be denied that as far as Courts are concerned, they are empowered to consider as to whether any purpose would be served in remanding the case keeping in mind whether any prejudice is caused to the person against whom the action is taken. This was so clarified in the case of Managing Director, ECIL (supra) itself in the following words:
"Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/ Tribunal and given the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/ Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as it regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment."
In view of the fact that the orders have been passed without supplying ex-parte report and without hearing the petitioner, both the orders dated 27.11.2008 and 16.6.2007 are set aside. The matter is remanded to the S.D.M. concerned to decide the matter afresh, after giving a copy of the ex-parte report and permitting the petitioner to file his objections and after giving an opportunity of hearing to the petitioner. The petitioner shall be at liberty to raise all the defences, that may be available to him as may be advised to him before the S.D.M., who shall pass an order, as directed above. In view of the fact that the matter is an old matter and involves public interest, the S.D.M. shall take a decision afresh, as directed, expeditiously preferably within a period of six months from the date of production of certified copy of this order.
The petitioner is further directed to appear before the S.D.M. concerned on 6th February, 2020 at 11:00 A.M. along with a certified copy of this order. The S.D.M. shall take necessary steps, as directed above.
The writ petition is disposed off in terms of the said order.
Order Date :- 29.1.2020 SR