Uttarakhand High Court
Sumer Chand vs Divisional Commissioner And Ors. on 20 October, 2003
Author: Rajesh Tandon
Bench: Rajesh Tandon
JUDGMENT Rajesh Tandem, J.
1. By the present Writ Petition, the petitioner has sought a direction for setting aside the impugned orders dated 2.6.2003 and 28.7.2003 An-nexures-III and VII to the Civil Petition. Further direction has been sought for deciding the appeal on behalf of the petitioner.
Background of the Case :
2. Brief facts giving rise to the aforesaid Writ Petition are that the petitioner has claimed himself as bhumidhar and owner in possession of the land comprised in Khasra No. 720 Ka min. measuring 0.8320 hectare i.e. 0.379 acres, situated in Mauza Suddhowala, Pargana Pachh-wadoon, Tehsil Vikas Nagar, District Deh-radun, bounded and butted as under :
North : by land of Khasra No. 801 claimed by State South : by boundary of village Arcadia East : by boundary of village Kohlupani West: by land of Ghasita and Gulzar
3. According to the petitioner, his name has been recorded in the Revenue records as a bhumidhar with a transferable rights. The petitioner has also stated he belong to the weaker section of the society and he has no other land except the land in dispute.
4. It appears that the proceedings under Section 166/167 of the U.P. Zamin-dari Abolition & Land Reforms Act, 1950 (hereinafter referred as the U.P., Z.A.L.R.) was initiated by the State of Uttaranchal v. Golden Forest Company, without impleading the petitioner as a party in the proceedings. The proceedings were dated on 2.6.2003. The petitioner came to know on 20.6.2003 and has filed the appeal before the Divisional Commissioner. The appeal of the petitioner came up for hearing before the Commissioner. On 28.8.2003, the appeal was dismissed on the ground that the petitioner was not a party to the proceedings hence the present Writ Petition has been filed challenging the aforesaid order.
5. Heard Sri Ramji Srivastava for the petitioner and Sri N.C. Gupta, learned Standing Counsel representing the respondent No. 1 to 4. Both the parties have agreed that since the short question is involved with regard to the maintainability of the appeal and, therefore, the matter may be finally disposed of.
6. The question arises for determination whether such transfer was a legal or not under the provision of the Transfer of Property Act, further whether by way of such transfer any right has accrued in favour of the Golden Forest Company so as to deprive the petitioner from his valuable rights and further whether such a transfer was a fraud on the face of it in order to deprive the small farmers. The appellate Court has every right to determine the same.
7. After hearing both the parties following points arise for determination:
"Point No. 1: The land of the petitioner having been taken by the Golden Forest Company, whether such a land was legally transferred to the Golden Forest Company under the provisions of the Transfer of Property Act;
Point No. 2: Whether the petitioner being beneficiary of the land was entitled to be heard; and Point No. 3: whether the land has been obtained by practicing fraud upon the small cultivators.Discussion on Point No. 1
8. It is very painful that the land of the poor cultivators are being taken away without impleading them as parties in proceedings under Section 166/167 of the Act in Case No. 15A of 1999.
9. As well appear from the order passed by the Asstt. Collector that on the report of the Tehsildar in the year 1997, the alleged land belong to the Golden Forest Company. The land is situated at various villages viz. Baragiwala, Khushhalpur, Dhamolo, Shishambara, Centralhope Town, Lakhanwala, Jhajhara, Sudhowala, East Hope Town, Rampur Claw, Mishrapat-ti, Fetahpur, Jassowala and Thakrani. The report further provides that the Golden Forest Company having taken more than 12.50 acres, the said transfer being void under Section 154, therefore, the proceedings were initiated under Section 166/167 of the Act.
Section 154-1 of the Act provides as under :
"Save as provided in Sub-section (2), no bhumidhar shall have the right to transfer by sale or gift, any land other than tea gardens to any person where the transferee shall all a result of such sale or gift, become entitled to land which together with land, if any, held by his family will in the aggregate, exceed 5.0586 hectares (12.50 acres) in Uttar Pradesh."
Section 166 of the Act provides that the transfer made in contravention of the provisions of the Act. shall be void. It reads as under:
"Every transfer made in contravention of the provisions of this Act shall be void."
Section 167 provides the consequences in pursuance of a void transfer it reads as under:
"(1) The following consequences shall ensue in respect of every transfer which is void by virtue of Section 166, namely--
(a) the subject matter of transfer shall with effect from the date of transfer, be deemed to have vested in the State Government free from all encumbrances;
(b) the trees, crops and wells existing on the land on the date of transfer shall, with effect from the said date, be deemed to have vested in the State Government free from all encumbrances;
(c) the transferee may remove other moveable property or the materials of any immovable property existing on such land on the date of transfer within such time as may be prescribed.
(2) Where any land or other property has vested in the State Government under Sub-section (1), it shall be lawful for the Collector to take over possession over such land or other property and to direct that any person occupying such land or property be evicted therefrom. For the purposes of taking over such possession or evicting such unauthorized occupants, the Collector may use or cause to be used such force as may be necessary."
10. Assistant Collector 1st Class Vikas Nagar has passed the order that since acquired land is more than 12.50 acres and the same being void under Section 154, therefore the land shall vest with the State. Tehsildar has observed that the land belong to the cultivators. It appears that some of the cultivators have been heard and they have raised the objections that they have never sold the land to the Golden Forest Company as well appear from the judgment of the Assistant Collector, the same is quoted below:
^^izLrqr okn esa ;fn fdUgh [kljk uEcjksa ij dEiuh ds dCts ds vk/kkj ij dk;Zokgh dh fjiksVZ dh xbZ gS] vkSj ,sls dk'rdkjksa us vkifk izdV dh gS fd og viuh Hkwfe dk fo; fdlh dEiuh dks ugha fn;k gS ;k vius [kljk u ds dqN jdcs dks cspk gS fdUrq dk;Zokgh leLr jdcs ij gks jgh gks] ,sls okLrfcd (Bonafide) ewy dk'rdkjksa dks dksbZ {kfr u igqps tu fgr esa] ;g vkns'k fn;s tkrs gSa fd izR;sd ,slh vkifk tks fu;r frfFk rd izkIr gqbZ gS esa mfYyf[kr [kljk uEcjksa dks bl vkns'k esa lfEefyr u djrs gq;sa tkp gsrq lEcfU/kr ys[kiky dks izsf"kr dh tk;sa tks lE;d tkpksijkUr ,oa dk'rdkj }kjk izLrqr fd;s x;s izek.kksa ds vk/kkj ij dk;Zokgh dh ldkj.k vk[;k rglhynkj ds ek/;e ls bl U;k;ky;
dks izsf"kr djxsaA pwfd xksYMsu QkjsLV dh lHkh i=kofy;ksa ij j[kk tk;saA ckn vko';d dk;Zokgh i=kofy;k nkf[ky nQrj gksaA** In the grounds of appeal, it has been stated by the petitioner as under:
"1. That appellant is the bhumidhar and owner in possession of all that land comprised in Khasra No. 720 Ka Min measuring 0.8320 hectares or 0.379 Acres, situated in Mauza Suddhowala, pargana Western Doon, Tehsil Vikas Nagar, Distt. pehradun, bounded and butted as North by Land of Khasra No. 801 claimed by State, South by boundary of village Arcadia, East by boundary of village Kohlupani, West by land of Ghasita and Gulzar, hereinafter called the land in dispute.
2. That the appellant is owner of the land in dispute since before 1995 and his name reflects in revenue records since then as bhumidhar with a transferable rights.
3. That the name of the appellant is recorded in record of khatauni as bhumidhar of the land in dispute. Copy of khatauni and khasra are annexed with this appeal and marked as An-nexures 1 and 2 respectively.
4. That the appellant belongs to weaker section of the society and he does not hold any other land except the land in dispute.
5. That the said land has been included by the trial Court in its impugned judgment without any basis.
7. That the appellant was not impleaded party in the proceedings of the suits heard and decided by the trial Court.
8. That even otherwise the appellant had no knowledge of the suit of the trial Court. He has learned about the judgment only a few days ago when many Tehsil personal of Vikasnagar had come at the site and threatened the appellant to dispossess him from the land in dispute under the garb of impugned judgment.
9. That the property in dispute had never belonged to M/s. Golden Forest Co. or any of its alleged sisters concerns.
10. That the property in dispute had always remained in possession and ownership of appellant.
11. That the respondents are threatening to dispossess the appellant under the grab of impugned judgment."
11. The Asstt. Collector has although framed the points for determination and according to the Asstt. Collector, the Golden Forest Company came into existence in 1987 with the following aims and objectives:
"1. Subject to the rules of Reserve Bank of India and the provisions of Section 58A of the Companies Act, 1956 and the rules made thereunder the receive money, deposits on interest or otherwise and to lend money and negotiate loans with or without securities to such companies, firms or persons and on such terms as may seem expedient and to guarantee the performance of contracts of firms provided that the company shall not carry on the banking business as defined in the Banking Regulation Act, 1949.
2. To carry out in India, in all its branches the business of Hire-purchase, Housing, General Finance & Investment, supervision and control of any business or operation and to carry in business of agricultural farms, lands and development of agricultural farms for the public.
3. To subscribe conditionally or unconditionally, to under-write, issue on commission or otherwise take, hold, deal in and convent stocks, shares and securities of all kinds."
12. As will appear from the aforesaid aims and objectives, the main business of the Company was of hire-purchase, housing, general finance and investment supervision and control of any business or operation and to carry in business of agricultural firms.
13. The contention of the petitioner is that the land of the petitioner could not be vested in the State of Uttranchal under Section 166/167 of the U.P., Z.A.L.R. Act, 1950 in as much as the land was never transferred. Further it was stated that the entire orders have been passed under the pressure of State officials. The relevant portion of the writ petition is reproduced below :
"That it appears that the respondent No. 1 had come under pressure of the State officials. The respondent No. 1 is being pressurized not to entertain the appeal any more and should not grant any stay in the appeal. The respondent No. 1 is acting under advice of District Magistrate, Dehradun and Sub-divisional Magistrate, Vikas Nagar, who< are bent upon to create problems for the villagers, who have nothing to do with M/s. Golden Forest Company or any other sisters concerned."Discussion on Point No. 2
14. The law on the subject is well settled. The petitioner was every right to file the appeal in view of the judgment reported in AIR 1979 Orissa 175 where it has been held that a person who is not a party to the suit may prefer an appeal with the leave of the appellate Court and such leave should be granted if he would be prejudiciously affected by the judgment.
15. Sub-section (3) of 331 of the U.P., Z.A.L.R. Act contains the provision for filing appeal in accordance with the provisions of Section 104 as well Order XLIII, Rule 1 of the Code of Civil Procedure Sub-clause (3) is quoted below:
"An appeal shall lie from any decree or from an order passed under Section 47 or an order of the nature mentioned in Section 104 of the Code of Civil Procedure, 1908 (V of 1908) or in Order XLIII, Rule 1 of the First Schedule to that Code passed by a Court mentioned in column No. 4 of Schedule-II to this Act in proceedings mentioned in column No. 3 thereof to the Court or authority mentioned in column No. 5 thereof."
An appeal is provided under the Code of Civil Procedure under Order XLIII, Rule 1, it provides as under:
"Form of appeal--What to accompany memorandum.--(1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the "[judgment]: Substituted by the Code of Civil Procedure (Amendment) Act, 1999, Section 31 (i) w.e.f. 1.7.2002 for "decree appealed from and (unless the appellate Court dispenses therewith) of the judgment on which it is founded."
16. Thus as well appear from Section 331 as well as Order XLIII, Rule 1 that there is no bar for the petitioner for filing the appeal if he is aggrieved by the order passed against him.
17. In Abdul Rasid Khan v. Sk. Rahimtullam, AIR 1979 Ori 175, it has been held that a person who is not a party to the suit may prefer an appeal. Reliance was also placed in the judgment of the Apex Court, which is quoted below :
"In Smt. Jatan Kanwar Golcha v. Golcha Properties Pvt. Ltd., AIR 1971 SC 374, it has been held that it is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the appellate Court and such leave should be granted if he would be prejudicially affected by the judgment. This decision has also been followed by a Division Bench of this Court in Teja Singh v. A.D.M. (Executive), Sundargarh, (1975) 1 Cut WR 178. It was open to the petitioner to ask for leave to appeal to the appellate Court and if he is prejudicially affected, leave was to be granted, as has been held by the Supreme Court in th case referred to above. But the petitioner did not take recourse to this position."
18. In the aforesaid judgment reliance has been placed on the judgment of the Apex Court reported in Smt. Jatan Kanwar Golcha v. Golcha Properties Pvt. Ltd., AIR 1971 SC 374, (in Liquidation). The relevant portion of the Apex Court is quoted below :
"In our opinion apart from Rule 139 to which reference has been made by the High Court the Official Liquidator as well as the learned Company Judge were bound by the rules of natural justice to issue a notice to the appellant and hear her before making the order appealed against. If there was default on their part in not following the correct procedure it is wholly incomprehensible how the appellant could be deprived of her right to get her grievance redressed by filing an appeal against the order which had been made in her absence and without her knowledge. It would be a travesty of justice if a party is driven to file a suit which would involve long and cumbersome procedure when an order has been made directly affecting that party and redress can be had by filing an appeal which is permitted by law. It is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the appellate Court and such leave should be granted if he would prejudicially affected by the judgment."
19. It has been pointed out by the counsel for the petitioner that the appeal of the some other cultivator has been entertained by the Commissioner filed by the alleged aggrieved person. One of the order has been filed as Annexure-V (issued by the Commissioner on 17.6.2003). This some is quoted below :
^^vkt izLrqr A fo}ku vf/koDrk dk lquk A vihy lquokbZ gsrq xzg.k dh tkrh gSA foi{kh dks uksfVl tkjh gks rFkk ewyokn i=koyh izkIr dh tk;sA vkxkeh frfFk 28-7-2003 dks izLrqr gksA rc rd vkisf{kr vkns'k fnukad 2-6-2003 dk izHkko LFkfxr fd;k tkrk gSA
20. In Neyvely Lignite Corporation Ltd. v. Spl. Tahsildar (Land Acquisition), Neyvely, AIR 1995 SC 1004, it has been held in the matter of land acquisition that beneficiary is a necessary party, the observations of the Apex Court are quoted below:
"It is true that Section 50 (2) of the Act gives to the local authority or the company right to adduce evidence before the Collector or in the reference under Section 18 as it was specifically stated that in any proceedings held before the Collector or the Court, the local authority or the company may appear and adduce evidence for the purpose of determining the amount of compensation. However, it has no right to seek reference. Based thereon, the contentions is that the limited right of abduction of evidence for the purpose of determining the compensation does not carry with it the right to participate in the proceedings or right to be heard or to file an appeal under Section 54. We cannot limit the operation of Section 3 (b) in conjunction with Sub-section (2) of Section 50 of the Act within a narrow compass. The right given under subsection (2) of Section 50 is in addition to and not in substituting of or in derogation to all the incidental, logical and consequential rights flowing from the concept of fair and just procedure consistent with the principles of natural justice. The consistent thread that runs through all the decisions of this Court starting from Himalayan Tiles case, AIR 1980 SC 1118, is that the beneficiary, i.e., local authority or company, a co-op. society registered under the relevant State law, or statutory authority is a person interested to determine just and proper compensation for the acquired land and is an aggrieved person. If flows from it that the beneficiary has the right to be heard by the Collector or the Court. If the compensation is enhanced it is entitled to canvass its correctness by filing an appeal or defend the award of the Collector. If it is not made a party, it is entitled to seek leave of the Court and file the appeal against the enhanced award and decree of the Civil Court under Section 26 or of the judgment and decree under Section 54 or is entitled to file writ petition under Article 226 and assail its legality or correctness."
21. It is an established principle of natural justice that the right to be heard is given to the person who is effected from the decision. In the judgment of D.K. Yadav v. J.M.A. Industries Ltd., 1993 (3) SCC 259, which has been observed by the Apex Court as under :
"9. It is a fundamental rule of law that no decision must be taken which will affect the right of any person without first being informed of the case and giving him/her an opportunity of putting forward his/her case. An order involving civil consequences must be made consistently with the rules of natural justice. In Mohinder Singh Gill v. Chief Election Commissioner the Constitution Bench held that civil consequences covers infraction of not merely property or personal right but of civil liberties, material deprivations and non-pecuniary damages. In its comprehensive connotation every thing that affects a citizen in his civil life inflicts a civil consequences. Black's Law Dictionary, 4th Edn., page country ...they include ...rights capable of being enforced or redressed in a civil action... In State of Orissa v. (Miss) Binapani Dei, this Court held that even an administrative order which involves civil consequences must be made consistently with the rules of natural justice. The person concerned must be informed of the case, the evidence in support thereof supplied and must be given a fair opportunity to meet the case before an adverse decision is taken. Since no such opportunity was given it was held that superannuation was in violation of principles of natural justice.
10. In State of W.B. v. Ali Sarkar per majority, a seven-Judge Bench held that the rules of procedure laid down by law comes as much within the purview of Article 14 of the Constitution as any rule of substantive law. In Maneka Gandhi v. Union of India, Anr. Bench of seven Judges held that the substantive and procedural laws and action reason and justice cannot be abstract. They cannot be divorced from the cease to be reasonable. The tests have to be pragmatic otherwise they would reasonable even though there is no specific provision in a statute or rules against an individual, which affects the right of that individual. The duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to administrative action involving any deprivation of or restriction on inherent fundamental rights of citizens, must take care to see that justice is not only done but manifestly appears to be done. They have a duty to un reasonableness or unfairness. They have to act in manner which is patently impartial and meets the requirements of natural justice."
22. Therefore, there is no reason not to entertain the appeal of the petitioner.
Discussion on Point No. 323. It is a case where valuable land of the petitioner having been taken away by the Golden Forest Company without im-pleading him as a party. The question with regard to proper party has been interpreted by the Apex Court in Aliji Momonji and Co. v. Lalji Mavji. 1996 (5) SCC 379, are quoted below :
The controversy is no longer res in-iegra. It is settled law by catena of decisions of this Court that where the presence of the respondent is necessary for complete and effectual adjudication of the dispute, though no relief is sought, he is a proper party. Necessary party is one without whose presence no effective and complete adjudication of the dispute could be made and no relief granted.
The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party."
24. It may be pointed out that according to the petitioner in a collusive manner the case has proceeded before the Asstt. Collector without impleading the petitioner as a party. Undisputedly, the land of the petitioner and other farmers were obtained by the Golden Forest Company and they have been deprived with their valuable rights of cultivation which is the only source of livelihood for these farmers. It is a case where fundamental right of the petitioner as contained under Article 21 of the Constitution of India has been violated. In United India Insurance Co. Ltd. v. Rajendra Singh, 2000 (3) SCC 581, the Apex Court has observed has under :
"13. In S.P. Chengalvaraya Naidu v. Jagannath, two Judge Bench of this Court held :
"Fraud avoids all judicial acts, ecclesiastical or temporal' observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the Court is a nullity and non est in the eyes of law. Such a judgment/decree--by the first Court or by the highest Court--has to be treated as a nullity by every Court, whether superior or inferior. It can be challenged in any Court even in collateral proceedings."
14. In Indian Bank v. Satyam Fibres (India) (P) Ltd., Anr. two-Judge Bench, after making reference to a number of earlier decisions rendered by different High Courts in India, stated the legal position thus :
"23. Since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court and also amounts to an abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practiced upon that Court. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order."
16. Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly-discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No Court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim."
25. As held by the Apex Court, if the order has been obtained by fraud it can be recalled or taken note of at any stage of the proceedings. The observations of the Apex Court reported in 2003 (95) RD 213, Allahabad High Court is quoted below :
"Fraud as defined in the Contract Act means actual fraud. But in equity the Courts have also developed the doctrine of "constructive fraud". The following extract Part II, Page 55 on the concept of "constructive fraud" is being quoted :--
In the equity, the term "fraud" embraces not only actual fraud, in the sense just defined, but also certain other conduct which falls below the standards demanded by equity. Courts of equity did not even stop at "moral fraud in the ordinary sense" but took account of any "breach of the sort of obligation which is enforced by a Court that from the beginning regarded itself as a Court of conscience" Nocton v. Lord Ashburton. The Courts have refused to define this extended, or constructive, fraud; for, in the words of Lord Hardwsicke, "fraud is infinite, and were a Court of equity once to lay down rules, how far they would go, and no further, in extending their relief against it, or to definite strictly the species of evidence of it, the jurisdiction would be cramped, and perpetually eluded by new schemes which the fertility of man's invention would contrive."
Conclusions :
26. In view of the aforesaid, the land belonging to the petitioner, which was initially taken by the Golden Forest Company, thereafter without hearing the petitioner present proceedings are initiated by the State Government, it appears that there is a complete violation of natural justice, having its civil consequences and further justice requires that the effected person must be heard before any order is passed affecting his rights.
27. The petitioner has an alternative remedy of filing appeal before the Commissioner, therefore, I am not exercising the jurisdiction under Article 227 of the Constitution of India but it is made clear that if the appellate authority feels that de-novo proceedings are required before the Asstt. Collector he may sent back the matter for fresh adjudication after issuing notices to all the cultivators whose lands are involved in case No. 15A of 1999-2000, 44, 18, 4, 20, 28, 29, 13, 50, 7, 15, 30, 11, 47, 25, 46, 36, 38, 45, 39, 19, 10 and 26 of 2000-2001 State v. Golden Forest Company, under Section 166-167 of U.P., Z.A.L.R. Act.
28. However, sitting under Article 227 of the Constitution of India, the eyes cannot be closed towards the facts and circumstances of the case that the land of the small cultivators have been taken away without giving any opportunity of hearing to them.
29. Apart from the aforesaid, it is also necessary to bring the fact to the knowledge of the State Authority that the companies have taken the land of the small cultivators, the proceedings have been initiated without giving any hearing to them. The State of Uttranchal through its Chief Secretary shall also appoint a committee in this regard and will see that the land of the poor villagers are not taken away by exercising any undue influence upon them.
30. The learned Commissioner while hearing the appeal shall also keep in mind that if any such land has been taken away, although the possession is with them, the same shall be investigated through the agency of the District Magistrate or through the Chief Secretary, Uttranchal State as directed in the body of the judgment.
31. Copy of the same shall be sent to the Chief Secretary, State of Uttranchal.
32. Consequently, the writ petition is allowed. The order dated 28.7.2003 is quashed. The case is remanded to the appellate authority to decide the case on merits.