Allahabad High Court
M/S Kesharwani Travels Through Partner vs State Of U.P. And Others on 3 April, 2023
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 40 Case :- WRIT - C No. - 28158 of 2007 Petitioner :- M/S Kesharwani Travels Through Partner Respondent :- State of U.P. and Others Counsel for Petitioner :- Dileep Kumar,A.P. Tiwari,Pradeep Kumar,Praveen Kumar Counsel for Respondent :- C.S.C.,S.N. Singh,Satyendra Nath Srivastava Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Manjive Shukla,J.
1. Heard Sri B.P.Singh, learned Senior Advocate assisted by Sri Praveen Kumar, learned counsel for the petitioner; Sri R.M.Upadhyay, learned Standing Counsel for the State-respondent no. 1 to 3 and Sri S.N.Srivastava, learned counsel for the respondent no.4.
2. The present writ petition is preferred for quashing the orders impugned dated 5.6.2007 and 1.6.2002 passed by respondent nos. 2 and 3 respectively (Annexure Nos. 18 and 19 to the writ petition) and further for a mandamus commanding the respondents not to harass the petitioner in carrying out the business of retail outlet of diesel/petrol over plot no.201, area 1.90 acre (.769 hectare) situated on the main Gorakhpur-Deoria State Highway Jungal, Sikari, Block Khorabar, District Gorakhpur.
3. It appears from the record that M/s Kesharwani Travels (petitioner) is a partnership firm and Sri Sunil Kesharwani and Sri Anil Kesharwani are the partners of the said firm. There was some dispute between Aryan Educational Trust and the Gaon Sabha in respect of plot no.201 and other plots. Consequently, Aryan Educational Trust filed a declaratory suit no.1076/2340 under Section 229-B of UP ZA & LR Act before the Assistant Collector, Tehsil Sadar, District Gorakhpur and the same was decreed in favour of the Aryan Educational Trust on 30.5.1968. Thereafter, an application under Section 161 of UP ZA & LR Act was moved by Aryan Educational Trust through its Secretary and Jitendra Kumar Agarwal for exchange of plot nos.201/1.90 acres, 226/1.83 acres with plot no. 1/0.03 decimals and no.5 area 4.59 acres situated in Village Jungle Kareem Urf Khorabar, Tappa and Paragana Haveli, Tehsil Sadar, District Gorakhpur and the same was allowed by the Assistant Collector, First Class, Tehsil Sadar, District Gorakhpur on 30.9.1971. On the basis of the order dated 30.9.1971, the name of Jitendra Kumar Agarwal was recorded in the revenue record on 03.9.1972 and he was in physical possession of the land in question. The petitioner firm purchased the land of plot No.201 area 1.90 acres from Jitendra Kumar Agarwal and Sudhir Kumar, who were recorded Bhumidhars of the said plot since the year 1971, vide registered sale deed dated 17.4.1999 and the names of the partners of the petitioner firm have been recorded in the revenue record. The sale deed has been brought on record as Annexure No.3 to the writ petition. Subsequently, the Assistant Consolidation Officer had passed an order on Chakbandi Akarpatra-23, Bhag-I on 16.7.1999 and changed the names of the partners of the petitioner firm.
4. It also appears from the record that the petitioner firm appliedfor and was issued a 'No Objection Certificate' by the District Magistrate, Gorakhpur on 03.03.2004. Thereafter, the Bharat Petroleum Corporation Limited (in short, BPCL)/respondent no.4 had issued a Letter of Intent in favour of the petitioner for opening of a new petrol/diesel outlet. The petitioner firm was issued a licence for sale of diesel by the District Supply Officer, Gorakhpur on 25.3.2004 valid upto 31.03.2007 and since then the petitioner is carrying out the business of retail outlet over land in question.The petitioner also applied for renewal of the licence and deposited the required fee on 24.3.2007. The partners of the petitioner firm are still recorded as owners, proprietor and tenure holder of the said plot i.e. 383 (old no.201) area 0.73 hec. in the revenue record and Akarpatra-45 had been issued by the Consolidation Officer in the names of the partners of the petitioner firm on 10.5.2007. The said village Jungle Sikari was under the consolidation operation and finally, Akarpatra-52 was prepared by the consolidation authorities wherein the name of the partners of the petitioner firm are mentioned as tenure holders/owners/sankramani bhumidhar over the plot in question. The land in dispute is not recorded in the name of the Gaon Sabha in the revenue record since the year 1968 upto now.
5. It also appears that one Awadhesh Nishad made a complaint on 24.1.2007 alleging that the said plot alongwith other plots are Gaon Sabha land and the same was illegally recorded in the name of Jitendra Kumar Agarwal in the revenue record. On the said complaint, the District Magistrate constituted a Three-Member Committee consisting of Additional District Magistrate (City), Gorakhpur; Tehsildar (Nyayik), Gorakhpur and the Settlement Officer Consolidation, Gorakhpur to hold the enquiry. Thereafter, the Naib Tehsildar forwarded his report alongwith his recommendation to the Settlement Officer Consolidation stating that the land in question has been recorded in the name of Sunil Kesharwani and Anil Kesharwani as tenure holders in pursuance of the order passed by the Assistant Consolidation Officer dated 16.7.1999. Previously, the said plot was recorded in the name of Jitendra Kumar Agarwal and Aryan Educational Trust in the revenue record. It was further stated that on perusal of entry of Case No.1076/2340 dated 30.5.1986, it is clear that in the revenue years 1.7.1985 to 30.6.1986 no entry of Aryan Educational Trust was available. Thereafter, the Settlement Officer Consolidation initiated another enquiry on the complaint of Awadheh Nishad and passed an order on 17.4.2007 stating therein that the disputed land is a Gaon Sabha land and the same was illegally recorded in the name of Aryan Educational Trust as Class 1-A Bhumidhari land. Finally, by the impugned order dated 05.6.2007 the District Magistrate, Gorakhpur (respondent no.2) has cancelled the petitioner's 'No Objection Certificate'. Consequently, the Additional District Magistrate (City), Gorakhpur (respondent no.3) vide impugned order dated 01.6.2007 directed for eviction of the petitioner firm from the plot in question, giving rise to the present writ petition.
6. At the admission stage, the matter was entertained and vide order dated 22.6.2007, this Court had accorded an interim relief to the petitioner to the following effect.
"Having regard to the facts and circumstances of the case and having considered the submissions made by the learned counsel for the parties, it is directed that status-quo, as of date, in regard to the Petrol Pump in question will be maintained, and further, no interference will be made in the operation of the Petrol Pump in question by the petitioner till 24.7.2007, unless this order is vacated or modified earlier."
7. Sri B.P.Singh, learned Senior Advocate for the petitioner firm submits that on the strength of aforesaid interim order, the petitioner firm is running the retail outlet till date without any complaint. He submits that the dispute pertains to plot no. 201, area 1.90 acre. Initially, the District Magistrate, Gorakhpur had accorded the 'No Objection Certificate' in favour of the petitioner on 03.3.2004 under the Petroleum Rules, 2002 after due enquiry made by the concerning department and finally the licence was settled in favour of the petitioner on 25.3.2004. He submits that the petitioner firm had purchased the plot in question from its previous owner by a registered sale deed dated 17.4.1999, which was executed by Jitendra Kumar Agarwal and Sudhir Kumar, who were recorded as Bhumidhars in the revenue record since 1971. It has also been claimed that the proceeding under Section 161 of the U.P.Z.A. & L.R. Act bearing Suit No. 10 of 1971 was also initiated by Aryan Educational Trust and Jitendra Kumar Agrawal for exchange of plot nos. 201/1.90 acre, 226/1.83 acres with 1/0.03 decimal and no.5 area 4.59 acres, which belong to the said Trust. Finally, the Assistant Sub Divisional Officer had allowed the application by order dated 30.9.1971. Consequently, the name of Jitendra Kumar Agarwal was recorded as owner and bhumidhar of disputed plot. He further submits that certain proceedings under Section 9 of the Consolidation of Holdings Act were also drawn in which Aryan Educational Trust (erstwhile owner) was a party and the same was also settled in favour of the Trust by order dated 29.2.1992 passed in Case No.7442. A declaratory suit no. 1076/2340, under Section 229-B of the U.P.Z.A. & L.R. Act was also filed by the erstwhile owner qua to the property in dispute before the Assistant Collector, Sadar Gorakhpur, who passed the decree in favour of erstwhile owner on 30.5.1968.
8. In this backdrop, learned Senior Advocate for the petitioner states that admittedly the proceedings under Section 161 and 229-B of the U.P.Z.A. & L.R. Act were settled way back. At no point of time, the aforementioned proceedings were ever subjected to challenge before the higher authority/court and for all practical purposes, the same has attained finality. It is submitted that in the counter-affidavit, respondent had taken a stand that since the record of the proceedings under Section 229-B of the U.P.Z.A. & L.R. Act was already weeded out, therefore, they are unable to controvert the claim set up by the petitioner qua to its title. At the time of settling the licence of retail outlet, the petitioner was recorded bhumidhar in the revenue record and till date, the respondent authorities have not taken any objection qua to the title/claim over the property in dispute before any competent authority/court. Without any challenge to the orders passed in the aforementioned proceedings and the findings returned under the U.P.Z.A. & L.R. Act or in the Consolidation of Holdings Act, the petitioner cannot be evicted from the land in dispute without due process of law. Moreover, the order impugned is also hit by principles of natural justice as at no point of time, the respondents had accorded any opportunity to the petitioner.
9. Per contra, learned Standing Counsel vehemently opposed the writ petition and submits that there is serious inter-se title dispute, which may only be settled by the competent court. The petitioner is raising disputed fact, which cannot be adjudicated under Article 226 of the Constitution of India. Lastly, he submits that in case the Court is inclined to accord status quo as absolute, the respondent authorities may be given leave to initiate the proceeding against the petitioner qua to its holding right/title before appropriate forum/court so that the inter se dispute is to be settled by the competent court.
10. Sri Srivastava, learned counsel for the respondent no. 4/Bharat Petroleum Corporation submits that so far as the Corporation is concerned, there is no complaint against the petitioner firm and the petrol pump is running till date without any complaint.
11. We have heard learned counsel for the parties and perused the record.
12. We find that the impugned orders have been passed by the respondents without giving any kind of opportunity to the petitioner. The petitioner has filed the present writ petition in the year 2007 challenging the impugned orders in which the interim order was accorded by this Court on 22.6.2007 directing the parties to maintain status-quo, as of date, in regard to the Petrol Pump in question and further the respondents were restrained from interference in the operation of the petrol pump in question. Admittedly, the petitioner is running the petrol pump till date without any complaint. At this stage, we are not inclined to upset the running of the petrol pump or to adjudicate rights/titles of the inter-se parties. The respondents are further restrained to upset the status quo order dated 22.6.2007 in absence of any regular proceeding before the competent court qua to the title of the land in dispute.
13. The principle of natural justice has twin ingredients; firstly, the person, who is likely to be adversely affected by the action of the authorities, should be given notice to show cause thereof and granted an opportunity of hearing and secondly, the orders so passed by the authorities should give reason for arriving at any conclusion showing proper application of mind. Violation of either of them could in the given facts and circumstances of the case, vitiate the order itself. Such rule being applicable to the administrative authorities certainly requires that the judgment of the Court should meet with this requirement with higher degree of satisfaction. The order of an administrative authority may not provide reasons like a judgment but the order must be supported by the reasons of rationality. The distinction between passing of an order by an administrative or quasi-judicial authority has practically extinguished and both are required to pass reasoned orders.
14. The object underlying the rules of natural justice "is to prevent miscarriage of justice" and secure "fair play in action." As pointed out earlier the requirement about recording of reasons for its decision by an administrative authority exercising quasi-judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making. In Common Law, the concept and doctrine of natural justice, particularly which is made applicable in the decision making by judicial and quasi- judicial bodies, has assumed different connotation. It is developed with this fundamental in mind that those whose duty is to decide, must act judicially. They must deal with the question referred both without bias and they must given to each of the parties to adequately present the case made. It is perceived that the practice of aforesaid attributes in mind only would lead to doing justice. Since these attributes are treated as natural or fundamental, it is known as 'natural justice'. The principles of natural justice developed over a period of time and which is still in vogue and valid even today were: (i) rule against bias, i.e. nemo iudex in causa sua; and (ii) opportunity of being heard to the concerned party, i.e. audi alteram partem. These are known as principles of natural justice. To these principles a third principle is added, which is of recent origin. It is duty to give reasons in support of decision, namely, passing of a 'reasoned order'."
15. In A.K. Kraipak and others Vs. Union of India and Others, reported in (1970) 1 SCR 457, Hon'ble Supreme Court held that the concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely (i) no one shall be a Judge in his own cause (nemo dabet esse judex propria causa) and (ii) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice." (P. 468-69).
16. In Shridhar Vs. Nagar Palika, Jaunpur AIR 1990 SC 307 the Supreme Court has held that it is elementary principle of natural justice that no person should be condemned without hearing. In paragraph 8 it was held:
" 8. The High Court committed serious error in upholding the order of the Government dated 13.2.1980 in setting aside the appellant's appointment without giving any notice or opportunity to him. It is an elementary principle of natural justice that no person should be condemned without hearing. The order of appointment conferred a vested right in the appellant to hold the post of Tax Inspector, that right could not be taken away without affording opportunity of hearing to him. Any order passed in violation of principles of natural justice is rendered void. There is no dispute that the Commissioner's order had been passed without affording any opportunity of hearing to the appellant, therefore, the order was illegal and void. The High Court committed serious error in upholding the Commissioner's order setting aside the appellant's appointment. In this view, order of the High Court and the Commissioner are not sustainable in law."
17. In Nagarjuna Construction Company Limited v. Government of Andhra Pradesh, (supra), the apex Court held as follows:
?The rule of law demands that the power to determine questions affecting rights of citizens would impose the limitation that the power should be exercised in conformity with the principles of natural justice. Thus, whenever a man?s rights are affected by decisions taken under statutory powers, the court would presume the existence of a duty to observe the rules of natural justice. It is important to note in this context the normal rule that whenever it is necessary to ensure against the failure of justice, the principles of natural justice must be read into a provision. Such a course is not permissible where the rule excludes expressly or by necessary intendment, the application of the principles of natural justice, but in that event, the validity of that rule may fall for consideration.?
18. The Hon'ble Supreme Court in the case of J. Ashoka Vs. University of Agricultural Sciences & Others, (2017) 2 SCC 609 has held as under:-
"22. In G. Durga Nageshwari, it was held as under:-
"9. The above case no doubt interpreted the Indian Administrative Service Regulations. Regulation 5(5) of the said Regulations required recording of reasons for supersession. But as can be seen from the above paragraph of the Judgment, the Supreme Court based its conclusion on the right to equality guaranteed under Articles 14 and 16(1) of the Constitution and observed that recording or reasons for overlooking the claim of a person who is above and select a person below was necessary. The said principle was applied by this Court in the case of T.K. Devaraju v. State of Karnataka, ILR 1988 KAR 2084. This Court pointed out that the Regulation 5(5) of the Indian Administrative Service Regulation was only for the purpose of giving effect to Article 14 and 16(1) of the Constitution and the position would be the same even in the absence of such a regulation because of recording of reasons is the only way to ensure obedience to the fundamental right guaranteed under Articles 14 and 16(1). Therefore, in our opinion, Clause (4) of Statute 30 must be read along with Articles 14 and 16(1) of the Constitution, for the reasons, the University of Agricultural Sciences is state as defined in Article 12 of the Constitution and hence bound by the Articles included in the Fundamental Rights Chapter. Therefore, when under Clause (2) of Statute 30, a Selection Committee constituted for making selection on the basis of the performance of the candidate at the interview recommends the names in the order of merit, the power of the Board of Regents to choose best among them means normally it should proceed in the order of merit as arranged by the Selection Committee, and if it is of the view that any person placed lower is the best, it can do so, but it has to record reasons. If reasons are recorded then it can be said that the provisions of Articles 14 and 16(1) are complied with. But if a person placed below is appointed without assigning any reason, there is no other alternative than to hold that such a selection and appointment is arbitrary and violative of Articles 14 and 16(1) of the Constitution.
10. In the present case, it is not disputed that no reasons had been recorded by the Board of Regents as to why the 2nd respondent was selected for appointment in preference to the petitioner though the petitioner was placed at Sl. No. 1 and the 2nd respondent was placed at Sl. No. 3. The learned Counsel for the University submitted that reasons were not recorded in view of the earlier decision of this Court in Keshayya's case in which it was held that the Board of Regents had the power to select any one of the persons whom it considers best and make the appointment. But the precise question raised in this case and which was not raised in Keshayya's case is as to whether the Board of Regents could do so without assigning any reason. As shown earlier, the recording of reasons is a must having regard to the right guaranteed to the citizens under Articles 14 and 16(1) of the Constitution. Therefore, we are of the view that whenever the Board of Regents considers that a person placed lower in merit in the list of selected candidates recommended by the Selection Committee, it can do so only by recording reasons as to why the case of the person placed above is being overlooked and the person below is considered the best for being appointed. In the present case, no reasons have been recorded, may be for the reason the Board considered that it was unnecessary as stated by the learned Counsel. He however submitted that the Board of Regents has stated that respondent-2 is more suitable than the petitioner. That is the conclusion and not the reason. That conclusion must be preceded by the reason which is wanting in this case"
19. For the reasons mentioned above, we find that the orders impugned dated 5.6.2007 and 1.6.2002 passed by respondent nos. 2 and 3 cannot be sustained in the eyes of law and they are accordingly quashed. However, it is always open to the respondents to proceed as per law.
20. Consequently, the writ petition stands allowed.
Order Date :- 3.4.2023 A.K.Srivastava