Allahabad High Court
Umaraw Singh Yadav vs State Of U.P. And 6 Others on 16 November, 2019
Bench: Pradeep Kumar Singh Baghel, Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Case :- WRIT - C No. - 5641 of 2019 Petitioner :- Umaraw Singh Yadav Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- P.K. Upadhyay,Manoj Kumar Dubey,Vipul Kumar Dubey Counsel for Respondent :- C.S.C.,A.P.Singh,Sriprakash Singh Hon'ble Pradeep Kumar Singh Baghel,J.
Hon'ble Piyush Agrawal,J.
(Delivered by Hon.Pradeep Kumar Singh Baghel,J.) The petitioner has instituted this writ proceedings challenging the order dated 02.11.2018 passed by the Secretary, Azamgarh Development Authority, respondent no.5 and the order passed by the District Magistrate dated 06.12.2018.
The facts are these:
The petitioner claims that he is owner and bhumidhar of araji no.491 situated in Village Narauli, Tappa Harvanshpur, Pargana Nizamabad, District Azamgarh and araji nos. 486 and 490 are adjacent to the petitioner's plot, which he has no concern. In support of the said averment the petitioner has brought on record a copy of the Khatauni of the Fasli year 1423-1428. The said plot has been purchased by the petitioner from Kailash Chauhan through registered sale deed dated 19.05.2016. Demarcation report dated 23.07.2017 submitted by the Lekhpal and Revenue Inspector in respect of the aforesaid three plots is brought on record. The said map is said to have been approved by the Sub-Divisional Magistrate, Sadar vide order dated 31.07.2017.
The petitioner intended to raise construction of the house over the plot no.491. Accordingly, he moved an application before the Azamgarh Development Authority for sanction of the map. On 01.11.2017, the Azamgarh Development Authority sanctioned the map, which is on the record.
The grievance of the petitioner is that the District Magistrate without any authority is interfering in the matter to help the private respondents. It is stated that the District Magistrate has taken undue interest in the matter to provide benefit to the respondent nos.5 and 6. He has got a report dated 10.09.2018, which was submitted by the Sub-Divisional Magistrate, Sadar, Azamgarh in compliance of the endorsement made by the District magistrate on 20.07.2018. When the petitioner came to know about the ex-parte report dated 10.09.2018, submitted Secretary by the Sub-Divisional Magistrate, Sadar, Azamgarh, he moved an application to the Commissioner, Azamgarh to bring the illegal action to his notice. On 14.09.2018, the Commissioner directed the District Magistrate, Azamgarh to get an enquriy in the matter at the level of the Additional District Magistrate and submit a report. The said order is on the record. It is averred in the writ petition that the Chief Revenue Officer, Azamgarh, without conducting any enquiry at his level, on the basis of the report dated 14.09.2018 submitted by the Sub-Divisional Magistrate, Sadar, Azamgarh, submitted an ex-parte report dated 26.10.2018 to the District Magistrate. The District Magistrate while forwarding the report to the Commissioner made an endorsement dated 26.10.2018 directing to lodge a criminal case against the petitioner. It is stated that the said order is ex-parte and without jurisdiction.
Dissatisfied with the said order passed by the District Magistrate, the petitioner filed Writ Petition No.37328 of 2018 before this Court, wherein an interim order has been granted by this Court. It is averred that when a counter affidavit was filed in the said writ petition then the petitioner came to know that by order dated 02.11.2018 the Secretary, Azamgarh Development Authority has cancelled the order dated 01.11.2017 whereby the petitioner's map was sanctioned. The said order is under challenge in the present proceedings. The said order records that the order has been passed on the instruction of the District Magistrate. It is stated that no opportunity of hearing has been Secretary given by the respondent no.5 before passing the impugned order dated 02.11.2018 and the order is also without jurisdiction as the authority is not vested with the power of review. It is also averred in the writ petition that the order has been passed at the dictate of the District Magistrate, Azamgarh, who has no jurisdiction under the U.P. Urban Planning and Development Act, 1973 (hereinafter referred to as 'the Act'). It is stated that only the Vice-Chairman has power under Section 15(9) of the Act to cancel the permission granted under Section 15(3) of the Act.
Since a serious issue was raised by the petitioner that the order of the District Magistrate is without jurisdiction as he has no power under the provisions of the Act to issue any direction to the Development Authority to cancel the map, we had furnished opportunity to the District Magistrate to file an affidavit sworn by him indicating under which provisions of law he has issued direction to the Secretary of the Development Authority to cancel the map. In compliance thereof the District Magistrate has filed his personal affidavit. The respondent nos. 5 and 6 have also filed their counter affidavit.
The District Magistrate in the counter affidavit has justified his order on the ground that he has passed the order dated 06.12.2018, in a routine administrative work to maintain the law and order. The relevant part of the paragraph is extracted:
"That the respondent Secretary no.6 gave an application dated 06.12.2018 during Jan Sunwai before the deponent, stating that some anti social elements are interfering in his possession over his plot no.490 and requested for a direction to the S.H.O. Sidhari, Azamgarh to ensure that no interference be made in construction over his plot by the anti social elements. The deponent on this application passed his order dated 06.12.2018 in a routine administrative manner directing the S.O.Sidhari to take necessary action to ensure law and order in accordance with law and to do needful against the anti social elements, if any, who creates hindrance in construction of work of the respondent no.6 . It is further submitted that no such direction is given with regard to facilitate the applicant in his construction."
It is also stated by the District Magistrate that he is Vice-Chairman of the Development Authority and even in this capacity he has not issued any direction to the Secretary of the Azamgarh Development Authority with regard to the cancellation of the order dated 01.11.2017. The private respondents have also filed counter affidavits. In the counter affidavit they have raised the issue regarding the title. Hence, we are not recording the stand taken by the private respondents in detail as in the proposed order we are adverting to the merit of the case. We are confining ourself only to the issue with regard to the violation of principles of natural justice and the jurisdiction of Administrative Officer in passing the administrative order in the property dispute.
We have heard the learned counsel for the parties and perused the materials on record.
Concededly, the Development Authority has sanctioned the map of the petitioner vide order dated 01.11.2017 under Section 15 of the Act. It is alleged that the private respondents have made a complaint to the District Magistrate regarding the illegality in sanctioning the map.
From the personal affidavit of the District Magistrate it is evident that the District Magistrate has examined the issue on merit and has perused the report dated 23.07.2017 submitted by the revenue team to the Sub-Divisional Magistrate, Sadar and on his direction the Sub-Divisional Magistrate, Sadar has initiated a fresh enquiry. The Sub-Divisional Magistrate in compliance of the direction of the District Magistrate directed the revenue team constituted under the Chairmanship of Naib Tehsildar to make fresh survey (paimaish) of the plot nos. 486 and 490 of the respondent no.6 and plot no.491 of the petitioner. The revenue team submitted its paimaish report dated 12.11.2017. The Sub-Divisional Magistrate, Sadar approved the same and submitted it to the District Magistrate, Azamgarh.
When the petitioner came to know about the said survey, he also made a complaint to the District Magistrate, Azamgarh. The District Magistrate, Azamgarh directed the Sub-Divisional Magistrate, Sadar to make an enquiry and submit a report. The Sub-Divisional Magistrate, Sadar submitted another report dated 23.04.2018 and affirmed its earlier report dated 12.11.2017.
The District Magistrate in his counter affidavit has not denied the fact that the order of the Development Authority sanctioning the map of the petitioner dated 01.11.2017 has been cancelled without furnishing opportunity to the petitioner. It has also not been denied in the counter affidavit that the plot no.491 was purchased by the petitioner through a registered sale deed dated 19.05.2016 and after survey a report dated 23.07.2017 was submitted by the Lekhpal and the Revenue Inspector, which was approved by the Sub-Divisional Magistrate vide order dated 31.07.2017. A copy of the order of the Sub-Divisional Magistrate dated 31.07.2017 is on the record.
The order of the Sub-Divisional Magistrate, Sadar was not challenged by the respondent nos. 5 and 6 and they directly approached the District Magistrate after a fresh Paimaish. In the counter affidavit of the District Magistrate or the private respondents it has not been averred that the order of the Sub-Divisional Magistrate dated 31.07.2017 was challenged. There is discrepancy in the counter affidavit filed by the District Magistrate and the respondent no.6. The District Magistrate has mentioned in his affidavit that the respondent no.6 has made an application to him and on the said application he has directed to the Sub-Divisional Magistrate, Sadar to make a fresh survey. However, this fact has not been mentioned by the respondent no.6 in his counter affidavit and he has stated that he has moved an application before the Sub-Divisional Magistrate, Azamgarh. In fact, he has not mentioned that the District Magistrate, Azamgarh has directed the Sub-Divisional Magistrate, Sadar to make a fresh enquiry. In view of the said contradiction in the affidavits of respondent no.6 and the District Magistrate, Azamgarh, it is difficult to believe the statement of the respondent no.6 in the counter affidavit.
The U.P. Urban Planning and Development Act, 1973 (hereinafter referred to as the Act, 1973) is a complete Code in respect of the plan development in the development area notified under the said Act. Section 14 and 15 of the Act, 1973 deals with the sanction of the map. In the present case the Development Authority exercising its statutory power under Section 15 of the Act, 1973 has sanctioned the map. Once the map has been sanctioned, the District Magistrate has no power to issue direction to the Secretary of the Development Authority to cancel the map.
Pertinently, in the impugned order, the Secretary of the Development Authority has clearly mentioned that the order cancelling the map is passed in compliance of the direction of the District Magistrate. Moreover, the order is cryptic and bereft of reason. It is well settled law that the statutory authority has to pass an order applying his mind. If he takes a decision on the dictate of some statutory authority, the order stands vitiated. This Court in the case of Madan Kumar and others v. District Magistrate, Auraiya and others, 2013 (10) ADJ 606 had occasion to deal with similar issue. The Court has quoted with approval Professor De Smith and Professor Wade in following terms:
"21. Professor De Smith, in his Principles of Judicial Review 1999 Edition, page 240 has aptly said :
"an authority entrusted with a discretion must not, in the purported exercise of its discretion, act under the dictation of another body or person. In at least two Commonwealth cases, licensing bodies were found to have taken decision on the instructions of the heads of Government who were prompted by extraneous motives. But, as less colourful cases illustrate, it is enough to show that a decision which ought to have been based on the exercise of independent judgment was dictated by those not entrusted with the power to decide, although it remains a question of fact whether the repository of discretion abdicated it in the face of external pressure."
Professor Wade in his Administrative Law, 7th Edition has dealt with "Surrender, Abdication, Dictation" and "Power in the wrong hands" in the following words:-
"Closely akin to delegation, and scarcely distinguishable from it in some cases, is any arrangement by which a power conferred upon one authority is in substance exercised by another. The proper authority may share its power with someone else, or may allow someone else to dictate to it by declining to act without their consent or by submitting to their wishes or instructions. The effect then is that the discretion conferred by Parliament is exercised, at least in part, by the wrong authority, and the resulting decision is ultra vires and void. So strict are the Courts in applying this principle that they condemn some administrative arrangements which must seem quite natural and proper to those who make them....
Ministers and their departments have several times fallen foul of the same rule, no doubt equally to their surprise...."
22. This paragraph of Professor Wade has been applied by the Supreme Court in the case of Anirudhsinhji Karansinhji Jadeja v. State of Gujarat, (1995) 5 SCC 302."
Broad principle that emerges is that if a power conferred upon an authority is not exercised by him independently within the framework of the Statute/ law and the decision is taken by him under the "dictation" of a superior authority or a Minister, it shows that he has abdicated his power.
Yet there is another aspect of the matter which cannot be lost sight. From the material on record we find that contention of learned counsel for the petitioner that the action of the respondents suffers from legal malice also. "Malice in law" or "Legal Malice" can vitiate a decision if it established that something has been done without lawful excuse. In such cases it need not to be proved, where the malice is alleged against the State that there was some personal ill-will on the part of the State. If the action of the State shows that there is a conscious violation of law to cause some prejudice to a citizen or rights. Such an order for an unauthorized purpose constitutes malice in law. In the case of Kranti Associates Private Limited and another v. Masood Ahmed Khan and others, (2010) 9 SCC 496 the Supreme Court has considered the legal malice in the following terms:
"25. In Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : AIR 1978 SC 597, which is a decision of great jurisprudential significance in our constitutional law, Beg, C.J. in a concurring but different opinion held that an order impounding a passport is a quasi-judicial decision (SCC p. 311, para 34 : AIR p. 612, para 34). The learned Chief Justice also held, when an administrative action involving any deprivation of or restriction on fundamental rights is taken, the authorities must see that justice is not only done but manifestly appears to be done as well. This principle would obviously demand disclosure of reasons for the decision."
In Dipak Babaria And Another v. State of Gujarat And Others, (2014) 3 SCC 502, the Supreme Court has reiterated the principle that if power conferred upon the authority under the statute is not exercised by him independently and decision is taken by him under the instruction (dictation) of a superior authority, it goes to show that he has not applied his mind and abdicated his power.
In the present case the Development Authority has categorically mentioned that the order has been passed on the direction of the District Magistrate. The District Magistrate in his personal affidavit has also stated that he has issued the direction in a routine administrative work.
Applying the principles laid down in the above cases, we find that the order passed by the Secretary, Development Authority cancelling the map of the petitioner is vitiated on the ground that it has been passed on the direction of the District Magistrate. The said order is also illegal as it is not supported by any reason. The Secretary, Azamgarh Development Authority has recorded only his conclusion without assigning any reason. The Supreme Court in the long line of the judgment has held that if quasi judicial or administrative order is not supported by any reason, the order becomes lifeless. A reference may be made to the Supreme Court judgments in the case of M/s Travancore Rayon Ltd. v. Union of India, 1969 (3) SCC 868, S.N.Mukherjee v. Union of India, AIR 1990 SC 1984, Union of India Vs. Mohan Lal Capoor, AIR 1974 SC 87, Raj Kishore Jha Vs. State of Bihar, (2003) 11 SCC 519, Kranti Associates Private Limited Vs. Masood Ahmed Khan, (2010) 9 SCC 496, Sant Lal Gupta and others v. Modern Cooperative Group Housing Society Limited and others, (2010) 13 SCC 336 and J. Ashoka v. University of Agricultural Science and others, (2017) 2 SCC 609.
In addition to above, in a property matter the District Magistrate has no jurisdiction to issue order under the garb of law and order situation. An administrative officer has no authority to issue direction in the property dispute, on the ground of apprehension of breach of peace. In case there is any apprehension of breach of peace in respect of the property dispute, the appropriate remedy has been provided under the provisions of the Criminal Procedure Code where the power has been conferred upon the Magistrate and not the District Magistrate. Moreover, in the present case the provisions of the Criminal Procedure Code has not been followed.
The question whether an administrative officer can exercise his administrative power in the matter of the property dispute fell for consideration before a Division Bench in the case of Devmani v. State of U.P. and others, 2019 (1) ADJ 870 (DB). The Division Bench has held as under:
"6. In addition to above, we find that the Sub Divisional Magistrate being an administrative Officer has no power to issue any injunction order against any private person to interfere in the possession of the other person. In case an application was filed before the Sub Divisional Magistrate in respect of the property dispute, the appropriate course open to him was ask to the parties to approach the appropriate Court to resolve their dispute. The Sub Divisional magistrate has assumed the jurisdiction of a Civil/Revenue Court and has passed the restrain order. To our repeated query to the learned counsel for the petitioner to point out the authority of law under which the Sub Divisional Magistrate has passed the order but he failed to point out any provision of the law which cloth the administrative officer to pass the injunction order.
7. The experience reveals that the Sub Divisional Magistrates are passing such type of order in a large number of cases. We find that the orders passed by the Administrative Officer interfering in the matter of property dispute where title dispute is involved are wholly without jurisdiction. An administrative officer cannot direct the Police to help a party in title dispute."
In the present case also the District Magistrate admittedly has passed the administrative order in respect of the property dispute on the ground that there was apprehension of breach of peace.
As discussed above, in such situation the District Magistrate has no jurisdiction to pass any order. Only recourse to the provisions under Cr.P.C can be taken. On this ground also the order of the District Magistrate is vitiated.
Lastly, the petitioner in paragraph nos. 20, 21 and 22 of the writ petition has averred that the Secretary of the Azamgarh Development Authority has cancelled the map without any notice or opportunity. This averment has not been denied by the District Magistrate in his personal affidavit or by the private respondent. Moreover, from the impugned order itself it is evident that the order has been passed without furnishing any opportunity to the petitioner. It is well settled law that an order which has civil consequences must be passed after furnishing opportunity to the affected persons. In this case no opportunity has been afforded to the petitioner and thus, the order stands vitiated on this ground also.
In view of the above, the impugned order dated 02.11.2018 is set aside. The matter is remitted back to the Secretary, Azamgarh Development Authority to pass a fresh order after furnishing opportunity to the petitioner and the private respondents herein. The said exercise be undertaken expeditiously preferably within three months from the date of communication of this order.
The writ petition stands allowed.
Order Date :-16.11.2019 MAA/-