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Judgment
Rajiv Sharma, J.—Heard learned Counsel for the parties.
In nutshell, the case of the petitioners is that the Village Bhainswar, Pargana Badhar, Tehsil Ghorawal (Formerly Robertsganj), District Sonebhadra was noticed for consolidation operation u/s 4 of the U. P. Consolidation of Holdings Act on 21.7.1987. On 23.11.1982, the Forest Settlement Officer passed an order directing the name of the Forest Department to be expunged from the land in dispute and the names of the petitioners be recorded as the plots are bhumidhari of the petitioners. The consolidation proceedings have been finalized upto the stage of Section 10 of the Act and the rights and title of the petitioners had been decided, but the entire proceedings were cancelled by the District Deputy Director of Consolidation vide order dated 26.5.1992. Against the order of cancellation of consolidation proceedings, the Forest Department filed an appeal before the Settlement Officer of Consolidation, which was dismissed by the Settlement Officer by the order dated 28.4.1995. Without taking recourse to the proceedings, the respondent No. 1 passed the impugned order.
Refuting the allegations, learned Standing Counsel asserts that at the time of abolition of Zamindari, 1952, the petitioners were not recorded in possession over the land in dispute and moreover, in the survey, it has come to the light that the land was recorded as Jungle, Jhari, Parti and Banjar and as such, the owner of the land in dispute was the State Government. A notification u/s 4 of the Forest Act was issued on 18.3.1968. It is relevant to point out here that as per provisions contained in Section 5 of the Act,m the tenure holder found to be actual owner in possession of the land notified u/s 4 of the Act is entitled to make a claim. As the petitioners did not fulfil the requisite requirement, as per Section 4 of the Act, as such, no right accrues in the petitioners. Moreover, after lapse of statutory period after notification u/s 6 of the Act, no objection whatsoever was filed filled by the petitioners. As such, notification declaring the land to be the reserved forest area u/s 20 of the Act has been passed. Further, it is submitted that the petitioners have filed forged document manufactured by the petitioners said to be the judgment and order passed by the Settlement Officer, during the consolidation proceedings before the Consolidation Authority in respect of the land in dispute. On enquiry, it was found that no such case was filed before the aforesaid authority.
Refuting the allegations of the learned Standing Counsel, learned Counsel for the petitioners submits that the Forest Department has always been acting, without looking into the records or verifying the facts even from the Gazette published by them. In the impugned order, it says that the Gazette u/s 4 (1), in respect of plot No. 555N has been issued and thus, the land vests with the Forest Department. It is brought to the notice of the Court that no notification u/s 4 (2) has been issued. The notification u/s 4 (2) is claimed to have been issued on 18.3.1968 which was published on 10.8.1968.
Further, it has been stated that there neither any notification for declaring the land as forest land by the State Government nor the land has been acquired under the Forest Act. Even otherwise, u/s 3 of the U. P. Forest Act as amended by Act No. 23 of 1965, which came into force on 23.11.1965, if the holding on the date of vesting is in the name of the tenure holder, then the same cannot be treated to be a land of the forest, nor a declaration as forest reserve can be published. As in the proceedings, initiated under the Consolidation of Holdings Act, the Forest Settlement Officer himself has passed the order for expunging the name of the department from the land in dispute and further provided that the name of the petitioners be recorded over the plots as they are bhumidhars of the plots in question. Accordingly, the Consolidation Officer has directed for entering the names of the petitioners in the revenue records. Against this order, no appeal was filed, but directly, the Forest Department has approached the District Deputy Director of Consolidation after conclusion of the proceedings under the Consolidation of Holdings Act. The respondent No. 1 without issuing any notice to the petitioner, the impugned order has been passed.
Natural justice is the essence of fair adjudication, deeply rooted in tradition and conscience to be ranked as fundamental. The purpose of following the principles of natural justice is the prevention of miscarriage of justice.
Besides, natural justice is an inseparable ingredient of fairness and reasonableness. It is even said that the principles of natural justice must be read into unoccupied interstices of the statute, unless there is a clear mandate to the contrary.
The Hon''ble Supreme Court in umpteen cases has reiterated that a person who is put to any harm, he shall first be afforded adequate opportunity of showing cause. In D.K. Yadav Vs. J.M.A. Industries Ltd., the Supreme Court while laying emphasis on affording opportunity by the authority which has the power to take punitive or damaging action held that orders affecting the civil rights or resulting civil consequences would have to answer the requirement of Article 14. The Hon''ble Apex Court concluded as under: -
The procedure prescribed for depriving a person of livelihood would be liable to be tested on the anvil of Article 14. The procedure prescribed by a statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of Article 14. Article 14 has a pervasive procedural potency and versatile quality, equalitarian in its soul and principles of natural justice are part of Article 14 and the procedure prescribed by law must be just, fair and reasonable, and not arbitrary, fanciful or oppressive.
In National Buildings Construction Corporation Vs. S. Raghunathan and Others, it was observed by the Apex Court that a person is entitled to judicial review, if he is able to show that the decision of the public authority affected him of some benefit or advantage which in the past he had been permitted to enjoy and which he legitimately expected to be permitted to continue to enjoy either until he is informed the reasons for withdrawal and the opportunity to comment on such reasons.
At this juncture it would be relevant to produce relevant portion of paragraph 34 of the judgment rendered in State Bank of Patiala and others Vs. S.K. Sharma, Though this decision was given in a service matter but the Hon''ble Apex Court has dealt with the principles of natural justice and the result if it is not followed:
(1) Where the enquiry is not governed by any rules/regulations/ statutory provisions and the only obligation is to observe the principles of natural justice - or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action - the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and no adequate opportunity, i.e. between "no notice"/"no hearing" and "no fair hearing". (a) In the case of former, the order passed would undoubtedly be invalid (one may call it "void" or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e. in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice, in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. (It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.)
(2) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and over-riding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.
Keeping the above aspects of the matter in view, the writ petition is allowed and the impugned order dated 26.9.2001 (Annexure 5) passed by the opposite party No. 1 is hereby quashed.