M.D. KAWRE vs STATE OF CHHATTISGARH AND ANOTHER

Present Writ Petition has been filed challenging the order of the Board of Revenue, Bilaspur dated 15/01/2007 â€" Annexure-P/1 whereby certain

observations were made against the petitioner which were adverse in nature and based on those observations, the department had issued a direction

for initiate appropriate disciplinary proceedings.

Present Writ Petition was filed in the year 2007. This Court on 28/03/2007 had granted an interim protection to the petitioner against the effect and

operation of the order of the Board of Revenue so far as the adverse part against the present petitioner is concerned.

For better understanding of the issue involved in the case, it would be relevant to mention that the petitioner in between 2002-2004 was working as

Sub Divisional Officer (Revenue) at Raipur. On 13/06/2002, one Harbhushanlal Agrawal had filed an application before the petitioner under Section

52-2 of Chhattisgarh Land Revenue Code raising dispute in respect of title of a portion of land situated at Gram Fundahar, Patwari Circle No.114,

Khasra No.144 and area admeasuring 2.227 Acres. The said Harbhushanlal had claimed that his name has to be entered in the revenue record over

the aforesaid land which illegally was taken over by the State Government.

The said dispute under Section 57-2 of the Land Revenue Code stood finally decided on 16/02/2004 where the present petitioner allowed the

application and ordered for the land to be entered in the name of Harbhushanlal.

Subsequently, after a couple of year, the Patwari submitted a report to the Collector, Raipur on 24/01/2006 mentioning that the petitioner while

passing the order dated 16/02/2004 has not properly appreciated the facts and law and has passed a wrong order. The Collector thereafter on

27/02/2006 ordered for review of the said order. After the order was passed by the present petitioner on 16/02/2004, the Harbhushanlal had expired.

Thereafter his legal heirs namely Rakesh Agrawal is said to have sold the property to three persons namely Mohan Kumar Prathwani, Prakashchand

Golcha and Shyam Sundar Agrawal. On the order of review of the Collector, these three subsequent purchasers filed an objection before the

Collector against the order of review. The Collector thereafter rejected their objection vide order dated 28/02/2006 which lead to the three persons the

subsequent purchasers to file a revision before the Board of Revenue where the case was registered as case No. RN/14/R/B-121/415/2006. The

Board of Revenue finally affirmed the order of Collector dated 28/02/2006 permitting review of the order dated 16/02/2004.

The Board of Revenue while passing the said order on 15/01/2007 made the following observation in paragraph 8 of its order:-

^^mlus iz'uk/khu Hkwfe esa =qfViw.kZ banzkt dks foyksfir dj mldk uke jktLo vfHkys[k esa vf/kiR;/kkjh ds :i esa ntZ fd;s tkus dk vuqjks/k fd;k gSA Jh

gjHkwâ€k.k yky vxzoky us oknHkwfe ij mldk LokfeRo ,oa gd vf/kdkj ntZ djus gsrq vuqjks/k ugha fd;k] blfy, vuqfoHkkxh; vf/kdkjh ¼jktLo½] jk;iqj

}kjk vkns'k fnukad 16-02-2004 } kjk Jh gjHkwâ€k.k yky vxzoky dks ekax ls vf/kd vk'kqrksâ€k nsuk fof/k fo:/n gksus ds lkFk ?kksj vkifRrtud gSA

vuqfoHkkxh; vf/kdkjh ¼jktLo½] jk;iqj }kjk Jh gjHkwâ€k.k yk vxzoky dks xyr rjhds ls vf/kdkj lhek ls ckgj tkdj ykHk igqapkus dh n`fâ€V ls Rofjr

dk;Zokgh dh xbZ vkSj 'kklui{k dks fcYdqy gh vuns'k fd;k] vr,o vuqfoHkkxh; vf/kdkjh ¼jktLo½] jk;iqj dk vkpj.k dks ?kksj 'kadkLin cukrh gSA ,slh

n'kk es vuqfoHkkxh; vf/kdkjh ¼jktLo½] jk;iqj ds mDr vkns'k iqufoZyksdu esa fy;k tkuk iwjh rjg ls fof/k vuqdwy gSA bl ifjppkZ ls Liâ€V gksrk gS

fd vuqfoHkkxh; vf/kdkjh ¼jktLo½] jk;iqj us Jh gjHkwâ€k.k vxzoky rFkk mlds okfjl iq= Jh jkds'k vxzoky dks izR;{k :i ls ykHk igqapk;k gSA blds

i'pkr~ Jh gjHkwâ€k.k yky vxzoky ds okfjl Jh jkds'k vxzoky us dkQh tYnckth dj oknHkwfe dks vkosndx.k dks iathd`r fodz; i= fnukad 30-11-2005 }kjk

fodz; dj fn;kA vr,o rRdkyhu vuqfoHkkxh; vf/kdkjh ¼jktLo½] jk;iqj }kjk vius nkf;Roksa dk ikyu ugha djus rFkk 'kkldh; Hkwfe dks [kqnZcqnZ djus

,oa iwoZ ekyxqtkj dks ykHk igqapkus dh n`fâ€V ls vkns'k ikfjr fd;k x;k] bl dkj.k mUgsa rRdky izHkko ls fuyafcr djrs gq, muds fo:/n dBksj

vuq'kklukRed dk;Zokgh dh tkuk izLrkfor gSA blds lkFk gh i'pkrorhZ vuqfoHkkxh; vf/kdkjh ¼jktLo½] jk;iqj }kjk oknHkwfe ij Jh gjHkqâ€k.k yky

vxzoky dk uke ntZ djkus ds fy, dh xbZ dk;Zokgh Hkh vkifRrtud gSA muds }kjk rRdky vius iwoZorhZ vuqfoHkkxh; vf/kdkjh ¼jktLo½] jk;iqj }kjk

ikfjr vkns'k dks dysDvj] jk;iqj ds le{k tkudkjh esa ykuk Fkk] ijarq blds Lfkku ij /kkjk 57 ¼2½ Hkw jktLo lafgr ds rgr ikfjr vkns'k vuqlkj Jh

gjHkwâ€k.kyky vxzoky dk uke jktLo vfHkys[k esa ntZ djkus dh vkrqjrk fn[kkuk muds vf/kdkfjd vkpj.k ,oa uSfrd nkf;Ro ds fo:/n gSA bl dkj.k

i'pkr~orhZ vuqfoHkkxh; vf/kdkjh ¼jktLo½] jk;iqj ds fo:/n Hkh dBksj vuq'kklukRed dk;Zokgh izLrkfor dh tkrh gSA**

It is the highlighted portion underlined in the preceding paragraph which is under challenge in the present Writ Petition.

What has to be seen is the fact that Section 31 of the Chhattisgarh Land Revenue Code gives the revenue officer while deciding the revenue

matters the status of court. For ready reference Section 31 is reproduced herein under:-

 “Conferral of Status of Courts on Board and Revenue Officers.- The Board or a Revenue Officer, while exercising power under this Code or

any other enactment for the time being in force to enquire into or to decide any question arising for determination between the State Government and

any person or between parties to any proceedings, shall be a Revenue Court.â€​

Another aspect which cannot be brushed aside is that the said order passed by the revenue officer under Section 57(2) is an appealable order under

Section 44 of the Revenue Code to the Collector and thereafter the appeal from the order of Collector is revisable before the Board of Revenue under

Section 50 of the Land Revenue Code.

Another aspect which has to be borne in mind is the fact that the Board of Revenue while passing the impugned order taking series of cognizance

of alleged irregularity or illegality committed by the petitioner has not given an opportunity of hearing to the petitioner. As such this observation amount

to passing stricture against the petitioner and it also has a specific direction for placing the petitioner under suspension and for initiating appropriate

disciplinary proceedings for major misconduct.

Thus, the said observation of the Board of Revenue clearly is an order which has an adverse civil consequence. It is settled position of law that

before passing any order which has an adverse civil consequence, an opportunity of hearing is a must as to comply with the principles of natural

justice.

At this juncture it would be relevant to refer to the judgment of the Hon'ble Supreme Court in the case of Amar Pal Singh v. State of Uttar

Pradesh & Anr. [2012 6 SCC 491] wherein in paragraph 17, 18, 21 &

22 referring to the different judicial pronouncements, the Supreme Court has held as under:-

 “17. In Kashi Nath Roy v. State of Bihar [1996 4 SCC 539 : 1996 SCC Cri 789 : AIR 1996 SC 3240] it has been ruled that in our hierarchical

judicial system the appellate and revisional Courts have been set up with the pre-supposition that the lower Courts in some measure of cases can go

wrong in decision making, both on facts as also on law. The superior Courts have been established to correct errors but the said correction has to be

done in a befitting manner maintaining the dignity of the Court and independence of the judiciary. It is the obligation of the higher Courts to convey the

message in the judgment to the officers concerned through a process of reasoning, essentially, persuasive, reasonable, mellow but clear and result

orienting but rarely a rebuke.

In Braj Kishore Thakur v. Union of India [1997 4 SCC

65 : 1997 SCC Cri 514 : 1997 2 SCR 420] this Court disapproved the practice of passing strictures for orders against the subordinate officers. In that

context the two-Judge Bench observed thus: (SCC p.70, para 11)

 “11. No greater damage can be caused to the administration of justice and to the confidence of people in judicial institutions when judges of

higher courts publicly express lack of faith in the subordinate judges. It has been said, time and again, that respect for judiciary is not in hands by using

intemperate language and by casting aspersions against lower judiciary.â€​

The Bench in 'K', A Judicial Offier, In re case [2001 3 SCC 54 : AIR 2001 SC 972], reiterated the view expressed in State of U.P. v. Mohd.

Naim [AIR 1964 SC 703 : 1964 1 Cri LJ 549] wherein it was clearly stated that: ('K', A Judicial Officer, In re [2001 3 SCC 54 : AIR 2001 SC 972],

SCC p.64, para 12)

 “ 12. … The overall test is that the criticism or observation must be judicial in nature and should not formally depart from sobriety, moderation

and reserve...â€​

Thereafter Their Lordships referred to the conception of judicial restraint, the controlling power, the expectations of subordinate judiciary form the

High Court, the statutory jurisdiction exercised by the High Court and eventually opined that the High Courts have to remember that criticisms and

observations touching a subordinate judicial officer incorporated in judicial pronouncements have their won mischievous infirmities.

Thereafter the Court proceeded to enumerate the infirmities. They read as follows: ('K', A Judicial Officer, In re [2001 3 SCC 54 : AIR 2001 SC

972], SCC p.65, para 15)

Firstly, the judicial officer is condemned unheard which is violative of principles of natural justice. A member of subordinate judiciary himself

dispensing justice should not be denied this minimal natural justice so as to shield against being condemned unheard. Secondly, the harm caused by

such criticism or observation may be incapable of being undone. Such criticism of the judicial officer contained in a judgment, reportable or not, is a

pronouncement in open and therefore becomes public. The same Judge who found himself persuaded, sitting on judicial side, to make observations

guided by the facts of a single case against a subordinate Judge may sitting on administrative side and apprised of overall meritorious performance of

the subordinate Judge, may irretrievably regret his having made those observations on judicial side the harming effect whereof even he himself cannot

remove on administrative side. Thirdly, human nature being what it is, such criticism of a judicial officer contained in the judgment of a higher Court

gives the litigating party a sense of victory not only over his opponent but also over the Judge who had decided the case against him. This is subversive

of judicial authority of the deciding Judge. Fourthly, seeking expunging of the observations by judicial officer by filing an appeal or petition of his own

reduces him to the status of a litigant arrayed as a party before the High Court or Supreme Court - a situation not very happy from the point of view

of the functioning of the judicial system.â€​

Based on the aforesaid judicial pronouncements, the Supreme Court ultimately in paragraph 28 concluded as under:-

“It is condign to state it should be paramount in the mind of a Judge of superior Court that a Judicial officer projects the face of the judicial system

and the independence of judiciary at the ground reality level and derogatory remarks against a judicial officer would cause immense harm to him

individually (as the expunction of the remarks later on may not completely resuscitate his reputation) but also affects the credibility of the institution

and corrodes the sacrosanctity of its zealously cherished philosophy. A judge of a superior Court however strongly he may feel about the unmerited

and fallacious order passed by an officer, but is required to maintain sobriety, calmness, dispassionate reasoning and poised restraint. The concept of

loco parentis has to take a foremost place in the mind to keep at bay any uncalled for any unwarranted remarks.â€​

Relying upon the aforesaid judgment, this High Court also in one of its recent decision in the case of Lambodar Patel v. State of Chhattisgarh &

Ors. [2016 Criminal Law Journal 2814] dealing with this subject in paragraph 8 has held as under:-

 “A conspectus of the judgment mentioned hereinabove would show that though judge has unrestricted right to express his views in any matter

before him but there is corresponding duty in a judge not to make unmerited and undeserving remarks specially in case of witnesses or the parties who

are not before him affecting their character and reputation unless it is absolutely necessary for just and proper decision of the case and that too after

affording an opportunity of explaining or defending that witness or the party as the case may be, judicial decisions must be judicial in nature and it must

show judicial respect to the litigant/party, witnesses who come before the court for their cause. It is also well settled that this Court in exercise of

inherent or extraordinary jurisdiction can expunge those 8 . (2012) 6 SCC 491 9 . (2013) 3 SCC 1 10 . (2014) 5 SCC 417 11 . (2015) 6 SCC 716

remarks made by subordinate court following the three tests laid down in Mohammad Naim (supra), if it is really necessary to do so or prevent abuse

of the process of the court or to secure the ends of the justice in exceptional cases, where those remarks would cause irreparable injury to the witness

or party not before the court holding that retention of those undeserving remarks will cause harm to the person referred and the expunction will not

affect the judgment rendered by the court.â€​

In the light of the aforesaid legal position as it stands if we consider the facts of the present case what clearly reflect is that against the present

petitioner, the observations which have been made as is reflected in the preceding paragraphs was without given an opportunity of hearing, the

authority did not care even to give notice of hearing before holding that the petitioner is guilty of committing illegality while deciding the case under the

Land Revenue Code.

Given the aforesaid facts and circumstances of the case this Court is of the opinion that the said observations made by the Board of Revenue in its

order dated 15/01/2007 in revision case No. RN/14/R/B-121/415/2006 to be bad in law and is therefore deserve to be and is accordingly set aside.

The said portion which stands adverse to the petitioner interest would stand expunged from the said decision of the Board of Revenue.

The Writ Petition thus stands allowed and disposed off.

Consequences to follow.