# Pramod Kumar v. Commissioner, Varanasi Division And Others

- **Citation:** (2019) 1 ILRA 1151
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-09
- **Case number:** Writ - C No. 19771 of 2019
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pramod-kumar-v-commissioner-varanasi-division-and-others-44421
- **Pages:** 7

## Headnote

Reform Act, 1950 - Section 198(4)-
proceedings initiated u/s 198 (4). Held:-
exparte and void ab initio as proceeding
not
instituted
against
the
original
bhumidhar despite being alive. Violation
of natural justice-impugned order held
bad.
That the authorities have manifestly erred in
passing the order without giving notice to
recorded tenure holder. Further in the present
case, since the proceedings initially instituted
against the person who was recorded as
tenure holder, the proceedings are liable to be
held void ab initio and the order deserves to
be held as non est.(Para 12)

Cases cited: -

Olga Tellis and others v. Bombay Municipal
Corporation and others, 1985 (3) SCC 545
Hinch Lal tiwari's case (E-9)

## Text

1 All. Pramod Kumar Vs. Commissioner, Varanasi Division And Others
1151
satisfy the test of reasonableness, the same
would be unrea- sonable. In this connection
reference may be made to E.P. Royappa v.
State of Tamil Nadu &Anr., [1974] 4 SCC 3;
Maneka Gandhi v. Union of India &Anr.,
[1976] 1 SCC 248; Ajay Hasia &Ors. v.
Khalid Mujib Sehravardi &Ors., [1981] 1
SCC 722; R.D. Shetry v. InternationalAirport
Authority of India &Ors., [1979] 3 SCC 1 and
also Dwarkadas Marlaria and sons v. Board
of Trustees of the Port of Bombay, [1989] 3
SCC 293. It appears to us that rule of reason
and
rule
against
arbitrariness
and
discrimination, rules of fair play and natural
justice are part of the rule of law applicable in
situation or action by State instrumentality in
dealing with citizens in a situation like the
present one. Even though the rights of the
citizens are in the nature of contractual rights,
the manner, the method and motive of a
decision of entering or not entering into a
contract, are subject to judicial review on the
touchstone of relevance and reasonableness,
fair play, natural justice, equality and nondiscrimination in the type of the transactions
and nature of the dealing as in the present
case."

21. Since in the facts of the present
case, there is a complete failure to follow
due process, we find ourselves unable to
sustain the order dated 21.06 .2019 passed
by the respondent No.2.

22. We accordingly allow the writ
petition and quash the the order dated
21.06.2019. We further clarify that in
case the respondents do choose to initiate
fresh proceedings for blacklisting the
firm of the petitioner, we leave it open to
them to do so subject to the observation
that the proceedings if initiated shall be
undertaken in accordance with law and
the observations appearing herein above.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.07.2019

BEFORE
THE HON'BLE AJIT KUMAR, J.

Writ - C No. 19771 of 2019

Pramod Kumar ...Petitioner
Versus
Commissioner, Varanasi Division And
Others ...Respondents

Counsel for the Petitioner:
Sri Kailash Nath Singh

Counsel for the Respondents:
C.S.C., Sri Manoj Kumar Yadav

A. U.P. Zamindari Abolition and Land
Reform Act, 1950 - Section 198(4)-
proceedings initiated u/s 198 (4). Held:-
exparte and void ab initio as proceeding
not
instituted
against
the
original
bhumidhar despite being alive. Violation
of natural justice-impugned order held
bad.
That the authorities have manifestly erred in
passing the order without giving notice to
recorded tenure holder. Further in the present
case, since the proceedings initially instituted
against the person who was recorded as
tenure holder, the proceedings are liable to be
held void ab initio and the order deserves to
be held as non est.(Para 12)

Cases cited: -

Olga Tellis and others v. Bombay Municipal
Corporation and others, 1985 (3) SCC 545
Hinch Lal tiwari's case (E-9)

(Delivered by Hon'ble Ajit Kumar, J.)

1. By means of the present writ
petition
under
Article
226
of
the
Constitution the petitioner has challenged
the order dated 28th June, 2006 passed by
the Additional District Magistrate (Land-
1152 INDIAN LAW REPORTS ALLAHABAD SERIES
Revenue), Jaunpur in Case No.- 314
under Section 198(4) of U.P. Zamindari
Abolition and Land Reforms Act, 1950 as
well as the order dated 30th April, 2019
passed by the Commissioner, Varanasi
Division, Varanasi.

2. The grievance of the petitioner is
that the petitioner's grand father was given
lease over the land in question way back in
the year 1965 and thereafter he came to be
recorded as bhumidhar over the land and
after the death of the petitioner's grandfather
and father, the name of the petitioner came
to be recorded over the land. However, the
authorities without giving any opportunity
of hearing to the petitioner's father held that
that the land was initially recorded as pond
and, therefore, no notice was required to be
given to the person, who is in unauthorized
possession and straightway the order has
been passed holding the lease to be void and
directing for striking off the name of
petitioner's father and restoring the land in
the name of Gaon Sabha. There is further
anomaly being pointed out by the learned
counsel for the petitioner that father of the
petitioner was alive and was recorded as
bhumidhar over the land in question in the
revenue records but the proceedings were
drawn in the name of the petitioner and,
therefore, the entire proceedings were void
ab initio and the order passed by Additional
District Judge (Land-Revenue) Jaunpur
dated 28th June, 2006 is rendered to be non
est. The petitioner preferred revision before
the Commissioner and the Commissioner
has concurred the findings returned by the
Additional
District
Magistrate
and
dismissed the revision vide order dated 30th
April, 2019.

3. Per contra, learned Standing
Counsel contends that once the land has
come to be found initially recorded as
pond, it turned out to be a land of public
utility and, therefore, the lease in respect
of a public land recorded as a public
utility land under Section 132 of the U.P.
Zamindari Abolition and Land Reforms
Act, 1950 cannot be leased out and such a
lease is liable to be rendered as void.
Learned Standing Counsel has pointed out
that in view of the series of the judgments
of this Court and the view taken by the
Apex Court in the case of Hinch Lal
Tiwari no useful purpose will be served
even if notice is served as outcome of the
ultimate proceedings is going to be the
same.

4. Having heard learned counsel for
the parties and having perused the
records, what I find is that proceedings
have been initiated in the year 2006 under
Section
198(4)
of
U.P.
Zamindari
Abolition and Land Reforms Act, 1950
only against the petitioner whereas the
petitioner's father was alive and was
recorded as bhumidhar over the land and,
therefore, to that extent the argument of
the petitioner that the proceedings are
void ab initio appears to be correct.

5. Besides above, I also find that in
the order passed by the Additional District
Magistrate (Land-Revenue) Jaunpur dated
28th June, 2006 it has been categorically
recorded that no notice was required to be
issued to the tenure holder as the land was
found to be recorded initially at earlier
point of time in the relevant revenue
record as pond.

6. In the considered opinion of the
Court the view taken by the Additional
District
Magistrate
(Land-Revenue)
Jaunpur that no notice deserved to be
issued to the persons who had been
allotted lease where the land is a public
1 All. Pramod Kumar Vs. Commissioner, Varanasi Division And Others
1153
utility land and was so recorded in the
earlier point of time in the revenue
records, is absolutely ill founded and
deserves to be held bad in law.

7. The law is well settled that even if
in unauthorized trespass is to be evicted
or ejected from the public land, then the
minimum requirement is the compliance
of the principles of natural justice. Even
in matters of administrative decision
making this Court and Apex Court have
held that the authorities are required to
pass an order in consonance with
principles of natural justice as the
principle stands that nobody can be
condemned unheard. In matters where
quasi judicial function is being discharged
by the authorities, it is all more necessary
to follow these principles.

8. The principle of audi alteram
partem is a cardinal rule of justice system.
The Courts have ruled in the past that the
justice must not only be done but must
also seen to have been done. A larger
Bench of the Apex Court while dealing
with the petition questioning the vires of
Section 314 of Bombay Municipal
Corporation Act, 1888 that provided that
the Commissioner, may, without notice
take steps for removal of encroachments
in or upon any streets, channels, drains
etc., it was argued before the Apex Court
that the provision was clearly ultra vires
Article 21 of the Constitution as the
provision was not fair and reasonable.
While upholding the vires of the aforesaid
provision assailed before the Court, the
Court observed that Legislature intended
to the power to be exercised sparingly
and in cases of urgency which brook no
delay and in all other cases, the Court
observed that no departure from audi
alteram partem rule could be presumed to
have been intended. So, the Court
ultimately ruled that the aforesaid section
was designed only to exclude the
principles of natural justice by way of
exception, not as a general rule. Ratio of
the judgment was that such discretion is
vested only for being exercised in
exceptional
and
unavoidable
circumstances
but
otherwise,
the
Commissioner needed to exercise the
power in consonance with rule of audi
alteram partem. Vide paragraph 46 and
47 of the judgment in Olga Tellis and
others
v.
Bombay
Municipal
Corporation and others, 1985 (3) SCC
545, the Apex Court held thus:-

"46. It was urged by Shri K.K.
Singhvi on behalf of the Municipal
Corporation that the Legislature may well
have intended that no notice need be
given in any case whatsoever because, no
useful purpose could be served by issuing
a notice as to why an encroachment on a
public property should not be removed.
We have indicated above that far from so
intending, the Legislature has left it to the
discretion of the Commissioner whether
or not to give notice, a discretion which
has to be exercised reasonably. Counsel
attempted to demonstrate the practical
futility of issuing the show cause notice by
pointing out firstly, that the only answer
which a pavement dweller, for example,
can make to such a notice is that he is
compelled to live on the pavement
because he has no other place to go to
and secondly, that it is hardly likely that
in pursuance of such a notice, pavement
dwellers or slum dwellers would ask for
time to vacate since, on their own
showing, they are compelled to occupy
some pavement or slum or the other if
they are evicted. It may be true to say
that, in the generality of cases, persons
1154 INDIAN LAW REPORTS ALLAHABAD SERIES
who have committed encroachments on
pavements or oh other public properties
may not have an effective answer to give.
It is a notorious fact of contemporary life
in metropolitan cities, that no person in
his senses would opt to live on a pavement
or in a slum, if any other choice were
available to him. Anyone who cares to
have even a fleeting glance at the
pavement or slum dwellings will see that
they are the very hell on earth. But,
though this is so, the contention of the
Corporation that no notice need be given
because, there can be no effective answer
to it, betrays a misunderstanding of the
rule of hearing, which is an important
element of the principles of natural
justice. The decision to dispense with
notice cannot be founded upon a
presumed impregnability of the proposed
action. For example, in the common run
of cases, a person may contend in answer
to a notice under Section 314 that (i)
there was, in fact, no encroachment on
any public road, footpath or pavement, or
(ii) the encroachment was so slight and
negligible as to cause no nuisance or
inconvenience to other members of the
public, or (iii) time may be granted for
removal of the encroachment in view of
humane considerations arising out of
personal, seasonal or other factOrs. It
would not be right to assume that the
Commissioner would reject these or
similar other considerations without a
careful application of mind. Human
compassion must soften the rough edges
of justice in all situations. The eviction of
the pavement or slum dweller not only
means his removal from the house but the
destruction of the house itself. And the
destruction of a dwelling house is the end
of all that one holds dear in life, humbler
the dwelling, greater the suffering and
more intense the sense of loss.

47. The proposition that notice
need not be given of a proposed action
because , there can possibly be no answer to
It, is contrary to the well-recognized
understanding of the real import of the rule
of hearing. That proposition overlooks that
justice must not only be done but must
manifestly be seen to be done and confuses
one for the other. The appearance of
injustice is the denial of justice. It is the
dialogue with the person likely to be affected
by the proposed action which meets the
requirement that justice must also be seen to
be done. Procedural safeguards have their
historical origins in the notion that
conditions of personal freedom can be
preserved only when there is some
institutional check on arbitrary action on the
part
of
public
authorities.
(Kadish,
"Methodology and Criteria in Due Process
Adjudication - A Survey and Criticism," 66
Yale L.J. 319, 340 [1957]) The right to be
heard
has
two
facets,
intrinsic
and
instrumental. The intrinsic value of that right
consists in the opportunity which it gives to
individuals or groups, against whom
decisions taken by public authorities operate,
to participate in the processes by which those
decisions are made, an opportunity that
expresses their dignity as persons. (Golberg
v. Kelly 397 U.S. 254, 264-65 [1970] right of
the poor to participate in public processes).

Whatever its outcome, such a
hearing represents a valued human
interaction in which the affected person
experience at least the satisfaction of
participating in the decision that vitally
concerns her, and perhaps the separate
satisfaction of receiving an explanation of
why the decision is being made in a certain
way. Both the right to be heard from, and the
right to be told why, are analytically distinct
from the right to secure a different outcome;
these rights to interchange express the
elementary idea that to be a person, rather
1 All. Pramod Kumar Vs. Commissioner, Varanasi Division And Others
1155
than a thing, is at least to be consulted about
what is done with one. Justice Frankfurter
captured part of this sense of procedural
justice when he wrote that the "Validity and
moral authority of a conclusion largely
depend on the mode by which it was
reached.... No better instrument has been
devised for arriving at truth than to give a
person in jeopardy of serious loss notice of
the case against him and opportunity to meet
it. Nor has a better way been found for
generation the feeling, so important to a
popular government, that justice has been
done". Joint Anti-fascist Refugee Committee
v. Mc Grath 341 U.S. 123. At stake here is
not Just the much-acclaimed appearance of
justice but, from a perspective that treats
process as intrinsically significant, the very
essence
of
justice.
(See
"American
Constitutional Law" by Laurence H. Tribe,
Professor of Law, Harvard University (Ed.
1978, page 503).

The instrumental facet of the
right of hearing consists in the means
which it affords of assuring that the
public rules of conduct, which result in
benefits and prejudices alike, are in fact
accurately and consistently followed.

It ensures that a challenged
action
accurately
reflects
the
substantive rules applicable to such
action; its point is less to assure
participation than to use participation
to assure accuracy."

9. Thus, the above exposition of law
by the larger Bench of the Apex Court
makes it clear that one who is going to be
adversely affected is needed to be heard
before the order is passed. If a person is
settled over the land for a number of years
and if such land at same point of time i.e.
3 or 4 decades ago was recorded as pond,
in the considered opinion of the Court, the
authorities are not right in evicting such
persons from their settled possession over
the land by one stroke of pen and that two
without
giving
proper
notice
or
opportunity of hearing. Exceptions are the
cases that involve a kind of case of
urgency where immediately eviction or
ejectment of construction is a must. While
it is true that in public interest a public
utility land cannot be directed to be
divested for private use but if an action is
sought to be taken after decades or for a
long passage of time to remove such
persons from possession over the land, the
minimum rule is that they should be given
notice, reasonable opportunity of hearing
to defend their claim and case before any
order is passed for their eviction from the
land or striking of entries standing in their
name on record. Even in the case of
Hinch Lal Tiwari(supra), the Apex
Court has not held that the persons who
are in possession should not be given
notice and should not be heard. Principles
enunciated in the case of Olga Tellis
(supra) cannot be said to have been
diluted in the case of Hinch Lal Tiwari
(supra).

10. In the said case of Hinch Lal
Tiwari (supra) there was long drawn
litigation between the allottee and the
complainant and the authority making
allotment of the land coupled with the
facts that on spot inspection it was
detected that part of the land was still in
the nature of pond. The Apex Court while
referring the High Court's order impugned
in the S.L.P. quoted the fact recorded in
the order of High Court as under:-

"From the report of the SubDivisional Officer dated 3-4-2000 it is
clear that the land had the character of a
pond but due to passage of time most of
its part became levelled. But some of the
1156 INDIAN LAW REPORTS ALLAHABAD SERIES
portion had still the character of a pond
and during the rainy season it is covered
by water. The area which is covered by
water or may be covered by water in the
rainy season could not be allotted as
abadi site to any person."

and then proceeded to hold as
under:-

"On this finding, in our view,
the High Court ought to have confirmed
the order of the Commissioner. However,
it proceeded to hold that considering the
said report the area of 10 biswas could
only be allotted and the remaining five
biswas of land which have still the
character of a pond, could not be allotted.
In our view, it is difficult to sustain the
impugned order of the High Court. There
is concurrent finding that a pond exists
and the area covered by it varies in the
rainy season. In such a case no part of it
could have been allotted to anybody for
construction of house building or any
allied purposes."

11. However, in the present case
there is no such finding coming up in the
order impugned nor, the order impugned
can be justified to have been passed in
compliance of the principles of natural
justice.

12. Admittedly, in the present case
notice has not been given to the petitioner
before passing the order impugned and,
therefore, applying the above exposition
of law it is held that the authorities have
manifestly erred in passing the order
without giving notice to recorded tenure
holder. Further in the present case, since
the proceedings initially instituted against
the person who was recorded as tenure
holder, the proceedings are liable to be
held void ab initio and the order deserves
to be held as non est.

13. The authority sitting in revision
has failed to look into this above aspect of
the matter and, therefore, the order passed
by the Commissioner, Varanasi Division
Varanasi dated 30th April, 2019 affirming
the order passed by the Additional District
Magistrate (Land-Revenue), Jaunpur can
also not be sustained in law and deserves
to be set aside.

14. At this stage, learned Standing
Counsel submits that that it may be left
open for the authorities to reinitiate the
proceedings in accordance with law, if
they so desire and if they find it to be
necessary in the interest of public.

15. I am of the opinion that in all
cases including the present case if the
authorities after inquiry find that a person
is in possession over the land recorded as
a public utility land, in an unauthorized
way and land still have the character of
land so recorded or even otherwise such
land deserve to be protected, it is always
open for the competent authority to
proceed
against
such
unauthorized
occupant in accordance with law and in
the light of the observations made
hereinabove in this judgment.

16. In the result, the order dated 28th
June, 2006 passed by the Additional
District
Magistrate
(Land-Revenue)
Jaunpur in case No. 314 under Section
198(4) of the U.P.Z.A.& L.R. Act, 1950
filed as Annexure-2 to the writ petition
and the order passed by the Commissioner
Varanasi Division Varanasi dated 30th
April, 2019 in revision No. 00298 of 2019
are hereby set aside.

17. The writ petition is allowed to
the extent indicated hereinabove.
----------
1 All. Darshan Singh Vs. State of U.P. And Others
1157
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.07.2019

BEFORE
THE HON'BLE AJAY BHANOT, J.

Writ C No. 61899 of 2011

Darshan Singh ...Petitioner
Versus
State of U.P. And Others. ...Respondents

Counsel for the Petitioner:
Sri S.K. Chaturvedi

Counsel for the Respondents:
C.S.C.. Sri Awadhesh Prasad Pandey, Sri
Rajeev Pandey, Sri S.K. Purwar

A. U.P. Zamindari Abolition and land
Reforms Rules, 1952 - Section-285H,
Section 285I, Section 285-K - essential
prerequisite enshrined are mandatory to
challenge the auction sale under the
rules, 1952.
The competent authority to entertain the
challenge to the auction is Commissioner and
to challenge the auction-the owner of the
auctioned property is eligible under rules. The
provisions are a complete code. The limited
set of persons, who are entitled to challenge
an auction sale, are clearly defined. The
producer to make a challenge to such auction
sale, is specifically prescribed. The authorities,
to decide the validity of such challenge, have
also been identified. (Para 21)

Cases cited: -
1.Executive
Engineer,
Karnataka
housing
Board vs. LAO, 2011 (2) SCC 24

2.
Sanwar
pal
Singh
vs.
Additional
Commissioner, Saharanpur and others, 2017
(8) ADJ 550. (E-9)

(Delivered by Hon'ble Ajay Bhanot, J.)

1. By the order, dated 14.10.2011,
passed by the learned Commissioner,
Jhansi Division, Jhansi, in Revision No.40
of
2010-2011,
(Darshan
Singh
Vs.
Jagdish Singh and others), the order
passed by the learned Commissioner,
Jhansi
Division,
Jhansi
in
like
proceedings, on 20.6.2011, has been
recalled, and the matter has been remitted
to the trial court for fresh adjudication.

2. The petitioner, is aggrieved by the
order dated 14.10.2011, passed by the
learned Commissioner, Jhansi Division,
Jhansi, in Revision No.40 of 2010-2011,
(Darshan Singh Vs. Jagdish Singh and
others), and has assailed the said order, in
the instant writ petition.

3 . Sri S.K. Chaturvedi, learned
counsel for the petitioner, in support of
the writ petition, submits that the
Collector, does not have the jurisdiction
to recall the order, passed by the learned
Revisional Court, on an earlier occasion.
Secondly,
the
guarantor,
at
whose
instance, the recall order was passed, does
not have any locus standi, to question the
auction, and challenge the order, passed
by the learned Commissioner, Jhansi
Division,
Jhansi.
The
auction,
was
conducted in accordance with law. The
petitioner, was the auction purchaser, and
pursuant to said auction, sale certificate
was issued in favour of the petitioner. He
further submits, that the conditions
precedent for setting aside the auction,
framed under the rules of U.P. Zamindari
Abolition & Land Reforms Rules, 1952,
were not satisfied, in the instant case.

4. Sri Awdhesh Prasad Pandey,
learned counsel and Sri Vinod Kumar,
learned counsel or the respondent No.3,
submit that the respondent No.3 being the
guarantor, has the locus standi, to institute
the recall application, since he has to