Heard Shri Brijesh Kumar Saxena, learned counsel for the petitioners, Shri Vinay Bhushan, learned Addl. Chief Standing Counsel and perused the record.
By means of the present writ petition, the petitioners have challenged the impugned order dated 16.09.2002 (Annexure No.1) passed by the Prescribed Authority (Ceiling)/Additional Collector, Sitapur/opposite party no.3 and order dated 11.2.2003 (Annexure No.3) as well as order dated 4.4.2003 (Annexure No.5) passed by the Additional Commissioner (J), Lucknow Division, Lucknow in Appeal No.28 of 2001-02.
Facts in brief as submitted by learned counsel for the petitioners are that the land in dispute initially belonged to one Shri Vishwa Nath Singh who was the original tenure holder.
On 12.8.1959, he executed a registered sale deed in respect of plot nos.377 and 382 (new number) situated in village Kariyamau, Pargana Ram Kot, Tehsil, District-Sitapur in favour of Smt. Kamla Shukla, Smt. Ram Devi and in favour of Smt. Prem Kumari, Smt. Karori Banerji, Sri Prakash Banerji and Smt. Sushma Kochar resepectively.
Smt. Prem Kumari in order to get her ¼ share in the land in dispute purchased by her through registered sale deed dated 18.8.1959 filed a suit under Section 176 of the U.P. Z. A. & L. R. Act, 1950, decreed in her favour by judgment and decree dated 7.2.1966 passed by the Competent Court/Assistant Collector, Ist Class, Sitapur, accordingly, the land was mutated in her name in the revenue record.
Further, Smt. Karori Banerji, Sri Prakash Banerji and others persons who have purchased the land in dispute (plot no.377) by virtue of the registered sale deed dated 18.8.1959 from Vishwa Nath Singh, filed an appeal against the order dated 7.2.1966 bearing Appeal No.60/65-66, dismissed by order dated 26.7.1966 passed by the appellate authority/the Commissioner and the Additional Commissioner, Lucknow, Sitapur.
In respect to plot no.377 a litigation under Section 209 of the U.P. Z.A. & L. R. Act has taken place in Case No.4/11/22 "Smt. Ram Devi & another vs. Akhilendra Pratap Singh & another", decided on 4.3.1978 in favour of Smt. Ram Devi & another.
Thereafter, by the registered sale deed dated 27.11.1975, Smt. Karori Banerjee, Sri Prakash Banerjee, Smt. Sushma Kochar transferred their 3/4th share in plot no.382 in favour of Sri Ganga Ram (father of petitioner nos.5 to 9), Ram Dayal (petitioner no.4), Ram Kripal (petitioner no.2) and Kamal Chandra (petitioner no.3).
On 20.2.1981 Smt. Prem Kumari executed a registered sale deed transferring her 1/4th share in Khasra Plot No.382 in favour of Sri Ganga Ram (father of petitioner nos.5 to 9), Ram Dayal (petition no.4), Ram Kripal (petitioner no.2) and Kamal Chandra (petitioner no.3) for valuable consideration.
On 20.2.1981, Smt. Rama Devi and Smt. Kamla Shukla executed registered sale deeds in some other person.
A notice dated 28.12.1974 under Section 10 (2) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 was issued to Sri Vishwa Nath Singh who submitted his reply, subsequently, on 31.7.1978, an amended notice was again issued to him.
Thus, the matter came up for consideration before the Prescribed Authority (Ceiling)/Additional Collector, Sitapur/opposite party no.3, although no notices were issued to the present petitioners under Section 10 (2) of the Ceiling Act, but before the Prescribed Authority (Ceiling)/Additional Collector, Sitapur/opposite party no.3, the petitioners and other persons to whom the land in question has been transferred by virtue of the sale deeds executed between the year 1975 to 1981, appeared and filed their objections in their defence.
But no notices have been issued under Section 10 (2) of the Act to Smt. Prem Kumari, Smt. Karori Banerji, Sri Prakash Banerji and Smt. Sushma Kochar, Smt. Kamla Shukla and Smt. Ram Devi who have purchased the land in dispute from Shri Vishwa Nath Singh, and recorded in their name in the revenue record.
By impugned order dated 16.9.2002 (Annexure No.1), the Prescribed Authority (Ceiling)/Additional Collector, Sitapur/opposite party no.3 held that the registered sale deeds executed on 27.11.1975 and 20.2.1981 in favour of the present petitioners and some other persons are in contravention to the provisions as provided under Section 5 (6) of the Act, as there has been no valid transaction, done only to get an escape from the ceiling proceedings by Shri Vishwanath Singh.
Aggrieved by the said order, the present petitioners along with other persons filed appeals (14 in numbers) before the Appellate Authority/Additional Commissioner (J), Lucknow Division, Lucknow under Section 13 (2) of the Act, details given herein below:-
" 1. Appeal No.26/01-02 "Phaddaya Kuwari vs. State of U.P. "
2. Appeal No.14/17/02-03 "Tahir Rja vs. State of U.P."
3. Appeal No.27/01-02 "Guru Prasad vs. State of U.P. "
4. Appeal No.8/16/01-02 "Shyamsunder Shukla vs. State of U.P. "
5. Appeal No.22/01-02 "Jangali Prasad vs. State of U.P. "
6. Appeal No.26/02-03 "Ram Prasad vs. State of U.P. "
7. Appeal No.23/01-02 "Sunder Lal vs. State of U.P. "
8. Appeal No.25/02-03 "Ajay & Ors. vs. State of U.P. "
9. Appeal No................."Shrimati vs. State of U.P. "
10. Appeal No.19/02-03 "Ramsevak Tiwari vs. State of U.P. "
11. Appeal No.20/02-03 "Ramadhar Tiwari vs. State of U.P. "
12. Appeal No.24/01-02 "Ramautar vs. State of U.P. "
13. Appeal No.28/01-02 "Ram Karan & Ors. vs. State of U.P. "
14. Appeal No.18/02-03 "Shrimati Sushila Tiwari vs. State of U.P. "
As all the appeals are arising out from the judgment and order dated 16.9.2002 passed by opposite party no.3/Prescribed Authority (Ceiling)/Additional Collector, Sitapur, so they were clubbed together and decided by common judgment and order dated 11.2.2003 (Annexure No.3) and out of 14 appeals, 5 appeals were allowed and 9 appeals including appeal No.28/2001-02 "Ram Karan & Ors. vs. State of UP. filed by the present petitioners were dismissed.
Thereafter, the petitioners filed a review application for recall of the order dated 11.2.2003, dismissed by order dated 4.4.2003 (Annexure No.5) passed by Opposite party no.2/Additional Commissioner (J) Lucknow Division, Lucknow. In view of the abovesaid factual background, the present writ petition has been filed before this Court.
As per the direction given by this Court, Sri Vinay Bushan, learned Addl. Chief Standing Counsel has produced the record. From the perusal of the same, the position which emerge out is that the original sale deeds executed by Shri Vishwa Nath Singh on 12.8.1959 and 18.8.1959 are on record at Pages "Page No.8-B/1, 8-B/6, 8-B/7 and 8-B/11.".
Further, the litigations have taken place between the parties under Sections 176 and 209 of the U.P. Z. A. & L. R. Act respectively. The said matters in respect to the judgments passed by the competent court are also on record, it is also evident that although no notice under Section 10 (2) of the Act has been issued to the present petitioners, but they have appeared before the Prescribed Authority, but no notices were issued to Smt. Prem Kumari, Smt. Karori Banerji, Sri Prakash Banerji and Smt. Sushma Kochar who had purchased the land (plot no.382) from Sri Vishwa Nath Singh by virtue of the registered sale deed dated 18.8.1959 and Smt. Kamla Shukla and Smt. Ram Devi who have purchased the plot no.337 by registered sale deed dated 12.8.1959.
In view of the said facts, the first argument advanced on behalf of the petitioner is that the action on the part of the appellate authority thereby dismissing the petitioner's review application on the ground that it has got no power to do so, is an action in contravention to the provisions as provided under Section 38 of the Act, and by virtue of the said provisions the appellate authority has got all powers and privileges to review its earlier order, hence the impugned order dated 4.4.2003 is contrary to the said provisions. So, liable to be set aside.
In order to adjudicate the said argument, it is necessary to go through the relevant provisions as provided under Section 38 (1) of the Act, reproduced herein below:-
"Powers of the appellate Court and the procedure to be followed by it - In hearing and deciding an appeal under this Act, the Appellate Court shall have all the powers and the privileges of a civil court and follow the procedure for the hearing and disposal of appeals laid down in the Code of Civil Procedure, 1908."
After going through the said provisions and taking into consideration that it is well settled proposition of law that a statutory authority while disposing of an appeal/revision etc, exercises judicial or quasi judicial power, can review only if such power is vested in him under the statute.
In the case of Laxman Purshottam Pimoutkar vs. The State of Bombay and others (AIR 1964 SC 436) the Apex Court held that when an authority exercise its revisional power under section 79 of the Bombay Hereditary Offices Act (III of 1874) it necessarily acts in a judicial or quasi judicial capacity; that such an order cannot be set aside or revised or modified just as an administrative order can be under Section 74; that finality attached to the Government Order under Section 79 and in the absence of any express provision empowering it to review the order, the subsequent order made by the Government reviewing its earlier order under section 79 is ultra vires and beyond its jurisdiction.
In the case of Patel Chunibhai Dajibha v. Narayanrao Khanderao Jambekar and another (AIR 1965 SC 1457) Hon'ble the Supreme Court held that the orders passed by the Collector under section 76-A; that in the absence of any power of review, the Collector could not subsequently reconsider his previous decisions and hold that there were grounds for annulling or reversing the Mahalkari's order.
A similar view was taken by Hon'ble the Supreme Court in the case of Harbhajan Singh v. Karam Singh and others (AIR 1966 SC 641) in which the court, referring to several decisions of different High Courts, (AIR 1919 Mad 244, Anatharaju Shetty v. Appu Hegade) and of Hon'ble the Supreme Court, held that since there is no provision in the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act granting express power of review to the State Government with regard to an order made under section 42 of the Act hence the subsequent review order of the Director is ultra vires and without jurisdiction.
In the case of Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji reported in AIR 19701 SC 1273, Hon'ble the Apex Court categorically ruled that the power to review is not an inherent power; it must be conferred by law either specifically or by necessary implication. Construing the provisions of Saursahtra Land Reforms Act, 1951 (25 of 1951) the Court observed that no provision in the Act was brought to its notice from which it could be gathered that the Government had power to review its own order and if the Government had no power to review its own order, it is obvious that its delegate could not have reviewed its order. The Court further observed that the question whether the Government's order is correct or valid in law does not arise for consideration in these proceedings so long as that order is not set aside or declared void by a competent authority. Hence, the order cannot be ignored and the subordinate tribunals have to carry out that order.
In the case of Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur and others (AIR 1987 SC 2186) Hon'ble the Apex Court held:-
"It is now well established that a quasi judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction. The Vice Chancellor in considering the question of approval of an order of dismissal of the Principal, acts as a quasi judicial authority. It is not disputed that the provisions of the U.P. State Universities Act, 1973 or of the Statutes of the University do not confer any power of review on the Vice Chancellor. In the circumstances, it must be held that the Vice Chancellor acted wholly without jurisdiction in reviewing the order dated January 24, 1986 by her order dated March 7, 1987. The said order of the Vice Chancellor dated March 7, 1987 was a nullity."
In view of the abovesaid facts, the argument advanced by learned counsel for the petitioner that by virtue of the provisions as provided under Section 38 of the Act, the appellate authority has got power to review its order while deciding the appeal under Section 13 (2) of the Act, has got no force, rejected.
Next argument advanced by learned counsel for the petitioners while challenging the judgment and order dated 16.9.2002 (Annexure No.1) passed by the Prescribed Authority (Ceiling)/additional Collector, Sitapur/opposite party no.3 that admittedly Shri Vishwa Nath Singh the original tenure holder of the land in question (Plot nos.377 and 382) executed the registered sale deed on 12.8.1959 in favour of Smt. Kamla Shukla, Smt. Ram Devi and on 18.8.1959 in favour of Smt. Prem Kumari, Smt. Karori Banerji, Sri Prakash Banerji and Smt. Sushma Kochar. Thereafter, the said land has been recorded in their favour as per litigations held under the provisions as provided U.P. Z.A. & L. R. Act, 1901, thus, they become tenure holder of the land in question i.e. plot nos.382 and 377. Subsequently, the said persons sold the land by registered sale deeds executed on 27.11.1975 and 20.2.1981 respectively, so the finding given by the Prescribed Authority (Ceiling)/additional Collector, Sitapur/opposite party no.3 that the said sale deeds are hit by the provisions of Section 5 (6) of the Act, is incorrect because after the sale deeds executed by Shri Vishwa Nath Singh in the year 1959, he is not the tenure holder, so there is no justification or reason to issue the notice under Section 10 (2) of the Act to him, so the action on the part of the respondent no.3 to proceed and pass the judgment on the ground that the sale deed executed in favour of the petitioners between 1975 to 1981 by some other person to whom the land has been transferred by the registered sale deed and recorded in their favour is an action, contrary to the provisions of Section 5 (6) of the Act, rather perverse in nature, contrary to the facts of the case when the said sale deeds are on record. In order to support his argument, Shri Brijesh Kumar Saxena, learned counsel for the petitioners has placed reliance on the judgment given by Hon'ble the Apex Court in the case Maria Margarida Sequeira Fernandes and Ors. vs. Erasmo Jack De Sequeira (Dead) through L.Rs. (2012) 5 Supreme Court Cases 370, so liable to be set aside.
Shri Vinay Bhushan, learned Addl. Chief Standing Counsel while defending the impugned order dated 16.9.2002 passed by the Prescribed Authority (Ceiling)/Additional Collector, Sitapur/opposite party no.3 submits that in the present case although Shri Vishwa Nath Singh was the original tenure holder, but the sale deeds executed by him in the year 1959, were a sham transaction, evident from the fact that some sale deeds executed on 27.11.1975 and 20.2.1981 in favour of the present petitioners and other persons have been executed by Shri Vishwa Nath Singh in the capacity of Mukhtaram which establish that the sale deeds executed in the year 1959 by him were to get out of the clutches of the Section 5 (6) of the Act, as such, the finding given by the Prescribed Authority (Ceiling)/Additional Collector, Sitapur/opposite party no.3 by means of the impugned order dated 16.9.2009 that the sale deeds in question are in contravention to the provisions as provided under Section 5 (6) of the Act is perfectly valid need no interference by this Court.
In order to decide the said argument, I feel appropriate to go through the relevant provisions as provided under sub- section 17 of Section 3 as well as Sub-section (6) of Section 5 of the Act, reproduced herein below:-
"'tenure-holder' means a person who is the holder of a holding but except in Chapter III does not include-
(a) a woman whose husband is a tenrue-holder;
(b) a minor child whose father or mother is a tenure holder;"
"Section 5 (6)- in determining the ceiling area applicable to a tenure-holder, any transfer of land made after the twenty- fourth day of January, 1971, which but for the transfer would have been declared surplus land under this Act, shall be ignored and not taken into account.
"Provided that nothing in this sub-section shall apply to-
(a) a transfer in favour of any person (including Government) referred to in sub-section (2):
(b) a transfer proved to the satisfaction of the prescribed authority to be in good faith and for adequate consideration and under an irrevocable instrument not being a benami transaction or for immediate or deferred benefit of the tenure-holder or other members of his family.
Explanation I.- For the purposes of this sub-section, the expression 'transfer to land made after the twenty-fourth day of January, 1971', includes-
[(a) a declaration of a person as a co-tenure-holder made after the twenty-fourth day of January, 1971 in a suit or proceeding irrespective of whether such suit or proceeding was pending on or was instituted after the twenty-fourth day of January, 1971].
Explanation II- The burden of proving that a case falls within Clause (b) of the proviso shall rest with the party claiming its benefit."
The U.P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1972 was enforced with effect from 8-6-1973. Therefore, in view of the provision contained in sub-section 91), on and from 8-6-1973 a person who is a tenure holder cannot hold land in excess of his ceiling area. In view of Explanation I to sub-section (1) all the land held by the tenure-holder has to be taken into account while determining his ceiling and surplus areas, irrespective of the fact whether the land is held by the tenure-holder in his own name or in the name of someone else fictitiously. While considering the question whether a land held ostensibly in the name of another person actually belongs to the tenure-holder, the rule of evidence prescribed in Explanation II to sub-section (1) has to be followed. This rule of evidence applies to the case where on or before 24.1.1971 a land was held by the tenure-holder but after this date it came to be recorded in the name of someone else although the tenure-holder continued to be in its possession by cultivating the same. This rule will apply also to the situation where the name of the tenure-holder is not completely obliterated from the records and along with his name the name of someone else too comes to be recorded. In both the situations the Prescribed Authority is required under this Explanation to presume that the land continues to be held by the tenure-holder who held it prior to 24.1.1971. This presumption is, however, rebuttable as is evident from the use of the wrods "unless the contrary is proved to the satisfaction of the Prescribed Authority". Sub-section (6) contains extension of the principle contained in Explanation I. It provides executed after this date are not to be ignored. Sale deeds which are not sham or fictitious have to be taken into account and the land conveyed by such deeds has to be excluded from the holding of the tenure-holder. This is so because of the provision contained in proviso (b) to sub-section (6), command for ignoring transfer effected after 21.1.1971 will not apply if the following conditions are satisfied:
1.The transfer is made in good faith;
2.It is made for adequate consideration;
3.It is made through an irrevocable instrument ; that is, there should be a written document;
4.The transaction of transfer is not "Benami";
The transfer is not made for the immediate or deferred benefit of the tenure-holder or other members of his family.
Accordingly, it is to be considered that who is the tenure holder in the matter in question as per Sub-section 17 of Section 3 of the Act. In U.P. Z. A. & L. R. Act, the following class of tenure holder are mentioned :-
"(i) Bhumidar
(ii) Sirdar and
(iii) Asami"
Further, the definition given in Section 3 (17) of the Act shows that a tenure-holder may be an individual or a holder of a holding. Thus, a holder of a holding may be an individual and also a person having a family of such persons as make him liable for the surplus area being the need of such persons as wife, adult, sons who hold some land and are joint with such head. It is in this meaning that an individual without a family and a person with a holding in his names and as holding a family and representative it that are liable for dertermination of their ceiling are when the land is in excess of such area. (See State v. Smt. Vidyawati, 1974 RD 64).
Thus, it is mandatory on the part of the Prescribed Authority in the present case to determine that at the time of issuing a notice under Section 10 (2) of the Act whether Shri Vishwa Nath Singh was the tenure holder in respect to land in question or Smt. Prem Kumari, Smt. Karori Banerji, Sri Prakash Banerji and Smt. Sushma Kochar and Smt. Kamla Shukla and Smt. Ram Devi were the tenure holders by virtue of the sale deed executed in their favour on 18.8.1959 and 12.8.1959. But admittedly the Prescribed Authority failed to discharge the said mandatory duty casted upon it, even the notice under Section 10 (2) of the Act have not been issued to them. (See Ibrahim vs. State of U.P. 1986 RR 138, Thakur Das vs. State of U.P. 1987 RD 127 and Viresh Pratap Shah vs. A.D.J., Basti, 2005 (98) RD 419), so the argument advanced by learned State Counsel with the aid of the provisions as provided under Sub-section 1 of Section 5 of the Act that the impugned order passed by the Prescribed Authority while adjudicating and deciding the dispute involved in the instant case after taking into consideration that the land belongs to Sri Vishwa Nath Singh and passing the impugned order is a correct exercise, has got no force, moreover, the Prescribed Authority also failed to consider while passing the impugned order that whether as per the definition as provided Sub-section 17 of Section 3 of the Act Smt. Prem Kumari, Smt. Karori Banerji, Sri Prakash Banerji, Smt. Sushma Kochar, Smt. Kamla Shukla and Smt. Ram Devi are tenure holder of the land in question whose names are recorded in the revenue record as per the registered sale deed executed by Shri Vishwa Nath Singh in the year 1959 and as per the litigation taken place in the proceeding under Section 176 and Section 209 of the U.P. Z. A. & L. R. Act. So, it is necessary to issue notice under Section 10 (2) of the Act to them.
A Division Bench of this Court in the case of Om Prakash Agarwal vs. First Addl. District and Sessions Judge and Ors 1981 AWC 775 after placing the reliance on the judgment given by Hon'ble the Apex Court in the case of Brijendra Singh vs. State of U.P., 1981 AWC 125 in paragraph 16 and 17 held as under:-
"Para 16 ............Once it is established by the transferring tenure holder that the transfer in question effected in the course of ordinary management of his affairs, was made for adequate consideration and he has genuinely absolutely and irrevocably divested himself of all right, tiltle and interest (including cultivatory possession) in the land in favour of the transferee the onus under Explanation II, in the absence of any circumstances, suggestive of collusion, or an intention or design to defraud or circumvesnt the Ceiling Act, on the tenure holder to show that the transfer was effected in good faith, will stand discharged, and it will not be necessary for the tenure-holder to prove further that the transfer was made for an impelling need or to raise money for meeting a pressing legal necessity. Although proof of the fact that a transfer was made for a valid pressing necessity, may highlight or strength the inference in favour of the genuineness of the transfer, it is not an indispensable constituent of 'good faith'; nor is the proof of legal necessity requisite, as a matter of law, to enable a tenure-holder to avail of the benefit of clause (b) of proviso............
Para 17 - In view of the above following conditions should exist before the benefit of proviso (b) may be allowed to a tenure-holder in respect of sale effected by him:-
1.The transfer is not effected to circumvent or avoid the provisions of the Act;
2.The transfer is effected through a written document;
3.The transfer is not gartuitous but is for consideration;
4.The consideration is adequate and not low;
5.After effecting the transfer the transferor completely divests himself of his interest in the land, including cultivatory possession.
In the case of Dayal Singh and another vs. State of U.P. and Ors. 1981 ALL. L. J. 808 it has been held as under:-
"Although the appellate authority found that transfers dated 6.9.1971 and 8.2.1971 were by irrevocable instrument and for adequate consideration yet it refused to grant benefit to petitioner under Proviso (b) to sub-section (b) of Section 5 of U.P. Imposition of Ceiling on Land Holdings Act because the necessity for transfer was not disclosed in the sale deed itself.
In Ram Sewak vs. State, 1979 ALL LJ 219 it was held by this Court that the proviso of the section does not require a tenure holder to establish necessity and there is no requirement in the Act which requires that necessity for sale should be mentioned in the sale deed itself. In view of this decision the inference drawn by appellate authority that sale deeds were not executed in good faith cannot be maintained."
Hon'ble the Supreme Court in Ram Adhar Singh vs. Prescribed Authority and others, 1994 Suppl (3) SCC 702, has held that no inquiry regarding the validity of the sale deed under Section 5 (6) of the Act could be made with regard to the genuineness of the sale deed executed prior to 24.1.1971. The Supreme Court further held that appellate authority had no jurisdiction to put the validity of the sale deed to test since its jurisdiction arose only when the deed of transfer jurisdiction arose only when the deed of transfer had been effected on or after the appointed day, i.e. 24.1.1971. Consequently, this authority could not consider the genuineness of the sale deed dated 9.9.1970 and the land transferred vide sale deed is liable to be excluded from the holding of the petitioner.
In the case of Maria Margarida Sequeira Fernandes and Ors. vs. Erasmo Jack De Sequeira (Dead) through L.Rs. (2012) 5 Supreme Court Cases 370, Hon'ble the Apex Court has held as under:-
"Para 97- Principles of law which emerge in this case are crystallised as under:
(1)No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.
(2)Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on deman.
(3)The courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.
(4)The protection of the court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or licence agreement in his favour.
(5)The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right of interest whatsoever for himself in such property irrespective of his long stay or possession."
In view of the abovesaid facts and taking into consideration that the Prescribed Authority while passing the judgment and order dated 16.9.2002 has given a finding that although the land in question has been transferred in favour of Smt. Prem Kumari, Smt. Karori Banerji, Sri Prakash Banerji and Smt. Sushma Kochar, Smt. Kamla Shukla and Smt. Ram Devi, by the sale deeds executed by Sri Vishwa Nath Singh, but they are not on record which is totally contrary to record and perverse in nature as the said sale deeds dated 12.8.1959 and 18.8.1959 are already on record. So the impugned judgment is contrary to the facts of the record, cannot sustain and the findings given by the Prescribed Authority that the petitioners are not entitled for the benefit as per provisions provided under Sub-section 6 of Section 5 of the Act contrary to the records/law..
Last argument advanced by Shri Brijesh Kumar Saxena, learned counsel for the petitioners while assailing the impugned order dated 11.2.2003 passed by the appellate authority is that against the impugned order dated 16.9.2002 passed by the prescribed Authority, 14 appeals were filed out of which 9 appeals were dismissed and 5 appeals were allowed on the same facts and while allowing 5 appeals the appellate authority accepted the fact that the sale deeds were executed on 18.8.1959 and on 12.8.1959 by Shri Vishwa Nath Singh in favour of other persons, later on those persons executed sale deeds on 27.11.1975 and on 20.2.1981 in favour of some of the appellants whose appeals were allowed are valid and not hit by the provisions as provided under Section 5 (6) of the Act, whereas while dismissing the other appeals (appeal of the present petitioners) without any justification or reasons whatsoever did not accept the said facts whether the sale deeds executed in their favour on 27.11.1975 and 20.2.1981 is in the same condition and circumstances are entitled for the same benefit. So, the said action on the part of the appellate authority is totally illegal and arbitrary in nature as well as the violative of Article 14 of the Constitution of India, liable to be set aside.
Shri Brijesh Kumar Saxena, learned counsel for the petitioners further submits that while passing the impugned order dated 11.2.2003 the opposite party no.2/appellate authority dismissed the appeal (Appeal No.28/2001-02 "Ram Karan & Ors. vs. State of U.P." filed by the present petitioner) by means of the non speaking/unreasoned order and the findings given while doing so it has stated as under:-
"अपील संख्या १९/०२-०३ राम सेवक तिवारी बनाम सरकार अपील संख्या २०/०२-०३ रामाधार तिवारी बनाम सरकार अपील संख्या २४/०२-०३ रामौतार बनाम सरकार अपील संख्या २८/०१-०२ राम करन बनाम सरकार तथा अपील संख्या १८/०२-०३ श्रीमती सुशीला तिवारी बनाम सरकार आदि के सम्बन्ध में विद्वान अधिवक्ता द्वारा प्रस्तुत तर्कों तथा पत्रावली पर उपलब्ध साक्ष्यो के परीक्षण से मै इस निष्कर्ष पर पहुचती हूँ की अवर न्यायालय द्वारा पारित आदेश विस्तृत रूप से साक्ष्यो की विवेचना करते हुए गुण दोष के आधार पर पारित किया गया है जो पूर्ण रूप से विधिक है और उसमे कोई विधि अथवा तथ्यात्मक त्रुटी परीक्षित नहीं होती है अतः अपीलों के माध्यम से उसमे किसी प्रकार की हस्तक्षेप की आवश्यकता नहीं है I यह पांचो अपीले बलहीन है और निरस्त किये जाने योग्य है I "
After hearing learned counsel for the parties on the point in question and taking into consideration the finding given by the appellate authority while dismissing the appeal filed by the present petitioner (Appeal No.28/2001-02 "Ram Karan & Ors. vs. State of U.P.") the position which emerge out is that no reason has been assigned by the appellate authority while doing so.
It is well settled that an order having civil consequences even though passed by the administrative authority must contain reasons so as to enable the aggrieved party to challenge the reasoning of the administrative authority. In the absence of reasons no foundation can be laid down by the petitioner and only argument remains is that the order is based upon non-application of mind. In my view if the reasoning of an order passed against the aggrieved person is not communicated and only a communication regarding decision has been communicated it cannot be assailed by the respondents that the grievance of a person has been decided. In my opinion, it is no order in eye of law and it has no legs to stand.
In case of S.N.Mukherjee Vs. Union of India reported in A.I.R. 1984, the Apex Court has already held as follows:-
"In view of the expanding horizon of the principles of natural justice, the requirement to record reason an be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory framework where under jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasi-judicial functions the legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement. It may do so by making an express provision to that effect. Such an exclusion can also arise by necessary implication from the nature of the subject matter, the scheme and the provisions of the enactment. The public interest under lying such a provision would outweigh the salutary purpose served by the requirement to record the reasons. The said requirement cannot, therefore, be insisted upon in such a case. Therefore except in cases where the requirement has been disposed with expressly or by necessary implications, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision.
The recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and assures a degree of fairness in the process of decision-making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. Therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It is however not required that the reasons should be as elaborate as in the decision of a Court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicitly so as to indicate that the authority has been due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge."
Hon'ble the Supreme Court in the case of East Coast Railway and another Vs. Mahadev Appa Rao and others, 2010 (7) SCC 678, in para 23 held as under:-
"Para No. 23 - Arbitrariness in the making of an order by an authority can manifest itself in different forms. Non-application of mind by the authority making the order is only one of them. Every order passed by a public authority must disclose due and proper application of mind by the person making the order. This may be evident from the order itself or the record contemporaneously maintained. Application of mind is best demonstrated by disclosure of mind by the authority making the order. And disclosure is best done by recording the reasons that led the authority to pass the order in question. Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained is clearly suggestive of the order being arbitrary hencelegally unsustainable."
Hon'ble the Supreme Court in the case of U.P. State Road Transport Corporation Vs. Suresh Chand Shukla, (2010) 28 LCD 1206, held as under:-
"In State of West Bengal Vs. Atul Krishna Shaw & Anr. AIR 1990 SC 2205, this Court observed that "giving of reasons is an essential element of administration of justice. A right to reason is, therefore, an indispensable part of sound system of judicial review."
In Raj Kishore Jha Vs. State of Bihar & others (AIR 2003 SC 4664), the Apex Court observed as under:
"Before we part with the case, we feel it necessary to indicate that non-reasoned conclusions by appellate Courts are not appropriate, more so, when views of the lower Court are differed from. In case of concurrence, the need to again repeat reasons may not be there. It is not so in case of reversal. Reason is the heartbeat of every conclusion. Without the same, it becomes lifeless".
In State of Uttaranchal & Anr. Vs. Sunil Kumar Singh Negi AIR 2008 SC 2026, Hon'ble the Apex Court held as under:
"Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made".
In fact, "reasons are the links between the material, the foundation for these erection and the actual conclusions. They would also administer how the mind of the maker was activated and actuated and their rational nexus and synthesis with the facts considered and the conclusion reached". (vide: Krishna Swami Vs. Union of India & Ors. AIR 1993 SC 1407) Thus, while deciding the case, court is under an obligation to record reasons, however, brief, the same may be as it is a requirement of principles of natural justice. Non-observance of the said principle would vitiate the judicial order.
In view of the abovesaid facts, so far as the order dated 11.2.2003 passed by the Prescribed Authority while dismissing the appeal bearing in Appeal No.28 of 2001-02 is concerned, the same is not sustainable.
For the foregoing reasons, writ petition is allowed. The impugned order dated 11.2.2003 passed by Additional Commissioner (J), Lucknow Division, Lucknow in Appeal No.28 of 2001-02 "Ram Karan & Ors. vs. State of U.P." and judgment and order dated 16.9.2002 passed by the Prescribed Authority (Ceiling)/Additional Collector, Sitapur/opposite party no.3 so far as it relates to the present petitioners are set aside and the matter is remanded to Prescribed Authority to decide the same in view of the observations made herein above after hearing the present petitioners as well as the State and others (effected persons) expeditiously.
Order Date :- 13.09.2012 Mahesh