Court No. - 54
AFR Case :- WRIT - C No. - 3835 of 2012 Petitioner :- Sunil Singh And Others Respondent :- Kashi And Others Counsel for Petitioner :- S.A. Lari Counsel for Respondent :- C.S.C.
Hon'ble Ajit Kumar,J.
1. List is being revised. Nobody is present on behalf of heirs of respondent no. 1 who have already been brought on record and are represented by one Sri Ram Jatan Yadav, learned Advocate.
2. Learned Standing Counsel is present but he has not filed any counter affidavit on behalf of respondent nos.
2 and 3. Despite time granted for the said purpose, the matter is of the year 2012 and so the Court proceeds to hear and decide the writ petition.
3. Heard learned counsel for the petitioners and learned Standing Counsel.
4. The present writ petition arises out of proceeding under Section 28 of the U.P. Land Revenue Act, 1901 wherein, the application of the deceased respondent no. 1 for correction of map came to be allowed on the basis of report submitted by the Nayab Tehsildar, Sadar Mau dated 24th February, 2003. The petitioners' revision against the order passed by the Collector has also been dismissed.
5. The sole ground taken in the present petition is that Collector, Mau fell in serious error of law in accepting the report of the Nayab Tehsildar as it is without examining the Nayab Tehsilar who had prepared the report on the spot. The contention is that until the report is duly proved by the person or the authority submitting report the same cannot be led in evidence nor, the authority adjudicating the issue can attribute it with any evidenciary value to be accepted as it is more especially, when the contesting party has raised objection to the report concerned. It is further contended that specific plea was taken as ground no. 5 in the memo of revision before Commissioner that report was not proved and yet Collector proceeded to rely upon the report against which objection was filed by the petitioner and, therefor, the argument is that orders passed by the Collector as well as the Additional Commissioner cannot be sustained in law and deserve to be set aside.
6. Per contra, the argument advanced by learned Standing Counsel is that the orders are justified as no ground seems to be forthcoming that the area assigned to the contesting respondent no. 1 now represented by his heirs became larger than the area prescribed or provided for in the Khatauni. He further submits that these are summary proceedings and the Collector does not act as a Court of law so as to bind him by the intricacies of the Indian Evidence Act, 1872. He submits that it is still open for the parties to litigate the matter in common law. He submitted that nobody was found to be in unauthorized possession or excessive area than the area given in the relevant annual register/ Khatauni and thus, he defended the order impugned in the present writ petition for the reasons assigned therein.
7. Having heard learned counsel for the parties, their respective arguments against and for the orders passed by the authorities and have perused the records and having carefully examined the orders passed by the Collector and the Commissioner, I find that the Collector solely relied upon report of Nayab Tehsildar Sadar Mau while allowing the application of the contesting respondent no. 1 for correction of map. The observations that have come in the order passed by the Collector are indicative of the fact that he had himself examined the report and there is no recital to the effect that Nayab Tehsildar concerned had, at any point of time, appeared before the Collector and got himself examine. There is no statement recorded of the Nayab Tehsildar concerned. The Collector has referred to the objection raised by the petitioner but while dealing with objection , he held the report to be just and proper.
8. This Court fails to understand as to when proper objection has been raised to the report, what was the mechanism available to Collector to accept the report as it is . It is admitted fact that Collector did not visit the spot and it is equally admitted fact that the report presented before Collector by Nayab Tehsildar, was in fact not prepared by the Nayab Tehsildar was in fact not prepared in the presence of Collector and therefore, the Collector would not have been party to any such report which is based on hand sketched map. Justice calls for a finding based on appreciation of a document either admitted one to the contesting parties or affirmed by the authority rejecting any objection to it on the basis of statement recorded of such authority or person who had prepared the argument. None of the above to ingredients are found in the order to sustain it. It is true that the authorities are the not the Court of justice in strict sense of civil court but authority who is required to adjudicate any point or issue it has to apply basic rules of procedure. While rule of evidence law may not be strictly adhered to in such matters but basic principle of law would certainly be applied that if a report or an order is placed its genuineness is required to be proved.
9. The rule of justice imbibes within it a mechanism that makes access to justice not only easy and speedy but efficacious and authoritatively forceful. This is for the above reason why adjudicattory mechanism is always required to be well guarded by rules of procedure begetting just and fair play.
10. The Apex Court in the case of Anita Kushwaha v. Pushp Sudan (2016) 8 SCC 509 held: In order that the right of a citizen to access justice is protected, the mechanism so provided must not only be effective but must also be just, fair and objective in its approach; so also the procedure which court, tribunal or authority may adopt for adjudication, must in itself by just and fair and in keeping with the well recognized principles of natural justice.
11. The Additional Commissioner has simply concurred with findings recorded by the Collector without adverting to the points so raised and, therefore, in my opinion the Commissioner also manifestly erred in rejecting the revision petition . For ignoring the prayer for consideration of the documents and legal plea taken in the memo of revision , such order cannot be sustained in law.
10. In view of above, the order passed by the Collector dated 25.11.2008 and of the Commissioner dated 12th March, 2009, Annexures -6 and 7 to the writ petition respectively are hereby quashed. The matter is remitted to the Collector to consider objection afresh regrading report submitted by Nayab Tehsildar on 24th February, 2003. The Collector shall proceed to hear the matter and decide afresh in the light of observations made hereinabove in this order. Entire exercise shall be carried out by the concerned Collector within period of three months from the date of production of certified copy of this order.
11. The writ petition is allowed with the aforesaid observations and directions.
Order Date :- 26.7.2019 Sanjeev