- (1.) HEARD Shri Ajay Pratap Singh, learned counsel for the petitioners, learned State Counsel and perused the record. Shri Ajay Pratap Singh, learned counsel for the petitioners submits that the controversy involved in the present case is squarely covered by judgment and order dated 22.11.2010 passed by this Court in Writ Petition No.4731 of 2011 "Muni Raj vs. State of U.P.", the same on reproduction reads as under:- "Heard Shri Deepak Kumar Singh learned Advocate holding brief of Shri Ajay Pratap Singh and learned Standing counsel.
(2.) THE petitioner has challenged the order dated 27.11.2009 passed by the S.D.M. Dhampur, District Bijnore in Case No. 10 of 2009, State of U.P. Vs Tarawati under Section 33/39 L.R.Act. The petitioner alleges that he was alleged lease holder through Annexure No.3. The lease was granted in his favour on 02.02.1972. By the impugned order of the S.D.M. Dhampur dated 27.11.2009, the said lease has been cancelled and the entries in Revenue record in favour of petitioner has also been cancelled. The petitioner has challenged the order solely on one ground that no opportunity of hearing is given in the enquiry conducted by the Tahsildar. He says that only one side enquiry has been allegedly conducted by the Tahsildar and the findings have come which are pre-judicial to the petitioner. He says that any order which effect Civil right of the petitioner adversely should be decided on the principles of natural justice. From time immemorial, it has been the law that no body should be condemned without a hearing. In the present case petitioner were in possession since 1972. Prior to coming to conclusion that entries are forged and fraud have committed, the authorities ought to have given an opportunity of hearing to petitioner which has not been done. The learned Standing Counsel has supported the order of the S.D.M. Dhampur and stated that fraud vitiates everything. He says order passed by S.D.M. is in great detail. Enquiry has been conducted. More over all the Revenue records are not available. S.D.O, gave categorically findings that the entries have been forged and Amaldaramad has been based on non existent orders. Be that as it may. The court feels that opportunity of hearing is must. The petitioner should not have been deprived of their rights without affording him opportunity of hearing. The petitioner has relied upon judgment reported in 2005 (98) Rd 244 Chaturgun and others Vs Staste of U.P. and others. In para 6,7 and 8 his Lordship has observed; "6. Whether an entry in the revenue record is fake or fraudulent is a question of fact and can be found to be proved like any other fact only after providing opportunity of hearing to the parties concerned and likely to be affected by the ultimate order/judgment. It is correct that action taken on the basis of fraud has to be set aside and any entry on the basis of fake order has to be expunged. (Vide United India Insurance Co. V. rajendra Singh) (Para 3) wherein it has been held (approved) that " no judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for, fraud unravals everything"). However, finding in respect of fraud cannot be recorded ex-parte. The Supremal Court in Sevenska Handelsbanken V. M/s India Charge Chrome, placing reliance upon A.L.N. Narayanam Chettivar V. Official Assignee, held in para 44 as under:- ".... fraud like any other charge of a criminal proceedings, must be established beyond reasonable doubt. A finding as to fraud cannot be based on suspicion and conjecture." In the following authorities the Supreme Court has held that even before passing administrative orders affecting rights of parties opportunity of hearing shall be granted:- 1. Ashok V. Union of India (It was a case of ban of particular insecticides). 2. Sahi Ram V.Awtar Singh (It was a case of mining lease). 3. G. Pharmaceuticals V. State of U.P. (It was a case of black listing of contractor). 4. H.A. Shakoor V. Unio of India. (It was a case of reduction of category of a contractor). 5. Director General of Police V. M. Sarkar (In this case constables were discharged from service on the ground that they produces a fake list from Employment Exchange without providing opportunity of hearing. Supreme Court approved the order of High Court setting aside discharge order on the ground of denial of opportunity of hearing). 6. All IndiaS.C. &S.T. Empl. Assocn. v. A.A.Jeen. (In this case hundreds of employees were affected hence Supreme Court held that they might be served in representative capacity). 7. Codawat Pan Masala Products V. Union of India (In this case it as held that notification prohibiting manufacure and sale etc. of pan masala and gutka was bad in law as it had been issued without providing opportunity to the manufacturers of meeting the facts relied upon in the notification in respect of injurious effects of pan masala and gutka).8. Canara bank V. S.D. Das (In this authority Several Principles of natural justice expressed in Latin words have been discussed indetail giving their history, (since 1215), scope and applicability.
(3.) REGARDING first principle of natural justice that no person shall be punished unheard (audi alteram partem0 it has been held that if appellate authority (it was a case of punishment of an employee0 grants post decisional hearing then it may be sufficient compliance of requirement of hearing. In this regard reference has been made to C.L.Salm V. Union of India (concept of useless formality theory has also been adverted to in para 22 but no final opinion in that regard has been expressed).;