1. Heard Sri Satendra Nath Rai, learned counsel for the petitioners, Sri Hemant Kumar Pandey, learned counsel for the State as also Sri D.P. Singh, learned counsel for the private respondents.
2. By means of the present petition, a challenge has been made to the order dated 19.01.2016 passed by respondent No.1/Deputy Director of Consolidation, Lakhimpur Kheri (in short 'D.D.C.'), in Revision No. 340 of 2011 (Rameshwar & Others vs. Shrichand & Others).
3. Brief facts of the case are as follows:
(i) One Bhawani died leaving behind his four sons namely Jagannath, Niranjan, Makka and Mangre (issue less). The pedigree indicated in Para 4 of the petition is as under:-
(ii) It is alleged that Bhawani was the original tenure holder of the land in issue i.e. Khata No.371 but to establish this fact, no document has been placed on record.
(iii) The name of Makka S/o Bhawani was recorded in the basic year Khatauni of Khata No.371. At the time of initiation of consolidation proceedings in the village namely Khaithava, Pargana- Nighasan, District- Lakhimpur Kheri, in terms of U.P. Consolidation of Holdings, Act, 1953 (is short the ‘Act’) and Rules of 1954 made thereunder, the name of Makka S/o Bhawani was recorded in revenue records.
(iv) A compromise was filed on 31.07.1975 before Assistant Consolidation Officer (A.C.O.) in regard to Khata No.371. In this Compromise it was prayed that in place of late Makka S/o Bhawani, the names of Rambilas S/o Makka, Girdhari S/o Niranjan, Mohanlal S/ o Niranjan and Jagannath S/o Bhawani be mentioned in revenue records of Khata No. 371.
(v) The A.C.O. rejected the proposal of CH Form 4 and directed to enter the name of Rambilas S/o Makka in revenue records.
(vi) It would be apt to indicate that contesting respondents No.4 to 6 namely Rambilas, Ram Bahadur and Ramesh Kumar are sons of Rambilas.
(vii) Being aggrieved by the order of A.C.O, Jagannath S/o Bhawani and others filed an Appeal No. 1675 under Section 11 of the Act before the Settlement Officer of Consolidation (S.O.C.)/respondent No.2 and vide order dated 09.09.1976, the S.O.C./respondent No.2 allowed the appeal and remanded the matter back to Consolidation Officer (C.O.)/respondent No.3.
(viii) Before the C.O./respondent no.3, a fresh compromise dated 21.08.1978 was filed in Misc. case no.1705/5859 of 1978 u/s 9A(2) of the Act. As per this compromise, the land of Khata no.371 was of late Bhawani and accordingly, the same be provided to Jagannath S/o Bhawani-1/3 share, Girdhari S/o Niranjan-1/6 share, Mohanlal S/o Niranjan-1/6 share, Rambilas S/o Late Makka-1/3 share.
(ix) It would be apt to indicate that all the parties (claimants and opposite party/Rambilas) of the compromise dated 21.08.1978 filed in the case aforesaid were identified by Sri Triveni Sahai Gupta, Advocate, who was engaged by the claimants.
(x) The C.O./ respondent No.3 vide order dated 17.11.78 rejected the compromise dated 21.08.1998 filed in Misc. Case No.1705/5859 of 1978 and directed to record the name of Rambilas in place of Makka, being his legal heir, in revenue records.
(xi) The C.O./respondent No.3, rejected the compromise after observing that it has not been established that land in issue is an ancestral land and as such if compromise is accepted, then it would amount to transfer of property, which is not permissible.
(xii) Being aggrieved by order dated 17.11.78 passed by C.O/respondent No.3 in Misc. Case No.1705/5859 of 1978, Jagannath S/o Bhawani, Girdhari and Mohanlal both sons of Niranjan filed an Appeal No.163 (Jagannath and others vs. Rambilas) before S.O.C/respondent no.2.
(xiii) Before proceeding further, it would be relevant to mention that following question was put to the counsel for the petitioner during course of hearing.
"Whether without establishing/proving the fact that the property/land is an ancestral property, the rights in land can be provided by the authorities under the Act or the cooption is permissible under the Act or under U. P. Zamindari Abolition and Land Reforms Act, 1950 (in short ‘Z. A. & L. R. Act’) and compromise of such nature would be lawful and the same could be acted upon and the same would be enforceable in law and such nature of agreement/compromise will confer any right"
(xiv) In response to aforesaid, the counsel for the petitioner could not place any provision of law or authority to establish that by way of a compromise, rights in the land can be provided without establishing/ proving the fact that the land is an ancestral property.
(xv) Being aggrieved by the order dated 17.11.1978 passed by Consolidation Officer (C.O.)/ respondent No. 3 in Misc. Case No. 1705. 75859 of 1978 (Jagannath S/o of Bhawani, Girdhari Lal and Mohan Lal both sons of Niranjan) filed an appeal no. 163 (Jagannath and Ors vs. Rambilas) before the S.O.C./ respondent No. 2.
(xvi) In the aforesaid Appeal No. 163, again a fresh compromise dated 06.03.1979 was filed.
(xvii) The parties to the compromise dated 06.03.1979, including the respondent in appeal namely Rambilas, were identified by Sri Triveni Sahai Gupta, Advocate, who was engaged by the appellants namely Jagannath, Girdhari and Mohan Lal.
(xviii) It is to be noted that parties to the compromise dated 21.08.1978 filed before the C.O./ respondent No. 3 and parties to the compromise dated 06.03.1979 filed before the S.O.C./ respondent No. 2 were identified by Sri Triveni Sahai Gupta, Advocate, who was engaged by the persons claiming right over Khata No. 371 i.e. predecessors-in-interest of the petitioners.
(xix) On aforesaid fact related to identification of the parties to compromise, the following question was put to the counsel for petitioner:
"Whether on compromise, an advocate appearing for claimant/plaintiff also can also identify respondent/defendant"
(xx) In response to the aforesaid question, the counsel for petitioner stated that he cannot.
(xxi) The identification, aforesaid, as also the observations of C.O./ respondent No. 3 in the order dated 17.11.1978 that it has not been established that land in issue is ancestral land and as such if compromise is accepted then it would amount to transfer of property which is not permissible, creates doubt regarding entering into the compromise by Rambilas.
(xxii) The Appeal No. 163, referred above, was decided on the basis of the compromise on 31.03.1979.
(xxiii) As per compromise dated 06.03.1979, 1/3 share was to be provided to Jagannath and 2/3 share was to be provided to Rambilas in Khata No. 371.
(xxiv) The Appellate Court/S.O.C./respondent No.2 vide order dated 31.03.1979 passed in Appeal No. 163 provided 1/3 share to Jagannath, 1/6 share each to Girdhari and Mohan Lal and 1/3 share to Rambilas.
(xxv) Rambilas, challenging the order dated 31.03.1979, filed a revision before the D.D.C./respondent No.1 under Section 48 of the Act registered as Revision No. 3900 of 1979 (Rambilas vs. Jagannath and Ors).
(xxvi) The D.D.C./respondent No.1, after considering the terms of compromise and order dated 31.03.1979, vide order dated 17.09.1989 allowed the revision and set aside the order dated 31.03.1979 passed in Appeal no. 163 and remanded the matter back to S.O.C./ respondent no. 2 for deciding the appeal afresh.
(xxvii) The S.O.C./respondent No.2, thereafter, vide order dated 18.06.1885 allowed the appeal, which at relevant point of time was registered as Appeal No.1136, on the basis of terms of compromise dated 06.03.1979, vide order dated 18.06.1885.
(xxviii) Being aggrieved by order dated 18.06.1985 passed in Appeal No. 1136 by S.O.C./respondent No.2, Rambilas preferred an application dated 24.07.1985 praying therein that order dated 18.06.1885 be set aside and matter be heard and decided on its own merits.
(xxix) Moving of application dated 18.07.1885 by Rambilas fortifies the view of this Court that the compromise dated 21.08.1978 & 06.03.1979, respectively, are/ were doubtful.
(xxx) The application preferred by Rambilas dated 24.07.1985 for recall and setting aside the order dated 18.06.1985 was dismissed for want of prosecution vide order dated 23.03.1990 on the statement given by Rambilas. This further, creates doubt regarding compromise dated 21.08.1978.
(xxxi) Rambilas on coming to know about the order dismissing the application for restoration for want of prosecution preferred an application dated 04.06.1992 for recall of order dated 23.03.1990, inadvertently indicated as order dated 14.10.1990.
(xxxii) The application dated 31.06.1992 was again dismissed for want of prosecution on 02.07.1998.
(xxxii) To recall the order dated 02.07.1998, Rambilas preferred an application dated 02.07.1998.
(xxxiv) During the pendency of the application dated 02.07.1998, Rambilas died and thereafter substitution application dated 03.05.1999 was preferred by the legal heirs of Rambilas and the same was allowed on the same day i.e on 03.05.1999.
(xxxv) The aforesaid application for restoration dated 02.07.1998 preferred by Rambilas was again dismissed for want of prosecution on 05.02.2003.
(xxxvi) After expiry of several years from the date of rejection of restoration application for want of prosecution vide order dated 05.02.2003, an application under Rule 109 of the Rules of 1954 was filed, whereupon an order was passed on 06.04.2011 and thereafter the private respondents no.4 to 6, legal heirs of Rambilas, preferred an appeal dated 11.07.2011 which was dismissed being not maintainable vide order dated 01.01.2015 passed by S.O.C./respondent no.2.
(xxxvii) After order dated 01.01.2015 passed by S.O.C./respondent No.2, indicated above, the private respondents filed the Revision No. 340 of 2011 challenging the order(s) dated 18.06.1885, 23.03.1990 and 05.02.2003.
(xxxviii) The revision aforesaid was filed alongwith an application for condonation of delay. A perusal of the application of condonation of delay reflects that the same was not properly drafted. The delay in challenging the order dated 18.06.1885, 23.03.1990 & 05.02.2003 was not properly explained.
(xxxix) It would be apt to indicate that all the revisionists/private respondents are rustic villagers and in this view of the matter, their application for condonation of delay has to be dealt with.
(xl) In the objection to the application for condonation of delay, the petitioners specifically pleaded that the revisionists/private respondents No.4 to 6 were aware about the order dated 18.06.1985 as their application for substitution was allowed vide order dated 03.05.1999 and accordingly the application is liable to be rejected and consequently, the revision filed after delay of about 26 years questioning the order dated 18.06.1885 be also dismissed. In this objection, petitioners also stated that the appeal was decided in terms of compromise on 18.06.1985 that too in compliance of the order dated 17.09.1981 passed in Revision No.3900 of 1979 filed by Rambilas (predecessor-in-interest of the private respondents) and as such also the revision is liable to be dismissed.
(xli) The D.D.C./respondent No.1 after considering the relevant aspect of the case allowed the revision vide impugned order dated 19.01.2016, which is an order of remand. The relevant portion of this order reads as under:-
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4. Assailing the impugned order dated 19.01.2016, learned counsel for the petitioner submitted as under:
(i) Challenging the order(s) dated 18.06.1985, 23.03.1990 and 05.02.2003 passed by the S.O.C/respondent No.2 in an Appeal No.1163 the revision was filed in the month of August 2015, and that too without proper explanation for condoning the huge delay.
(ii) The order dated 31.03.1979 was passed on the basis of compromise deed dated 06.03.1979 entered into between the parties, which was filed before the S.O.C./respondent No.2 and this compromise was admitted to Rambilas (predecessor-in-interest of the private opposite parties namely Rameshwar, Ram Bhadur and Ramesh Kumar, all sons of Late Rambilas), as would appear from the memo of revision filed by Rambilas challenging the order dated 31.03.1979 passed by S.O.C./respondent No.2 on limited ground related to share in the land in issue as share indicated in the compromise dated 06.03.1979 i.e. 2/3 share was not provided to Rambilas by S.O.C./respondent No.2, and the same is apparent from the memo of revision filed by Rambilas wherein he specifically indicated that while passing the order dated 31.03.1979, the S.O.C./respondent No.2 ignored the Clause/Para-5 of the compromise.
(iii) As per the Clause/Para-5 of the compromise deed dated 06.03.1979, Rambilas was entitled to 2/3 of the land in issue, however, the S.O.C./respondent No.2 provided only 1/3 of the share to Rambilas and for this reason, Rambilas approached the revisional authority challenging the order dated 31.03.1979 passed by S.O.C./respondent No.2 and vide order dated 17.09.1989 the D.D.C./respondent No.1 remanded the matter back to the S.O.C./respondent No.2 to pass fresh order after taking note of the terms of the compromise entered into between the parties.
(iv) The S.O.C./respondent No.2 in compliance of order dated 17.09.1981 passed by D.D.C/respondent No.1 in the revision filed by Rambilas decided the Appeal in terms of the compromise deed dated 06.03.1979 vide order dated 18.06.1985 and provided 2/3 share in the land/property in issue to Rambilas.
(v) Rambilas, for the reasons best known to him, filed an application for recall of order dated 18.06.1985, which was dismissed for want of prosecution on 23.03.1990 and thereafter Rambilas preferred an application on 04.06.1992 praying therein to recall the order dated 14.10.1990, which was dismissed for want of prosecution on 02.07.1998 and thereafter on 02.07.1998 itself the application for recall of order dated 02.07.1998 was moved.
(vi) During the pendency of the application dated 02.07.1998, Rambilas died and the respondents no.4 to 6 moved an application for substitution on 03.05.1999, which was allowed on the same day.
(vii) From the aforesaid, it is evident that since 03.05.1999 the respondents No.4 to 6 were aware about the order dated 18.06.1985 and in the application for condonation of delay, the date of knowledge of order dated 18.06.1985 has been indicated as 05.07.2011.
(viii) In view of above, the delay in filing the revision challenging the order(s) dated 18.06.1985, 23.03.1990 and 05.02.2003 was not properly explained and as such in in view of the same also the facts aforesaid the D.D.C./respondent No.1 committed error of law and facts both in allowing the revision vide impugned order dated 19.01.2016.
5. Opposing the present petition, Sri D.P. Singh, learned counsel for the private respondents, submitted that the order dated 18.06.1985, whereby 1/3 share of the land in issue was provided to Jagannath (predecessor-in-interest of the petitioners No.1 to 7), was obtained by Jagannath by playing fraud before the authorities under the Act. To substantiate the same, he submitted as under:
(i) Initially a compromise was filed before the A.C.O. on 31.07.1975, however, the same was rejected for want of evidence pertaining to cotenancy and therefore in place of Makka the name of Rambilas(predecessor-in-interest of respondents No.4 to 6) was recorded in the revenue records.
(ii) The order of A.C.O. was challenged in Appeal and the appellate authority vide order dated 09.09.1976 remanded the matter back to the C.O.
(iii) Before the C.O. a fresh compromise dated 21.08.1978 was filed by Jagannath, Mohan Lal, Girdhari and Rambilas and as per this compromise deed, Jagannath was entitled to 1/3 share; Girdhari was entitled to 1/6 share, Mohan Lal was entitled to 1/6 and Rambilas son of Makka was entitled to 1/3 share. This compromise dated 21.08.1978 was also rejected vide order dated 17.11.1978 by the C.O.
(iv) Thereafter, the order dated 17.11.1978 was challenged before the S.O.C. In the appeal, another compromise dated 06.03.1979 was filed. As per this compromise, Jagannath S/o Bhawani was entitled to 1/3 share and Rambilas S/o Makka was entitled to 2/3 share and the share as indicated in compromise dated 06.03.1979 was provided by the S.O.C./respondent No.2 vide order dated 18.06.1985, which was passed in compliance of order dated 17.09.1981 passed by the D.D.C./respondent No.1 in the revision alleged to be filed by Rambilas/ (predecessor-in-interest of respondents No.4 to 6), and on coming to know about the order dated 18.06.1985 and fraud played by Jagannath, Rambilas filed the application for recall which was dismissed on 23.03.1990 and thereafter an application dated 04.06.1992 was preferred, which also was dismissed on 02.07.1998 and on 02.07.1998 itself an application for recall was preferred by Rambilas.
(v) During the pendency of the application for recall of order dated 02.07.1998, Rambilas was assaulted on 07.04.1999 by Shrichand/(predecessor-in-interest of the petitioners No.2 to 7) and Gumani/petitioner No.2 as also by Gopal/petitioner No.3 and Rambilas succumbed to the injuries sustained and in relation to the said incident, the trial court after considering the material evidence on record convicted three persons under Section 304(2) IPC vide judgment dated 07.09.2001 passed in Sessions Trial No.51 of 2000 (State Vs. Shrichand and two others) which is annexed as Annexure No. CA-1 to the counter affidavit filed by the private respondents No.4 to 6.
(vi) From the aforesaid, it can be deduced that on account of the dispute pertaining to the land in issue i.e. Khata No.371, the abovenamed persons assaulted Rambilas with intention to cause death, who ultimately expired on account of the injuries sustained.
(vii) The parties to the compromise dated 21.08.1978 and 06.03.1979 were identified by Sri Triveni Sahai Gupta, Advocate, who was engaged from the side of the petitioners, and as such it creates doubt regarding signing of compromise by Rambilas. In fact, Rambilas never signed the compromise and for this reason, on coming to know about the final order dated 18.06.1885, the application for recall was filed by Rambilas.
(viii) The compromise dated 06.03.1989 appears to be a forged document for the reason(s) that in the first compromise before the A.C.O., it was prayed that in place of Makka, the name of Rambilas S/ o Makka, Girdhari S/o Niranjan, Mohanlal S/o Niranjan and Jagannath S/o Bhawani be mentioned in the revenue record of Khata No.371 and in the subsequent compromise dated 21.07.1978 filed before the C.O./respondent no.3, it was prayed that 1/3 share of the land in issue be provided to Jagannath S/o Bhawani, 1/6 share be provided to Girdhari S/o Niranjan and the same share be provided to Mohanlal S/o Niranjan and 1/3 share to be provided to Rambilas S/o Makka and in the last compromise dated 06.03.1989, it was prayed that 1/3 share be provided to Jagannath S/o Bhawani and 2/3 share be provided to Rambilas S/o Makka in the land indicated in Khata No.371.
(ix) All the compromise, in fact, were unlawful because in none of the compromise, it was pleaded that land in issue is an ancestral property in which pleading is required for getting a share in holdings and in this regard, the C.O/respondent No.3 while rejecting the compromise dated 21.08.1978 vide order dated 17.11.1978 specifically observed that it has not been established that land in issue is an ancestral land and as such, if compromise is accepted, then it would amount to transfer of property, which is not permissible and while passing order dated 18.06.1985, the S.O.C./respondent No.2 completely ignored this aspect of the case.
(x) If the order is interfered on the ground that delay was not properly explained, then that eventuality illegality and fraud would perpetuate.
(xi) The impugned order dated 19.01.2016 is not liable to be intreferred on the ground that proper explanation was not given in regard to condoning the delay in filing the revision as by the same the D.D.C./respondent No.1 has done substatial justice between the parties and if this order is set aside or quashed the illegal order dated 18.06.1985 would revive.
(xii) A wrong order on fact and law, if provides substantial justice between the parties, is not liable to be interfered in exercise of power under Article 226/ 227 of the Constituion of India.
(xiii) It is settled principle of law that discretion, if exercised to provide right of hearing, then it should not be interfered by the appellate court or the higher court and as such, the impugned order dated 19.01.2016 is not liable to be interfered by this Court in exercise of power under Article 226/ 227 of the Constitution of India.
6. Considered the aforesaid and perused the record.
7. After taking note of aforesaid, this Court finds that following question has arisen and is to be answered.
"Whether the order dated 19.01.2016 passed by the D.D.C./respondent no.1 is liable to be interefered by this Court despite insufficient explanation given by the respondents No.4 to 6 (legal heirs of Rambilas) in challenging the order dated 18.05.1985, whereby rights in the land indicated in Khata No.371 were provided to Jagannath/(precessor-in-interest of petitioners) and order(s) dated 23.03.1990 and 05.02.03, whereby application(s) for restoration filed by Rambilas and respondents No.4 to 6, respectively, were dismissed for want of prosecution."
8. Before proceeding further, this Court finds it appropriate to indicate some settled proposition of law on the aforesaid.
9. It is a settled legal proposition that the court should not set aside the order which appears to be illegal, if its effect is to revive another illegal order. It is for the reason that in such an eventuality the illegality would perpetuate and it would put a premium to the undeserving party/person. (Vide Gadde Venkateswara Rao v. Govt. of A.P AIR 1966 SC 828; Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar AIR 1999 SC 3609; Mallikarjuna Mudhagal Nagappa v. State of Karnataka AIR 2000 SC 2976; Chandra Singh v. State of Rajasthan AIR 2003 SC 2889; State of Uttaranchal v. Ajit Singh Bhola 2004 6 SCC 800; and State of Orissa v. Mamata Mohanty 2011 3 SCC 436).
10. In a catena of judgments, both this Court and Supreme Court have emphasised that while exercising discretionary jurisdiction under Article 226, the High Court must ensure that justice is done, equity be upheld and injustice is eliminated.
11. In Jodhey vs State, reported as AIR 1952 All 788, this Court considered the discretionary and equitable jurisdiction of the High Court and the manner in which the same ought to be exercised. Relevant portion of the same reads:-
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12. In Gadde Venkateswara Rao v. Govt. of A.P.; AIR 1966 SC 828, a three judges Bench of the Supreme Court affirmed the judgment of the Andhra Pradesh High Court where it refused to interfere into a matter on merit even when the appellant alleged violation of principles of natural justice. The Supreme Court observed that if the impugned order passed by the Government would have been set aside by the High Court, it would have restored an illegal order. Paragraph 19 of the judgment reads:-
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13. In Mohammad Swalleh v. Third Additonal District Judge, Meerut; (1988) 1 SCC 40 the Supreme Court dismissed an appeal against an order passed by the High Court wherein the High Court refused to interfere with the order of the District Court which had no jurisdiction to entertain an appeal from the Prescribed Authority under the scheme of the Act on the ground that setting aside District Court's order would mean restoring the erroneous order of the Prescribed Authority. Paragraph 7 of the above referred judgment of the Supreme Court reads:-
"7. It was contended before the High Court that no appeal lay from the decision of the prescribed authority to the District Judge. The High Court accepted this contention. The High Court finally held that though the appeal laid (sic no appeal lay) before the District Judge, the order of the prescribed authority was invalid and was rightly set aside by the District Judge. On that ground the High Court declined to interfere with the order of the learned District Judge. It is true that there has been some technical breach because if there is no appeal maintainable before the learned District Judge, in the appeal before the learned District Judge, the same could not be set aside. But the High Court was exercising its jurisdiction under Article 226 of the Constitution. The High Court had come to the conclusion that the order of the prescribed authority was invalid and improper. The High Court itself could have set it aside. Therefore in the facts and circumstances of the case justice has been done though as mentioned hereinbefore, technically the appellant had a point that the order of the District Judge was illegal and improper. If we reiterate the order of the High Court as it is setting aside the order of the prescribed authority in exercise of the jurisdiction under Article 226 of the Constitution then no exception can be taken. As mentioned hereinbefore, justice has been done and as the improper order of the prescribed authority has been set aside, no objection can be taken."
be taken." (emphasis supplied)
14. In Shangrila Food Products Ltd. v. LIC, (1996) 5 SCC 54 the Supreme Court reiterated that while exercising jurisdiction under Article 226 and 227 of the Constitution, a duty is casted upon the High Courts to see to it that equity is upheld. High Court must ensure that any undue advantage gained by a party prior to invoking discretionary jurisdiction of the High Court ought to be taken into account before granting it any relief. Relevant paragraph 11 of the same reads:-
"11. It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognisance of the entire facts and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court, being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief. What precisely has been done by the learned Single Judge, is clear from the above emphasised words which may be reread with advantage. The question of claim to damages and their ascertainment would only arise in the event of the Life Insurance Corporation, respondent, succeeding to prove that the appellant Company was an unlawful sub-tenant and therefore in unauthorised occupation of public premises. If the findings were to go in favour of the appellant Company and it is proved to be a lawful sub- tenant and hence not an unauthorised occupant, the direction to adjudge the claim for damages would be rendered sterile and otiose. It is only in the event of the appellant Company being held to be an unlawful sub- tenant and hence an unauthorised occupant that the claim for damages would be determinable. We see therefore no fault in the High Court adopting such course in order to balance the equities between the contestants especially when it otherwise had power of superintendence under Article 227 of the Constitution in addition. We cannot be oblivious to the fact that when the occupation of the premises in question was a factor in continuation of the liability to pay for the use and occupation thereof, be it in the form of rent or damages, was also a continuing factor. The cause of justice, as viewed by the High Court, did clearly warrant that both these questions be viewed interdependently. For those who seek equity must bow to equity." (imphasis supplied)
15. In Roshan Deen vs. Preeti Lal; (2002) 1 SCC 100, the Supreme Court while setting aside an order passed by the High Court observed that the High Courts while exercising power of superintendence under Article 226 and 227 should ensure that such exercise must ensure that justice is done and at the same time injustice is eliminated. Paragraph 12 of the same reads:-
"12. We are greatly disturbed by the insensitivity reflected in the impugned judgment rendered by the learned Single Judge in a case where judicial mind would be tempted to utilize all possible legal measures to impart justice to a man mutilated so outrageously by his cruel destiny. The High Court non-suited him in exercise of a supervisory and extraordinary jurisdiction envisaged under Article 227 of the Constitution. Time and again this Court has reminded that the power conferred on the High Court under Articles 226 and 227 of the Constitution is to advance justice and not to thwart it (vide State of U.P. v. District Judge, Unnao [(1984) 2 SCC 673: AIR 1984 SC 1401]). The very purpose of such constitutional powers being conferred on the High Courts is that no man should be subjected to injustice by violating the law. The lookout of the High Court is, therefore, not merely to pick out any error of law through an academic angle but to see whether injustice has resulted on account of any erroneous interpretation of law. If justice became the by-product of an erroneous view of law the High Court is not expected to erase such justice in the name of correcting the error of law,"
16. The Supreme Court in the case of Ramesh Chandra Sankla and Others vs. Vikram Cement and Others and other connected matters, reported as (2008) 14 SCC 58 has considered, affirmed, and reiterated all the aforesaid judgments and held in paragraphs 98 that:-
98. From the above cases, it clearly transpires that powers under Articles 226 and 227 are discretionary and equitable and are required to be exercised in the larger interest of justice. While granting relief in favour of the applicant, the Court must take into account balancing interests and equities. It can mould relief considering the facts of the case. It can pass an appropriate order which justice may demand and equities may project. As observed by this Court in Shiv Shankar Dal Mills v. State of Haryana, (1980) 1 SCR 1170, Courts of equity should go much further both to give and refuse relief in furtherance of public interest. Granting or withholding of relief may properly be dependent upon considerations of justice, equity and good conscience.( emphasis supplied).
17. The Supreme Court in Shangrila (supra) has held that "One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party, priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief."
18. Now reverting to the relevant facts of the case:-
(i) In the first compromise filed on 31.07.1975 before the A.C.O for providing share in land indicated in Khata No.371, as appears from the record, the prayer was made that in the revenue record of Khata No.371, in place of Makka (father of Rambilas, predecessor-in-interest of respondents No.4 to 6) the name of Girdhari and Mohanlal, both sons of Niranjan, and Jagannath S/o Bhawani be mentioned.
(ii) The aforesaid compromise was rejected by the A.C.O and thereafter Jagannath and others, impleading Rambilas as respondent, filed an Appeal No.1675 before the S.O.C./respondent No.2, which was allowed vide order dated 09.09.1976 and the matter was remanded to the C.O./ respondent No.3.
(iii) Before the C.O./respondent No.3, in Misc. Case No.1705/58/59 of 1978, a fresh compromise was filed. As per this compromise, the land indicated in Khata No.371 has to be provided in following manner:-
(a) Jaggannath S/o Bhawani 1/3 share
(b) Girdhari S/o Niranjan 1/6 share
(c) Mohan Lal S/o Niranjan 1/6 share
(d) Rambilas S/o Makka 1/3 share.
(iv) The C.O./respondent No.3 rejected the compromise dated 21.08.1978 after observing that it has not been established that the land in issue is an ancestral land and as such if the compromise is accepted, then it would amount to transfer of property, which is not permissible.
(v) In Appeal No.163, preferred before the S.O.C./respondent No.2 challenging the order dated 17.11.1978 passed by the C.O./respondent No.3, again a fresh compromise dated 06.03.1979 was filed.
(vi) As per compromise dated 06.03.1979, 1/3 share was to be provided to Jagannath S/o Bhawani and 2/3 share was to be provided to Rambilas S/o Makka in the law indicated in Khata No.371.
(vii) The compromise dated 06.03.1979 is the basis of order dated 18.06.1985 passed by the S.O.C./respondent No.2 and by this order 1/3 share was provided to Jagannath (predecessor-in-interest of petitioners) and 2/3 share was provided to Rambilas (predecessor-in-interest of respondents No.4 to 6) in the land indicated in Khata No.371.
(viii) The compromise dated 06.03.1979, the basis of final order dated 18.06.1985, to the view of this Court was not a lawful/ genuine compromise. It is for the following reasons:-
(a) It is settled principle that claimant/plaintiff has to prove/establish his case.
(b) In the instant case it was not proved before the authorities under the Act, including S.O.C./respondent No.2, who passed the order dated 18.06.1985, by the claimant namely Jagannath(predecessor-in-interest of petitioners) that Bhawani was the original tenure holder of the land indicated in Khata No.371.
(c) No document/evidence has been placed on record to prove/establish that Bhawani was the original tenure holder of the land indicated in Khata No.371.
(d) The shares in the land indicated in Khata No.371 were not provided to all the legal heirs of Bhawani, alleged to be the original tenure holder, and there is no justifiable reason on record to justify the division of land in issue between Jagannath and Rambilas and excluding other legal heirs, though according to earlier compromise(s) i.e. compromise filed on 31.07.1975 and compromise filed on 21.08.1978, all the legal heirs of Bhawani were entitled to shares in the land in issue i.e. the land indicated in Khata No.371.
(e) All the parties to the compromise dated 21.08.1978 and compromise dated 06.03.1979, including Rambilas/ respondent, before the C.O./ respondent No.3 and S.O.C./ respondent No.2, were identified by Sri Triveni Sahai Gupta, Advocate who was engaged by the claimant/ predecessor-in-interest of petitioners.
(f) The aforesaid identification creates doubt regarding entering into the compromise by Rambilas.
(g) Compromise dated 06.03.1979, the basis of order dated 18.06.1985 passed by S.O.C./respondent No.2, was not lawful/genuine can also be inferred from the fact that during the pendency of the application for recall of order dated 02.07.1998, Rambilas was assaulted on 07.04.1999 by Shrichand/(predecessor-in-interest of the petitioners No.2 to 7) and Gumani/petitioner No.2 as also by Gopal/petitioner No.3 and Rambilas succumbed to the injuries sustained and in relation to the said incident, the trial court after considering the material evidence on record convicted these persons under Section 304(2) IPC vide judgment dated 07.09.2001 passed in Sessions Trial No.51 of 2000 (State Vs. Shrichand and two others).
(h) Without establishing/proving the fact that the land is an ancestral property, the rights based upon compromise dated 06.03.1979 were provided only to Jagannath and Rambilas excluding other legal heirs of Bhawani in the land indicated in Khata No.371, which in basic year Khatauni was recorded in the sole name Makka (predecessor-ininterest of Rambilas and respondents No.4 to 6), vide order dated 18.06.1985 passed by S.O.C./respondent No.2.
(i) The S.O.C./respondent No.2 in the order dated 18.06.1985 has not recorded the satisfaction regarding genuineness which includes the satisfaction on the lawfulness of the agreement/compromise between the parties as required under the law including Rule 25-A of U.P. Consolidation of Holdings Rules, 1954.
(j) If a person had no right under the statute, then in such position, any such right could not be recognised or admitted by a compromise or new right could not be created throughout compromise or conciliation. On this aspect, the observations made by this Court in the judgment passed in the case of Shiv Prasad vs. Deputy Director of Consolidation, Ghazipur and others, 2006 (101) RD 624 are extracted hereinunder:-
...11. It is well settled that even if a disclosure has been truthfully made by the applicant, the employer has the right to consider antecedents and fitness and cannot be compelled to appoint a candidate. While doing so, the fact of conviction and background facts of the case, nature of offence, etc. have to be considered. Even if the acquittal has been made, the employer may consider the nature of offence, whether acquittal is honourable or giving benefit of doubt on technical reasons, and decline to appoint a person, who is unfit or is of dubious character. Further, in case employer comes to conclusion that conviction or grounds of acquittal in criminal case would not affect the fitness for employment, incumbent may be appointed or continued in service.
12. The observations in Avtar Singh v. Union of Indiam [Avtar Singh v. Union of India, (2016) 8 SCC 471 : (2016) 2 SCC (L&S) 425] in aforesaid context are also pertinent to be noticed: (SCC pp. 505-506, para 31)
“31. Coming to the question whether an employee on probation can be discharged/refused appointment though he has been acquitted of the charge(s), if his case was not pending when form was filled, in such matters, employer is bound to consider grounds of acquittal and various other aspects, overall conduct of employee including the accusations which have been levelled. If on verification, the antecedents are otherwise also not found good, and in number of cases incumbent is involved then notwithstanding acquittals in a case/cases, it would be open to the employer to form opinion as to fitness on the basis of material-on-record. In case offence is petty in nature and committed at young age, such as stealing a bread, shouting of slogans or is such which does not involve moral turpitude, cheating, misappropriation, etc. or otherwise not a serious or heinous offence and accused has been acquitted in such a case when verification form is filled, employer may ignore lapse of suppression or submitting false information in appropriate cases on due consideration of various aspects.”
3. The conclusions in Avtar Singh case [Avtar Singh v. Union of India, (2016) 8 SCC 471 : (2016) 2 SCC (L&S) 425] as summarised may also be beneficially reproduced: (SCC pp. 507-508, para 38) “
“38. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of the aforesaid discussion, we summarise our conclusion thus:
38.1. Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of required information.
38.2. While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information.
38.3. The employer shall take into consideration the government orders/instructions/ rules, applicable to the employee, at the time of taking the decision.
38.4. In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/verification form and such fact later comes to knowledge of employer, any of the following recourses appropriate to the case may be adopted:
38.4.1. In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.
38.4.2. Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.
38.4.3. If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee.
38.5. In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate.
38.6. n case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion, may appoint the candidate subject to decision of such case.
38.7. In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper.
38.8. If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime.
38.9. In case the employee is confirmed in service, holding departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form.
38.10. For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for.
38.11. Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him.”
14. Reverting back to the facts of the present case, it may be noticed that there is no dispute that the petitioner had truthfully disclosed involvement in FIR No. 424 of 2011 under Sections 498-A/304-BIPC and Sections 3/4 of the Dowry Prohibition Act registered at PS: Samthar, U.P. at the time of filling of attestation form.
15. A bare perusal of the judgment of acquittal passed in FIR No. 424 of 2011 under Sections 498-A/304-BIPC and 3/4 of the Prohibition of Dowry Act reveals that the marriage of the petitioner with deceased Kanti was solemnised on 5-5-2007. The deceased expired on 4-7-2011 after period of about four years of marriage on consumption of poison which is alleged to have been administered by her husband (petitioner), father-in-law, mother-in-law and brother-in-law in furtherance of common intention of non-fulfilment of demand of dowry. The FIR was registered after filing of a complaint under Section 156(3)CrPC. However, it is pertinent to note that at the stage of evidence, the material prosecution witnesses did not support the prosecution case. Complainant Shiv Kumar (PW 1) stated that his sister prior to marriage was under depression due to illness and her mental balance was not fit. The complaint under Section 156(3)CrPC was stated to have been given by him on the instigation of others. The witness was also duly cross-examined and admitted that the accused had never harassed the deceased or demanded any dowry. He also admitted that his sister had died since she was continuously having pain in her stomach. Similarly, PW 2 Smt Meena (mother of the deceased) and PW 4 Sanjay (brother of the deceased) did not support the prosecution version and were also declared hostile.
16. It cannot be ignored that omnibus allegations had been made against all the family members of petitioner with reference to unfortunate death of deceased within seven years of marriage. However, in the witness box, none of the witnesses supported, who were the close family members of the deceased. The levelling of allegations at the instigation of others has been admitted by PW 1 and it is not out of place that in the Indian context, out of love and affection for deceased and minor differences in matrimonial relations at times allegations are made against the entire family. It is definitely unfortunate that deceased died within seven years of marriage but an adverse inference cannot be drawn under all circumstances against the accused if the same have not been supported in any manner by the witnesses, who were the close family members of the deceased. It has also come on record in evidence of PW 5 Dr Sant Ram Verma that the accused themselves had taken the deceased to the Primary Health Centre and she was in senses at aforesaid time. Further, the deceased did not disclose any other fact except of her illness. The operative portion whereby the accused had been acquitted, giving the “benefit of doubt” is to be appreciated in the light of the evidence on record and the words “benefit of doubt” cannot be mechanically read and applied. The present case is not wherein a “benefit of doubt” was extended on account of discrepancies in the evidence but since the allegations in no manner were supported by the prosecution witnesses. There is no evidence to presume that the petitioner had any role in winning over the witnesses. The findings by the Screening Committee are merely based on involvement of the petitioner in aforesaid FIR and wrong presumption that petitioner had no respect for women without appreciating the judgment of acquittal in correct perspective.
17. In the facts and circumstances, we are of the considered view that having regard to the evidence on record and the fact that the petitioner had already been considered suitable for appointment as SI (EXE) in CISF, the Screening Committee was not justified in concluding that the petitioner was not suitable for appointment to the post in Delhi Police. The Screening Committee failed to appreciate the entirety of facts and was merely swayed by invocation of Section 304-BIPC in FIR which was never supported on record by the material witnesses who were the close relations of the deceased.
8. The court needs to be alive to the realities in such cases as an exaggeration of allegations in such unfortunate incidents, out of minor matrimonial differences cannot be ruled out. In the present case, the benefit of doubt has not been granted by the learned Sessions Judge merely for some discrepancies in evidence or technical reasons but since no cogent evidence was brought on record to support the allegations of demand of dowry soon before the death of deceased
19. In trial for criminal offences, the accused is presumed to be innocent unless proved guilty and it is the duty of the prosecution for establishing the actus reus of the crime as well as the mens rea. When the accused is acquitted after full consideration of prosecution evidence and the prosecution miserably fails to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted as held in Inspector General of Police v. S. Samuthiram [Inspector General of Police v. S. Samuthiram, (2013) 1 SCC 598 : (2013) 1 SCC (Cri) 566 : (2013) 1 SCC (L&S) 229]
20. There can be no second opinion that each case is to be scrutinised on its own facts through the designated officers and in case of the police force, the scrutiny needs to be more closer since the police officials are under a duty to tackle lawlessness. However, at the same time, generalisations cannot be made to deny the offer of appointment merely on the basis of registration of FIR without considering the reasoning in the judgment and the relevant facts and circumstances. Apart from the registration of the aforesaid FIR, there is nothing on record to reflect that the antecedents or the conduct of the petitioner disqualified him in any manner for the appointment to the post of SI (EXE), Delhi Police. It may be difficult to presume that the petitioner would be a threat to the discipline of the police force merely on account of aforesaid FIR and also considering the fact that petitioner had already joined on selection as SI (EXE) in CISF in an exam conducted by SSC. It does not appear to be logical that the petitioner who was found fit for appointment to the post of SI in CISF may be held to be unsuitable for appointment in Delhi Police on the basis of exam conducted by the same recruiting agency i.e. SSC."
19. Having considered the aforesaid, this Court is of the view that order dated 18.06.1985, based upon the ingenuine compromise dated 06.03.1979, was not a lawful order and accordingly considering the principles embodied above, this Court is not inclined to interefere in the order dated 19.01.2016 passed by the D.D.C./respondent No.1, as intereference in the same would revive an another illegal order dated 18.06.1985.
20. For the aforesaid reasons, the present writ petition is dismissed.
21. No order as to costs.
