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HindustanTimes Sat,20 Sep 2014

HC quashes Khemka’s order

Hitender Rao, Hindustan Times   Chandigarh Chandigarh, August 16, 2013
First Published: 19:39 IST(16/8/2013) | Last Updated: 00:17 IST(17/8/2013)

The Punjab and Haryana high court has quashed an order passed by Haryana IAS officer, Ashok Khemka in his capacity as director general, consolidation of holdings (DGCH), under Section 42 of the Consolidation Act, saying it suffered from error of jurisdiction and was against the principles of natural justice.

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Without affording an opportunity of hearing other parties, the IAS officer had on August 8, 2012, set aside the transfer of land of Baad-Gujjar panchayat in Gurgaon to private parties in the consolidation proceedings on the grounds that classification of land in terms of relative value was unreasonable and detrimental to the interests of panchayat.

Khemka’s order of August 8, 2012, has a parallel in his October 15, 2012, order under Section 42 of the Consolidation Act whereby he ordered setting aside of mutation of 3.5 acre in Gurgaon’s Shikohpur — the tract sold by Robert Vadra, the businessman son-in-law of Congress president Sonia Gandhi to realty major DLF. Here, too, the IAS officer had passed the orders without issuing notice to the interested parties and an opportunity to be heard.

The IAS officer has also made a mention of the August 2012 order in his 100-page reply submitted in response to findings of the three-member inquiry committee which had scrutinised his October 15, 2012, order.
 
What HC ruled
A division bench of justice Jasbir Singh and justice GS Sandhawalia in its July 12, 2013, order said that the facts clearly indicated that the August 8, 2012, order pertaining to Baad-Gujjar was passed in contravention of the principles of natural justice. “The petitioners and other right-holders were not heard when the order was passed. They were the affected party,” the HC ruled.

The HC also reproduced its own observations of November 3, 2012, saying: “We are prima facie satisfied that facts narrated in the impugned order (of Khemka) may be prima facie correct. But the impugned order suffers from error of jurisdiction as well as failure to adhere to principles of natural justice. The director general, consolidation of holdings, Haryana, has in his enthusiasm to uncover illegalities and protect the rights of a gram panchayat (Baad-Gujjar) ignored the principles of natural justice. We may agree with his observations, but cannot lose sight of the fact that a person likely to be adversely affected by his order had to be afforded an opportunity of hearing.”

The case
The present matter pertained to panchayat land of Baad-Gujjar village in Gurgaon. Khemka on August 8, 2012, had set aside the transfer of the panchayat land to private parties in the consolidation proceedings on the grounds that classification of land in terms of relative value was unreasonable and detrimental to the interests of the gram panchayat. The IAS officer had also ordered that land shall be re-valued relative to other land of the village by the consolidation officer as per the rules. “This relative under-valuation of panchayat land was exploited by some outside private parties and other influential inhabitants of the village. The consolidation proceedings were thus vitiated by unlawful consideration where some private parties benefitted at the cost of the gram panchayat,” the officer wrote in his order.
 
What the Consolidation provisions say
Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, says that the state government may, at any time for the purpose of satisfying itself as to the legality or propriety of any order passed, scheme prepared or confirmed or repartition made by any officer under Act, call for and examine the record of any case pending before or disposed of by such officer and may pass order in reference thereto thinks fit.

The provision also says that no order or scheme or repartition shall be varied or reversed without giving the parties interested notice to appear and opportunity to be heard except in cases where the state government is satisfied that the proceedings have been vitiated by unlawful consideration.
 
This requirement of being heard could only be done away with if the ground of unlawful consideration as specified in Section 23 of the Indian Contract Act, 1872, has been invoked and proved in the impugned order, the three-member inquiry committee of the Haryana government had said in its report.

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