Allahabad High Court
Jay Singh And 5 Others vs State Of U.P. And 3 Others on 2 July, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:107529 Court No. - 36 Case :- WRIT - C No. - 18473 of 2024 Petitioner :- Jay Singh And 5 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Gulab Chandra,Onkar Nath Counsel for Respondent :- Azad Rai,C.S.C. Hon'ble Kshitij Shailendra,J.
1. Heard Shri Gulab Chandra, learned counsel for the petitioners, learned Standing Counsel for the State respondents and Shri Azad Rai, learned counsel for respondent No.3.
2. In view of the fact that respondent No. 4 was complainant and the order impugned has been passed alleging the land to be government land and considering the nature of the order impugned and to ensure a lawful decision in the proceedings under Section 38 of UP Revenue Code, 2006 (hereinafter referred to as 'Code, 2006), notice to the respondent No. 4 is not being issued.
3. This petition has been filed challenging the order dated 18.04.2024 whereby, the Sub-Divisional Officer, Bindaki, District- Fatehpur has set aside the entry existing in favour of the petitioners and directed recording of the concerned land as pond.
4. A preliminary objection has been raised by the learned counsel appearing for the respondents to the effect that the order impugned has been alleged to be ex-parte and, therefore, petitioners have alternative remedy by applying for recall of order under Section 209(h) of the Code, 2006 and, therefore, the writ petition is not maintainable.
5. Refuting the said submission, learned counsel for the petitioners submits that alternative remedy is not an absolute bar in those cases where principles of natural justice have been violated and, in the present case, same thing has happened inasmuch as the petitioners have not been provided any opportunity of hearing before passing the order impugned.
6. It appears from the order impugned that respondent No. 4 filed an application dated 13.03.2024 alleging wrongful entries in the name of petitioners on which, just after 3 days, a report was submitted by the Naib Tehsildar, Bindaki on 16.03.2024.
7. The order impugned was passed after about a month on 18.04.2024 and it does not even refer to issuance of notice to the petitioners.
8. Section 38 of the Code, 2006 reads as under:
"38. Correction of error and omission-(1) An application for correction of any error or omission in the map, field-book (Khasra) or record of rights (Khatauni) shall be made to the Tahsildar in the manner prescribed.
[(2) On receiving an application under sub-section (1) or on any error or omission otherwise coming to his knowledge, the Tahsildar shall make such inquiry as may appear to him to be necessary, and refer the case along with his report to the Collector in the case of map correction and to the Sub-Divisional Officer in matter of other correction.
(3) The case shall be decided by the Collector or the Sub-Divisional Officer, as the case may be, after considering any objection filed and evidence produced before him or before the Tahsildar.
(4) Any person aggrieved by an order of the Collector or the Sub-Divisional Officer, as the case may be, under sub-section (3), may prefer an appeal to the Commissioner within a period of thirty days from the date of such order, and [The decision of the Commissioner shall, subject to the provisions of Section 210, be final].
[(5) Any forged or manipulated entry in the map, the khasra or the record of rights (khatauni) may be expunged under this section.
(6) Notwithstanding anything contained in other provisions of this Code, the Revenue Inspector may correct any undisputed error or omission in the record of rights (khatauni) or khasra in such manner and after making such inquiry, as may be prescribed.] Explanation.- The power to correct any error or omission under this section shall not be construed to include the power to decide a dispute involving question of title."
9. This Court in Chaturgan Vs. State of U.P. and Others, 2005(98) RD 244 held that before expunging the long-standing entry, proper opportunity of hearing be afforded to the recorded tenure holder by the Court. Paragraph Nos. 8, 12 and 13 of the judgment are relevant which are as follows:-
"8. Accordingly it is held that whenever an entry in the revenue record is to be cancelled and substituted particularly when the entry is continuing for more than a year, notice must be given to the party in whose favour entry stands even if prima facie authority/Court concerned (i.e. Deputy Collector/Sub Divisional Officer in most of the cases) is of the opinion that the entry is result of fake order or fraud. Similarly if name of an Asami pattedar is to be expunged from the revenue records on the ground of expiry of period of patta or any other ground, notice must be given to him before expunging his name. In a recent authority reported in Hari Ram v. Collector, 2004 (2) RD 360 it has been held by this Court that apart from suit for ejectment under Section 202 of UPZA and LR Act Asami pattedar may be evicted after expunging his name from the revenue records under Section 34 of UPZA and LR Act but it can be done only after providing opportunity of hearing to the pattedar/les-see. However if entry is expunged or any other order is passed without hearing the person affected then he is entitled to file an application for post decisional hearing and recall of the order before the court/authority which passed the ex-parte order. If such an application is filed then the court/authority concerned shall hear the applicant and in case it comes to the conclusion that the earlier order is not correct then the said order shall be set aside. In such situation it is not necessary to first set aside the order and then hear the party concerned. Along with such application such evidence must be filed which the party considers necessary for his case. It has been held by the Supreme Court in A.M.U. Aligarh v. M.A. Khan, (2000) 7 SCC 529 : AIR 2000 SC 2783 that a person who complains about denial of opportunity of hearing must show that in case opportunity had been provided to him, what cause he would have shown or what defence he would have taken. (Similar view has been taken in S.L. Gupta v. A.D. Gupta, 2003 AIR SCW 7089 (para 29) and Canara Bank ((2003) 4 SCC 557 : AIR 2003 SC 2041) (supra). Against ex-parte orders of expunging of names it is not proper to file revision and appeal etc. directly. However, if revision, appeal etc. is directly filed then revisional court/appellate Court may also instead of deciding the revision or appeal on merit may grant leave to the affected party to apply for post decisional hearing and recall of order before the trial court/authority. The, revisional/appellate authority may also decide the matter on merit after providing opportunity of post decisional hearing (i.e. opportunity to show that earlier entry was not fake) as mentioned in the judgment of Supreme Court in Canara Bank (supra)."
12. So far as alternative remedy is concerned, the Apex Court in the case reported in 2009 (1) AWC 437 (SC) Committee of Management and another Vs. Vice-Chancellor and Others has held that if the order has been passed in violation of principles of natural justice, the alternative remedy will not be bar to entertain the writ petition under Article 226 of the Constitution of India. Paragraph Nos. 21,24, 25 and 26 of the judgment rendered in Committee of Management (Supra) shall be relevant for perusal which are as under:-
"21. Furthermore, when an order has been passed by an authority without jurisdiction or in violation of the principles of natural justice, the superior courts shall not refuse to exercise their jurisdiction although there exists an alternative remedy. In this context, it is appropriate to refer to the observations made by this Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors. AIR 1999 SC 22.
15. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
In this case, albeit, before us for the first time, the vires of the proviso appended to Section 16 of the Act is in question, besides other points noticed by us hereinbefore.
24. Whether in a case of this nature such a power has properly been exercised or not, in our opinion, being an intricate question should ordinarily fall for determination by the High Court itself. Our attention has also been drawn to a decision of a Seven-Judge Bench of this Court in the case of P.A. Inamdar and Ors. v. State of Maharashtra and Ors. AIR 2005 SC 3226 wherein it has been held :
126. The observations in para 68 of the majority opinion in T.M.A. Pai Foundation v. State of Karnataka AIR 2003 SC 355 on which the learned Counsel for the parties have been much at variance in their submissions, according to us, are not to be read disjointly from other parts of the main judgment. A few observations contained in certain paragraphs of the judgment in Pai Foundation if read in isolation, appear conflicting or inconsistent with each other. But if the observations made and the conclusions derived are read as a whole, the judgment nowhere lays down that unaided private educational institutions of minorities and non-minorities can be forced to submit to seat-sharing and reservation policy of the State. Reading relevant parts of the judgment on which learned Counsel have made comments and counter-comments and reading the whole judgment (in the light of previous judgments of this Court, which have been approved in Pai Foundation) in our considered opinion, observations in para 68 merely permit unaided private institutions to maintain merit as the criterion of admission by voluntarily agreeing for seat-sharing with the State or adopting selection based on common entrance test of the State. There are also observations saying that they may frame their own policy to give freeships and scholarships to the needy and poor students or adopt a policy in line with the reservation policy of the State to cater to the educational needs of the weaker and poorer sections of the society.
25. Keeping in view the legal questions arising in the matter, we are of the opinion that it was not a fit case where the High Court should have refused to exercise its discretionary jurisdiction to entertain the writ application.
26. For the aforementioned reasons, the impugned order cannot be sustained and is set aside accordingly. The appeal is allowed accordingly. The High Court is requested to consider the matter on merits. No costs."
13. Hon'ble Apex Court recently in the case reported in AIR 2023 Supreme Court 781 M/s Godrej Sara Lee Ltd. Vs. Excise and Taxation Officer-Cum-Assessing Authority and others has held that power to issue prerogative writs under Article 226 is plenary in nature and does not impose any limitation or restraint on the exercise of power to issue writs."
10. Apart from the aforesaid, the Court may refer to the Rule 186 of the U.P. Revenue Code Rules, 2016, which is reproduced as under:
"186. Non-applicability of CPC (Section 214).- The Provisions of the Code of Civil Procedure, 1908 shall not be applicable to the summary proceedings under the Code or these rules, but the principles enshrined in the Code of Civil Procedure, 1908 and the principles of natural justice shall be observed in the disposal of such proceedings."
11. The aforesaid rule clearly provides that although provisions of CPC, 1908 shall not be applicable to the proceedings under the Code or the Rules, but principles enshrined in CPC and the principles of natural justice shall be observed in disposal of such proceedings.
12. The case in hand is not the one in which notices were issued to the petitioners but they did not appear to contest the proceedings, rather, it is apparent that the case had proceeded on the basis of a report submitted by the Naib Tehsildar at the instance of the complainant and, very hurriedly, matter was disposed of .
13. Consequently, the Court finds that the order impugned is unsustainable and alternative remedy of seeking recall would not be a bar in entertainment of the writ petition as per decisions, above cited, and considering the Rule 186 of U.P. Revenue Code Rules, 2016.
14. The writ petition is, accordingly, allowed.
15. The order impugned dated 18.04.2024 is set aside.
16. The proceedings of Case No.T-202402250202769 (State vs. Jay Singh and others) are restored to its original number and status.
17. The petitioners shall appear before the Sub-Divisional Officer concerned on 05.08.2024, on which date the office of the Sub-Divisional Officer shall serve photocopy of the entire record of the proceedings upon the petitioners or their counsel.
18. The petitioners shall file objections along with evidence in support of their defence in the month of August, 2024.
19. The Sub-Divisional Officer shall provide reasonable opportunity of hearing to both the parties and, after carefully examining the record, shall dispose of the proceedings strictly in accordance with law on or before 15.11.2024.
Order Date :- 2.7.2024 K.K.Tiwari