Ashok Kumar Mishra And Another vs S.D.M. Mohan Lal Ganj And Others
2013 Latest Caselaw 6205 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Judgment reserved on 19.9.2013
 
Judgment Delivered on 01.10.2013
 

 
Court No. - 21
 

 
Case :- MISC. SINGLE No. - 154 of 1993
 

 
Petitioner :- Ashok Kumar Mishra And Another
 
Respondent :- S.D.M. Mohan Lal Ganj And Others
 
Counsel for Petitioner :- Santosh Kumar Tripathi,D.C.Mukharli,Santosh Kr. Tripathi
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Sibghat Ullah Khan,J.

Heard Sri D.C.Mukharji, learned counsel for the petitioner who filed his 'Vakalatnama' along with rejoinder affidavit on 19.9.2013 and Sri Y.M.S. Yadav, learned Standing Counsel for the respondents who supplied duplicate copy of the counter affidavit.

Petitioners who are cousins asserted that they were in possession over an area of more than 25 bighas of Gaon Sabha land and had thereby become Sirdar of the same. The SDO through order dated 27.12.1969 directed entry of their names in the revenue record and on the basis of the said order entry was made in Khatauni 1381-83 Fasli. Thereafter consolidation started in the area in question through notification under Section 4(2) of U.P.C.H. Act dated 2.7.1980. During consolidation no objection was filed by the Gaon Sabha and the entries continued in CH-Form No.45.

The names of the petitioners were scored off from the revenue record through order dated 30.7.1991 passed by SDO, Mohan Lal Ganj in Case No.6 of 1990-91 Gram Samaj vs. Ajai Kumar and others under Section 33/39 of U.P. Land Revenue Act. Copy of the said order is Annexure 7 to the writ petition and that has been challenged through this writ petition.

It is mentioned in the said order that according to the report of the Lekhpal in the Khatauni of 1395-1400 Fasli (1987-88 to 1992-93 AD) over the land of Khata No.165 consisting of several plots total area 25 bighas 13 biswa 10 biswansi names of petitioners were wrongly recorded on the basis of illegal patta and they were relations of the previous Pradhan. It is also mentioned that notices were sent to petitioners but they did not appear and they also did not file any objection. It is further mentioned that on perusal of the record it transpired that on the basis of some order passed in Case No.285 dated 27.12.1969 names of petitioners were directed to be entered in the revenue record. It was also mentioned that the order was passed by Sri A.Chandi the then SDO who had passed several such orders and consequently his services were terminated. It was also mentioned that no Patta could be granted of more than 6 Bighas and that one petitioner was minor at that time and the other in government service. In the writ petition, it has not been stated that under which provision Case No.285 was instituted and decided. In the impugned order also it is mentioned that it was not pointed out that under which provision the said case was instituted. A claim of title on the basis of adverse possession against Gaon Sabha land could not be recognized in mutation proceedings under Section 33/39 of U.P.Z.A.&L.R. Act. It has not been stated that some declaratory suit was filed by the petitioners which was decreed. More over on Gaon Sabha land title cannot be matured by adverse possession after retrospective amendment of Section 210 of U.P.Z.A. & L.R. Act in 1976. Copy of order dated 27.12.1969 has not been annexed along with the writ petition.

Accordingly it was pure loot of the Gaon Sabha property with the assistance of the SDO.

In case of usurpation of public property through fraudulent means bar of Section 49 of U.P.C.H. Act does not apply. The Supreme Court in Karbalai Begum Vs. Mohd. Sayed, A.I.R. 1981 S.C. 77 has held that the bar under the said sections is not absolute. Even during consolidation Gaon Sabha properties have been looted by people on a large scale. I have discussed this aspect in detail in a judgment reported in U.P. Avas Vikas Parishad vs. Lazza Ram 2012 (3) AWC 2226 paras 22 to 27 of the said authorities are quoted below:-

"The provision of presumption is provided under Section 114 of Evidence Act, which contains some illustrations also. The said section along with illustrations (e) & (f) is quoted below:

"114. Court may presume existence of certain facts.- The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case.

The Court may presume-

(e) that judicial and official acts have been regularly performed;

(f) that the common course of business has been followed in particular case;"

If the presumption of entry in favour of plaintiff's father for four or seven years is to be presumed then presumption of correctness of discontinuance of entry for 40 years will also have to be drawn.

Life of law has not been logic, it has been experience (O.W. Holmes). This principle applies with greater force on presumptions and human conduct. I have heard and decided hundreds of matters pertaining to agricultural land and my experience is that Gaon Sabha property has been looted by unscrupulous persons on a very large scale by manipulation in the revenue records and forging of orders particularly of consolidation courts. The modus operendi is that a very old entry or copy of order is produced like a rabbit from the hat of a magician and its resumption or recording is sought.

Supreme Court in Civil Appeal No.1132 of 2011, Jagpal Singh and others Vs. State of Punjab, in Para-20 observed as follows:

"20. In Uttar Pradesh the U.P. Consolidation of Holdings Act, 1954 was widely misused to usurp Gram Sabha lands either with connivance of the Consolidation Authorities, or by forging orders purported to have been passed by Consolidation Officers in the long past so that they may not be compared with the original revenue record showing the land as Gram Sabha land, as these revenue records had been weeded out. Similar may have been the practice in other States. The time has now come to review all these orders by which the common village land has been grabbed by such fraudulent practices."

In Dina Nath Vs. State of U.P. 2009 (108) R.D. 321, I held that not making any efforts for getting the name of the petitioner entered in the revenue records on the basis of alleged patta by Gaon Sabha for 29 years proved that no patta was executed. I issued directions to all the Collectors to reopen all such cases where names of private persons were entered in the revenue records over Gaon Sabha land. Matter was carried to the Supreme Court in the form of S.L.P. (Civil) C.C.4398 of 2010 Dina Nath Vs. State. The Supreme Court decided the matter on 29.03.2010 and quoted almost my entire judgment in inverted commas and approved the same.

Accordingly, it is held that whenever a person comes along with the case that Gaon Sabha land was allotted to him or some order was passed by any Court in his favour declaring his right over Gaon Sabha land or some revenue entry was in his favour long before but during last several years his name is not recorded in the revenue records then an irrebuttable presumption amounting to almost conclusive proof must be drawn to the effect that allotment order or entry is forged."

Para 5 of the Supreme Court Authority of Deena Nath is quoted below:-

"We have heard Shri S.R.Singh, learned Senior Advocate appearing for the petitioner and perused the record. In our view, the learned Single Judge did not commit any error by refusing to entertain the writ petition. In a matter like present one, the court cannot be a silent spectator and his bound to birth its constitutional duty for ensuring that the public property is not frittered by unscruplous elements in the power corridors and acts of grabbing public land are properly equired into and appropriate remedial action taken."

The Supreme Court judgment of Deena Nath is reported in Deena Nath vs. State of U.P. 2010 (150) SCC 218. The other Supreme Court judgment of Jagpat Singh Vs. State of Punjab is reported in A.I.R. 2011 S.C. 1123.

As petitioners have completely failed to show or even plead any right over the land in dispute hence I do not find least error in the impugned order.

As far as opportunity of hearing is concerned firstly petitioners in spite of notice did not appear before the authority below. Secondly Supreme Court in A.M.U. Aligarh vs. M.A. Khan A.I.R. 2000 S.C. 2783 and Ashok Kumar Sonkar Vs. Union of India, 2007 (4) SCC 54 has held that if some one in writ petition challenges an order on the ground of denial of opportunity of hearing then in the writ petition he should show that in case opportunity had been granted what plausible cause he would have shown. In the entire writ petition not even an attempt has been made to justify the order dated 27.12.1969.

Accordingly, I do not find any error in the impugned order. Writ Petition is therefore dismissed.

Petitioners shall forthwith be evicted from the land in dispute and damages at the rate of Rs.10,000/- per hectare per year shall also be recovered from them like arrears of land revenue for the period for which they remained in illegal occupation thereof, i.e. since 1969 till the date of their eviction. The amount after being recovered by the Collector shall be kept in consolidated Gaon Fund constituted under Section 125-A of U.P.Z.A. & L.R. Act.

Order Date :- 1.10.2013

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