Ram Roop vs The Commissioner And Others
2022 Latest Caselaw 21945 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR	 			 	   
 
Reserved on 17.11.2022 
 
Delivered on 20.12.2022
 
Court No. - 30
 

 
Case :- WRIT - C No. - 51738 of 2000
 
Petitioner :- Ram Roop
 
Respondent :- The Commissioner And Others
 
Counsel for Petitioner :- Raj Kishore Yadav,S.C.Varma
 
Counsel for Respondent :- C.S.C.,Anuj Kumar
 

 
Hon'ble Umesh Chandra Sharma,J.

1. Heard Shri Raj Kishore Yadav, learned counsel for the petitioner and Shri Jitendra Narain Rai, learned Additional Chief Standing Counsel for the respondents.

2. This writ petition has been instituted to quash the order dated 13.12.1995 (Annexure No.1), order dated 05.08.1997 (Annexure No.7) passed by respondent no.2 - Additional Collector, Land Revenue, Azamgarh, and order dated 31.10.2000 (Annexure No.6) passed by respondent no.1- The Commissioner, Azamgarh Division, Azamgarh.

3. In brief facts of the case are that, villages in Tehsil Mohammadabad Gohna, now Sadar, District Azamgarh, were denotified under Section 52 of the Consolidation of Holdings Act, 1953 (hereinafter referred to as the CH Act) in the year 1972. By orders of the respondent no.2 dated 10.6.1969 the petitioner was granted Sirdari rights over plot no.2093 (new no.1216) 740 kari and plot no. 226 ( new no.138/5) 421 kari as evident from form CH-45 and the petitioner is in possession over the aforesaid plots for the last 25/26 years. By notification issued under Section 4(2) of the Act (published in U.P. Gazette on 5th September, 1992), the consolidation proceedings were restored in district Azamgarh. During the consolidation operation, respondent no.1 exercising its power under Section 33 read with Section 39 of the U.P. Land Revenue Act, 1901 (in short ''the LR Act') changed the entries in the revenue records, based on the orders passed by the consolidation Authorities during first consolidation operations in the village, without issuing notice to the petitioner or affording him an opportunity of hearing (Annexure No.1 to the writ petition).

4. The petitioner has been in peaceful and cultivatory possession over the land in dispute for more than 31 years without there being any dispute regarding the same and without any claim by the Gaon Sabha and his name was also recorded in the Khatauni since 1969 and Jotvahi was also issued till date (Annexure No.2).

5. Against the order dated 13.12.1995, a Civil Misc. Writ Petition No.6181 of 1996 was filed and vide judgment dated 15.12.1996, operation of the order dated 13.12.1995 was stayed and further it was directed to the petitioner to move objection within 15 days before the respondent no.2 (Annexure No.3).

6. Pursuant to the aforesaid order, the petitioner filed objection before the respondent no.2 on 27.02.1996 in case no.49 of 1996 on 27.02.1996. (Annexure No.4). Respondent no.2 summoned the original record of CH form 23 and form 45 along with original khatauni. It was argued that the petitioner's name was recorded by order dated 10.6.1969 of C.O. Manshipur in case no. 704. Since the file of case no. 704 was weeded out hence it was not available in the revenue records and the name of the petitioner was mutated in CH form 23 and CH form 45 by the consolidation authorities and it was just and proper and there was no forgery done by the petitioner. It was also argued that after the issuance of notification U/s 4(2) of the U.P. C.H. Act, the revenue authorities have no jurisdiction to decide the entry or make any correction. After publication of notification U/s 4(2) of U.P. C.H. Act, the provisions of Section 5(2) of the U.P. C.H. Act will come into play. But without considering the arguments, after 26 years, respondent no.2 changed the entry while the entry could not be changed in summary proceeding and such entry can be corrected only by way of regular suit but without considering the arguments of the petitioner, the respondent no.2 rejected the objection of the petitioner vide order dated 5.8.1997 (Annexure No. 5).

7. Against the order dated 05.08.1997, the petitioner preferred revision before the respondent no.1 and it was argued that order dated 13.12.1995 and 05.08.1997 were without jurisdiction in view of the publication of notification under Section 4(2) of the Act and it was admitted by the respondent no.1, even then he dismissed the revision and confirmed the judgment and order, passed by the court below vide judgment and order dated 31.10.2000 (Annexure No.6).

8. In the impugned order dated 13.12.1995, no finding is recorded or given against the petitioner that he was responsible for making entries in the revenue record. Once the village has been renotified for consolidation, the respondent no. 2 ceases to have any jurisdiction to pass any orders as the powers vest with the consolidation courts/authorities.

9. On the aforesaid grounds, it has been contended that all the three impugned orders i.e. 13.12.1995, 5.8.1997 and 31.10.2000 are wholly illegal and not sustainable in the eyes of law and therefore, they deserve to be quashed and the petition be allowed.

10. From the side of respondent counter affidavit has been filed by Tehsildar wherein respondents have denied the allegations of the petitioner and have replied that petitioner's name was fictitiously recorded in pursuance of the alleged order dated 10.06.1969 and when it came to the notice of the authority concerned, the name of the petitioner was expunged from the revenue record as there was no such order in the office. Admittedly plot in question is the property of the Gaon Sabha and no Sirdhari right accrues to the petitioner over the same. If the petitioner had any grievance, he should have filed an objection under Section 9-A (2)of the U.P. C.H. Act before consolidation authority as the village in question was notified under Section 4(2) of the Act and was published in the gazette on 5.9.1992 but the petitioner did not file any objection as such he has no right or title in view of the fictitious entry in the revenue record. It is not the case of the correction of the paper and applications are not maintainable under section 33/39 of the U.P. Land Revenue Act after village in question was notified under Section 4(2) of the Act.

11. By order dated 13.12.1995 passed by respondent no.2, name of the petitioner was ordered to be expunged from the revenue record. The petitioner filed Civil Misc. Writ Petition No.6181 of 1996 against the aforesaid order and the Hon'ble Court vide order dated 15.12.1995 disposed of the petition directing the petitioner to file an application/objection before the Chief Revenue Officer within 15 days. In pursuance of the order dated 15.12.1996, the petitioner should have filed an application/objection separately before respondent no.2. Annexure no.4 shows that the petitioner has filed objection in case no.49 of 1996 under Section 33/39 of the U.P. Land Revenue Act. In fact the petitioner succeeded to get his name recorded in the revenue record on the basis of fictitious order which is not available in the record room. As the petitioner has already filed Writ Petition No.6181 of 1996, it could not be clearly ascertained that how the petitioner escaped himself and filed another writ petition No.5930 of 1996 filed by Jaintri. The petitioner was directed to comply with the order dated 15.02.1996 passed in Civil Misc. Writ Petition no.6180 of 1996. The petitioner filed Revision/Reference No.82/261 A/97 under Section 219 of the U.P. Land Revenue Act against the order dated 05.08.1997 passed by the Additional District Magistrate, Azamgarh in case of State of UP Vs. Mahatam under Section 33/39 of the UP Land Revenue Act. After considering the material on record and giving opportunity of hearing to the petitioner, the revision was dismissed vide order dated 31.10.2000 which is legal and just. There is no question of law involved in the writ petition to be decided.

12. Therefore, it was submitted that the writ petition is devoid of merit and in view of the facts and circumstances, the same is liable to be dismissed.

13. Denying the allegations made in the counter affidavit, the petitioner had filed rejoinder affidavit on 07.05.2000 in which he has reiterated the version of the petition.

14. On the basis of the averments and arguments of the petitioner, the following three main points emerge, resolving which this petition can be disposed of:

(I) Whether by the orders of respondent no.2/consolidation court dated 10.06.1969 sirdari rights were granted to late Ram Roop over plot no.2093 (new no.121) area 740 kari and plot no.226 (new no.138/5) area 421 kari?

(II) Whether on the basis of above entries the petitioners are in peaceful possession over the plots in question and whether on the basis of such long standing entries and alleged peaceful possession any indestructible right has accrued in favour of the petitioner?

(III) Whether after renotification of consolidation proceedings under Section 4(2) of CH Act on 05.09.1992 the revenue authorities had no right to exercise their power under Section 33/39 of LR Act to remove the entries from the record of rights? and on that basis the impugned orders are liable to be quashed.

Conclusion

15. Issue No.1--The petitioner could not produce the extract of the order dated 10.06.1969 passed by the concerned authorities either in previous petition or in this writ petition and also could not produce such order before the respondents. The order of CRO/In charge Officer, Azamgarh and Commissioner. Azamgarh is based on the report of the record keeper from which it was revealed that 14 forged orders have been incorporated in blue ink instead of red ink and by such forged orders properties of Gram Samaj (now Gram Panchayat) have been named to the private persons. By such forged orders navin parti, banjar, pond, grave yard, land allotted for plantation, khaliyan (barn), pasture and bhita land have been named to the petitioners and other persons. It was also found that no such orders were available in the concerned bundle. Even it was found that in case of Jaintri an order under Section 229-B is shown but it was entered in jild consolidation whereas there is no such procedure.

16. It is obvious that consolidation court has no power to pass an order regarding the holding of Gram Samaj and if they pass any order, it would be null and void. But in these cases even no such order of consolidation court was found to be passed. It was also found that even an order under Section 9 of CH Act was written in blue ink over the pond land. Among these 14 forged entries at serial no.5 name of Ram Roop and the impugned lands are mentioned. Thus, the revenue authorities found that all these 14 entries were entered by playing fraud by which no right, title or interest passes and accrues in favour of the petitioner and the other persons. The petitioner and the other persons could not show any paper of their right and title at the time of abolition of zamindari or prior to that. Such right can not arise all of sudden and without any basis. Why these lands would be allotted to the petitioner and the other persons. The consolidation courts were acting as revenue authorities. They were not entitled to award sirdari rights over the land of Gram Samaj without any basis. These lands were not given to the concerned persons in lieu of their land etc. There was no basis at all to enter the name of the petitioner and the other persons over those lands.

17. On the basis of above discussion it is concluded that consolidation courts or the respondents have not provided the land in suit to late Ram Roop as sirdar. The entries in revenue records were secretly recorded without any basis and it was the result of manipulation. Thus, issue no.1 is decided in negative and against the petitioner.

18. Issue No.2--From the above discussions it is proved that the name of late Ram Roop was recorded in revenue records without any basis. No such order was passed, therefore, the petitioner does not get any right on the basis of fake entry, no matter how old it is. It is also an established principle that no one gets any right on the land of Gram Samaj/State on the basis of adverse possession and he cannot be the owner of the land of the Gram Samaj/State.

19. In Jamuna Vs. State of UP1 about the exercise of power under Section 33/39 of LR Act principles have been laid down about dealing with forged and fabricated entry in revenue record. In the cited case the entry in revenue record was found to be forged and fabricated, therefore, it was expunged. This Court held that fraud vitiates everything. Such entries can be expunged at any stage. No opportunity of hearing is required for expunging the forged and fabricated entry.

20. In Jagram Vs. Brija2 the board of revenue held that claim on the basis of wrong entry in the khatauni can not be sustained. Such entry should be in accordance with the provisions of law. If an entry is wrongly made in the khatauni, no right can be claimed on the basis of such entry. If the entry in the name od tenure holder is wrong, the entry of the name of successor will also be treated as wrong. If the order for correction of entry has been passed, there is no illegality in the same.

21. On the basis of the above discussion and the judicial precedents it is concluded that no right, title or interest had been conferred to late Ram Roop on the basis of forged and fabricated entry. A forged and fictitious entry how so long will not confer any right to the petitioner. Therefore, it cannot be said that the late Ram Roop and his legal representatives were in peaceful and lawful possession over the property in suit but it can be concluded that they are the trespasser and unauthorized occupant over the land of Gram Panchayat who can be evicted forcefully and they are also liable to pay damages etc.

22. On the basis of above discussions issue no.2 is decided against the petitioner.

23. Issue No.3--According to the petitioner after renotification under Section 4(2) of the CH Act on 05.09.1992 the respondents were not entitled to expunge the entry already existed in favour of the petitioner exercising the power under Section 33/39 of the LR Act. While deciding issue no.1 it has been held that no such order was passed in favour of Ram Roop as no such file existed in record room and the entries were also not made in accordance with law. There was no basis of such entries. The properties were of Gram Samaj and out of the jurisdiction of the consolidation courts. Though no such order was passed by the consolidation court but even it was beyond the power of the consolidation court to pass an order and enter the petitioner as sirdar on the property of Gram Samaj. Under Section 33/39 of the LR Act the Collector and the Tehsildar are duty bound to remove the errors and omissions from the record-of-rights register. The papers were submitted by the consolidation authorities after the closer of the consolidation proceedings. Thereafter it was the duty of the Collector and Tehsildar to maintain the revenue records in accordance with law. For this they are empowered under Section 33/39 of the LR Act. So they applied their rights.

24. In Raj Singh Vs. State of UP3 it is held that if the entry is not based on any document of title or the order has not been passed by the competent court, the same may be expunged in the proceeding under Section 33/39 of LR Act treating them to be a clerical mistake. In the cited case the original patta and the allotment resolution was not produced in original. Similarly in this case, the order dated 10.09.1969 has not been produced by the petitioner.

25. In Sri Ram Vs. Gaon Sabha4 and Chandra Datt Vs. State of UP5 the lower courts have also held that if for the sake of argument it is presumed that the order would have been passed by consolidation court the question arises as to whether the consolidation court has right to deal with the land of the Gram Samaj? The answer is, No, because the Gram Samaj land is not included under the definition of ''holding' when the records were under the revenue authorities, this order was passed. The lower courts have also referred some judicial precedents such as Vikram Singh Junior High School Vs. District Magistrate, Farrukhabad6, S.P. Chengal Daria Naidu Vs. Jaggannath7 in which it is held that any judicial order obtained by playing fraud is null and void. They do not confer any right. Such fraudulant entry can be removed at any time. Thus, this Court is of the considered view that the notification under Section 4(1) of CH Act was no bar in exercising the jurisdiction by the revenue authorities under Section 33/39 of LR Act as the matter was not open for the intervention of the consolidation courts. The impugned orders do not suffer from any manifest error. Therefore, issue no.3 is decided against the petitioner.

26. On the basis of the aforesaid discussion it is concluded that this petition is meritless and deserves to be dismissed.

ORDER

27. This writ petition is dismissed with costs.

Order Date :- 20.12.2022

Shahroz/S.Verma

(Umesh Chandra Sharma,J.)