Syed Shahabuddin vs The Board Of Revenue And Others
2022 Latest Caselaw 14852 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved On: 29.9.2022
 
Delivered On: 21.10.2022
 
Court No. - 52
 

 
Case :- WRIT - B No. - 61203 of 2012
 

 
Petitioner :- Syed Shahabuddin
 
Respondent :- The Board Of Revenue And Others
 
Counsel for Petitioner :- A.P. Tewari,S.S. Tripathi
 
Counsel for Respondent :- C.S.C.,A K Singh,Amit K. Singh,Punit Kumar Gupta,Rahul Kumar Tyagi
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Sri A.P. Tiwari, learned counsel for the petitioner, learned Standing Counsel for respondent nos.1 to 4 and Sri Awadhesh Kumar Singh for respondent no.5.

2. Brief facts of the case are that petitioner is claiming himself owner and in possession of Plot No.126 area 0.0795 hectare situated at Arazi Chhawani, Tahsil- Sadar, District- Gorakhpur, his name was recorded in the Khatauni of 1408 fasli as Khud Kast Jaman 2 (3). According to petitioner his house exist upon the land in question being House No.79 which is proved from municipal record. Respondent no.5 instituted a declaratory suit before Waqf Tribunal, Gorakhpur being Suit No.163 of 1998. Another Suit No.402 of 1999 for permanent injunction was filed by Brij Corporation against the petitioner. Deputy Collector vide order dated 18.9.2003 ordered to expunge the petitioner's entry on the basis of report of Naib Tehsildar dated 16.9.2003. Petitioner's application dated 18.9.2003 was rejected by Deputy Collector vide order dated 25.11.2003 recording finding that plot in dispute is Nazul plot, as such, the same cannot be recorded as Khud Kast Jaman 2 (3) in the name of any person, the entry in the name of petitioner is against the rules ,accordingly, earlier order dated 18.9.2003 was maintained. Against the orders dated 18.9.2003 and 25.11.2003, Writ Petition No.43407 of 2003 and 56586 of 2003 were filed before this Court which were dismissed vide order dated 2.5.2005 on the ground of alternative remedy, accordingly, petitioner preferred the revision before Commissioner which was allowed by Additional Commissioner vide order dated 11.4.2008 setting aside the order dated 18.9.2003. Respondent No.5 challenged the order dated 11.4.2008 before Board of Revenue through revision and Board of Revenue allowed the revision vide order order dated 25.1.2011 setting aside the order dated 11.4.2008 passed by Additional Commissioner. Petitioner filed review application against the order dated 25.1.2011 which was dismissed by the Board of Revenue vide order dated 14.12.2011. Petitioner again filed recall application on 2.1.2012 against the order dated 14.12.2011 which was dismissed by Board of Revenue vide order dated 24.2.2012, hence this writ petition.

3. Counsel for the petitioner submitted that petitioner was recorded in revenue record as Khud Kast Jaman 2 (3) but his entry was expunged vide order dated 18.9.2003 without affording opportunity of hearing to the petitioner. He further submitted that against the order dated 18.9.2003 petitioner has not filed any application for recall rather caveat application dated 18.9.2003 filed by petitioner was entertained as recall application against the order dated 18.9.2003 and the same was arbitrarily rejected by Deputy Collector which is not compliance of principle of natural justice before expunging the petitioner's entry. He further submitted that Additional Commissioner has rightly allowed the petitioner's revision vide order dated 11.4.2008 and set aside the order of Deputy Collector dated 18.9.2003 on the ground of opportunity of hearing to the petitioner. He further submitted that Board of Revenue has arbitrarily allowed the revision filed by respondent no.5 on the wrong assumption that order dated 18.9.2003 was merged into order dated 25.11.2003. He further submitted that principle of res judicata has been illegally applied by Board of Revenue as by order dated 25.11.2003 the Deputy Collector maintained the order dated 18.9.2003, as such, the order dated 25.11.2003 has no effect. He further submitted that Board of Revenue has committed illegality in passing the impugned orders even the principle of merger has not been correctly applied, as such, impugned orders passed by Board of Revenue be set aside and order of Additional Commissioner dated 11.4.2008 be maintained. Counsel for the petitioner placed reliance upon judgment of this Court reported in 2022 (154) R.D. 447, Subedar Yadav Vs. State of U.P. and Others, Counsel for the petitioner placed reliance upon Paragraph Nos.13, 14, 15, 16 & 17. The relevant Paragraph Nos.16 & 17 are as follows:

"16. 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.

17. Revenue, authorities / courts must remember that a party can in some cases successfully show that entry of his name in the revenue record is correct and not fake or based upon fake order. This question can be decided only and only after hearing the party concerned and likely to be affected."

4. On the other hand counsel for respondent no.5 submitted that Plot No.126 was Nazul Land of State Government situated in Village- Arazi Chhawani (Z.A. area) and its municipal number is 10 Park Road, Gorakhpur. He further submitted that respondent no.5 was lessee of the disputed plot and has been in possession of the same. He further submitted that as per Government policy a decision was taken for conversion of Nazul Land into freehold land, accordingly, respondent no.5 filed an application for freehold. District Magistrate issued a demand note by an order dated 28.3.2016 , respondent no.5 has deposited Rs.8,00,00,000/- (Eight Crore) through challan, the objection filed by petitioner in freehold proceeding was rejected and appeal filed by the petitioner was also dismissed by commissioner vide order dated 1.6.2017 which has attained finality. He further submitted that petitioner has also filed a Civil Suit No.811 of 2019 in the Civil Court for permanent injunction relating to Plot no.126 area 0.795 hectare, the application 7C for temporary injuction filed by plaintiff-petitioner in Suit No.811 of 2019 was dismissed by trial Court on the ground that disputed land is Nazul property of State Government and recorded in the name of State. He further submitted that plot in dispute is Waqf Property and is registered with the U.P. Sunni Central Waqf Board as Waqf No.128 in the Waqf register. He further submitted that Writ Petition No.16183 of 2018 filed by petitioner for mandamus in respect to disputed Plot No.126M area 0.795 hectare has been dismissed by this Court vide order dated 22.9.2022. He further submitted that fraudulent entry made in favour of petitioner in respect to disputed plot has been rightly expunged by Deputy Collector vide order dated 18.9.2003, the application filed by petitioner in respect to order dated 18.9.2003 was rejected by Deputy Collector after affording opportunity of hearing to the petitioner, as such, no interference can be made by revsional Court (Court of Commissioner), accordingly, Board of Revenue has rightly allowed the revision filed by respondent no.5 and maintained the order dated 18.9.2003 and 25.11.2003. He further submitted that petitioner has already filed a Civil Suit No.811 of 2019 which is still pending so writ petition filed by petitioner is liable to be dismissed in view of the provisions contained under Section 40 A of U.P. Land Revenue Act, 1901 / Section 39 of U.P. Revenue Code, 2006. Counsel for respondent no.5 placed reliance upon following judgments to demonstrate that remedy of the petitioner lies in the suit rather writ petition under Article 226 of the Constitution of India.

(i) 2020 (146) R.D. 1, C/M Vindeshwari Inter College Vs. State of U.P. and Others.

(ii) 2021 Law Suit (ALL) 1807, Vivek Kumar Mishra Vs. Upper Commissioner (Administration) Varanasi Division and 4 Others.

5. I have considered the argument advance by learned counsel for the parties and perused the record.

6. There is no dispute about the fact that entry in respect to disputed plot made in favour of petitioner whether genuine of fraudulent has been expunged vide order dated 18.9.2003, the application filed by petitioner in respect to order dated 18.9.2003 was rejected vide order dated 25.11.2003 after affording opportunity of hearing to the petitioner and finding was recorded to the effect that entry made in favour of petitioner is against the law. Now the free hold of the disputed plot has been ordered in favour of respondent no.5 who has already deposited the amount of freehold in government treasury.

7. So far as the opportunity of hearing to the petitioner before expunging the petitioner's entry by order dated 18.9.2003 is concerned, it is material to state that after passing of order dated 18.9.2003, on application filed by petitioner in respect to order dated 18.9.2003 proper opportunity of hearing was given to petitioner and application filed by petitioner was rejected holding that entry made in respect to plot in dispute in favour of petitioner is against the law, as such, the same cannot be maintained, accordingly, the order passed by Additional Commissioner allowing the petitioner's revision on the point of opportunity of hearing cannot be sustained, the Board of Revenue has rightly set aside the order dated 11.4.2008 passed by Additional Commissioner and maintained the order of trial Court dated 18.9.2003 and 25.11.2003.

8. There is another aspect of case that petitioner has filed a Civil Suit No.811 of 2019 for injunction during pendency of the writ petition before this Court which is still pending before Civil Court although application 7C for temporary injunction filed by petitioner has been dismissed by detailed order holding that plot in dispute is Nazul Property of State, as such, petitioner has no right and title with respect to plot in dispute.

9. Section 39 of U.P. Revenue Code, 2006 will be relevant for perusal which is as follows:

"39. Certain orders of revenue officers not to debar a suit- No order passed by a Revenue Inspector under Section 33, or by a Tahsildar under sub-section (1) of Section 35 or by a Sub-Divisional Officer under sub-section (3) of Section 38 or by a Commissioner under[sub-section (4) of Section 38] shall debar any person from establishing his rights to the land by means of a suit under Section 144."

10. Since civil suit filed by petitioner is pending in Civil Court and Section 39 of U.P. Revenue Code, 2006 provides that order passed under Sections 33 / 35 / 38 shall not debar any person from establishing his rights to the land by means of a suit under Section 144 of U.P. Revenue Code, 2006, as such, petitioner has remedy to get the Civil Suit No.811 of 2019 decided or file fresh suit under Section 144 of U.P. Revenue Code, 2006 in respect to plot in dispute.

11. Considering the entire facts and circumstances of the case, no interference is required against the impugned judgment.

12. Writ petition has no merit and the same is hereby dismissed.

13. No order as to costs.

Order Date :- 21.10.2022

Rameez