Shivnath And 5 Others vs State Of U P And 17 Others
2023 Latest Caselaw 21905 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?AFR
 
Neutral Citation No. - 2023:AHC:165326
 

 
Court No. - 51
 

 
Case :- WRIT - C No. - 22367 of 2023
 

 
Petitioner :- Shivnath And 5 Others
 
Respondent :- State Of U P And 17 Others
 
Counsel for Petitioner :- Abhishek Bhushan,Arpan Srivastava,Pavan Kumar Pandey,Sr. Advocate
 
Counsel for Respondent :- C.S.C.,Ashok Kumar Rai,Pavan Kumar Pandey,Rajesh Kumar
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Mr. Anil Bhushan, learned Senior Counsel assisted by Mr. Abhishek Bhushan, Counsel for petitioners and Mr. Mangla Prasad Rai, learned Senior Counsel assisted by Mr. Ashok Kumar Rai for respondent nos. 4 to 6 and Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents. Respondent nos. 7 to 18 are stated to be proforma respondents, as such, notice to respondent nos. 7 to 18 are dispensed with.

2. The writ petition is being heard and disposed of finally with the consent of the learned Counsel for the parties without inviting counter-affidavit.

3. Brief facts of the case is that respondent no.4 filed an application dated 29.8.2014 under Section 33/39 of U.P. Land Revenue Act impleading State of U.P. as opposite party with the prayer to expunge the name of petitioners from Arazi No. 1052 area 0.134 hectare situated at Village- Akhari, Pargana- Kaswar Raja, Tehsil- Sadar, District- Varanasi. The aforesaid application filed by respondent no.4 was registered as case No. 9582 of 2016, Computerized case No. T20161470019582 under Section 31/32 of U.P. Revenue Code, 2006 before respondent no.3/ Sub-Divisional Magistrate, Sadar, Varanasi. A report was submitted on 20.6.2015 by Lekhpal and a report was submitted on 26.6.2015 by Revenue Inspector as well as Naib Tehsildar and Tehsildar have also submitted their report on 18.3.2016/ 10.2.2018 in the aforementioned proceedings. Respondent no.3 heard the aforementioned case and vide his order dated 17.2.2018 expunged the petitioners' entry. Petitioners applied for restoration on 29.8.2018 which was rejected as not maintainable vide order dated 9.3.2021. Petitioners filed an appeal No. 00683 of 2021, Computerized case No. C202114000000683 under Section 38 (4) of U.P. Revenue Code, 2006 against the order dated 9.3.2021, the aforementioned appeal filed by petitioners was dismissed as not maintainable by respondent no.2/ Additional Commissioner vide order dated 13.4.2023 hence this writ petition on behalf of petitioners challenging the orders dated 17.2.2018, 9.3.2021 passed by respondent no.3 and 13.4.2023 passed by respondent no.2.

4. Learned Senior Counsel for the petitioners submitted that long-standing entry of the petitioners have been expunged in the summary proceeding under Section 31/32 of the U.P. Revenue Code, 2006 without affording opportunity of hearing to the petitioners. He further submitted that in the summary proceeding, the long-standing entry cannot be expunged. He further submitted that petitioners' ancestors were recorded over the plot in dispute since 27.10. 1952 on the basis of registered sale deed. He further submitted that during consolidation operation, petitioners' right was also recognized. He further submitted that petitioners were even not impleaded in the proceeding, as such, there was no question of any opportunity of hearing to the petitioners. He placed reliance upon the judgment of this Court reported in Chaturgan vs. State of U.P. and Others, 2005(98) RD 244 in order to demonstrate that opportunity of hearing must be afforded to the recorded tenure holder before expunging the entry by the authority.

5. On the other hand, Mr. Mangla Prasad Rai, learned Counsel for the respondents submitted that notice was issued to the petitioners by the authorities and the order has been passed in accordance with law. He further submitted that jurisdiction has rightly been exercised under Section 31/32 of the U.P. Revenue Code, 2006, as such, no interference is required against the impugned order. He further submitted that order passed by Additional Commissioner under Section 38 (4) of U.P. Revenue Code, 2006 is revisable under Section 210 of the U.P. Revenue Code, 2006, as such, writ petition is liable to be dismissed on the ground of alternative remedy.

6. Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents submitted that order is revisable as provided under Section 38 (4) of the U.P. Revenue Code, 2006, as such, writ petition is not maintainable and petitioners should approach the Revisional Court for redressal of their grievance against the impugned orders.

7. I have considered the arguments advanced by learned Counsel for the parties and perused the records.

8. There is no dispute about the fact that petitioners' entry has been expunged without impleading the petitioners in the proceeding under Section 31/32 of U.P. Revenue Code, 2006.

9. In order to appreciate the controversy, the perusal of Section 38 of the U.P. Revenue Code, 2006 will be relevant which is 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."

10. This Court in the case ofChaturgan (Supra) has held that before expunging the long-standing entry, proper opportunity of hearing be afforded to the recorded tenure holder by the Court. Paragraph No. 8 of the judgment is 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)."

11. The perusal of the application filed under Section 33/39 of the U.P. Land Revenue Act/ 31/32 of U.P. Revenue Code, 2006 reveals that petitioners were not impleaded in the proceeding, as such, the order expunging/ altering the petitioners' entry from the revenue records in respect to the plot in dispute cannot be sustained.

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.

14. In the instant case, petitioners' ancestors were recorded since 27.10.1952 and even during consolidation operation petitioners' right were recognized, as such, petitioners should be afforded proper opportunity of hearing by respondent no.3 so that petitioners as well as contesting respondents may demonstrate as to whether long standing entry can be expunged in summary proceedings or not.

15. Considering the ratio of law laid down by this Court in Chatrugan (Supra) as well as by Apex Court in Committee of Management and another (Supra), the impugned orders dated 17.2.2018, 19.3.2021 passed by respondent no.3 and 13.4.2023 passed by respondent no.2 are liable to be set aside and the same are hereby set aside. The writ petition is allowed in part and the matter is remitted back before the respondent no.3, Sub-Divisional Magistrate, Sadar, Varanasi to register the proceeding on its original number and implead the petitioners in the proceeding under Section 31/32 of the U.P. Revenue Code, 2006. It is further directed that respondent no.3, Sub-Divisional Magistrate, Sadar, Varanasi shall decide the case after affording opportunity of hearing to the parties expeditiously preferably within period of three months from the date of production of certified copy of this order.

Order Date :- 16.8.2023

Vandana Y.