Smt. Shusma Devi And Another vs The State Of U.P. Thru. Addl. Chief ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:54133
 
Court No. - 18
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 2393 of 2023
 

 
Petitioner :- Smt. Shusma Devi And Another
 
Respondent :- The State Of U.P. Thru. Addl. Chief Secy. Revenue, Lucknow And Others
 
Counsel for Petitioner :- Subodh Kumar Verma
 
Counsel for Respondent :- C.S.C.,Pankaj Gupta
 

 
Hon'ble Saurabh Lavania,J.

Heard Sri J.N.Mathur, learned Senior Advocate assisted by Sri Subodh Kumar Verma, Advocate as also Sri Ashish Kumar Pathak, Advocate and Sri Kuldeep Pati Tripathi, learned Additional Advocate General assisted by Sri Aryashreshta Tiwari, learned Additional Chief Standing Counsel.

Present petition has been filed for the following main relief(s):-

"(i) Set aside, the order passed by the opposite party No.2 i.e. learned Board of Revenue, Lucknow, dated 10.04.2023 in Case No.REV/934/2023/Kanpur Nagar Computerized Case No.82023034100934 under Section 210 of U.P. Revenue Code for not considering the averments made in the Revision and failed to exercise its jurisdiction vested in it. (Annexure No.6)

(ii) Set aside the ex-parte, illegal and arbitrary order passed by opposite party No.4 i.e. Sub-Divisional Magistrate, Kanpur Sadar, Kanpur Nagar, dated 17.03.2021 and 05.08.2022 in the Case No.13285 of 2020 Computerized Case No.T202003410113258, in which the opposite party No.4 did not discharge its legal duty which has been assigned/conferred by the Statute itself. (Annexure No.2 and 3)

(iii) Issue an order or direction to the opposite party No.4 to consider the petitioner's case and demarcate their land in terms of the application of the petitioners filed under Section 24 U.P. Revenue Code, 2006 and if required may move a fresh application for demarcation of their land in a time bound manner prescribed by this Hon'ble Court."

Assailing the impugned orders dated 17.03.2021 and 05.08.2022 passed by the opposite party No.4-Sub Divisional Magistrate, Tehsil-Kanpur Sadar, District-Kanpur Nagar and also the order dated 10.04.2023 passed by the opposite party No.2-Board of Revenue at Lucknow, U.P., Sri J.N.Mathur, learned Senior Advocate submitted that in so far as the order dated 10.04.2023 is concerned, the same is unsustainable in the eye of law as challenging the order dated 17.03.2021 as also the order dated 05.08.2022 passed in a case instituted under Section 24 of the U.P. Revenue Code, 2006 (in short "Code of 2006"), the revision was maintainable, as such, this order is liable to be interfered with by this Court. Reference has been made to the Section 24(3) as also Section 209(h) of the Code of 2006 and based upon these provisions, he further submitted that the order dated 17.03.2021 was an ex-parte order and vide order dated 05.08.2022 the application for recall of order dated 17.03.2021 was dismissed for want of prosecution and accordingly the revision was not maintainable.

On the aforesaid aspects of the case, on being asked, Sri Kuldeep Pati Tripathi, learned Additional Advocate General very fairly submitted that Section 209(h) of the Code of 2006 specifically bars the remedy of appeal if the order has been passed ex-parte or by default and being so, in view of the same, the revision was maintainable.

Further, on the merits of order(s) dated 17.03.2021 and 05.08.2022 passed by the opposite party No.4, Sri Mathur stated that the application preferred for demarcation under Section 24 of the Code of 2006 was rejected by the opposite party No.4 after taking note of the fact that over some part of the land, in issue, the National Highway No.91 has already been constructed and observing that in the revenue map correction is required with regard to Gata No.242 area 38.4700 hect. and this Gata number has wrongly been indicated as the application for correction of map was preferred under Section 24 of the Code of 2006 with regard to Gata No.242 Ga (M) area 38.4700 hect. of which petitioners are owner in possession, as such, gata number indicated in the order impugned be read accordingly and to substantiate this fact reference has been made to the application under Section 24 of the Code of 2006 and Khatauni of plot, in issue.

He also stated that while passing the order dated 17.03.2021 no opportunity of hearing was provided to the petitioners. Thus, this order is an ex-parte order and moreover, the reply of the petitioners preferred in response to the report submitted by the Revenue Official was not considered by the opposite party No.4 wherein the petitioners have specifically indicated relevant facts pertaining to plot, in issue, i.e. Gata No.242 Ga (M) area 38.4700 hect. annexing therewith all the relevant documents including the notification issued under Land Acquisition Act, 1894 (Act No.1 of 1894) for acquiring part of land of Gata No.242 Ga, according to which 12 hect. land was acquired and for the purposes of acquisition of land correct map is also required and this notification itself proves that the correct revenue map was available with the authorities including the Collector of the District for the purposes of acquisition of land and accordingly there is no need of notification of record and survey operation.

Sri Mathur, referred the paragraphs of the application submitted in response to the report dated 17.10.2020. Relevant paragraphs of the application on reproduction reads as under:-

"2. That as per the clarity of the photocopy of the map is in question, your humble applicants submit that the Map of the land ind question is a public document and mainly and originally is available with opposite parties themselves.

3. That as far as point of the report indicates the inclusion of other land owners and Gram Sabha which is addressed as 242 Kha on the Khatauni but does not have any identity on the Village Map; the applicants submit that only if 242 Kha is excluded physically or 242 Kha is demarcated then the whole property of the applicant automatically stands demarcated.

4. That far as the property of the applicants is "minjumla" to a chuck of land bearing number 242 on village map, it is to clarify that land bearing number 242 is divided into three parts i.e. 242 Ka, 242 Kha, 242Ga; where 242 Ka and 242 Ga belong to applicants and only 242 Kha belong to others. The photocopy of the Khatauni showing the name of the applicants in Khasra No.242Ka and 242 Ga are being annexed herewith as Annexure No.A-1 to this Application.

5. That the applicants do not have conflict of rights or any cause of action the account holders of 242Kha as such no partition is required between the applications and the openers of 242Kha.

6. That Litigation is not at all required in the matter rather an administrative action of excluding 242Kha from the chuck of 242 is required to discourage the litigation and solve the purpose of this Hon'ble Court.

7. That as far as point of the report indicates the inclusion of other land owners and Gram Sabha which is addressed as 242 Kha on the Khatauni but does not have any identity on the Village Map; the applicants submit that only if 242 Kha is excluded physically or 242 Kha is demarcated then the whole property of the applicant automatically stands demarcated.

8. That very humbly is suggestion to the point of the report which shows the inability of the Kanungo regarding the direction of the property of applications, we insist that the amendment procedure done vide Uttar Pradesh Special Gadget dated 03 July 2003, which shows that the construction of the Ganga Barrage was done on the land of Applicants is being annexed herewith as Annexure No.A2 to this Application.

9. That it will be pertinent to mention here that way back in year 2002, Khasra No.242Ga has been measured and recorded in a report dated 06/04/2002 by the concerned officers of Tehsil department.

10. That it will not be out of place to mention here that all the measurements and the direction of applicants land bearing number 242Ga is very patently manifested in the report dated 06/04/2002. The photocopy of the report dated 06/04/2002 is being annexed herewith as Annexure No.A3 to this Application.

11. That in light of the abovementioned averments of the applicants it is crystal clear that report dated 17/10/20 which was duly forwarded by Tehsildar on 19/10/20 is absolutely bogus, misconceived and escape from bounded duty of the then Kanungo as such is liable to disowned and quashed.

12. That the order passed this Hon'ble Court is based on wrong and bogus report which is way opposite to the factual matrix of the matter and is a result of laissez-faire and lackadaisical and case of absolute careless duty as such requires recall for the want of justice."

Sri Mathur further submitted that while passing the impugned order dated 17.03.2021 the opposite party No.4 did not consider all the factual aspects of the case including indicated in the reply submitted by the petitioners in response to the report of revenue official and only based upon the said report passed the impugned order and being so the opposite party No.4 committed error of law and fact both.

He lastly submitted that considering the fact the revision challenging the order dated 17.03.2021 and 05.08.2022 was maintainable and while passing the impugned order dated 17.03.2021, the opposite party No.3 did not considered the relevant facts available on record, the impugned orders be set aside and matter be remanded back to opposite party No.4 for deciding the same afresh.

He also placed reliance on the judgment passed in the case of Ramji Das & Others vs. Mohan Singh; reported in 1978 ARC 496; as per which, proper opportunity of hearing should be provided and doors of hearing should not be closed.

With regard to power to be exercised by the Collector in regard to correction of map, Sri Mathur, stated that it is the duty of the Collector to correct the revenue records including map, Khasra or Khatauni and for this purpose even no application is required. In this regard, reference has also been to the judgment passed in Writ - C No.3818 of 2023 (Ravindra Kumar vs. State of U.P. & Others). On this aspect of the case, he further stated that the opposite party No.4 ought to have requested the Collector to correct the map, if correction is required and in not doing so the opposite party No.4 failed to discharge his obligations. Prayer is to allow the petition.

In response to the submissions made by Sri Mathur, Sri Kuldeep Pati Tripathi, learned Additional Advocate General very fairly submitted that the order dated 17.03.2021 passed by the opposite party No.4 appears to be an ex-parte order and vide order dated 05.08.2022 the application for recall of order dated 17.03.2021 was dismissed for want of prosecution, as such, the revision was maintainable and also that all the facts of the case have not been considered as appears from the impugned order dated 17.03.2021, as such, remanding the matter back to opposite party No.4 would suffice and in view of the same, this Court is requested not to observe on merits of the case as any observation of this Court, at this stage, would prejudice the rights of parties before opposite party No.4.

Considered the submissions advanced by the learned counsel for the parties and perused the record.

Undisputed facts of the case are to effect that (i) in response to the report of the Kanungo dated 17.10.2020, the petitioners submitted the reply, relevant paragraphs of the same have already been quoted above, and the same were not taken note of by the opposite party No.4 while passing the impugned order dated 17.03.2021. Thus, the opposite party No.4 committed error of law and fact both.

(ii) The order dated 17.03.2021 is an ex-parte order and thereafter, the application for recall of the same was preferred which was dismissed for want of prosecution vide order dated 05.08.2022 and in this view of the matter, as per statutory provision namely Section 209(h) of the Code of 2006, the revision was maintainable and being so, the order of the revisional authority dismissing the revision being not maintainable is unsustainable in the eye of law.

Taking note of aforesaid as also for the reasons aforesaid, the orders dated 10.04.2023, 17.03.2021 and 05.08.2022 are hereby set aside and the matter is remanded back to opposite party No.4 to decide the case afresh by reasoned and speaking order, after affording proper opportunity of hearing to the parties to the litigation.

The proceedings, in issue, shall be decided strictly in terms of statutory provisions i.e. three months.

The opposite party No.4 shall avoid unnecessary adjournment to either of the party. It is for the reason that the proceedings, in issue, should be concluded as per spirit of statutory provision.

It is expected from Collector to take note of the fact indicated in the report dated 17.10.2020 and if correction in the revenue map is required then, as already held by this Court in various pronouncements including the judgment, referred above, the Collector shall do needful for correction of map, as per law.

It is also open for the parties to place all the relevant material before opposite party No.4, which would be required, for the purposes of proper adjudication/disposal of the case under Section 24 of the Code of 2006.

With the aforesaid, the petition is allowed.

Order Date :- 16.8.2023

Vinay/-