Allahabad High Court
Chhedi Lal And Another vs State Of U.P. And 4 Others on 30 January, 2023
Bench: Chandra Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 7
Case :- WRIT - C No. - 33266 of 2022
Petitioner :- Chhedi Lal And Another
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Kamal Kumar Singh,Dev Prakash Singh
Counsel for Respondent :- C.S.C.,Achal Singh
Hon'ble Chandra Kumar Rai,J.
1. Heard Sri Kamal Kumar Singh, counsel for the petitioners, Sri Achal Singh, counsel for respondent - gram panchayat and the learned standing counsel for the respondent-State.
2. With the consent of the parties, the writ petition is being disposed of finally without inviting counter affidavit.
3. Brief facts of the case are that dispute relates to arazi no. 287, area 2.768 hectare, situate at Mauza + village- Sapaha, Tehsil Karvi, District Chitrakoot. Initially, one Sukhdev, son of Shital was recorded in the basic year khatauni 1359 fasli over the aforementioned arazi no.287. In 1360-62 fasli, Sukhdev was remain recorded over the aforesaid arazi no.287. After death of Sukhdev, his wife Manki was having right over arazi no.287, she deposited 20-time of the land revenue and, thereafter, the revenue authorities have declared Smt. Manki as Bhumidhar of the arazi in question. Consolidation proceedings intervened in the village in question and Smt. Manki was recorded in C.H. Form 23 Part-I, nobody raised any objection during consolidation proceedings in respect to the entry of Smt. Manki. Smt. Manki executed a registered will deed dated 6.7.1976 in favour of Munna Lal in respect to arazi no.287 and on the basis of the aforementioned will deed, name of Munna Lal was recorded over the land in dispute. During consolidation proceeding, new number was alloted to arazi no.287 (new no.260). In the C.H. form, plot no.260 was recorded in the name of Munna Lal. The recorded tenure holder Munna Lal executed a registered sale deed of the plot in dispute in favour of the petitioner 9.11.1987 and on the basis of the sale deed, petitioner was recorded in the revenue records in respect to the new no.260. Since the execution of the sale deed, the petitioner remained in possession over plot no.260, area 2.7680 hectare. After about 25 years, a complaint was made on 12.7.2011, alleging that arazi no.287 (new no.260) is a pond , as such, name of the petitioner be expunged. It is further alleged that without inspection / opportunity of hearing, respondent no.3 cancelled the long standing entry of the petitioner and ordered to record the same as pond on 3.9.2011. The petitioner challenged the order dated 3.9.2011 by means of an appeal under Section 311(3) of the U.P. Z.A. &. L.R. Act, taking specific ground that the petitioner's long standing entry has been expunged in the proceedings under Section 202 of the U.P. Z.A. & L.R. Act, without notice / opportunity to the petitioner but the Addl. Commissioner dismissed the appeal vide impugned order dated 28.7.2022. Hence, this writ petition.
4. Counsel for the petitioner submitted that the petitioners are the recorded tenure holders of the plot in dispute and even they remain recorded during consolidation operation, as such, expunging the long standing entry under Section 202 of the U.P. Z.A. & L.R. Act without affording opportunity of hearing to the parties, is illegal. He further submitted that long standing entry in respect to the plot in dispute, cannot be expunged in arbitrary / ex parte manner. He also submitted that specific ground has been taken in the appeal but the appellate court did not appreciate the facts of the case and remanded the matter back to the trial court to decide the same afresh.
5. On the other hand, learned standing counsel and the learned counsel for the gaon sabha submitted that the plot in dispute has been found a land of pond category, as such, no interference is required in the matter. It is further submitted that no opportunity is required to the petitioners as the plot in dispute has been found to be pond. They further submitted that the writ petition is liable to be dismissed.
6. I have considered the arguments advanced by learned counsel for the parties and perused the records.
7. There is no dispute about the fact that the petitioner was the recorded tenure holder at the relevant point of time but the trial court has decided the case ex parte and the long standing entry of the petitioners has been expunged.
8. Since the plot in dispute was recorded in the name of tenure holder w.e.f. 1359 fasli even during consolidation operation the plot in dispute was recorded in the name of tenure holder Smt. Manki and petitioners were recorded since 9.11.1987, as such, the impugned order order passed on 3.9.2011, decreeing the suit under Section 202 of the U.P. Z.A. & L.R. Act for ejectment of the petitioners, without notice and opportunity of hearing to the the petitioners is wholly illegal.
9. The basis of the impugned order dated 3.9.2011 is the ex parte report of the Tehsildar dated 27.8.2011 and just after 7 days of submission of the report dated 27.8.2011, the impugned order dated 3.9.2011 has been passed without notice and opportunity of hearing to the petitioners which is in utter violation of principle of natural justice. The observance of principle of natural justice is required in every judicial proceeding whether it is regular or summary.
10. It is material to mention that petitioners have taken specific ground in his grounds of appeal, filed against the judgment of trial court, regarding violation of principle of natural justice as well as the plot in dispute is not pond but appellate court has also failed to exercise his jurisdiction in accordance with law.
11. Considering the facts and circumstances of the case, the impugned order dated 28.7.2022, passed by respondent no.2/Additional Commissioner (1st), Chitrakoot Dham Mandal, Banda in Appeal No.01166 of 2017 (Computerized Case No.C201707000001166) (Chhedi Lal vs. Mata Badal and Others), under Sections 331(3) of the U.P. Z.A. & L.R. Act and order dated 3.9.2011 passed by respondent no.3/Sub-Divisional Officer, Karvi, Chitrakoot in Case No.3/2011 (Gram Pradhan, Sapha vs. Ram Naresh and Others), under Section 202 of the U.P. Z.A. & L.R. Act are liable to be set aside and are hereby set aside.
12. The writ petition stands allowed and the matter is remanded back to respondent no.3 to register the Suit No.3/2011 on its original number and decide the same as fresh, on merits, as expeditiously as possible, preferably within a period of 4 months, from the date of production of a certified copy of this order before the authority concerned, without granting unnecessary adjournments to either of the parties, in accordance with law.
Order Date :- 30.1.2023
C.Prakash
