Kishun vs State Of U.P. And 2 Others
2023 Latest Caselaw 7436 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 52
 

 
Case :- WRIT - C No. - 6993 of 2023
 

 
Petitioner :- Kishun
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Dinesh Mishra
 
Counsel for Respondent :- C.S.C.,Azad Rai
 

 
Hon'ble Kshitij Shailendra,J.

Heard Shri Dinesh Mishra, learned counsel for the petitioner, learned Standing Counsel for the State-respondents.

Shri Azad Rai, learned counsel has accepted notice on behalf of respondent No. 3.

The grievance of the writ petitioner is that initial entries in the name of petitioner's father and thereafter in the name of petitioner were illegally expunged, against which order, revision and appeal were preferred by the petitioner, which were dismissed. The said orders were assailed by the petitioner before this Court by means of Writ C No. 30782 of 2022, which was allowed in part by order dated 31.01.2023, which is quoted herein-below:

1. Heard Mr. Dinesh Mishra, learned counsel for the petitioner, learned Standing Counsel for the State-respondents and Mr. Azad Rai, learned counsel for respondent-Gaon Sabha.

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 petitioner's father who was granted lease of the disputed Plot No.588 area 0.068 hectare (old gata no.415 area 0.068 hectare), which was recorded as banjar in the revenue records. The petitioner's father was accordingly, recorded in the revenue records on the basis of the lease granted on 21.9.1976 in his favour. Proceeding under Section 33/39 of U.P. Land Revenue Act has been initiated in respect of the plot no.588 area 0.068 hectare on the basis of ex-parte report and the order for expunging the petitioner's entry has been passed on 18.2.2012 passed by respondent no.3. Since petitioner was not heard, as such, petitioner was not aware about the order dated 18.2.2012. Petitioner filed restoration application against the order dated 18.2.2012 when interference started with the possession of the petitioner in respect to the disputed plot. Respondent no.3 vide order dated 3.8.2022 dismissed the restoration application filed by the petitioner on the ground of delay. Petitioner challenged the order rejecting the restoration application under Section 38 (4) Of U.P. Revenue Code, 2006 which has been dismissed by the impugned order dated 20.9.2022 without considering the case on merit, hence this writ petition.

4. Learned counsel for the petitioner submitted that the petitioner's father was granted lease in the year 1976 since then, petitioner's father and after his death petitioner is in possession of the plot in dispute. He further submitted that the petitioner was accordingly, recorded in the revenue records but without any notice and opportunity the petitioner entry has been expunged. He further submitted that the petitioner filed a restoration application which was barred by nine years explaining the delay in the application as well as the affidavit filed in support of the application that there was no interference with the right of the petitioner, as such, there was no notice and opportunity before passing the order dated 18.2.2012 expunging the petitioner's entry, as such, delay in filing the restoration application was to be condoned and matter was to be restored for decision afresh but respondent no.3 has rejected the application on the ground of limitation. He further submitted that the appeal filed by the petitioner has been also dismissed without considering the case of the petitioner on merit. He placed reliance upon the judgment of Hon'ble Supreme Court reported in AIR 1987 SC 1353, Collector, Land Acquisition Anantnag and Another vs. Mst. Kantiji & Others, in order to demonstrate that in place of rejecting the matter on technical grounds, the matter should be decided on merits.

5. On the other hand, learned Standing Counsel as well as learned counsel for respondent- Gaon Sabha submitted that there was inordinate delay of 9 years in filing the restoration application by the petitioner, as such, no interference is required against the order rejecting the petitioner's restoration application as well as appellate order. They further submitted that no interference is required against the impugned order as the order has been passed in accordance with law.

6. I have considered the argument advanced by learned counsel for the parties and perused the record.

7. There is no dispute about the fact that the petitioner was recorded at the relevant point of time when the proceeding under Section 33 / 39 of U.P. Land Revenue Act has been initiated but without any notice and opportunity of hearing to the petitioner, the petitioner's entry has been expunged vide impugned order dated 18.2.2012.

8. There is also no dispute about the fact that the petitioner applied for restoration against the order dated 18.2.2012 after 9 years which as been rejected on the ground of limitation and the appeal filed by the petitioner has been also dismissed affirming the order rejecting the restoration application as well as the order expunging the petitioner's entry.

9. Since the order expunging the petitioner's entry has been passed on the basis of ex-parte report and without giving notice and opportunity to the petitioner, as such, interest of justice requires that petitioner should be afforded opportunity of hearing before passing any order expunging the petitioner's entry as observance of principle of natural justice is must even in the summary proceeding also.

10. This Court in the case reported in 2019 (142) R.D. 199 Islam Versus Up-Zila Adhikari/Assistant Collector and Others has held that the long standing entry can not be corrected under section 33/39 of U.P. Land Revenue Act or provisions available under U.P. Revenue Code 2006, the paragraph no. 10 of the judgment is relevant which is as follows:-

"10. Submission of the petitioner that he ought to have been declared as bhumidhar with transferable rights by the Sub-Divisional Officer while passing the order dated 28.07.2018 is absolutely misconceived for the reason that any such declaration can be sought only by instituting a suit for declaration of rights in any land. The entry in the name of father of the petitioner as Aasami in clause-3 has continued since 1371 fasli and it is well settled principle of law that under the provisions of Sections 33/39 of U.P. Land Revenue Act or under its equivalent provisions which may be available in U.P. Revenue Code, 2006, in a proceedings for correction of papers of revenue records, long standing entries cannot be corrected. The claim based on petitioner's father being recorded in 1356 fasli in the relevant revenue records can be considered, in the peculiar facts and circumstances of this case, in a suit seeking declaration of rights which may be instituted by the petitioner."

11. Considering the entire facts and circumstances as well the ratio of law laid down by this court in Collector, Land Acquisition Anantnag (supra) & Islam (supra), the impugned orders dated 18.2.2012 & 3.8.2022 passed by respondent no.3 i.e. Sub-Divisional Magistrate, Tahsil- Sirathu, District- Kaushambi and order dated 20.9.2022 passed by respondent no.2 i.e. Additional Commissioner First, Prayagraj Mandal, Prayagraj are liable to be set aside and are hereby set aside.

12. The writ petition stands allowed in part and matter is remitted back before respondent no.3 i.e. Sub-Divisional Magistrate, Tahsil- Sirathu, District- Kaushambi to register the case under Section 33/39 of U.P. Land Revenue Act on its original number and decide the same in accordance with law after giving proper opportunity of hearing to the petitioner expeditiously preferably within period of four months from the date of production of certified copy of this order."

Learned counsel for the petitioner submits that pursuant to the directions issued by this Court in its order dated 31.01.2023, an application was moved by the petitioner before the Sub Divisional Officer concerned on 09.02.2023 requesting summoning of the file in the light of the order of this Court and decide the proceedings after giving full opportunity of hearing to the petitioner. He further contends that while the matter, in pursuance of order of this Court, is still pending, respondent No. 3 is raising certain constructions over the land in question, in this regard an application dated 17.02.2023 was moved by the petitioner before the Sub Divisional Officer concerned. The Sub Divisional Officer, has in the margin of the application, made an endorsement addressed to the Revenue Inspector as well as Station House Officer of the police station concerned regarding submission of the report qua nature of the constructions.

The grievance, in sum and substance, is that while this Court quashed all the orders expunging the entries in the name of the petitioner, the necessary consequence is that the original entries shall stand restored in favour of the petitioner and, therefore, so long as the matter is not finally decided by the court concerned pursuant to the remand order dated 31.01.2023 passed in Writ C No. 30782 of 2022, no construction activity over the gata in question can be allowed.

Having heard the learned counsel for the parties, it is provided that pursuant to the directions issued by this Court on 31.01.2023 in Writ C No. 30782 of 2022 regarding fresh decision in the proceedings under section 33/39 of U.P. Land Revenue Act, Sub Divisional Officer shall decide the case and till disposal of the said proceedings, the parties shall maintain status quo in respect of nature, possession as well as entries in the revenue record. However, no construction activity shall be carried out by any of the parties on the land in dispute till disposal of the proceedings, as directed herein-above.

The writ petition stands disposed of.

Order Date :- 15.3.2023

Sazia