Smt. Kavya Agrwal vs Consolidation Officer And 3 ...
2023 Latest Caselaw 8131 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 18
 

 
Case :- WRIT - B No. - 407 of 2022
 

 
Petitioner :- Smt. Kavya Agrwal
 
Respondent :- Consolidation Officer And 3 Others
 
Counsel for Petitioner :- Virendra Singh
 
Counsel for Respondent :- C.S.C.,Sher Bahadur Singh
 

 
Hon'ble Chandra Kumar Rai,J.

In Re: Civil Misc. Amendment Application No.4 of 2023

Heard learned counsel for the parties.

In view of the averment made in the affidavit filed in support of the application, the application is allowed.

Learned counsel for the petitioner is permitted to make necessary amendment in the writ petition during course of the day.

Order on Writ Petition

1. Heard Mr. Virendra Singh, learned counsel for the petitioner, learned Standing Counsel for the State-respondents and Mr. Sher Bahadur Singh, learned counsel for the respondent- Land Management Committee.

2. The instant writ petition has been filed under Article 226 of the Constitution of India assailing the order dated 27.01.2021 passed by the Consolidation Officer as well as the order dated 09.10.2020 passed by the Settlement Officer of Consolidation.

3. Brief facts of the case are that one Smt. Ramawati wife of Ramlal was granted agricultural lease by Land Management Committee in respect to Plot Nos.- 2779 and 2492 accordingly Ramawati came in possession of the plot in dispute. Consolidation operation intervened in the village in question accordingly Smt. Ramawati filed an objection under section-12 of U.P.C.H. Act on the basis of lease deed executed in her favour, the objection was allowed by Consolidation Officer vide order dated 18.7.1991. Smt. Ramawati remained recorded as bhumidhar with transferable rights in respect to the plot in dispute. Smt. Ramawati executed a registered sale-deed on 28.11.2008 in respect to Plot No.- 2779 in favour of Manjeet Kaur and Paramjeet Kaur. On the basis of sale deed executed on 28.11.2008 Consolidation Officer passed the order dated 26.3.2009 for mutation of the name of vendees (Manjeet Kaur and Paramjeet Kaur) accordingly chak was allotted in favour of Manjeet Kaur and Paramjeet Kaur on Plot Nos.- 2279 and 2251. Manjeet Kaur and Paramjeet Kaur executed a sale deed on 2.6.2017 in favour of petitioner in respect to the plot in dispute, accordingly name of petitioner was recorded in revenue records. An Appeal 600/773 was filed in the year 2018 by Gram Sabha against the order dated 18.7.1991 in respect to Plot No.- 2149 and Settlement Officer Consolidation allowed the appeal setting aside the order dated 18.7.1991 after condoning the delay of 27 years and remanded the matter for fresh consideration before the Consolidation Officer vide orders dated 5.9.2020/9.10.2020. After passing of the order dated 5.9.2020/9.10.2020 by appellate court, the Consolidation Officer without notice and opportunity to petitioners passed the order dated 27.1.2021 for expunging the name of petitioners in respect to disputed plots hence this writ petition.

4. Counsel for the petitioner submitted that against the order dated 18.7.1991 passed by the Consolidation Officer, several appeals were preferred on behalf of the Gaon Sabha. All the appeals were decided by a common ex parte order dated 09.10.2020 passed by the Settlement Officer of Consolidation and the matter was remitted before the Consolidation Officer to decide the same afresh after affording opportunity of hearing to the parties. After remand, Consolidation Officer has passed fresh order dated 27.01.2021 without any notice and opportunity of hearing to the petitioner as directed by the Settlement Officer of Consolidation in its order dated 09.10.2020. Counsel for the petitioner placed a final order of this Court passed in Writ B No.-3775 of 2022 Vinay Kumar Khandelwal Vs. Consolidation Officer and 4 Others and submitted that petitioner is also entitled to the same relief.

5. While entertaining the instant writ petition, this Court has granted the interim order in favour of the petitioner staying the effect and operation of the order dated 27.1.2021 passed by the Consolidation Officer.

6. On the other hand the learned standing counsel submitted that impugned order has been passed in accordance with law as such no interference is required in the matter however he could dispute about the order dated 6.2.2023 passed by this court in similar situation.

7. I have considered that submission advanced by learned counsel for the parties and perused the record.

8. There is no dispute about the fact that impugned order dated 27.1.2021 has been passed without notice and opportunity of hearing to petitioner by which petitioner's entry has been expunged.

9. In the case of Ram Bachan Yadav and another Vs. State of UP and others, reported in 2018 (140) RD 39, co-ordinate Bench of this Court has considered the requirement of opportunity of hearing before passing the adverse order against the recorded tenure holder expunging his name from the revenue record. The relevant paragraphs No. 14, 16 and 17 of the judgment in the case of Ram Bachan (supra) are quoted hereinunder:

"14. In the following authorities the Supreme Court has held that even before passing administrative orders affecting rights of parties opportunity of hearing shall be granted :

(1) Ashok v. Union of India, AIR 1997 SC 2298 (It was a case of ban of particular insecticides).

(2) Sahi Ram v. Awtar Singh, AIR 1999 SC 2169 (It was a case of mining lease).

(3) G. Pharmaceuticals v. State of U. P., AIR 2001 SC 3707 (It was a case of black listing of contractor).

(4) H.A. Shakoor v. Union of India, AIR 2002 SC 2423 (It was a case of reduction of category of a contractor).

(5) Director General of Police v. M. Sarkar, [1996] 3 SCR 530 (In this case constables were discharged from service on the ground that they produces a fake list from Employment Exchange without providing opportunity of hearing. Supreme Court approved the order of High Court setting aside discharge order on the ground of denial of opportunity of hearing).

(6) All India S.C. and S.T. Employees Association v. A.A. Jeen, [2001] 2 SCR 1183 (In this case hundreds of employees were affected hence Supreme Court held that they might be served in representative capacity).

(7) Godawat Pan Masala Products v. Union of India, AIR 2004 SC 4057 (In this case it was held that notification prohibiting manufacture and sale etc. of pan masala and gutka was bad in law as it had been issued without providing opportunity to the manufactures of meeting the facts relied upon in the notification in respect of injurious effects of pan masala and gutka).

(8) Canara Bank v. Debasis Das, (2003) 2 LLJ 531 (SC) (In this authority several principles of natural justice expressed in Latin words have been discussed in detail giving their history (since 1215), scope and applicability.

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."

10. Considering the facts and circumstances of the case as well as ratio of law laid down in Ram Bachan Yadav (Supra) the impugned order dated 27.1.2021 is liable to set aside and the same is hereby set aside. The writ petition succeeds and is allowed. Proceeding before the Consolidation Officer, which was decided in pursuance of the order dated 09.10.2020 passed by the Settlement Officer of Consolidation, is hereby restored to its original number, which shall be decided afresh after affording opportunity of hearing as well as to adduce the evidence to the parties. The Consolidation Officer shall decide the matter afresh on merits of the case without being influenced with any observation made by the Settlement Officer of Consolidation in his remand order, the exercise shall be completed by Consolidation Officer within period of six months from the date of production of certified copy of this order.

Order Date :- 21.3.2023

Rameez