Devidas Kumar vs State Of U.P. And 2 Others
2023 Latest Caselaw 27976 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:196212
 
Court No. - 51
 

 
Case :- WRIT - C No. - 1582 of 2023
 

 
Petitioner :- Devidas Kumar
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Chandrakesh Mishra,Abhishek Kumar Mishra,Sr. Advocate
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Mr. Daya Shankar Mishra, Senior Advocate assisted by Mr. Chandrakesh Mishra and Mr. Abhishek Kumar Mishra, learned counsel for the petitioner and Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents.

2. The instant petition has been filed for the following reliefs:

"1- ?? ?? ????????? ???????? ????????? ??????? ?? ?????????, ????/??????? ?? ?????? ?? ????????? ?????? 2 ?3 ?????? ????? ???? ???????? 17.06.2022 ? 06.05.2022 (??????? ??????- 9? 11) ?? ??????, ????, ??????, ???????? ???? ?? ???? ???? ?????

2- ?? ?? ????????? ???????? ??????? ??????? ?? ?????????, ????/??????? ?? ?????? ?? ???? ?????? 792 (?) ????????? 2.69 ???? ? ???? ?????? 292 (?) ????????? 0.14 ???? ????? ????? ??????? ????? ? ????? ???, ????????? ?? ???? ?? ??? ????????? ?????? ?? ??? ??? ?????/???? ???? ???? ????? ????????? ?? ??????/????????? ???? ?? ???? ???? ?????

3- ?? ?? ????????? ???????? ?? ?????? ??? ???? ??? ????????? ???????? ????????? ????/???????, ????/??????, ???? ?? ???? ??? ????? ? ?????? ???? ?? ???? ???? ?????

5- ?? ?? ???? ?? ?????? ?? ???????? ???? ??? ????? ??????????? (???????) ?? ?????? ????/?????? ?? ???? ???? ?????"

3. This Court has entertained the matter on 11.7.2023 and passed the following order:

"1. Heard Shri Daya Shankar Mishra, learned Senior Counsel assisted by Shri Abhishek Kumar Mishra for petitioner and Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for State-respondents.

2. Counsel for the petitioner is permitted to implead the Veer Singh, Banwari, Lokesh, Akash sons of Nanhe as respondent nos 4 to 7 in the writ petition during course of the day.

3. Learned Senior Counsel for the petitioner submitted that application under Section 32/ 38 of U.P. Revenue Code, 2006 filed by petitioner for correcting the revenue entry has been rejected in arbitrary and ex-parte manner vide order dated 6.5.2022. He further submitted that appeal filed by petitioner under Section 38(4) of the U.P. Revenue Code, 2006 has also been dismissed at the admission stage without considering the grounds set up in the appeal as well as argued before the Appellate Court. He further submitted that name of petitioner was ordered to be recorded over the plot in dispute under the order of Tehsildar dated 16.10.1980 which is mentioned in the khatauni of 1382 fasli- 1387 fasli but due to fault of the revenue authorities, petitioner's name was not recorded in the next khatauni, as such, petitioner's case is covered under the purview of Section 38 of U.P. Revenue Code, 2006.

4. On the other hand, Mr. Abhishek Shukla, learned Additional Chief Standing Counsel submitted that petitioner has alternative remedy of revision against the impugned appellate order passed under Section 38(4) of U.P. Revenue Code, 2006, as such, writ petition is liable to be dismissed on the ground of alternative remedy.

5. In reply, learned Senior Counsel for the petitioner submitted that order impugned has been passed in such an arbitrary manner which will amount to violation of principle of natural justice, as such, in view of law laid down by Hon'ble Apex Court reported in 2009 (1) AWC 437 (SC) Committee of Management and another Vs. Vice Chancellor and Others as well as law laid down by this Court reported in 2022 (4) ADJ 578 Smt. Kalawati Vs. The Board of Revenue and Others, writ petition be entertained and it should not be dismissed on the ground of alternative remedy.

6. Matter requires consideration.

7. Issue notice to respondent nos 4 to 7 returnable at an early date.

8. Steps be taken within 10 days.

9. All the respondents shall file counter-affidavit within four weeks. Rejoinder-affidavit, if any, be filed within two weeks thereafter.

10. List this matter in the additional cause list on 28.8.2023."

4. In pursuance of the order of this Court dated 11.7.2023, notices were issued to respondent nos.4 to 7.

5. Office has reported that service is sufficient upon respondent nos.4 to 7.

6. Nobody has put in appearance on behalf of private respondent nos.4 to 7 nor any counter affidavit hs been filed by State.

7. Learned Senior Counsel for the petitioner submitted that the proceeding under Section 38 of U.P. Revenue Code, 2006 has been concluded in ex-parte manner against the petitioner. He placed the order sheet of 6.5.2022 by which the proceeding was registered before the Sub-Divisional Officer. He further submitted that on the same date Sub-Divisional Officer has decided the proceeding also holding that the proceeding under Section 38 of U.P. Revenue Code, 2006 initiated by the petitioner is not maintainable rather petitioner should initiate proper proceeding before the Civil Court. He next submitted that the civil Court has already decide the matter on the basis of compromise and the compromise decree as well as the order have been annexed along with the supplementary affidavit dated 7.8.2023. He also submitted that the appeal filed against the order passed under Section 38 of U.P. Revenue Code, 2006 has been also dismissed by the appellate Court in the arbitrary manner. He further submitted that the impugned orders are wholly illegal as the proceeding was very much maintainable under Section 38 of U.P. Revenue Code, 2006 but without considering the evidence on record, the impugned order has been passed, as such, the impugned order be set aside and the application filed by the petitioner under Section 38 of U.P. Revenue Code, 2006 should be allowed.

8. On the other hand, Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents submitted that the impugned order has been passed in accordance with law. He further submitted that the writ petition arises out of summary proceeding is not maintainable. He next submitted that no interference is required in the matter and petitioner should initiate proper proceeding for declaration of his rights before regular Court.

9. I have considered the argument advanced by learned counsel for the parties and perused the records.

10. There is no dispute about the fact that the proceeding initiated by the petitioner under Section 38 of U.P. Revenue Code, 2006 has been dismissed by the Sub-Divisional Officer against the petitioner vide order dated 6.5.2022 and the appeal filed under Section 38 (4) of U.P. Revenue Code, 2006 has been also dismissed vide order dated 17.6.2022.

11. In order to appreciate the controversy involved in the matter, perusal of Section 38 of U.P. Revenue Code, 2006 will be relevant which is as under:

Section 38 of U.P. Revenue Code, 2006

"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.]"

12. The perusal of the order sheet dated 6.5.2022 will be also relevant which is as under:

"???????? ?? ?????????? ??? ?????????

?????????????? ??? ??????- T 202213540103842

???????? ????- 38(2) ??????? ????? ??????

?????? ??????- 2006

??????? ???? ????? ?????? ?????

????? ??????? ????? ? ???? ?????????

????

??? ???? ??????? ???

???????? ?????? ?????? ?????? 6-5-022 ?? ??? ????"

13. The application / proceeding under Section 38 (2) of U.P. Revenue Code, 2006 has been also dismissed on the same date i.e. 6.5.2022, which runs as follows:

"???? ?????

????????? ????????????

?????? ?????????,????? ?????????, ?????? ?????????

??? ???????-3842/2022

???????????? ??? ???????-T202213540103842

??????? ????? ???? ????? ?????? ?????

??????? ?????- 38(2), ????????- ????? ?????? ?????? ??????-2006

????

???????? ???????? ???, ????????? ?? ????? ?????? 28.04.2022 ??????? ???? ?? ??????? ?? ???????? ????? ???????? ???, ????????? ?????? ???? ????? ??? ???????? ???? ??? ?? " ???????? ?????? ????? ??????? ????? ? ???? ????????? ?? ???? ?????? 792? ? 792? ??? ??????????? ???? ???? ??? ??? ???? ?? ??? ???? ???? ???????? ?????? ?? ???? ??? ???? ????????? ???? ???? ???? ???? ??? ???? ??? ??????????? ???? ??? ??? ????, ?????? ????, ????? ? ???? ??????? ?????? ?????? ???? ???? ?? ?????? ???? ??? ???

???? ?? ????? ??? ???? ????? ?? ?? ????? ???? ???? 1382-1387?? ?? ??? ?? ?? ??????? ?? ??? ?????? ???????? ?? ????? ???? ?? ???? ??????? ????? ???? ?? ??? ????? ?? ?????????? ???? ???? ???????? 792?/0.269???, 792?/0.14 ?? ??????? ????? ???? ?? ??????? ?? ??? ????? ?? ??? ???? ?????? ??????? ?? ???? ?? ???? ?? ?????? ???? ??? ?? ????? ?????? ???? 40 ???? ?????? ?? ??? ???? ?????? ?? ???? ?? ?????? ?? ?? ???? ?? ??? ?????? ??? ???????? ????? ???????? ??? ??? ???? ?? ?????? ??????? ?? ???? ??? ????? ???? ??? ???? ??????? ???"

??? ???????? ???, ????????? ?? ????? ?????? 28.04.2022 ?? ???? ?? ??? ?? ????????? ?????? ?? ???? ??? ???????? ??? ?????? ????????? ????? ????? ???

???????- 06.05.2022 ?? ??????

06.05.22

(???????? ??????)

???????????? ???,

??????????"

14. The perusal of both the orders dated 6.5.2022 demonstrates that the impugned order has been passed in arbitrary manner.

15. Proceeding under Section 38 of U.P. Revenue Code, 2006 has been initiated as civil Court has passed the decree, as such, the proceeding initiated by the petitioner cannot be dismissed / dropped directing the petitioner to approach the civil Court for redrassal of his grievance when the civil suit has already been decided on the basis of compromise, as such, the parties cannot be forced to approach the civil Court again rather the entry should be corrected in accordance with law.

16. Considering the entire facts and circumstances, order dated 6.5.2022 passed by the Sub-Divisional Magistrate, Moradabad Mandal, Moradabad as well as the order dated 17.6.2022 passed by the Additional Commissioner, Moradabad Division, Moradabad, cannot be sustained in the eye of law and the same are liable to be set aside and the same are hereby set aside.

17. The writ petition stands allowed and matter is remitted back before the Sub-Divisional Magistrate, Sadar, Moradabad/ respondent no.3 to register the proceeding under Section 38 (2) of U.P. Revenue Code, 2006 on its original number and decide the same afresh after considering the judgment and decree of civil Court, as well as the other evidence in accordance with law after affording proper opportunity of hearing to both parties, expeditiously preferably within a period of two months from the date of production of certified copy of this order before him.

Order Date :- 11.10.2023

Rameez