Brijvir Singh And Another vs State Of U.P. And 3 Others
2023 Latest Caselaw 25292 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:180628
 
Court No. - 51
 

 
Case :- WRIT - C No. - 22485 of 2023
 

 
Petitioner :- Brijvir Singh And Another
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Brij Raj
 
Counsel for Respondent :- C.S.C.,Avinash Chandra Srivastava
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Sri Brij Raj, learned counsel for the petitioners, Sri Abhishek Shukla, learned Addl. C.S.C. for the state respondents and Sri Avinash Chandra Srivastava, learned counsel for the respondent-gaon sabha.

2. Stamp Reporter has reported latches of 232 days in filing the petition which has been explained by the petitioner in the writ petition.

3. Brief facts of the case are that plot nos. 27, 36, 50, 52, 93 and 137, total 6 plots, area 3.10 hectare, were allotted in favour of 256 persons including the petitioners in the year 1986, necessary approval was alleged to be granted by the authorities concerned and the names of the petitioners were found at Sl. No.27 of the Z.A. Form No.57-B. On the basis of lease granted in favour of the petitioners, petitioners were recorded in the revenue records. Proceeding under Sections 33/39 of the U.P. Land Revenue Act was initiated on the basis of report dated 11.8.2007. The Sub Divisional Officer vide order dated 15.10.2007 expunged the petitioners' entry, thereafter, the petitioner filed recall/restoration application on 29.12.2007 against the order dated 15.10.2007. The court vide order dated 15.2.2010 recalled the order dated 15.10.2007 and restored the case to its original number. The trial court vide subsequent order dated 7.5.2011 again restored the earlier order dated 15.10.2007, then petitioner again filed recall/restoration application dated 1.6.2011 against the order dated 7.5.2011 which was rejected on 12.7.2011. The court vide order dated 12.7.2011 rejected the restoration application. The petitioner challenged the order dated 12.7.2011, passed by the S.D.O. by way of revision under Section 219 of the U.P. Land Revenue Act, 1901 which was registered as Case No.185/2010-11 (Computerized Case No.C2011010000929) and the Additional Commissioner, Agra Division, Agra vide impugned order dated 19.8.2022 has dismissed the petitioners' revision, hence this writ petition.

4. Counsel for the petitioners submitted that petitioners were granted lease in the year 1986 which has not been cancelled in the proceeding prescribed under the U.P. Z.A. & L.R. Act and the Rules framed thereunder, as such, petitioners cannot be expunged in the summary proceeding. He further submitted that even in the summary proceeding under Sections 33/39 of the U.P. Land Revenue Act, proper opportunity of hearing has not been afforded to the petitioners. He also submitted that restoration/recall application filed by the petitioners as well as the revision have been dismissed on the technical grounds. He further submitted that necessary document, i.e. Z.A. Form No.57-B was very much available but the court while expunging the petitioners' entry, has illegally held that there is no document of lease in favour of the petitioners. He submitted that without affording proper opportunity of hearing, long standing entry cannot be expunged. He, thus, submitted that the impugned order be set aside and the lease executed in favour of the petitioner be affirmed.

5. On the other hand, learned Addl. C.S.C. and the counsel for the respondent-gaon sabha submitted that the order under Section 33/39 of the U.P. Land Revenue Act was passed on the basis of the report submitted by the Lekhpal, as such, no interference is required against the order passed in the summary proceeding. They further submitted that petitioners were themselves negligent in prosecuting the proceeding, as such, the recall/restoration application was rightly rejected by the court concerned. They also submitted that revision filed by the petitioners was dismissed recording finding of fact against the petitioners.

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 no proceeding for cancellation of petitioners' lease has been initiated at all rather the proceeding under Section 33/39 of the U.P. Land Revenue Act has been initiated and petitioners' entry has been cancelled. There is also no dispute about the fact that restoration/recall application and the revision filed by the petitioners have also been dismissed.

8. So far as the initiation of summary proceeding is concerned, proper opportunity of hearing must be given to the parties, even in the case entry is forged or fraudulent and without affording proper opportunity of hearing, entry cannot be expunged as held by this Court in Chaturgan vs. State of U.P. and Others, 2005(98) RD 244. Paragraph No.8 of the judgment is quoted hereunder:-

8. 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. Similarly if name of an Asami pattedar is to be expunged from the revenue records on the ground of expiry of period of patta or any other ground, notice must be given to him before expunging his name. In a recent authority reported in Hari Ram v. Collector, 2004 (2) RD 360 it has been held by this Court that apart from suit for ejectment under Section 202 of UPZA and LR Act Asami pattedar may be evicted after expunging his name from the revenue records under Section 34 of UPZA and LR Act but it can be done only after providing opportunity of hearing to the pattedar/les-see. However if entry is expunged or any other order is passed without hearing the person affected then he is entitled to file an application for post decisional hearing and recall of the order before the court/authority which passed the ex-parte order. If such an application is filed then the court/authority concerned shall hear the applicant and in case it comes to the conclusion that the earlier order is not correct then the said order shall be set aside. In such situation it is not necessary to first set aside the order and then hear the party concerned. Along with such application such evidence must be filed which the party considers necessary for his case. It has been held by the Supreme Court in A.M.U. Aligarh v. M.A. Khan, (2000) 7 SCC 529 : AIR 2000 SC 2783 that a person who complains about denial of opportunity of hearing must show that in case opportunity had been provided to him, what cause he would have shown or what defence he would have taken. (Similar view has been taken in S.L. Gupta v. A.D. Gupta, 2003 AIR SCW 7089 (para 29) and Canara Bank ((2003) 4 SCC 557 : AIR 2003 SC 2041) (supra). Against ex-parte orders of expunging of names it is not proper to file revision and appeal etc. directly. However, if revision, appeal etc. is directly filed then revisional court/appellate Court may also instead of deciding the revision or appeal on merit may grant leave to the affected party to apply for post decisional hearing and recall of order before the trial court/authority. The, revisional/appellate authority may also decide the matter on merit after providing opportunity of post decisional hearing (i.e. opportunity to show that earlier entry was not fake) as mentioned in the judgment of Supreme Court in Canara Bank (supra).

9. So for as provision contained under U.P. Revenue Code, 2006 is concerned, Rule 36(4) and 36(5) of U.P. Revenue Code Rules, 2016 specifically provides for offording reasonable opportunity of hearing to the parties in the proceeding for correction in record as well as right to file objection to the parties against the report of the authority. Rule 36(4) and 36(5) of U.P. Revenue Code Rules, 2016 are as under:-

"36. Correction of error or omission (Section 38).?

(4) In proceedings for correction of errors and omission under this rule, the Tahsildar shall call for a report from the Revenue Inspector or the Lekhpal and after affording reasonable opportunity of hearing to the parties concerned and making summary inquiry, refer the case to the Collector in the case of map correction and to the Sub-Divisional Officer in the case of other correction along with his report within a period of thirty days from the date of registration of the application.

(5) The Collector or the Sub-Divisional Officer, as the case may be, shall allow the parties to file objection, if any, against the report of the Tahsildar submitted under sub-rule (4), and then decide the dispute. If the Collector or the Sub-Divisional Officer, as the case may be, is of the opinion that the map, field book or record-of-rights contains any error or omission, he shall direct for the correction thereof."

10. Since the petitioners' entry has been cancelled on the basis of the ex-parte report, as well as without affording proper opportunity of hearing to the petitioners and the restoration/recall application filed by the petitioners have been dismissed on the technical grounds, as such, interest of justice requires that the proceeding under Sections 33/39 of the U.P. Land Revenue Act be decided afresh after affording proper opportunity of hearing to the petitioners.

11. Considering the entire facts and circumstances of the case, as well as ratio of law laid down in Chaturgan (supra), the writ petition stands allowed in part. The impugned orders dated 15.10.2007, 7.5.2011 and 12.7.2011 passed by the Sub Divisional Magistrate, Karhal in Case No.119/52/09-10 (Gram Sabha vs. Jaipal Singh and Others) and order dated 19.8.2022 passed by Addl. Commissioner, Agra Division, Agra in Case No.185/2010-11 respectively are liable to be set aside and the same are hereby set aside and the matter is remanded back before the S.D.O. concerned to decide the proceeding under Sections 33/39 of the U.P. Land Revenue Act afresh, after affording proper opportunity of hearing to the petitioners, expeditiously, preferably within a period of 3 months from the date of production of the certified copy of the order, in accordance with law.

Order Date :- 19.9.2023

C.Prakash