Kanhai And Another vs State Of U.P. And 5 Others
2023 Latest Caselaw 25524 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:182868
 
Court No. - 51
 
Case :- WRIT - C No. - 23025 of 2023
 
etitioner :- Kanhai And Another
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Suresh Chandra Dwivedi,Vivek Pandey
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Mr. Suresh Chandra Dwivedi, Counsel for the petitioners and Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents.

2. The instant petition has been filed for quashing the order dated 26.4.2023 passed by respondent no.4, Sub Divisional Magistrate (S.D.M.) Tehsil- Gunnaur, District- Sambhal.

3. With the consent of the learned Counsel for the parties, the instant petition is being heard and disposed of finally without inviting the counter-affidavit.

4. Counsel for the petitioner submitted that petitioners were the recorded tenure holder of the plot in dispute and without affording proper opportunity of hearing to the petitioners, impugned order has been passed under Section 38 (5) of the U.P. Revenue Code, 2006 which is violation of the madatory provisions contained under Rule 36 (4) and 36 (5) of the U.P. Revenue Code, Rules 2016. He further submitted that in view of the 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 AIR 2021 Supreme Court 2114 Radha Krishnan Industries Vs. State of Himachal Pradesh and Others writ petition cannot be dismissed on the ground of alternative remedy, as impugned order has been passed without affording proper opportunity of hearing to the party. He further submitted that impugned orders be set aside and petitioners be recorded over the plot in dispute.

5. On the other hand, Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents submitted that writ petition is not maintainable as against the order impugned, remedy of revision is available to the petitioners. He further submitted that notices were issued to the tenure holder concerned even the publication has taken place and nobody was turned up to file objection, as such, the jurisdiction was exercised under Section 38 (5) of the U.P. Revenue Code, 2006 by the respondent no.4. He submitted that no interference is required in the matter and writ petition is liable to be dismissed on the ground of alternative remedy available to the petitioners against the order impugned.

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 order impugned has been passed by respondent no.4 in the proceeding under Section 38 (5) of the U.P. Revenue Code, 2006.

8. The perusal of the impugned order passed by respondent no.4 will be necessary in order to adjudicate the controversy involved in the matter which is as under:-

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9. The perusal of the order passed by respondent no.4 reveals that petitioners were not heard although the notice was issued and publication was made but petitioners could not appear in the proceeding and the entry of the plot in dispute has been altered under the impugned order.

10. This Court in the case reported in Chaturgan Vs. State of U.P. and Others 2005 (98) RD 244 has held that recorded tenure holder must be afforded proper opportunity of hearing before expunging the entry or altering the entry of the plot in dispute. Paragraph no.8 of the judgment is relevant for perusal which is as under:-

"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)."

11. The perusal of Rule 36 (4) and 36 (5) of U.P. Revenue Code, Rules 2016 will also relevant for perusal which provides for reasonable opportunity of hearing to the party as well as right to file objection, the same 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."

12. Considering the entire facts and circumstances as well as the ratio of law laid down by this court in Chaturgan (Supra), the impugned order dated 26.4.2023 passed by respondent no.4 cannot be sustained and the same is set aside in respect to petitioners only. The writ petition stands allowed in part and matter is remitted back before respondent no.4, Sub Divisional Magistrate (S.D.M.) Tehsil- Gunnaur, District- Sambhal to register the proceeding against the petitioners on its original number and decide the same afresh after affording proper opportunity of hearing to the petitioners expeditiously preferably within period of four months from the date of production of certified copy of this order.

Order Date :- 20.9.2023

Vandana Y.