Allahabad High Court
Naini Public School vs State Of U.P. And 2 Others on 20 September, 2023
Bench: Chandra Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:181689
Court No. - 51
Case :- WRIT - C No. - 22169 of 2023
Petitioner :- Naini Public School
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- M.N. Singh,Mahesh Narain Singh
Counsel for Respondent :- C.S.C.
Hon'ble Chandra Kumar Rai,J.
1. Heard Sri M.N. Singh, learned counsel for the petitioner and Sri Abhishek Shukla, learned Addl. C.S.C. for the state-respondents.
2. The instant writ petition has been filed for the following reliefs:-
"(a) to issue a writ order and direction in the nature of certiorari calling for the records and quashing the impugned order dated 17.3.2023 (Annexure No.8) passed by the respondent no.3, insofar as the same pertains to Plot No. 445-Ka area 0.9470 hectare, situated in village Tenduawan, Pargana Arail, Tehsil Karchhana, District Allahabad (now district Prayagraj).
(b) to issue any other and further suitable writ, order or direction which this Hon'ble Court may deem fit and proper on the facts and circumstances of the case;
(c) to allow the present writ petition with costs."
3. With the consent of the learned counsel for the parties, the instant writ petition is being heard and disposed of at the admission stage itself without inviting counter affidavit in the matter.
4. Counsel for the petitioner submitted that the proceeding under Section 38 of the U.P. Revenue Code, 2006 has been initiated and conducted in arbitrary manner as no notice/opportunity was afforded to the petitioner and the entry in respect to the plot in dispute, has been ordered to be made as pond. He further submitted that during consolidation operation, one Bhawani Lal was recorded over plot no.424/4/1 (new no.445-ka). He further submitted that petitioner, an educational institution, has got registered the sale deed of the plot no.445-ka, area 0.9470 hect. situated in village Tenduawan, Pargana Arail, Tehsil Karchhana, District Prayagraj and necessary incorporation was made in the khatauni. He also submitted that the instant proceeding has taken place in violation of the principle of natural justice, as such, remedy of appeal against the order will not come in the way of the petitioner. He further placed reliance on the decision of the Apex Court, reported in 2009 (1) AWC 437(SC), Committee of Management and Another vs. Vice-Chancellor and Others in order to demonstrate that if the order impugned has been passed in violation of principle of natural justice, the same can be challenged by way of writ petition under Article 226 of the Constitution of India before this Court. He further placed reliance upon the judgment of this Court reported in 2005(98) RD 244, Chaturgan vs. D.D.C. and Others in order to demonstrate that opportunity of hearing must be afforded to the person recorded in the revenue records before altering the revenue entry. He submitted that the impugned order be set aside and the petitioner's entry be maintained in the revenue records.
5. On the other hand, Sri Abhishek Shukla, learned Addl. C.S.C. raised a preliminary objection that against the order impugned, the remedy of appeal under Section 38(4) of the U.P. Revenue Code, 2006 is available to the petitioner and the instant writ petition is liable to be dismissed on the ground of alternative remedy. It is also submitted that the land in dispute was recorded as pond in 1359 fasli, as such, the same has been rightly corrected in exercise of jurisdiction under Section 38 of the U.P. Revenue Code, 2006. He further submitted that in view of the finding of fact recorded by the court, no interference is required in matter and the writ petition is liable to be dismissed.
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 proceeding under Section 38 of the U.P. Revenue Code, 2006 has been initiated and decided, expunging the entry of plot no.445-Ka and the same was ordered to be recorded as pond.
8. Since plot no.445-Ka was recorded in C.H. Form No.45, which has been annexed as Annexure No.3 to the writ petition, in the name of Bhawani Lal and the petitioner has purchased the plot from Bhawani Lal, as such, petitioner was entitled to be heard by respondent no.3/S.D.O. before passing the order impugned in respect to plot in dispute.
9. So far as the alternative remedy of filing of appeal by the petitioner is concerned, the Apex Court in the case of Committee of Management (supra) has held that remedy of appeal will not come in the way of the party, to challenge his grievance before this Court under Article 226 of the Constitution of India if opportunity of hearing has not afforded to the party who is claiming right over the plot in dispute as well as is recorded over the same, as such, writ petition cannot be dismissed on the ground of alternative remedy.
10. This Court in the case of Chaturgan (supra) has held that opportunity of hearing must be afforded to the tenure holder before expunging the entry of the plot in dispute.
11. It is also material that in view of Rule 36(4) of the U.P. Revenue Code Rules, 2016, opportunity of hearing must be afforded to the parties concerned before deciding the dispute under Section 38 of the U.P. Revenue Code, 2006. Rule 36(4) and Rule 36(5) of U.P. Revenue Code Rules, 2016 runs 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 facts and circumstances of the case as well as in view of the ratio of law laid down by the Apex Court in Committee of Management (supra) and by this Court in Chaturgan (supra), the impugned order dated 17.3.2023 cannot be sustained in the eye of law as perusal of the impugned order reveals that opportunity of hearing has not been afforded to the petitioner.
13. The writ petition is allowed in part. The impugned order dated 17.3.2023, passed by respondent no.3, pertaining to plot no.445-Ka, area 0.9470 hect. which relate to petitioner is set aside and the matter is remanded back to respondent no.3, Sub Divisional Officer, Tehsil Karchana, Prayagraj to register the proceeding afresh against the petitioner in respect to plot no.445-Ka, area 0.9470 hect. and decide the same after affording proper opportunity of hearing to the parties concerned, in accordance with law, expeditiously, preferably within a period of 4 months from the date of production of the certified copy of the order.
Order Date :- 20.9.2023
C.Prakash
