Allahabad High Court
Syed Arif Jamal Shah And 3 Others vs Board Of Revenue U.P. At Lucknow And 3 ... on 10 February, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:18895
Court No. - 50
Case :- WRIT - B No. - 460 of 2025
Petitioner :- Syed Arif Jamal Shah And 3 Others
Respondent :- Board Of Revenue U.P. At Lucknow And 3 Others
Counsel for Petitioner :- Abdul Mateen
Counsel for Respondent :- C.S.C.,Hari Narayan Singh
Hon'ble Chandra Kumar Rai,J.
1. Stamp Reporter has reported laches of 173 days in filing the writ petition which has been explained in the writ petition.
2. Heard Mr. Abdul Mateen, learned counsel for the petitioners, Mr. Pankaj Kumar, learned Standing Counsel for the State respondents and Mr. Hari Narayan Singh, learned counsel for respondent- Gaon Sabha.
3. With the consent of the parties, the matter is heard finally without inviting counter affidavit.
4. Brief facts of the case are that proceeding under Section 33/39 of the U.P. Land Revenue Act, 1901 was initiated and the entry of the predecessor in interest of the petitioners was expunged. Collector, Farukkhabad vide order dated 6.2.1995 expunged the entry of the petitioners' predecessor in interest. Against the order dated 6.2.1995, revision filed under Section 218 of the U.P. Land Revenue Act, 1901 before the Commissioner was heard and dismissed vide order dated 23.5.1995. Petitioners' predecessor in interest filed further revision under Section 219 of the U.P. Land Revenue Act, 1901 before the Board of Revenue which was admitted and interim order was granted vide order dated 8.8.1995 which remained in operation till the disposal of the revision. Board of Revenue under the impugned order dated 13.5.2024 dismissed the petitioners' revision hence this writ petition for the following reliefs:-
"(i) Issue a writ, order or direction in the nature of certiorari quashing the mpugned order dated 13.5.2024 passed by respondent no.1, Board of Revenue U.P. at Lucknow in case No. REV/211/1994-1995 District Farrukhabad Computerized case No. R19950518007950 (Syed Aley Hasan Shah Vs. State of U.P. and another) under Section 219 of U.P. Land Revenue Act, 1901 as well as order dated 23.5.1995 passed by Commissioner Kanpur Division Kanpur in revision No. 9/1995 District Farrukhabad (Syed Aley Hasan Shah Vs. State of U.P. and another) as well as order dated 6.2.1995 passed by respondent no.3 Collector Farrukhabad.
(ii) Issue a writ, order or direction in the nature of mandamus to stay the effect and operation of the impugned order dated 13.5.2024 passed by respondent no.1, Board of Revenue U.P. at Lucknow in case No. REV/211/1994-95 District Farrukhabad Computerized case No. R19950518007950 (Syed Aley Hasan Shah Vs. State of U.P. and another) under Section 219 of U.P. Land Revenue Act, 1901 as well as order dated 23.5.1995 passed by Commissioner Kanpur Division Kanpur in Revision No. 9/1995 District Farrukhabad (Syed Aley Hasan Shah Vs. State of U.P. and another) as well as order dated 6.2.1995 passed by respondent no.3, Collector Farrukhabad.
(iii) Issue a writ, order or direction in the nature mandamus directing the parties to maintain status quo in respect of the land in question during the pendency of the present writ petition before this Hon'ble Court."
5. Counsel for the petitioners submitted that longstanding entry cannot be expunged on the basis of complaint filed by private party. He submitted that petitioners' predecessor in interest were recorded in the revenue record since long and the revenue entry are annexed along with the writ petition as Annexure No.8 which fully demonstrate that predecessor of petitioners were recorded over the plot in question since long. He submitted that Board of Revenue has entertained the revision filed by petitioners' predecessor in interest and granted the interim protection but under the final order, the revision filed by petitioners has been dismissed without considering the case of the petitioners as set up in the revision.
6. On the other hand, learned Standing Counsel for the State respondents and learned counsel for the respondent- Gaon Sabha submitted that there is no illegality in the order passed by Collector Farrukhabad by which the petitioners' entry was expunged. He submitted that plot in question is a pond, as such, no right will accrue to petitioners. They further submitted that revision filed by petitioners' predecessor has been dismissed by Commissioner as well as Board of Revenue, as such, no interference is required against the current finding recorded by all the three Courts.
7. I have considered the arguments advanced by learned counsel for the parties and perused the records.
8. There is no dispute about the fact that petitioners' predecessors were recorded at the time of filing of complaint by private party in respect to the plot in question. There is also no dispute about the fact that Collector has expunged the petitioners' entry without any notice and opportunity of hearing to petitioners' predecessor in interest. The revision filed by petitioners' predecessor in interest have also been dismissed by Commissioner as well as Board of Revenue.
9. This Court in the case reported in 2005 (98) RD 244, Chaturgan vs. D.D.C. and Others has held that without notice and opportunity of hearing, the longstanding entry should not be expunged by the authorities. 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. Aligarhv.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 inS.L. Guptav.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)."
10. This Court in case reported in 2008 (105) AD 698 Smt. Saroj Singh and another Vs. Board of Revenue Lucknow and Others has held that entry cannot be expunged in the proceeding under Section 33/39 of the U.P. Land Revenue Act without giving notice and opportunity of hearing to the recorded person.
11. In the instant matter, the predecessor of the petitioners were recorded in the revenue record since long, as such, they should be heard before expunging their entry from the revenue records. The Collector has expunged the entry of petitioners' predecessor merely on the basis of complaint filed by private party as well as without notice and opportunity of hearing to the petitioners' predecessor in interest. Petitioners' predecessor in interest has expired during pendency of the revision before Board of Revenue and petitioners are their legal heirs hence petitioners should be afforded opportunity of hearing before passing any adverse order in respect to plot in question.
12. Considering the entire facts and circumstances, the impugned orders dated 13.5.2024 passed by respondent no.1, Board of Revenue, U.P. at Lucknow, 23.5.1995 passed by respondent no.2, Commissioner Kanpur Division Kanpur and 6.2.1995 passed by respondent no.3, Collector, Farrukhabad are liable to be set aside and the same are hereby set aside. Writ petition stands allowed and matter is remitted back before the respondent no.3, Collector Farrukhabad to decide the proceeding afresh in proper manner after impleading the petitioners in the proceeding and affording proper opportunity of hearing to petitioners expeditiously preferably within period of three months from the date of production of certified copy of this order.
Order Date :- 10.2.2025/ Vandana Y.
