Ashok Kumar vs Board Of Revenue U.P. At Allahabad And 3 ...
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Allahabad High Court

Ashok Kumar vs Board Of Revenue U.P. At Allahabad And 3 ... on 12 March, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:36286
 
Court No. - 50
 

 
Case :- WRIT - B No. - 949 of 2025
 

 
Petitioner :- Ashok Kumar
 
Respondent :- Board Of Revenue U.P. At Allahabad And 3 Others
 
Counsel for Petitioner :- Ishir Sripat,Jitenrda Kumar Ojha,Sr. Advocate
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Chandra Kumar Rai,J.
 

1. Heard Mr. Rahul Sripat, learned Senior Counsel assisted by Mr. Jitendra Kumar Ojha, learned counsel for the petitioner and Mr. T.P. Gupta, learned Standing Counsel for the State-respondents.

2. With the consent of learned counsel for the parties, the instant petition is being heard finally without inviting counter affidavit.

3. Brief facts of the case are that the proceeding under Section 38 of U.P. Revenue Code, 2006 has been initiated on the basis of ex-parte report dated 24.7.2018 in respect to plot no.597Ka area 0.061 hectare, plot no.597Kha area 0.131 hectare of khata no.118, plot no.591/1/2 area 0.63 hectares of khata no.119 and arazi no.546 area 11 biswa of khata no.120 which are situated in Non Z.A. area. Respondent no.3 / Sub-Divisional Magistrate vide order dated 12.9.2018 has expunged the entry of the plot in question. Petitioner challenged the order dated 12.9.2018 by way of revision under Section 210 of U.P. Revenue Code, 2006, which was registered as Revision No.226 of 2018 before respondent no.1/ Board of Revenue. Board of Revenue vide order dated 3.1.2025 dismissed the revision, hence this writ petition on behalf of the petitioner for the following reliefs:

"i. issue a writ of certiorari to quash the impugned order dated 3.1.2025 passed by respondent no.1 (Annexure No.5).

ii. issue a writ of certiorari to quash the impugned order dated 12.9.2018 passed by respondent no.3 (Annexure No.3).

iii. issue any other or further writ, order or direction as is deemed fit and proper under the facts and circumstances of the case.

iv. Award the cost of the petition to the petitioner."

4. Learned Senior Counsel for the petitioner submitted that on the basis of ex-parte report submitted by the authority, the long standing entry of the petitioner has been expunged under Section 38 (2) of U.P. Revenue Code, 2006. He further submitted that no opportunity of hearing has been afforded to the petitioner who was admittedly recorded at the time of initiation of the proceeding. He further submitted that the revision filed by the petitioner has been dismissed in arbitrary manner without considering the point setup in the revision in proper manner. He further submitted that entry of Ziman 8 made in the name of petitioner cannot be expunged while exercising jurisdiction under Section 38(2) of U.P. Revenue Code, 2006. He further submitted that question of title cannot be adjudicated in the summary proceeding under Section 38 of U.P. Revenue Code, 2006. He further submitted that both the impugned orders should be set aside and the petitioner's entry in respect to the plot in question should be maintained. He further submitted that Court of respondent No-3 is not competant to entertain proceeding in respect of land situated in Non Z.A. area.

5. On the other hand, learned Standing Counsel for the State submitted that on the basis of report submitted in the proceeding, the entry has been rightly expunged, as such, no interference is required in the matter. He further submitted that writ petition against the order passed in the summary proceeding is not maintainable, as such, the writ petition is liable to be dismissed.

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

7. There is no dispute about the fact that the petitioner was recorded over the plot in question at the time of initiation of the proceeding under Section 38 of U.P. Revenue Code, 2006. There is no dispute about the fact without affording proper opportunity of hearing to the petitioner, petitioner's entry has been expunged on the basis of the report dated 24.7.2018 and order has been maintained in revision.

8. 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. Correction of errors and omission-

(1) An application for correction of any error or omission in the map, filed-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 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, 1 [ 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.

Explanation. - The power to correct any error or omission under this section shall not be construed to include the power to decide a dispute involving question of title."

9. Perusal of Rule 36 (4) of U.P. Revenue Code Rules 2016 shall be also relevant which is as under:-

U.P. Revenue Code Rules 2016:-

"Rule 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."

10. Perusal of Section 38 of U.P. Revenue Code, 2006 as well as rule 36(4) of U.P. Revenue Code Rules, 2016 fully demonstrates that proceeding under Section 38 of U.P. Revenue Code, 2006 is to be decided after notice and opportunity of hearing to the recorded tenure holder and the question of title cannot be decided in proceeding under Section 38 of U.P. Revenue Code, 2006.

11. In the instant matter, Sub-Divisional Magistrate has expunged the entry only on the basis of ex-parte report dated 24.7.2018 submitted in the proceeding.

12. The record demonstrates that just within 1 1/2 month from the submission of the report dated 24.7.2018, the impugned order has been passed expunging the petitioner's long standing entry.

13. This Court in the case reported in 2005 (98) RD 244, Chaturgan vs. D.D.C. and Others has held that the opportunity of hearing must be afforded to the recorded tenure holder while expunging the entry of the recorded tenure holder. 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)."

14. The revisional Court has also not exercised his jurisdiction in proper manner considering the long standing entry of the petitioner as well as jurisdiction of the Court, under Section 38 of U.P. Revenue Code, 2006.

15. Considering the entire facts and circumstances, the impugned order dated 3.1.2025 passed by respondent no.1/ Board of Revenue, U.P. at Allahabad and order dated 12.9.2018 passed by respondent no.3/ Sub-Divisional Magistrate, Karvi, District- Chitrakoot are liable to be set aside and the same are hereby set aside.

16. The writ petition stands allowed and matter is remitted back before respondent no.3/ Sub-Divisional Magistrate, Karvi, District- Chitrakoot to register the proceeding on its original number and decide the same after considering the objection of the petitioner regarding maintainability of the proceeding as well as other questions raised by the petitioner in proper manner, expeditiously preferably within a period of three months from the date of production of certified copy of this order before respondent no.3.

Order Date :- 12.3.2025 /Rameez