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2009 DIGILAW 2522 (ALL)

LAL BABU v. ADDL. DISTRICT MAGISTRATE (F&R)/D. D. C. , Deoria

2009-07-09

SHISHIR KUMAR

body2009
JUDGMENT SHISHIR KUMAR, J.--Heard learned Counsel for petitioner and learned Counsel for respondents. 2. Present writ petition has been filed for quashing the order dated 1.6.1999 (Annexure 10 to writ petition) passed by respondent No. 1. 3. In the year 1975, petitioner filed an objection under section 9 (2) of U.P. Consolidation of Holding Act claiming that he be recorded as tenure holder of the plots in dispute after expunging the entries of the basic years record. The objection filed by petitioner was rejected by order dated 22.8.1975. Petitioner aggrieved by aforesaid order filed an appeal. Appellate Authority vide its order dated 4.8.1978 allowed the appeal, and has directed the authority to record the name of petitioner. It has been submitted that order of settlement officer (Consolidation) has already been given effect to and nobody has challenged the said order, therefore, it will be presumed that finality has been attached. The respondent Nos. 4 to 8 filed an application before respondent No. 1 with a request that an enquiry be made regarding the entries made in favour of petitioner and the order passed in favour of petitioner in the year 1970. It appears that respondent No. 1 directed the District Government Counsel (Revenue) to submit a report. On the basis of report submitted, an order dated 1.6.1999 was passed that earlier order passed in 1978 in favour of petitioner was forged order and same was set aside and it was directed that name of petitioner be expunged from revenue record. Petitioner aggrieved by this order has filed the present writ petition. 4. Writ petitioner was entertained and the counter and rejoinder affidavits have been exchanged, as such, writ petition is being disposed of finally with the consent of parties. 5. It has been submitted by learned Counsel for petitioner that order dated 1.6.1999 was passed without any notice and opportunity to petitioner. Even from the perusal of order, it is clear that only on the basis of report and on the basis of opinion given by District Government Counsel (Revenue), order has been passed, holding that order passed in favour of petitioner in the year 1978 is a forged order, as such, name of petitioner be deleted from revenue record. Even from the perusal of order, it is clear that only on the basis of report and on the basis of opinion given by District Government Counsel (Revenue), order has been passed, holding that order passed in favour of petitioner in the year 1978 is a forged order, as such, name of petitioner be deleted from revenue record. Further submission has been made that after notification under section 52 of U.P. Consolidation of Holdings Act, consolidation authorities have got no jurisdiction to entertain any application relating to any order passed during consolidation. Reliance has been placed upon a Division Bench judgment of this Court in Hari Ram v. D.D.C., Azamgarh and others.1 1. 1989 R.D. 281. 6. Further submission has been made that on 9.1.1977, notification under section 52 of the U.P. Consolidation of Holdings Act was published denotifying the village in question from the consolidation scheme. 7. On the other hand, learned Counsel for the respondents has brought to the notice of the Court regarding the order passed in favour of petitioner dated 4.8.1978. It has been submitted that once a finding has been recorded by the settlement officer consolidation that nature of the land is grove and it is not being usea for agriculture purpose, therefore, directing the authority to record the name of petitioner is legally not valid. Further submission has been made that once fraud has been established, there is no question of any opportunity given to petitioner. 8. I have heard Counsel for parties and have perused the record. 9. From the record it is clear that an order dated 4.8.1978 was passed in favour of petitioner by the Settlement Officer (Consolidation). The said order has been given effect to in revenue records and nobody has challenged the said order. It was in the year 1999, respondent Nos. 4 to 8 have made an application with a prayer to enquire into the matter regarding genuineness of the order of the settlement officer (Consolidation) dated 4.8.1978. Only on the basis of report submitted by DGC and on the basis of report of peskar the impugned order has been passed. From the perusal of record, it is clear that no notice and opportunity has been given to petitioner. Only on the basis of report submitted by DGC and on the basis of report of peskar the impugned order has been passed. From the perusal of record, it is clear that no notice and opportunity has been given to petitioner. There is no dispute to this effect that if fraud has been established on the basis of relevant record but that too has to be established after affording an opportunity to effected person. It was incumbent on the part of respondent No.1 to afford an opportunity to petitioner before recording a finding that order dated 4.8.1978 is a forged order. Further regarding exercising jurisdiction by respondent No.1, if an opportunity is given to petitioner, he can establish before the Court that whether respondent No. 1 is having any jurisdiction to entertain such application after de-notification under section 52 of the U.P. Consolidation of Holdings Act in view of Division Bench (supra). Admittedly, as no opportunity has been given, therefore, in my view, principle of natural justice is violated. It is well established in law that if a person is going to be effected by any order of judicial authority or by administrative authority, effected person is entitled for notice and opportunity. Admittedly, petitioner has not been afforded any opportunity, which is apparent from the order passed by respondent No.1 dated 1.6.1999. 10. In view of aforesaid fact, writ petition is allowed. The order dated 1.6.1999 (Annexure 10 to writ petition) passed by respondent No.1 is hereby quashed and matter is remanded back to respondent No.1 to pass appropriate orders after affording fullest opportunity to petitioner on the basis of relevant record taking into consideration the jurisdiction also. 11. As the matter is very old, respondent No. 1 is directed to decide the matter within a period of three months from the date of production of certified copy of this order. 12. No order as to costs. Petition Allowed.