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2013 DIGILAW 2757 (ALL)

SITA RAM v. STATE OF U. P.

2013-11-11

A.P.SAHI

body2013
JUDGMENT Hon’ble A.P. Sahi, J.—Heard learned counsel for the petitioners, learned Standing Counsel for the respondent Nos. 1 and 2 and the learned Counsel for the respondent No. 3 - Gaon Sabha. 2. The petitioners contend that very same plot was subject-matter of controversy in a proceeding under Section 33/39 of the U.P. Land Revenue Act on a previous occasion when the names of the petitioners were directed to be expunged by the order of the Sub-Divisional Officer dated 17.8.2006. The petitioners challenged the same in Revision No. 238 of 2007 and the said revision was allowed by the learned Additional Commissioner on 12.9.2007. A certified copy of the said judgment has been filed as Annexure-3 to the writ petition. 3. Sri Tiwari, learned counsel for the petitioners, submits that again the same action has been taken against the petitioners without adverting to the said order and in violation of principles of natural justice by relying upon a mere report of Tehsildar. Learned Counsel submits that the Sub Divisional Officer has travelled beyond his authority by ignoring the order of the Additional Commissioner and secondly by proceeding to pass an order without giving notice or opportunity to the petitioner. 4. It is settled principle of law that a long standing entry cannot be reversed in summary proceedings under Section 33/39 unless a patent error can be established. A question of title cannot be investigated in view of the bar contained in Section 40-A of the 1901 Act. 5. In the instant case, it is clear that entry was sought to be corrected on the basis of the revenue record of 1347 Fasli. This was reversed by the learned Additional Commissioner on the previous occasion with a direction to proceed on the basis of Khatauni that was existing on the eve of the abolition of Zamindari i.e. 1359 Fasli. The Khatauni of 1359 Fasli does not appear to have been reviewed. Thus, there was no occasion to have proceeded ex parte against the petitioner to have passed the impugned order. 6. Apart from this, an administrative authority has to rest it’s decision after following the principles of natural justice and recording reasons. The impugned order nowhere indicates that notices were issued to the petitioner prior to expunging of their names in the present proceedings. 6. Apart from this, an administrative authority has to rest it’s decision after following the principles of natural justice and recording reasons. The impugned order nowhere indicates that notices were issued to the petitioner prior to expunging of their names in the present proceedings. The order of the Sub Divisional Officer, therefore, can be straightway set aside as it is in violation of principles of natural justice in view of the law laid down in the case of Wirlpool Corporation v. Registrar of Trade Marks, (1998) 8 SCC 1 . 7. It is also to be remembered by Administrative Authorities that the reasons for the order cannot be supplemented by an Affidavit and, therefore, it is not necessary for this Court to grant any time to the Standing Counsel to file a counter-affidavit. The order has to be supported by the material recited therein as held by the Apex Court in the case of Commissioner of Police, Bombay v. Goverdhandas Bhanji, AIR 1952 SC 16 (Para 9), the ratio whereof is extracted hereunder : “(9) An attempt was made by referring to the Commissioner’s Affidavit to show that this was really an order of cancellation made by him and that the order was his order and not that of Government. We are clear that public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.” 8. Thus, to provide any opportunity to the Standing Counsel to file a counter-affidavit would be a futile exercise when the impugned order ignores the order of the Additional Commissioner dated 12.9.2007, which could have been brought to the notice of the Officer, had any opportunity been given to the petitioners. 9. In view of the submissions so raised, it is apparent that the impugned order does not notice the order of the Additional Commissioner dated 12.9.2007. Secondly, the impugned order, on the face of it, is in violation of principles of natural justice. 9. In view of the submissions so raised, it is apparent that the impugned order does not notice the order of the Additional Commissioner dated 12.9.2007. Secondly, the impugned order, on the face of it, is in violation of principles of natural justice. The Sub-Divisional Officer, therefore, appears to have travelled beyond the authority and in violation of principles of natural justice while passing the impugned order. 10. Consequently, the writ petition deserves to be and is hereby allowed. The order dated 4.9.2013 is quashed. It shall be open to the Sub Divisional Officer to pass a fresh order in the light of the observations made herein above.