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2018 DIGILAW 595 (ALL)

BINDIYA v. STATE OF U. P.

2018-03-13

SIDDHARTHA VARMA

body2018
JUDGMENT Hon’ble Siddhartha Varma, J.—The instant writ petition has been filed challenging the order dated 27.5.2013 which was passed by the Assistant Record Officer, Gautam Budh Nagar by which he had held that the petitioners who are 23 in number were never allotted land over which they had claimed mutation. This order was passed on a complaint, of one Suresh Singh Chauhan saying that the names were wrongly entered as there were absolutely no pattas in favour of the petitioners. Brief history leading to the passing of the impugned order is that after 1992 when pattas were allotted to the petitioners or to their predecessors-in-interest and they were put in possession, certain complaints were made and on 3.8.2005 entries in favour of the petitioners and their predecessors-in-interest were expunged. This had resulted in the filing of a writ petition by the petitioners which came to be allowed on 23.1.2006 holding that the order dated 3.8.2005 was ex parte and, therefore, only after hearing the petitioners any order could have been passed. The petitioners who had filed their objections before the Assistant Record Officer therefore were heard. Ultimately, they succeeded and on 9.9.2010 their names were again brought back on the Revenue Records. 2. However, on 10.1.2011 again the Gaon Sabha and on 4.8.2011 Sri Suresh Singh Chauhan by means of separate applications prayed for the recalling of the order dated 9.9.2010. On 13.10.2011 the restoration application dated 10.1.2011 of the Gaon Sabha and the application dated 4.8.2011 of Suresh Singh Chauhan were rejected. Thereafter, now the District Government Counsel (Revenue) filed an application on 8.11.2011 for the recalling of the order dated 13.10.2011. On this application on 8.11.2011 itself the order dated 13.10.2011 was recalled and notices were issued to the petitioners fixing 23.11.2011 in the case. When the petitioners filed a revision against the order dated 8.11.2011 it was dismissed on 20.3.2012. The petitioners, however, filed writ petition No. 24225 of 2012 which came to be allowed on 17.5.2012 holding that the orders dated 8.11.2011 and 20.3.2012 were passed without hearing the petitioners. Allowing of the writ petition meant the revival of the applications of the Gaon Sabha and Suresh Singh Chauhan which were filed on 10.1.2011 and 4.8.2011. The petitioners, however, filed writ petition No. 24225 of 2012 which came to be allowed on 17.5.2012 holding that the orders dated 8.11.2011 and 20.3.2012 were passed without hearing the petitioners. Allowing of the writ petition meant the revival of the applications of the Gaon Sabha and Suresh Singh Chauhan which were filed on 10.1.2011 and 4.8.2011. The Assistant Record Officer, Gautam Budh Nagar restored the entries of the petitioners as was done vide order dated 9.9.2010 and also treated the application of the Gaon Sabha dated 10.1.2011 and of Suresh Singh Chauhan dated 4.8.2011 as restored and issued notices to the patta holders i.e. petitioners on 31.7.2012 and fixed 7.8.2012 for further hearing. This meant that the petitioners now had to file their objections and explain as to why their names had to be continued and had not to be removed from the revenue records. Against the order dated 31.7.2012, some of the petitioners filed a writ petition which was numbered as Writ petition No. 50061 of 2012. 3. On 18.4.2013, when another application for recalling of the order dated 31.7.2012 was rejected, then the writ petition No. 25684 of 2013 was filed. As no interim orders were passed in writ petition No. 50061 of 2012 and in the writ petition No. 25684 of 2013 the respondent No. 2 i.e. the Assistant Record Officer continued with the adjudication of the case which had been restored by him on 31.7.2012 and held on 27.5.2013 that as the petitioners had not been able to produce any pattas in their favour, the entries in favour of the petitioners were to be expunged. Aggrieved thereof the petitioners have filed the instant writ petition. 4. Learned counsel for the petitioner has assailed the order dated 27.5.2013 and has made the following submissions: I. After the petitioners and their predecessors-in-interest were granted pattas proceedings were initiated for their cancellation and on 15.12.2000 it was found that the petitioners were correctly allotted their pattas and proceedings under Section 198 (4) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, (hereinafter referred to as ‘the 1950 Act’) were dropped. Thus, thereafter no proceedings against the petitioners could be initiated. II. Thus, thereafter no proceedings against the petitioners could be initiated. II. When the High Court by its order dated 17.5.2012 had found that the application filed by the Gaon Sabha and Suresh Singh Chauhan were wrongly allowed on 8.11.2011 without hearing the petitioners then the petitioners should have been heard and the order dated 31.7.2012 should not have been passed which was passed without hearing the petitioners. III. The petitioners, at all time, had been insisting that the original documents with regard to the allotment of the pattas and the pattas themselves were in existence but had been made to disappear as some troubleshooters had schemed to deprive the petitioners of their land as were given to them by the pattas IV. After it was found on 9.9.2010 that the entries made on the basis of the pattas were correct then the application of the Gaon Sabha dated 10.1.2011 and the application of the stranger Suresh Singh Chauhan ought not to have been entertained. V. After the applications of the Gaon Sabha and Suresh Singh Chauhan were rejected on 13.10.2011 then on the application of the District Government Counsel the order dated 8.11.2011 restoring the proceedings should not have been passed. 5. Learned counsel for the petitioners stated that all this went to show that somehow or the other after making the files, which contained the proceedings by which land was allotted to the petitioners disappear, the respondents wanted to evict the petitioners. 6. Learned Standing Counsel, however, initially submitted that there was no patta in existence and also no files regarding the proceedings were to be found. However, when on 7.2.2018 this Court passed an order specifically directing the Tehsildaar Dadri to produce the record before the Court then on 20.2.2018 the records were produced. To make the record straight, the order dated 7.2.2018 is being reproduced here as under: “In the writ petition from pages 33 to 68, various pattas of the petitioners have been filed of various plots of Village Dostpur, Mangrouli, Police Station Surajpur, District Gautam Budha Nagar. The impugned order says that no record pertaining to the pattas was in existence. The petitioners at page 49 of the Supplementary-affidavit have filed a question-answer issued by the Tehsildar-Gautam Budha Nagar that the record is now available. The record, therefore will now be produced by the learned Standing Counsel. The impugned order says that no record pertaining to the pattas was in existence. The petitioners at page 49 of the Supplementary-affidavit have filed a question-answer issued by the Tehsildar-Gautam Budha Nagar that the record is now available. The record, therefore will now be produced by the learned Standing Counsel. It shall contain the proceedings as they were initiated under Rule 175 and culminated under Rule 176(4) and (5) of the U.P. Zamindari Abolition and Land Reforms Rules, 1952. This record should be made available on 15.2.2018. Put up this case on 15.2.2018 in the additional cause list. The Tehsildar-Dadri shall bring the record himself. If the record is not available with the Tehsildar-Dadri then he will assign this job to such Tehsildar who has the record.” 7. It may be mentioned here that on 15.2.2018 the State Government had failed to produce the record and, thereafter when time was again granted on 15.2.2018, the record was produced on 20.2.2018. This Court while reserving its judgement passed the following order which is being reproduced here as under: “The impugned order dated 27.5.2013 states that the mutation in favour of the petitioners could not be done owing to the fact that the Pattas which are the basis of the Mutation, were not in existence. This is what has been stated in paragraph 2 of the Counter-affidavit, which was sworn by the Nayab Tehsildar. However, when the petitioners by means of a supplementary-affidavit on page 49, on oath, stated that the Pattas were in existence and a question answer was also issued by the Tehsildar-Dadri, District-Gautam Budha Nagar then the learned Standing Counsel was directed to produce the original record. Today, the original record has been produced and it has been found that the pattas are in existence. The original record may now be returned and the photostat copy of the same may be retained.” 8. Today, the original record has been produced and it has been found that the pattas are in existence. The original record may now be returned and the photostat copy of the same may be retained.” 8. The Tehsildar Dadri and Tehsildaar Sadar in paragraph 7 of the narrative which they had brought alongwith the record, had stated thus: ^^7- ;g fd iz'uxr d`f"k vkoaVu i=koyh fofHkUu U;k;ky;ksa esa fopkjk/khu jgh gS rFkk lEcfU/kr d`f"k vkoaVu i=koyh fopkjkèkhu oknksa esa lEcfU/kr U;k;ky;ksa }kjk eaxok;h x;hA tSls ¼1½ okn la[;k 30@97 /kkjk 198¼4½ tsMŒ,Œ,yŒvkjŒ ,DV jkts vkfn cuke pUnh vkfn U;k;ky; vij dysDVj ¼fo@jk½ xkSrecq)uxj@vkns'k dh Nk;kizfr layXu gS ¼i=kad ^^,**½A iz'uxr okn tuin xkft;kckn ls LFkkukUrfjr gksdj tuin xkSrecq)uxj esa izkIr gqvkA ;gka ij ;g mYys[k djuk gS fd lEcfU/kr d`f"k vkoaVu i=koyh rglhy nknjh ds Mkdogh la[;k 111 ds }kjk jhMj dysDVj xkft;kckn dks fnukad 17-12-1996 dks izkIr djk;h x;h gSA ¼Nk;Áfr i=kad ^^ch**½A ¼2½ okn la[;k 19@2005 vUrxZr /kkjk 33@39 ,yŒvkjŒ ,DV ljdkj cuke izdk'k vkfn U;k;ky; lgk;d vfHkys[k vf/kdkjh x<+eqDrs'oj] tuin xkft;kckn ¼i=kad ^^lh**½A ¼3½ okn la[;k 01@2008 /kkjk 33@39 ,yŒvkjŒ ,DV Jherh fcafn;k vkfn cuke ljdkj U;k;ky; lgk;d vfHkys[k vfèkdkjh xkft;kckn ¼Nk;kÁfr i=kad ^^Mh**½A ¼4½ okn la[;k 75@100@2011 /kkjk&54 ,yŒvkjŒ ,DV Jherh fcafn;k vkfn cuke ljdkj U;k;ky; lgk;d vfHkys[k vfèkdkjh xkSrecq)uxj ¼Nk;kÁfr i=kad ^^bZ**½ ds U;k;ky;ksa esa fopkjk/khu jgh gSA** 9. In the Court they felt very sorry with regard to the fact that they could not unearth the record earlier. In fact, the Tehsildaar who was also present in the Court was remorseful with regard to the fact that the earlier Tehsildaar had given a wrong affidavit in his counter-affidavit which was sworn on 14.2.2014. In paragraph 17 it had been stated that there was no patta in existence. The paragraph 17 of the Counter-affidavit is as follows: ^^17- ;g fd ;kfpdk ds izLrj la[;k&27 esa of.kZr dFku ds lEcU/k esa dguk gS fd ;kphx.k ds i{k esa fookfnr Hkwfe ij dksbZ iV~Vk ugha fd;k x;k gSA ;kphx.k }kjk jktLo vfHkys[kksa esa QthZ izfof"V djk;h x;h] bl dkj.k QthZ izfof"V gksus ds vk/kkj ij ;kphx.k ds i{k esa ntZ jktLo vfHkys[kksa esa izfof"V dks fu;ekuqlkj fujLr fd;k x;k gSA** 10. Learned Standing Counsel and Sri Nitin Kurmar Agrawal who had filed an impleadment application submitted that since the Tehsildaar had stated in paragraph 17 of his counter-affidavit that the petitioners had no pattas in their favour no relief should be given to the petitioners. When the original record which was brought by the Tehsildar was seen by Sri Agarwal, he submitted that the procedure by which the pattas were granted was not correct and, therefore, the pattas were to be considered null and void. However, when confronted by the provisions of Section 198(4) of the 1950 Act that only an aggrieved person could challenge the pattas, the learned counsel for Suresh Singh Chauhan could not apprise the Court as to how Sri Suresh Singh Chauhan was to be called a “person aggrieved” as per the provisions of Section 198(4) of the 1950 Act and as to how he was actually aggrieved by the allotment of the pattas in favour of the petitioners. 11. Further from the record, it is evident that Sri Suresh Singh Chauhan has till date not filed any application for the cancellation of the pattas. 12. Having heard the learned counsel for the parties, I am of the view that since now the original records which led to the granting of the pattas and the pattas themselves have been produced before the Court and the learned Standing Counsel has very remorsefully stated that the record of the pattas owing to various other Court proceedings, had been misplaced no action is being proposed against the state respondents. However, now that the original pattas and the proceedings relating to them have been produced before the Court it can safely be said that the pattas granted in favour of the petitioners exist and that their names were earlier correctly entered in the revenue records and were only under a mistake removed from them. 13. Since, now, it is certain that the pattas are in existence and this the learned Standing Counsel admits on behalf of the State, the order dated 27.5.2013 which is based on the fact that there was no patta in existence cannot be sustained in the eyes of law. The order, thus, is quashed. 14. The writ petition is allowed. The petitioners shall continue to remain in possession in the plots as were granted to them by the pattas. The order, thus, is quashed. 14. The writ petition is allowed. The petitioners shall continue to remain in possession in the plots as were granted to them by the pattas. Since the instant writ petition has been allowed and it has been found that the petitioners’ names were correctly entered in the revenue record, in the connected writ petitions, namely, Writ C No. 25648 of 2013 and Writ C No. 50061 of 2012, no order is required to be passed. They, thus are being disposed of in view of this order.