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2019 DIGILAW 107 (UTT)

Kishori v. State of Uttarakhand

2019-02-20

MANOJ K.TIWARI

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JUDGMENT : Manoj K. Tiwari, J. 1. This petition under Article 227 of the Constitution of India arises out of proceedings under Rule 26(1) of the Uttar Pradesh Land Revenue (Survey and Record Operation) Rules, 1978 (in short ‘Rules of 1978’) read with Section 54 of the Uttar Pradesh Land Revenue Act, 1901. Section 54 of the U.P. Land Revenue Act is extracted below:- “[54. Undisputed entries and disposal of disputes regarding entries, by Record Officer - (1) For revising the map and records under this Chapter, the Record Officer shall, subject to the provisions hereinafter contained, cause to be carried out survey, map correction, field to field Partal and test and verification of current annual register in accordance with the procedure prescribed. (2) After the test and verification of the current annual register in accordance with sub-section (1), the Naib-Tahsildar shall correct clerical mistakes and errors, if any, in such register, and shall cause to be issued to the concerned tenure-holder and other persons interested, notices containing relevant extracts from the current annual register and such other records as may be prescribed, showing their rights and liabilities in relation to land and mistakes and disputes discovered during the operations mentioned in the said sub-section. (3) Any person to whom notice under sub-section (2) has been issued may, within twenty-one days of the receipt of notice, file before the Naib-tahsildar objection in respect thereof disputing the correctness or nature of the entries in such records or extracts. (4) Any person interested in the land may also file objection before the Naib-Tahsildar at any time before the dispute is settled in accordance with sub-section (5), or before the Assistant Record Officer, at any time before the objections are decided in accordance with sub-section (6). (5) The Naib-Tahsildar shall - (a) where objections are filed in accordance with sub-section (3) or sub-section (4) after hearing the parties concerned; and (b) in any other case after making such inquiry as he may deem necessary; correct the mistake, and settle the dispute, by conciliation between the parties appearing before him, and pass orders on the basis of such conciliation. (6) The record of all cases which cannot be disposed of by the Naib-Tahsildar by conciliation as required by sub-section (5), shall be forwarded to the Assistant Records Officer who shall dispose of the same, in accordance with the provisions of Section 40, 41 or 43, as the case may be, and where the dispute involves a question of title, he shall decide the same after a summary inquiry. (7) Where after the summary inquiry under sub-section (6), the Assistant Record Officer is satisfied that the land in dispute belongs to the State Government or a local authority, he shall cause the person in unauthorised occupation of such land to be evicted and may, for that purpose use or cause to be used such force as may be necessary. (8) Every order of the Assistant Record Officer - (a) made under sub-section (6) shall, subject to the provisions of Sections 210 and 219, be final; (b) made under sub-section (7) shall subject to the result of any suit which the aggrieved person may file in any Court of competent jurisdiction, be final].” 2. According to the petitioners, they were four brothers out of which Sri Sudanno and Sri Viswanath have died and only two brothers, namely, Sri Kishore and Sri Punni Charan are alive. Smt. Sumitra (respondent No. 4) was the only child of Sri Sudanno, who died in the year 1996. After his death, survey & record operations, under Section 54 of the U.P. Land Revenue Act, were initiated in the village (Gram Chandanpur) and name of Smt. Sumitra (respondent No. 4) was entered in revenue records in place of her father Sri Sudanno by Survey Naib Tehsildar, Udham Singh Nagar vide order dated 01.03.1997. 3. One Sri Sahdev (respondent No. 5), who is the son of petitioner No. 1, filed an appeal against the order passed by Survey Naib Tehsildar under Rule 27(3) of Rules of 1978 before learned Assistant Record Officer on the ground that no notice was served to him or other co-tenure holders by the Survey Naib Tehsildar before entering the name of Smt. Sumitra in the revenue record in place of her father. It was further contended that Smt. Sumitra was married much before the death of her father, therefore, she cannot inherit the land of his father. It was further contended that Smt. Sumitra was married much before the death of her father, therefore, she cannot inherit the land of his father. It was further contended that Sri Sudanno had executed a Will, in respect of a portion of his land, in his (Sahdev) favour, therefore, the order passed by Survey Naib Tehsildar is liable to be set aside and his name deserves to be entered in the revenue records, as Bhumidhar. Although Sri Sahdev claimed that Sri Sudanno had executed a Will in his favour, however, no Will was produced by him before any forum. 4. The said appeal was dismissed by learned Assistant Record Officer, Udham Singh Nagar vide order dated 26.03.2002. Sri Sahdev thereafter filed a revision under Section 219 of the U.P. Land Revenue Act before Record Officer/District Magistrate, Udham Singh Nagar, which was decided by learned Additional District Magistrate, Udham Singh Nagar vide judgment and order dated 31.05.2002 and the matter was remanded to Assistant Record Officer to decide the appeal afresh. 5. Smt. Sumitra (respondent No. 4) challenged the order passed by Additional District Magistrate, Udham Singh Nagar by filing a revision and learned Additional Commissioner, Kumaon Division, Nainital allowed her revision vide judgment and order dated 19.05.2003 by holding that since entire material was available before learned Additional District Magistrate, therefore, instead of remanding the matter back to the Assistant Record Officer, he should have decided the appeal on merits. Learned Additional District Magistrate thereafter dismissed the revision No. 52/41 of 2001-02 filed by Sahdev vide order dated 13.07.2006. 6. Thereafter, petitioners filed Writ Petition (M/S) No. 1816 of 206 challenging the order dated 13.07.2006 passed by learned Additional District Magistrate, Udham Singh Nagar in Revision No. 52/41 of 2001-02. This Court, while affirming the impugned judgment, granted liberty to the petitioners to move application for recall of the order passed by Survey Naib Tehsildar. Petitioners thereafter filed application for recall of the order dated 01.03.1997, which was rejected by Survey Naib Tehsildar vide order dated 19.10.2007. Petitioners challenged the order passed by Survey Naib Tehsildar by filing an appeal which has been rejected by learned Assistant Record Officer, Gadarpur, District Udham Singh Nagar vide order dated 11.09.2009. The revision filed by petitioners was also dismissed by Record Officer/Collector, Udham Singh Nagar vide order dated 22.11.2010. Petitioners challenged the order passed by Survey Naib Tehsildar by filing an appeal which has been rejected by learned Assistant Record Officer, Gadarpur, District Udham Singh Nagar vide order dated 11.09.2009. The revision filed by petitioners was also dismissed by Record Officer/Collector, Udham Singh Nagar vide order dated 22.11.2010. Consequently, petitioners have approached this Court challenging the orders dated 01.03.1997 and 19.10.2007 passed by Survey Naib Tehsildar, order dated 11.09.2009 passed by Assistant Record Officer and order dated 22.11.2010 passed by Record Officer/Collector, Udham Singh Nagar. 7. It is thus apparent that initially Sahdev (son of petitioner No. 1) challenged the order passed by Survey Naib Tehsildar and lost from all the forums. Thereafter, petitioners also challenged the said order by filing appeal and revision and they have also lost from all the forums, consequently, they have approached this Court. 8. Section 54 of the U.P. Land Revenue Act enables the Record Officer to cause to be carried out survey, map correction, field to field Partal and test and verification of current annual register. U.P. Land Revenue (Survey and Record Operation) Rules, 1978, particularly Rule 26 thereof, lays down the procedure for Survey and Record operations. From the very nature of the proceedings under Section 54 of the Act and Rule 26 of the Rules, it is apparent that title dispute between two or more individuals cannot be decided in these proceedings, which are summary in nature. 9. Even otherwise also, the petitioners have lost from all the forums and while exercising power under Article 227 of the Constitution of India, this Court is not inclined to interfere with the concurrent findings of fact. 10. In such view of the matter, the writ petition is dismissed. No order as to cost. However, it shall be open to the petitioners to get their rights (if any) declared by a competent court of law.