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2019 DIGILAW 1174 (ALL)

Hari Krishna v. State of U. P.

2019-05-03

SIDDHARTHA VARMA

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JUDGMENT : Siddhartha Varma, J. Aggrieved by the order dated 6.9.2018 passed by the Sub Divisional Officer, Bansgaon, District-Gorakhpur, by which the entries in favour of the petitioner over plots no. 1534, area 2.5740 hectare, 1572 area 1.4410 hectare and 1570 (ka) area 0.995 hectare were removed and the land was entered as that of the State, the instant writ petition has been filed. 2. Learned counsel for the petitioner Sri M.D. Singh Shekhar, Senior Advocate, assisted by Sri R.D. Tiwari, states that after orders were passed by the Consolidation Authorities on 13.3.1989 in case no. 507/508, the name of the petitioner was mutated in the revenue record as per the direction of the Consolidation Officer under Rule 109 of the Consolidation of Holdings Rules on 5.10.1991 and further thereafter the revenue entries continued to contain the name of the petitioner. Learned counsel for the petitioner further stated that plots no. 394M area 0.0550 hectare, 869M area 0.0600, 893M area 0.0240 hectare and 1228M area 0.1080 hectare which were also in the ownership of the petitioner, of course, without any order of the Consolidation Authorities had continued to be entered in the name of the petitioner in the khatuanies till the time they were removed. 3. The petitioner upon coming to know about the deletion of his name from the khataunis for the year 1424F to 1429F complained the matter and upon an enquiry the Naib Tehsildar and the Tehsildar, in fact, corrected the revenue entries by their orders dated 25.4.2018 and 26.5.2018. However, despite the correction of the revenue entries, when by the impugned order dated 6.9.2018, which was passed under Section 38(1) of the U.P. Revenue Code, 2006, the name of the petitioner was removed in the pretext of correction of revenue entries, he approached this Court. The filing of the writ petition was preceded by a complaint to the Additional Commissioner (Administrative) Gorakhpur Madal, Gorakhpur. 4. Learned counsel for the petitioner has submitted that the order dated 6.9.2018 which was allegedly passed under Section 38(1) of the U.P. Revenue Code, could not have been passed by the respondent no. 4 without affording an opportunity of hearing to the petitioner. 4. Learned counsel for the petitioner has submitted that the order dated 6.9.2018 which was allegedly passed under Section 38(1) of the U.P. Revenue Code, could not have been passed by the respondent no. 4 without affording an opportunity of hearing to the petitioner. Learned counsel for the petitioner further submitted that if proceeding under Section 38 had to be undergone then as per the Rule 36 (4) & (5) of U.P. Revenue Code Rules, 2016, the procedure prescribed therein had to be followed. As per Rule 36 (4) & (5) of the Revenue Code Rules, 2016, upon the receipt of an application for the correction of errors in the Revenue Records the Tehsildar had to call for a report from the Revenue Inspector and after affording an opportunity of hearing to the parties concerned and after making a summary enquiry into the matter had to refer the same to the Sub Divisional Officer alongwith his report within 30 days from the date of registration of the Application. Thereafter, the Sub Divisional Officer had to allow the parties to file their objections, if any, with regard to the report that the Tehsildar had submitted under the Rules 36 (4) and only then the case could not have been decided by the Sub Divisional Officer. 5. Learned counsel for the petitioner submitted that when this prescribed procedure was not adhered to which he came to know after the entries were rectified then the petitioner had no other option but to file the instant writ petition. He submits that the filing of the Revision or Appeal would not, therefore, be necessary. 6. Relying upon (Tauqir Alam vs. State of U.P. and Others, (2011) 114 RevDec 794) and (Mohammad Hanif and Ors. vs. State of U.P. & Ors., (2013) 120 RevDec 99), learned counsel for the petitioner submitted that the impugned order would be void, it having been passed without affording any opportunity of hearing. Learned counsel for the petitioner further submitted that these orders were passed simply to deprive the petitioner of the compensation money which he had got after the acquisition of the plots by the National Highways Authorities which comprised the plots with regard to which the entries were changed. Learned counsel for the petitioner further submitted that these orders were passed simply to deprive the petitioner of the compensation money which he had got after the acquisition of the plots by the National Highways Authorities which comprised the plots with regard to which the entries were changed. Learned counsel for the petitioner submits that after the passing of the impugned order a first information report was also lodged and the petitioners compensation money which was deposited in his Bank Account numbered as Savings Bank Account Nos. 11775492772 in the State Bank of India, Rudrapur Branch, Deoria, was seized and the petitioner was deprived of the money which was awarded to him by way of compensation. In this manner, learned counsel for the petitioner has submitted that not only has the petitioner, because of the passing of the alleged wrong and illegal order suffered economically, but has also been made to suffer ignominy. Learned counsel for the petitioner further stated that the cases of the Consolidation Court which had been referred to by the State during the arguments were of village Bautha Tappa Rajdhani, Tehsil- Chauri Chaura, District - Gorakhpur, whereas the dispute related to land situate in Village - Mala Mustakim Tehsil - Tappa Kushwasi, Tehsil Bansgaon, District - Gorakhpur. 7. Learned Standing Counsel Sri Rajesh Kumar, however, in reply, submits that Consolidation Cases on the basis of which the Mutation Orders were passed were not to be found to have been registered at all. Learned counsel submitted that if the Goshwara register which indicates the filing of a case did not mention about filing of the case no. 507-508 in the year 1998-89 then the orders passed by the Consolidation Officer could be concluded to have been fabricated and, therefore, learned Standing Counsel submits that when the case of the petitioner was based on fraud no indulgence be granted by this Court. 8. Having heard the learned counsel for the petitioner and learned Standing Counsel, this Court is of the view that if any revenue record, howsoever wrong it might be, if was being sought to be corrected then the parties involved in the case had to be heard after a report was called by the Authorities who were to decide the case as per Rule 36 (4) & (5) of the U.P. Revenue Code, 2006. Since it is apparent from the reading of the impugned order as also from the record of the case that the petitioner was not afforded any opportunity of hearing before the impugned order was passed, the order cannot be sustained in the eyes of law and, therefore, is being set aside. The matter is being remanded back to the respondent no. 4, the Up-Ziladhikari, Bansgaon, District - Gorakhpur, who shall decide the matter afresh within a period of two months from the date of presentation of this order. 9. However, the amount of compensation which the petitioner has received after the acquisition shall continue to remain in the Savings Bank Account Nos. 11775492772 of the petitioner and it shall continue to remain seized, unless there is any order to the contrary by the respondent no. 4 which he is now required to pass under Section 38 of the U.P. Revenue Code, 2006. 10. The writ petition is allowed with the above observations.