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2020 DIGILAW 283 (ALL)

Ram Kumar v. State of U. P.

2020-01-24

SANGEETA CHANDRA

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JUDGMENT : Sangeeta Chandra, J. 1. Heard the learned Counsel for the parties and perused the record. 2. This petition has been filed challenging the order dated 15.2.2008 passed by the Sub-Divisional Magistrate, Nawabganj, Barabanki and the order dated 6.4.2019 passed by the Additional Commissioner (Judicial), Ayodhya Division, Ayodhya. 3. It is the case of the petitioner that the orders impugned have been passed in violation of Principles of Natural Justice as the petitioner is the recorded Tenure holder/Bhumidhari with transferable rights of Plot numbers in question situated in Nawabganj, District Barabanki. It has been submitted that the land of Gata No. 1852/0.959 Hectare, Gata No. 1854 M/0.706 Hectare, Gata No. 1857 M/0.025 Hectare and Gata No. 1870/0.659 Hectare of Khata No. 1554 of Village Barabanki Urban, Pargana and Tehsil Nawbaganj, District Barabanki, originally belonged to Late Darbari who was Sirdar of the land. After his death the name of his widow Smt. Rukana was recorded in the Revenue records. Later, on death of Smt. Rukana, the name of Bhure son of Bud-dhu, who was the grandson of Rukana was entered in the Khatauni by an order dated 16.6.1986 passed by the Naib Tehsildar, Jaidpur, Nawabganj, District Barabanki. 4. Smt. Rukana was recorded as Sirdar till Fasti year 1362 to 1364, the land in dispute was categorized as Category No. 3, land in occupation of Asami. 5. After the death of Bhure, the land was recorded in the name of Smt. Laxmi Devi his widow through PA-11. The name of Smt. Laxmi Devi, widow of Bhure was continued in the Revenue record till 1424 Fasli as Category 1 Bhumidhar. It is alleged that the petitioner is the nephew of Smt. Laxmi Devi, who died on 26.1.2010. During her lifetime, Smt. Laxmi Devi had executed a registered Will in his favour on 26.4.2002. The petitioner having been bequeathed the property by Smt. Laxmi Devi which was recorded in the Revenue record as Category-1 Bhumidhar, by an order passed by the Naib Tehsildar on 30.4.2011 in Case No. 464/629/2011. 6. It has been submitted that initially the predecessor of the petitioner was recorded as Sirdar. After Zamindari Abolition they were recorded as Aasami. Later on, Smt. Laxmi Devi widow of Bhure was recorded as Bhumidhar with transferable rights i.e. Category No. 1 Tenure holder. 7. 6. It has been submitted that initially the predecessor of the petitioner was recorded as Sirdar. After Zamindari Abolition they were recorded as Aasami. Later on, Smt. Laxmi Devi widow of Bhure was recorded as Bhumidhar with transferable rights i.e. Category No. 1 Tenure holder. 7. It is further alleged that behind the back of the petitioner an application was filed under sections 33/39 of the Land Revenue Act for correction of record and an Inquiry was conducted by the Lekhpal who submitted a wrong report on the basis of which the order dated 15.02.2008 was passed. The petitioner filed a Revision which has also been dismissed arbitrarily. 8. This Court has perused the orders impugned dated 15.2.2008 and 6.4.2019. This Court has also perused the copy of the Khatauni for Village Barabanki Urban of 1395 to 1400 Fasli, filed at Page 30 of the paper book, which shows that Mussamat Rukana widow of Darbari was recorded as Category No. 3 tenure holder i.e. as Aasami over four plots of land in Khata No. 1155 and by an order passed on 16.6.1986 the name of Rukana was scored out and the name of Bhure son of Buddhu was recorded as legal heir. 9. This Court has also perused the Khatauni of 1407 to 1412 Fasli where the same four plots of land have been mentioned to be recorded in the name of Bhure son of Buddhu as Category No. 1, Bhumidhar with transferable rights and his name was scored out on his death and his widow's name as Smt. Laxmi Devi's name was directed to be recorded on 17.9.2002. 10. From the orders impugned, it is evident that on the application for correction of records filed under sections 33/39 of the Land Revenue Act, a report was called for from the Area Lekhpal who reported that Gata Nos. 1854 M, 1856 M, 1870 M situated in Village Barabanki Urban are recorded as pond land and till today continued to exist as pond on the spot in question. Smt. Laxmi Devi widow of Bhure, was an Aasami who had limited rights for five years on the land in question. The impugned orders mention that Pond land cannot be given as Bhumidhari land and no rights can be created on pond land, therefore, the record has been corrected with regard to the Plot Nos. Smt. Laxmi Devi widow of Bhure, was an Aasami who had limited rights for five years on the land in question. The impugned orders mention that Pond land cannot be given as Bhumidhari land and no rights can be created on pond land, therefore, the record has been corrected with regard to the Plot Nos. 1852, 1854 M, 1857 and 1870 and the name of Laxmi Devi widow of Bhure, has been scored out and the land has been directed to be recorded as pond land. 11. The Revisional Court has considered the arguments raised by the learned Counsel for the petitioner that notice was not served upon the petitioner, although he had been recorded as Bhumidhar of the land in question in the Khatauni of 1413 to 1418 Fasli. However, the Revisional Court also considered the report submitted by the Tehsildar dated 24.7.2006 which stated that Smt. Laxmi Devi widow of Bhure was only an Aasami who had limited rights of five years, as such, an Aasami cannot by way of a Will bequeath her rights on anybody. Moreover, the land has been recorded as pond and over a pond no Bhumidhari rights can be created. The Additional Commissioner (Judicial), Ayodhya Division, Ayodhya, therefore, observed that there was no infirmity in the orders passed by the S.D.M., Nawabganj, District Barabanki. 12. Learned Standing Counsel has argued before this Court that it has come out in the report of the Lekhpal of the area in question that the land in dispute is pond land. Over pond land no Bhumidhari rights can be created. If by some mistake, the petitioner was recorded as Category-1 Bhumidhar over pond land, the mistake has now been corrected in an Application moved under sections 33/39 of the U.P. Land Revenue Act. It has also been stated that even if the petitioner was not issued any notice, and the order was passed behind his back, setting aside such orders and remanding the matter to the S.D.M. Nawabganj, District Barabanki would not served the interest of justice as on undisputed and admitted facts, the land in question is a pond, and still exists on the spot as a pond. It would only be a futile exercise to remand the matter to the S.D.M. Nawabganj, District Barabanki to consider afresh. 13. It would only be a futile exercise to remand the matter to the S.D.M. Nawabganj, District Barabanki to consider afresh. 13. Writ jurisdiction is a discretionary jurisdiction and a writ of certiorari is not granted as a matter of course. This Court would not exercise its right to issue a writ of certiorari to quash an order which would only revive an illegal entry made in the Revenue Records with respect to the land in dispute which was pond land. 14. This Writ Petition is, therefore, dismissed. 15. No order as to costs.