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2021 DIGILAW 1293 (ALL)

Anupam Kumar v. State Of U. P.

2021-10-28

ALOK MATHUR

body2021
JUDGMENT : Alok Mathur, J. 1. Heard Sri Ashok Kumar, learned counsel for the petitioner and Sri Anil Kumar Singh Baghel, learned Additional Chief Standing counsel for the State. 2. By means of the present petition the petitioner has challenged the order dated 7th September, 2021 passed by Additional Commissioner (Judicial) II, Bareilly Division, Bareilly thereby rejecting the recall application moved by the petitioner. 3. It has been submitted by learned counsel for the petitioner that the petitioner along with certain other persons was eligible for being granted agricultural patta and consequently after following due procedure wherein his name was included in the final list prepared by Land Management Committee by means of order dated 20.5.2010 and a patta was granted by Sub Divisional Magistrate in favour of the petitioner. In pursuance of the said patta name of the petitioner was duly mutated in the revenue records with bhumidiari with non-transferable rights and since then he is in possession of the said land. Subsequently, by a report of Lekhpa dated 22.12.2010 it was stated that it is due to clerical error that the name of the petitioner was entered into revenue record as patta holder wrongly while his name could not have been included . The ex-parte order dated 22.12.2010 was passed which was registered under Section 33/39 of U.P. Land Revenue Code before the court of Sub Divisional Officer, Fareedpur, Bareillly. The aforesaid officer proceeded to pass ex-parte order deleting the entires made in favour of the petitioner in the revenue records by means of order dated 31.3.2011. 4. It has been submitted that in pursuance of the aforesaid order dated 31.3.2011 name of the petitioner as well as first patta holders were deleted from the revenue records. The petitioner on coming to know of the order dated 31.3.2011 preferred revision before Additional Commissioner, Bareilly Division, Bareilly which was registered as revision No.122/2011. Subsequently considering the entire matter, an interim order was also granted in favour of the petitioner for maintaining status quo but in the interregnum period during pendency of the revision the consolidation proceedings were commenced by publication of notice under Section 4A 2 of Consolidation of Holdings Act and on commencement of consolidation proceedings the consolidation the revision preferred by the petitioner abated. It is further submitted that consolidation proceedings with regard to the village of the petitioner did not continue and notification was issued under Section 6 (1) of the Consolidation of Holdings Act separating the petitioner’s village from the consolidation proceedings as a consequence to which status-quo ante was maintained. When the consolidation proceedings dropped the petitioner moved application for recall and for restoration of the revisional order pending before the Additional Commissioner. This application for recall was considered by Additional Commissioner who by means of the impugned order has rejected the same. 5. A perusal of the impugned order indicates that the court of Additional Commissioner considered the revision as well as all relevant facts necessary for setting aside the abatement proceedings before him but instead of deciding the restoration application, proceeded to hear the matter on merits and rejected the same. From a perusal of the orders sheet it seems that that the claim of the petitioner that was existing was not considered nor any other document was taken into consideration and consequently entire proceedings are liable to be set aside. 6. I have considered the arguments raised by the petitioner and perused the record. 7. Learned Standing counsel, on the other hand, has submitted that on the date fixed the Additional Commissioner should have only considered the application for restoration which was listed on the said date and should not have passed the said order on merits. 8. After considering the rival submissions, it is noticed that the impugned order dated 7th September, 2021 is on the face of it is illegal and arbitrary in as much as the Additional Commissioner has proceeded to decide the case of the petitioner on merits. It was incumbent upon him to have considered the application for setting aside the abatement and for restoration of the revision. In case the recall application was allowed and the revision was restored then it was open for him to direct the petitioner to produce any document or any evidence or any other material in support of this claim also giving an opportunity to the State to submit their response or any other document for deciding the revision. But it seems that he has proceeded only on the basis of the complaint /application for setting aside abatement and considered the revision on merits has thereby committed gross illegality. But it seems that he has proceeded only on the basis of the complaint /application for setting aside abatement and considered the revision on merits has thereby committed gross illegality. I am of the considered view that the order is illegal and arbitrary and deserves to be set aside. 9. In view of above, the order dated 7.9.2021 passed by Additional Commissioner, Bareilly is quashed. 10.The matter is remanded to the Additional Commission, Bareilly Mandal and he is directed to hear the petitioner on merits and give opportunity of hearing to the petitioner and all the parties concerned and decide the revision by reasoned and speaking order in accordance with law within period of six months form the date a certified copy of this order is placed before him. 11. It is made clear that in view of the interim order already passed in favour of the petitioner status quo with regard to the land in question shall be maintained during pendency of the revisional proceedings.