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2022 DIGILAW 1929 (ALL)

Surpatti v. State of U. P.

2022-12-06

CHANDRA KUMAR RAI

body2022
JUDGMENT : 1. In pursuance of the order of this Court dated 25.11.2022, petitioners produced the order of the full Bench passed in Writ Petition No.3849 of 2009 by which it has been held that writ petition arising out of proceeding under Section 122 B of the U.P.Z.A. & L.R. Act would be maintainable under Article 226/227 of the Constitution of India. Although in the present dispute, the dispute is arising out of Section 33/39 of the U.P. Land Revenue Act. 2. Heard Sri Om Prakash Vishwakarma, learned counsel for the petitioners, learned Standing Counsel for respondent nos.1 and 2 and Sri Bhupendra Kumar Tripathi, learned counsel for respondent no.3- Gaon Sabha. 3. Brief facts of the case are that Plot No.872/137 and Plot No.872/138 hectare situated in Village Ram Nagar Updhan, Pargana Garwara, Tahsil Badlapur, District-Jaunpur was recorded in the name of petitioners on the basis of allotment made in favour of petitioners on 29.1.1993 for agriculture purpose as petitioners belong to Scheduled Castes Community and come under the landless agriculture labour. Petitioners were handed over the possession on 13.6.1993 of the plot on the basis of allotment made in favour of the petitioners. The allotment was also approved by the Sub-Divisional Magistrate in accordance with law. The petitioners are cultivating the land in dispute on the basis of allotment made in their favour. The copy of the allotment, approval by the Sub-Divisional Magistrate, revenue records as well as possession certificate have been annexed as Annexure Nos.1 to 5 to the writ petition. Without initiating any proceeding for cancellation of petitioners' allotment, the summary proceeding under Section 33/39 of U.P. Land Revenue Act has been initiated and without affording opportunity of hearing to the petitioners, the petitioners' entry has been expunged on the ground that the plot in dispute comes under public utility land, hence this writ petition on behalf of the petitioners. 4. Learned counsel for the petitioners submitted that the petitioners are recorded as Bhumidhar of the plot in dispute on the basis of allotment made in their favour in the year 1993. He further submitted that no proceeding for cancellation of petitioners' allotment has been initiated by anyone and the petitioners remained recorded in the revenue records as Bhumidhar of the plot in dispute. He further submitted that no proceeding for cancellation of petitioners' allotment has been initiated by anyone and the petitioners remained recorded in the revenue records as Bhumidhar of the plot in dispute. He further submitted that the summary proceeding initiated in respect of the petitioners' plot is abuse of process of law as unless the petitioners' allotment is cancelled, the summary proceeding cannot be initiated. He further placed reliance upon the full Bench decision of this Court reported in 1977 RD 408 , Similesh Kumar Vs. Gaon Sabha, Uskar Ghazipur & Others in which it has been held that the Consolidation Courts have no jurisdiction to cancel the lease/allotment. He further submitted that even the impugned order has been passed without affording opportunity of hearing to the petitioners who were recorded in the revenue records on the basis of valid allotment made in favour of the petitioners. 5. On the other hand, learned Standing Counsel submitted that the land in dispute was recorded as Pond, as such, the entry can be set aside even without giving opportunity of hearing to the petitioners in the summary proceeding. He further submitted that no interference is required in the matter as the writ petition arises out of summary proceeding and petitioners have opportunity of hearing to file suit for declaration of their right. 6. I have considered the argument advanced by learned counsel for the parties and perused the record. 7. There is no dispute about the fact that petitioners were allotted land in dispute in the year 1993 and the allotment was approved by the Sub-Divisional Magistrate. No proceeding for cancellation of petitioners' allotment has been initiated under Section 198 (4) of U.P.Z.A. & L.R. Act. In the summary proceeding under Section 33/39 of U.P. Land Revenue Act, the petitioners' entry has been expunged without affording opportunity of hearing to the petitioners. 8. Since the petitioners were allotted land in accordance with the provisions contained under the U.P.Z.A. & L.R. Act, as such, unless the allotment is cancelled under the provisions contained under the U.P.Z.A. & L.R. Act, the summary proceeding cannot be initiated to expunge the petitioners' entry. 9. In view of the full Bench decision of this Court in Similesh Kumar (supra), the petitioners' allotment cannot be annulled in the summary proceeding under the provisions of Section 33/39 of U.P. Land Revenue Act. 9. In view of the full Bench decision of this Court in Similesh Kumar (supra), the petitioners' allotment cannot be annulled in the summary proceeding under the provisions of Section 33/39 of U.P. Land Revenue Act. In order to appreciate the controversy, the provisions of Sections 33/39 of U.P. Land Revenue Act will be relevant which are as follows: "33. The annual registers. -(1) Tire Collector shall maintain the record-of-rights, and for that purpose shall annually, or at such longer intervals as the [State Government] may prescribe, cause to be prepared an amended [register mentioned in Section 32.] The [register] so prepared shall be called the annual register. [(2) The Collector shall cause to be recorded in the annual register - (a) all successions and transfers in accordance with the provisions of Section 35; or (b) other changes that may take place in respect of any land ; and shall also correct all errors and omissions in accordance with the provisions of Section 39 : Provided that the power to record a change under clause (b) shall not be construed to include the power to decide a dispute involving any question of title.] (3) [No such change or transaction shall be recorded without tire order of the Collector or as hereinafter provided, of tire Tahsildar or [the Kanungo].] [(4) The Collector shall cause to be prepared and supplied to every person recorded as bhumidhar, whether with or without transferable rights, assami or Government Lessee a Kisan Bahi (Pass book) which shall contain - (a) such extract from the annual register prepared under sub-section (1) relating to all holdings of which he is so recorded (either solely or jointly with others); (b) details of grants sanctioned to him; and (c) such other particulars as may be prescribed : Provided that in the case of joint holdings it shall be sufficient for the purpose of this sub-section of Kisan Bahi (Pass book) is supplied to such one or more of the recorded co-sharers as may be prescribed. (4A) The Kisan Bahi (Pass book) referred to in sub-section (4) shall be prepared in such manner and on payment of such fee, which shall be realisable as arrears of land revenue, as may be prescribed. (4A) The Kisan Bahi (Pass book) referred to in sub-section (4) shall be prepared in such manner and on payment of such fee, which shall be realisable as arrears of land revenue, as may be prescribed. (5) Every such person shall be entitled, without payment of any extra fee, to get any amendment made in the annual register under sub-section (2) incorporated in his Kisan bahi (Pass book.)] (6) The State Government may make rules to carry out the purposes of this section, including, in particular , rules, prescribing the mode of reception in evidence, and of proof in judicial proceedings, of entries in the [Kisan Bahi (Pass Book)], and the mode of its revision and authentication up-to-date and for issue of duplicate copies thereof, and tire fees, if any, to be charged for any of the said purposes. (7) In this section, 'prescribed' means prescribed by rules made by the State Government. (8) Nothing in sub-sections (4) to (7) shall apply in relation to any area which is either under consolidation operations or under record operations. 39. Correction of mistakes in the annual register. -(1) An application for correction of any error or omission in the annual register shall be made to the Tahsildar. (2) On receiving an application under sub-section (1) or any error or omission in the annual register coming to his knowledge otherwise, the Tahsildar shall make such inquiry as appears necessary and then refer the case to the Collector, who shall dispose it of, after deciding the dispute in accordance with the provisions of Section 40.] [Provided that nothing in this sub-section shall be construed to empower the Collector to decide a dispute involving any question of title.] (3) The provisions of sub-sections (1) and (2) shall prevail, notwithstanding anything contained in the U.P. Panchayat Raj Act, 1947." 10. After perusal of the provisions of Section 33/39 of the Land Revenue Act as well as ratio of law laid down in Similesh Kumar (supra), it is very much clear that the petitioners' entry which was made on the basis of valid allotment cannot be expunged in the summary proceeding, under Section 33/39 of the Land Revenue Act. 11. Considering the entire facts and circumstances, the impugned order dated 22.8.2008 passed by respondent no.2 i.e. Sub-Divisional Magistrate Badlapur, Jaunpur is liable to be set aside and the same is hereby set aside. 12. 11. Considering the entire facts and circumstances, the impugned order dated 22.8.2008 passed by respondent no.2 i.e. Sub-Divisional Magistrate Badlapur, Jaunpur is liable to be set aside and the same is hereby set aside. 12. The writ petition stands allowed. 13. No order as to costs.