Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 169 (ALL)

Anurag Pandey v. State of U. P.

2023-01-17

CHANDRA KUMAR RAI

body2023
JUDGMENT Chandra Kumar Rai, J. Heard Mr. Ramesh Pundir, counsel for the petitioner, learned Standing Counsel for the State respondent, Mr. Avinash Chandra Srivastava, counsel for respondent No.4-Gram Sabha and Mr. Anurag Dubey, Counsel for respondent No.5. 2. The brief facts of the case are that proceeding under Section 33/39 of U.P. Land Revenue Act was initiated at the complaint of respondent No.5 filed on 21.07.2011 to record plot No. 297/0.87 Acre as pond, the same was registered as Case No.5 of 2011-12 (Ashok Kumar v. State) under Section-33/39 of U.P. Land Revenue Act with respect to the plot No.297/0.87 acre. Petitioner is claiming himself to be in possession of plot No.297 since the time of his ancestor as such petitioner filed his impleadment application in the case under Section 33/39 of U.P. Land Revenue Act. In the proceeding under Section 33/39 of U.P Land Revenue Act, two reports were submitted by revenue authorities to the effect that plot No.297/0.87 acre is recorded as Navin Parti. Up-Zila Adhikari without considering the report of revenue inspector passed the order dated 23.08.2012 to record the plot No.297/0.87 acre as pond after expunging the entry of Navin Parti and ordered for ejectment of petitioner's father and their co-sharer. Petitioner alleged that petitioner's impleadment application was decided after passing of final order dated 23.08.2012 in the back date. The order dated 23.08.2012 was challenged by petitioner in Revision before Commissioner under Section-219 of U.P. Land Revenue Act which was dismissed by Additional Commissioner vide order dated 21.07.2022 hence this writ petition for the following relief:- "(A) issue a writ, order or direction in the nature of certiorari quashing the order dated 23.08.2012 (Annexure No.6 to the writ petition) passed by the UP Ziladhikari Bhogaon, Mainpuri in Case No.5 of 2011-12, (Ashok Kumar v. State) under Section 33/39 of Land Reform Act and order dated 21.07.2022 (Annexure No.8 to the writ petition) passed by the Additional Commissioner (Judicial) Agra Mandal, Agra in Case No.163 of 2012-13, computerized Case No C2012010000652 (Anurag Pandey v. State), under Section 219 of Land Revenue Act, 1901." 3. Counsel for the petitioner submitted that Consolidation- record reveals that plot in dispute was reserved as abadi and report of revenue inspector reveal that plot in dispute is Navin Parti as such the impugned order passed for recording the plot in dispute as pond is wholly illegal. Counsel for the petitioner submitted that Consolidation- record reveals that plot in dispute was reserved as abadi and report of revenue inspector reveal that plot in dispute is Navin Parti as such the impugned order passed for recording the plot in dispute as pond is wholly illegal. He further submitted that petitioner is in possession of plot in dispute since the time of their ancestor as such dispossession cannot be ordered in the proceeding under Section 33/39 of U.P. Land Revenue Act as such, the impugned order is without jurisdiction. 4. Counsel for the petitioner further submitted that in the proceeding under Section 33/39 of the U.P. Land Revenue Act, impugned order dated 23.08.2012 for correcting the entry as well as for ejectment of unauthorized occupant has been passed without affording proper opportunity of hearing to the petitioner. He further submitted that revision filed by the petitioner has also been dismissed without considering the issues raised by the petitioner in accordance with law. He further submitted that petitioner's predecessor in-interest were in possession of the plot in dispute since long. He further submitted that in summary proceeding under Section- 33/39 of U.P. Land Revenue Act, ejectment of the petitioner cannot be ordered. 5. On the other hand, learned Standing Counsel for the State-respondents, Counsel for respondent Nos.4 and 5 submitted that order has been passed against him after affording opportunity of hearing to both the parties. He further submitted that land in dispute is gaon sabha land, as such petitioner has no right in respect to the plot in dispute whether it is a pond or navin parti. 6. I have considered the arguments advanced by the counsel for the parties and perused the record. 7. There is no dispute about the fact that case under Section 33/39 of U.P. Land Revenue Act has been decided by the courts below for correcting the revenue record entry as well as for ejectment of the petitioner's ancestor from the disputed plot. There is also no dispute about the fact that revision filed by the petitioner has been dismissed against the order impugned passed in the proceeding initiated under Section 33/39 of U.P. Land Revenue Act 8. The case under Section 33/39 of U.P. Land Revenue Act has been decided without affording proper opportunity of hearing and without considering the evidence relating to the consolidation proceeding. The case under Section 33/39 of U.P. Land Revenue Act has been decided without affording proper opportunity of hearing and without considering the evidence relating to the consolidation proceeding. Petitioner is also claiming himself in possession over the plot in dispute, as such petitioner should be afforded opportunity before passing any order by the courts below. 9. So far as scope of Section-33/39 of U.P. Land Revenue Act is concerned, which is now Section-32 in U.P. Revenue Code, 2006, the perusal of the Act/Code/Rules is necessary. 10. Section-33/39 of the U.P. Land Revenue Act was as under:- "Section-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." 11. Section-32 of U.P. Revenue Code, 2006 is as under: "Correction of records.- (1) Subject to the control of the Collector, the Sub-Divisional Officer, the Tahsildar, or the Revenue Inspector shall record, in the manner hereinafter provided in this Chapter, all changes in the record of rights (Khatauni), the field book (Khasra) and the map that may take place, and all transactions that may affect any of the rights or interests recorded, and correct therein any errors proved to have been made in the records previously prepared : Provided that order for correction in map shall be passed by the Collector. (2) No application for correction of error under sub-section (1) where the claim is based solely on possession as well as involving intricate question of title shall be maintainable." 12. (2) No application for correction of error under sub-section (1) where the claim is based solely on possession as well as involving intricate question of title shall be maintainable." 12. Rules 36 (4) and 36 (5) of U.P. Revenue Code Rules 2016 are as under: "Rule 36 (4) In proceedings for correction of errors and omission under this rule, the Tahildar shall call for a report from the Revenue Inspector or the Lekhpal and after affording reasonable opportunity of hearing to the parties concerned and making summary inquiry, refer the case to the Collector in the case of map correction and to the Sub-Divisional Officer in the case of other correction along with his report within a period of thirty days from the date of registration of the application Rule 36(5) The Collector or the Sub-Divisional Officer, as the case may be, shall allow the parties to file objection, if any, against the report of the Tahsildar submitted under sub-rule (4), and then decide the dispute. If the Collector or the Sub Divisional Officer, as the case may be, is of the opinion that the map, field book or record of rights contains any error or omission, he shall direct for the correction thereof." 13. The perusal of provisions demonstrate that there should be fresh exercise by the respondents in the light of summary proceeding as provided under the Act/Code/Rules and after proper opportunity to the parties. 14. Considering the facts and circumstances of this case, the impugned order dated 23.08.2012 passed by Up- Ziladhikari, Bhogaon, Mainpuri and 21.07.2022 passed by Additional Commissioner, (Judicial) Agra Mandal, Agra are liable to be set aside and hereby set aside. The writ petition is allowed in part and matter is remitted back before the respondent No.3- Up Ziladhikari, Bhogaon, Mainpuri to register the case under Section.33/39 of U.P. Land Revenue Act to its original number and decide the case after affording proper opportunity of hearing to both the parties as well as considering the evidence relating to Consolidation in accordance with law expeditiously, preferably within a period of three months from the date of production of certified copy of this order.