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2023 DIGILAW 8 (ALL)

Kaushilya Devi v. State Of U. P.

2023-01-02

CHANDRA KUMAR RAI

body2023
JUDGMENT : 1. Supplementary affidavit filed today is taken on record. 2. Heard Mr. D. N. Joshi, Counsel for the petitioner and learned Standing Counsel for respondent Nos. 1 to 6. 3. With the consent of the parties, the writ petition is being disposed of finally without inviting counter affidavit. 4. The instant writ petition has been filed against the impugned order dated 20.07.2022 passed by the Up-Ziladhikari, Bhadohi in Case No.3783 of 2022, computerized Case No. T202216670503783, under Section 38(1) of U.P. Revenue Code-2006 pertaining to Khata No.152 Gata No.260 M area 0.072 hectare situated in Mauja Rajpura Town, Taluka Chauthar, Pargana and Tehsil, Bhadohi, District-Bhadohi. 5. Brief facts of the case are that Khata No. 300 plot No. 260 situated in village -Rajpura, Pargana -Bhadohi, Tahsil-Gyanpur, District-Varanasi was recorded in the name Babu Bechan Ram, Babu Mewa lal sons of Anant Prasad and Shiv Balak Ram son of Goverdhan Das in the khatauni of 1365 fasli. After death of Shiv Balak Ram the name of Rajesh and Rajendra was mutated being legal heirs of Shiv Balak Ram. Petitioner purchased plot No. 260 area 5 biswa 13 dhoor through registered sale-deed dated 27.07.2012 executed by Rajesh and Rajendra sons of Shiv Balak Ram and the name of petitioner was mutated in the place vendor Rajesh and Rajendra by order of Tehsildar dated 22.09.2012. Petitioner wants to raise construction of her house in the purchased land then objection was raised by the persons on the ground that the plot is reserved for Ramleela accordingly District Magistrate constituted five members committee to enquire the matter, the detailed enquiry was conducted and completed under the order of this Court and the enquiry report dated 07.08.2019 was submitted to the effect that plot No. 260M area 0.0720 hectare is bhumidhari of petitioner. Later on some tampering was made in the revenue record and lekhpal submitted a report dated 16.06.2022 mentioning that plot No. 260/0-12-12 was recorded as bhita in 1371 fasli and on the basis of report of lekhpal a case under Section-38(1) of U.P. Revenue Code 2006 has been registered before U.P. Zila Adhikari who vide order dated 20.07.2022 expunged the petitioner's entry and ordered to record the same as bhita land hence this writ petition. 6. Counsel for the petitioner submitted that petitioner is recorded in the revenue record on the basis of registered sale deed executed by recorded tenure holder. 6. Counsel for the petitioner submitted that petitioner is recorded in the revenue record on the basis of registered sale deed executed by recorded tenure holder. He further submitted that proceeding under Section 38 of U.P. Revenue Code,2006 has been initiated in which the order for expunging the petitioner's entry has been passed and the plot in dispute was ordered to be recorded as Bhita. He further submitted that without affording proper opportunity of hearing to the petitioner, impugned order has been passed, as such the petitioner has challenged the order passed by Up Ziladhikari, by filing writ petition under Article 226 of the Constitution of India without availing the remedy of appeal as order is ex-parte and no opportunity of hearing has been given to the petitioner. He next submitted that a detailed enquiry has been conducted by the District Magistrate, in which it has been held that petitioner is recorded owner of the plot in dispute and there is no mention in the detailed inquiry report that plot in dispute was recorded as Bhita in the revenue record in 1371 fasli. He further submitted that without taking into consideration the detailed enquiry report conducted by the State authority, the ex-parte order for expunging the petitioner's entry has been passed. 7. On the other hand, learned Standing Counsel submitted that petitioner has remedy to challenge the order in appeal as provided under Section 38 (4) of the U.P. Revenue Code, 2006 or petitioner can apply for recall of the order, if impugned order is ex-parte. He further submitted that land was recorded as Bhita in 1371 fasli as such petitioner is not entitled to any relief in respect to the public utility land. 8. I have considered the arguments advanced by the counsel for the parties and perused the record. 9. There is no dispute about the fact that the proceeding under Section 38 of U.P. Revenue Code, 2006 has been initiated in respect of the petitioner's plot, which is recorded in the name of the petitioner as Bhumidhar transferable rights in the khatauni pertaining to 1424 fasli to 1429 fasli and the name of the petitioner has been ordered to be expunged from the disputed plot under the impugned order without affording proper opportunity of hearing to the petitioner. There is also no dispute about the fact that the detailed inquiry report of the State authority dated 07.08.2019 has not been taken into consideration while passing the impugned order dated 28.07.2022. 10. Since the petitioner was recorded as Bhumidhar with transferable right when the proceeding under Section 38 of U.P. Revenue Code, 2006 has been initiated as such, without affording opportunity of hearing to the petitioner, name of the petitioner cannot be expunged. It is also material that the inquiry report dated 07.08.2019 has also not been taken into consideration while passing impugned order, as such interest of justice requires that the impugned order dated 28.07.2022 be set aside only on the ground of opportunity of hearing and the matter be send back before the Up Ziladhikari to examine the matter afresh after considering the report dated 07.08.2019. 11. The provision contained under Rule 36 (4) and 36(5) are relevant, which prescribe procedure for deciding the application/case under Section 38 of U.P. Revenue Code 2006, the same are as under: "36.Correction of error or omission (Section 38)-(1) Every application for correction of any error or omission in the map, field-book (Khasra) or record-of rights (Khatauni) referred to in section 38(1) shall contain the following particulars:- (a) Name, parentage and address of the applicant. (b) The document for the correction whereof the application is being made. (c) Particulars of the land to which the error or omission relates. (d) The precise nature of the error or omission. (e) The application shall be accompanied by a certified copy of the map, Khasra or Khatauni to which the alleged error or omission relates. (2) Proceedings for correction of the map, field book or record-of-rights may be initiated even without any application under sub-rule (1), if the error or omission otherwise comes to the knowledge of the Tahsildar. (3) If during the preparation of new Khatauni, partal, spot verification and local visit or inquiry, the Lekhpal, Naib Tahsildar, Revenue Inspector or any other revenue officer has reasons to believe that any error or omission (including any fake or fraudulent entry but excluding the errors or omissions referred to in the explanation to section 38) has crept in the map, field book or the record of rights, he shall refer the matter to the Tahsildar who shall initiate necessary proceedings under this rule. (4) In proceedings for correction of errors and omission under this rule, the Tahsildar 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. (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." 12. Considering the facts and circumstances of the case, the writ petition is allowed. The impugned order date 20.07.2022 passed by Up-Ziladhikari, Bhadohi is hereby set aside and the matter is remitted back before the Up Ziladhikari to register the case under Section 38 (1) of U.P. Revenue Code, 2006 on its original number for decision afresh after affording opportunity of hearing to the petitioner expeditiously preferably within a period of three months from the date of production of certified copy of this order. 13. No order as to costs.