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2024 DIGILAW 104 (ALL)

Bahau v. Board of Revenue U. P. at Lucknow

2024-01-09

CHANDRA KUMAR RAI

body2024
JUDGMENT : Chandra Kumar Rai, J. 1. Heard Mr. Ashwini Kumar Srivastava, learned counsel for the petitioners, Sri Pankaj Kumar Gupta, learned counsel for the respondent-gram sabha and Sri Jitendra Narain Rai, learned counsel for the state-respondents. 2. With the consent of learned counsel for the parties, the instant petition is being heard & disposed of finally without inviting counter affidavit. 3. Brief facts of the case are that the proceeding under Section 33 /39 of the U.P. Land Revenue Act has been initiated in respect to the petitioners' entry, i.e plot No- 247 M situated in village Tikari, Pergana- Maghar Paschim, Tehsil-Rushauli, District- Basti on the basis of the report dated 20.10.2013 submitted by lekhpal. The Sub Divisional Officer vide order dated 22.11.2013, expunged the petitioners' entry. Against the order dated 22.11.2013, passed by the Sub Divisional Officer, petitioners filed a revision before the Board of Revenue being Revision No.518/2013. The Board of Revenue initially entertained the revision and granted interim order for maintaining the status quo vide order dated 19.12.2013. The Board of Revenue, after hearing the parties, dismissed the revision filed by the petitioners vide order dated 11.8.2022, hence, this writ petition for quashing the orders dated 11.8.2022, passed by respondent no.1 and 22.11.2013, passed by respondent no.3 under Section 33 /39 of the U.P. Land Revenue Act, 1901. 4. This Court vide order dated 14.12.2013 directed the learned counsel for the gram sabha to obtain instruction in the matter but no instruction has been received. Hence latches of 342 days in filing the instant petition is condoned. 5. Counsel for the petitioners submitted that the petitioners were the recorded tenure holder of the plot in dispute on the date of the impugned order, expunging the petitioners' entry was passed by the S.D.O. It is further submitted that the petitioners were recorded on the basis of the lease executed in their favour in the year 1975 which was approved also in accordance with law. He further submitted that the petitioners' lease has not been challenged or cancelled in appropriate proceeding, as such, the petitioners' long standing entry cannot be expunged in the proceeding under Section 33 /39 of the U.P. Land Revenue Act, 1901. He further submitted that no opportunity of hearing was afforded to the petitioners, while passing the impugned order, expunging the petitioners' entry, as such, the impugned cannot be sustained. He further submitted that no opportunity of hearing was afforded to the petitioners, while passing the impugned order, expunging the petitioners' entry, as such, the impugned cannot be sustained. He further submitted that specific ground was taken in the grounds of revision that petitioners were granted lease and petitioners were recorded in the revenue records but without notice/opportunity of hearing, petitioners' entry has been expunged. He further submitted basis of the impugned order dated 22.11.2013 is the ex parte report of lekhpal dated 20.10.2013 as such the entire proceeding is vitiated. 6. On the other hand, Sri Pankaj Kumar Gupta, learned counsel for the gaon sabha and Sri Jitendra Narain Rai, learned Addl. C.S.C. submitted that after submission of the report dated 20.10.2013 the impugned order, expunging the entry of the petitioners, has been passed by the S.D.O. which requires no interference. They further submitted that petitioners have not filed the copy of the lease deed before this Court, as such, the petitioners are not entitled to any relief in the matter. They submitted that no opportunity of hearing is required if the entries are found fraudulent. They also submitted that the writ petition arises out of the summary proceeding, as such, the instant writ petition should not be entertained and the petitioners should initiate proper proceeding for declaration of their right. 7. I have considered the arguments advanced by learned counsel for the parties and perused the records. 8. There is no dispute about the fact that the petitioners were the recorded tenure holder of the plot in dispute and the impugned order dated 22.11.2013 was passed, expunging the petitioners' entry. There is also no dispute about the fact that the revision filed by the petitioners against the order passed by the S.D.O., has been dismissed by the Board of Revenue. 9. In order to appreciate the controversy involved in the matter, the provisions contained under Section 33 /39 of the U.P. Land Revenue Act, 1901 will be relevant for perusal which is as under:- “ Section 33 – The annual registers :- (1) The 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 the order of the collector or as hereinafter provided, of the 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. (4-A) 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 the 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. (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”.] “ Section 39 - Correction of mistakes in the annual registers :- (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. The perusal of the impugned order dated 22.11.2013 fully demonstrates that opportunity of hearing has not been afforded to the recorded tenure holder before expunging their entry. Even the notices were not issued to the tenure holder concern before expunging their long standing entry. 11. This Court in the case, reported in Chaturgan vs. State of U.P. and Others , 2005(98) RD 244 , has held that opportunity of hearing is to be afforded to the recorded tenure holder if their entry is to be examined/expunged. Paragraph no.8 of the judgment is relevant for perusal which is as under:- 8. Accordingly it is held that whenever an entry in the revenue record is to be cancelled and substituted particularly when the entry is continuing for more than a year, notice must be given to the party in whose favour entry stands even if prima facie authority/Court concerned (i.e. Deputy Collector/Sub Divisional Officer in most of the cases) is of the opinion that the entry is result of fake order or fraud. Similarly if name of an Asami pattedar is to be expunged from the revenue records on the ground of expiry of period of patta or any other ground, notice must be given to him before expunging his name. Similarly if name of an Asami pattedar is to be expunged from the revenue records on the ground of expiry of period of patta or any other ground, notice must be given to him before expunging his name. In a recent authority reported in Hari Ram v. Collector, 2004 (2) RD 360 it has been held by this Court that apart from suit for ejectment under Section 202 of UPZA and LR Act Asami pattedar may be evicted after expunging his name from the revenue records under Section 34 of UPZA and LR Act but it can be done only after providing opportunity of hearing to the pattedar/les-see. However if entry is expunged or any other order is passed without hearing the person affected then he is entitled to file an application for post decisional hearing and recall of the order before the court/authority which passed the ex-parte order. If such an application is filed then the court/authority concerned shall hear the applicant and in case it comes to the conclusion that the earlier order is not correct then the said order shall be set aside. In such situation it is not necessary to first set aside the order and then hear the party concerned. Along with such application such evidence must be filed which the party considers necessary for his case. It has been held by the Supreme Court in A.M.U. Aligarh v. M.A. Khan, (2000) 7 SCC 529 : AIR 2000 SC 2783 that a person who complains about denial of opportunity of hearing must show that in case opportunity had been provided to him, what cause he would have shown or what defence he would have taken. (Similar view has been taken in S.L. Gupta v. A.D. Gupta, 2003 AIR SCW 7089 (para 29) and Canara Bank ( (2003) 4 SCC 557 : AIR 2003 SC 2041 ) (supra). Against ex- parte orders of expunging of names it is not proper to file revision and appeal etc. directly. However, if revision, appeal etc. is directly filed then revisional court/appellate Court may also instead of deciding the revision or appeal on merit may grant leave to the affected party to apply for post decisional hearing and recall of order before the trial court/authority. directly. However, if revision, appeal etc. is directly filed then revisional court/appellate Court may also instead of deciding the revision or appeal on merit may grant leave to the affected party to apply for post decisional hearing and recall of order before the trial court/authority. The, revisional/appellate authority may also decide the matter on merit after providing opportunity of post decisional hearing (i.e. opportunity to show that earlier entry was not fake) as mentioned in the judgment of Supreme Court in Canara Bank (supra). 12. In the present case, the report was submitted on 20.10.2013 and without notice/opportunity of hearing to the petitioners the petitioner’s entry has been expunged.The petitioners have specifically stated in paragraph no.22 &24 of the petition, that without affording opportunity of hearing and without notice to the petitioners, the impugned order dated 22.11.2013 has been passed. 13. Considering the ratio of law laid down by this Court in Chaturgan (supra) as well as the provisions contained in the U.P. Land Revenue Act, 1901, the impugned order dated 22.11.2013 in respect to petitioners only as well as the revisional order dated 11.8.2022 in respect to petitioners only cannot be sustained in the eye of law and the same are hereby set aside. 14. The writ petition stands allowed in part and the matter is remanded back before the respondent no.3-Sub Divisional Magistrate, Tehsil Rudhauli, District Basti to register the proceeding on its original number in respect to petitioners and decide the same afresh after proper notice / opportunity of hearing to the petitioners, expeditiously, preferably within a period of 3 months.