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2024 DIGILAW 2453 (ALL)

Manjul v. State of U. P.

2024-12-03

CHANDRA KUMAR RAI

body2024
JUDGMENT : Chandra Kumar Rai, J. 1. Heard Mr. Bhola Nath Yadav, learned counsel assisted by Mr. Rahul Yadav, learned counsel for the petitioner, Mr. Sher Bahadur Singh, learned counsel for respondent-Gram Panchayat, Mr. S.K. Sharma, learned counsel for respondent no.8 and Mr. Ashutosh Kumar Rai, learned Additional Chief Standing Counsel for the State respondents. 2. Brief facts of the case are that Ganga Dhar son of Banshi Dhar filed a suit under Section 229 -B of U.P.Z.A. and L.R. Act 1950 claiming bhoomidhari right over the plot No. 345 area 1.332 hectare and plot No. 826 area 0.006 hectare situated in Village Sithauli Pargana Islamnagar Tehsil Bisuali District Badaun. The aforementioned suit was decreed vide judgement and decree dated 9.9.1982. On the basis of aforementioned decree, Ganga Dhar was recorded as bhoomidhar of the plots in question in the revenue records. The appeal filed by State against the aforementioned judgement and decree was allowed vide judgement dated 19.4.1983 setting aside the judgement and decree dated 9.9.1982 and the suit was accordingly dismissed. The second appeal filed by Ganga Dhar was ultimately dismissed as abated in view of the provisions contained under Section 5 (2) of U.P. Consolidation of Holdings Act, 1953 hereinafter referred to as U.P.C.H. Act. The name of Ganga Dhar was recorded in the basic year of the consolidation operation. After the death of Ganga Dhar, his legal heirs executed a sale deed dated 17.10.2007 in favour of petitioner in respect to plot Nos. 345 and 826 accordingly petitioner became bhoomidhar with transferable rights of the plot Nos. 345 and 826 and remained in possession over the same. On the basis of sale deed dated 17.10.2007, the name of petitioner was recorded under Section 12 of U.P.C.H. Act in case No. 238. Respondent no.8 filed an application dated 24.9.2024 before the District Magistrate, Badaun. On the basis of aforementioned application of respondent no.8, reports were submitted by the consolidation authorities and a case has been registered under Section 9 A (2) of U.P.C.H. Act before Consolidation Officer Bisauli as case No. 0669 of 2024 State Vs. Rama Devi and Others. Respondent no.8 filed an application dated 24.9.2024 before the District Magistrate, Badaun. On the basis of aforementioned application of respondent no.8, reports were submitted by the consolidation authorities and a case has been registered under Section 9 A (2) of U.P.C.H. Act before Consolidation Officer Bisauli as case No. 0669 of 2024 State Vs. Rama Devi and Others. In the aforementioned case No. 0669 of 2024, an order dated 9.10.2024 has been passed by Consolidation Officer for expunging the name of Ganga Dhar/legal heir and their vendees from the plot in question as well as for recording the plot in question as naveen parti/Class-5 (1) Category plot. On the basis of the order dated 9.10.2024, another order dated 10.10.2024 was passed by Consolidation Officer in case No. 0670 of 2024 State Vs. Gram Sabha for cancelling the exchange ratio of the plot Nos. 345 and 826. Consolidation Officer passed another order under Section 4 2-A of U.P.C.H. Act in Case No. 0671 of 2024 State Vs. Smt. Manjul and Others taking out the plot No. 345 from the chak of the petitioner and recording the same as naveen parti plot. Hence Writ B No. 4339 of 2024 has been filed for the following relief:- "(i) Issue a writ, order or direction in the nature of certiorari calling for the record and quashing the impugned order dated 9.10.2024 passed by Consolidation Officer Bisuali in the Case No. 0669 of 2024, State Vs. Rama Devi and others, under Section 9 A (2) of U.P. Consolidation of Holdings Act, 1953. (ii) Issue a writ, order or direction in the nature of certiorari calling for the record and quashing the entire proceeding of case No. 669 of 2024, State Vs. Rama Devi and others, under Section 9A (2) of U.P.C.H. Act, 1953 and consequent order passed therein. (iii) Issue a writ, order or direction in the nature of mandamus directing the respondents not to interfere into the peaceful possession of the petitioner over the land in dispute and restore the name of the petitioner in the revenue record as bhumidhar with transferable right." Writ B No. 4369 of 2024 has been filed for the following reliefs:- "(i) Issue a writ, order or direction in the nature of certiorari calling for the record and quashing the impugned order dated 10.10.2024 passed by Consolidation Officer Bisuali in the case No. 0670 of 2024, State Vs. Gram Sabha, under Section 9A (2) of U.P. Consolidation of Holdings Act, 1953. (ii) Issue a writ, order or direction in the nature of certiorari calling for the record and quashing the entire proceeding of case No. 0670 of 2024, State Vs. Gram Sabha, under Section 9A (2) of U.P.C.H. Act, 1953 and consequent order passed therein. (iii) Issue a writ, order or direction in the nature of mandamus directing the respondents not to interfere into the peaceful possession of the petitioner over the land in dispute and restore the name of the petitioner in the revenue record as bhumidhar with transferable right." Writ B No. 4368 of 2024 has been filed for the following reliefs:- "(i) Issue a writ, order or direction in the nature of certiorari calling for the record and quashing the impugned order dated 15.10.2024 passed by Consolidation Officer Bisuali in the Case No. 0671 of 2024, State Vs. Smt. Manjul and Others , under Section 42 -A of U.P. Consolidation of Holdings Act, 1953. (ii) Issue a writ, order or direction in the nature of certiorari calling for the record and quashing the entire proceeding of case No. 0671 of 2024, State Vs. Smt. Manjul and Others , under Section 42-A of U.P. Consolidation of Holdings Act, 1953 and consequent order passed therein. (iii) Issue a writ, order or direction in the nature of mandamus directing the respondents not to interfere into the peaceful possession of the petitioner over the land in dispute and restore the name of the petitioner in the revenue record as bhumidhar with transferable right." 3. Counsel for the petitioner submitted that impugned orders have been passed in arbitrary and illegal manner. He further submitted that without initiating the proper proceeding in respect to the basic year entry of the plot in question, the entry of the plot in question has been expunged under impugned orders. He submitted that no notice and opportunity of hearing has been afforded to petitioner who is recorded over the plot in question at the time of initiation of the instant proceeding. He submitted that no notice and opportunity of hearing has been afforded to petitioner who is recorded over the plot in question at the time of initiation of the instant proceeding. He submitted that earlier proceeding initiated under Section 229 -B of U.P.Z.A and L.R. Act was ultimately abated along with the suit but the vendor of the petitioner as well as petitioner after execution of sale deed remained recorded over the plot in question, as such, unless the proper objection is filed at appropriate stage in the consolidation proceeding, the entry of the plot in question cannot be expunged. He further submitted that petitioner is recorded over the plot in question under Section 12 of U.P.C.H. Act by way of registered sale deed which has not been challenged in any Court of law, as such, the entry of the plot in question cannot be altered by the consolidation authorities. He further submitted that Village was notified under Section 4 of the U.P.C.H. Act on 27.10.1990 accordingly the consolidation proceeding has been undertaken but no objection under Section 9 of U.P.C.H. Act has been filed by anybody in respect to the basic year entry at the proper stage of consolidation operation. He submitted that longstanding entry cannot be expunged by the authorities without affording notice and opportunity of hearing to the recorded tenure holder. He submitted that complaint was filed on 24.9.2024 and the impugned orders have been passed by the authorities on 9.10.2024 expunging the petitioner's entry which fully demonstrate that orders have been passed without notice and opportunity of hearing to the recorded tenure holder. He further submitted that title proceeding cannot be decided without framing issues in the proceeding. 4. On the other hand, Mr. Ashutosh Kumar Rai, learned Additional Chief Standing Counsel for the State respondents, Mr. S.K. Sharma, learned counsel for respondent no.8 and Mr. Sher Bahadur Singh, learned counsel for respondent- Gram Panchayat submitted that entry of the plot in question has rightly been expunged in the proceeding under Section 9A (2) of the U.P.C.H. Act. They further submitted that proceeding under Section 229 -B of U.P.Z.A. and L.R. Act has been abated, as such, the Ganga Dhar or their legal heirs or vendees were not entitled to be recorded over the plot in question. They further submitted that proceeding under Section 229 -B of U.P.Z.A. and L.R. Act has been abated, as such, the Ganga Dhar or their legal heirs or vendees were not entitled to be recorded over the plot in question. They further submitted that sale deed relied upon by the petitioner is not admissible as Ganga Dhar or his legal heirs were not entitled to be recorded over the plot in question. They further submitted that no interference is required in the matter and writ petition is liable to be dismissed. 5. I have considered the arguments advanced by learned counsel for the parties and perused the records. 6. There is no dispute about the fact that petitioner was recorded over the plot in question at the time of initiation of the instant proceeding under Section 9A (2) of U.P.C.H. Act. 7. The perusal of Rule 26 of the U.P.C.H. Rules will be relevant which is as under:- "26. Section 9 -A. - (1) The cases received from the Assistant Consolidation Officer shall be entered in the Misilband register in C.H. Form 6 in the office of the Consolidation Officer. (2) On the date fixed under sub-rule (2) of Rule 25-A, or on any subsequent date fixed for the purpose, the Consolidation Officer shall hear the parties, frame issues on the points in dispute, take evidence, both oral and documentary, and decide the objections. (3) The notice, which it may become necessary for the Consolidation Officer to issue to any person in connection with the disposal of a dispute by him, shall be in C.H. Form 6-A. (4) Where all the tenure-holders of a joint holdings oppose partition and the Consolidation Officer is satisfied that the opposition of each co-tenure-holder is genuine, he shall not proceed with the partition, unless for reasons to be recorded by him in writing, he considers it necessary so to do in the interest of better consolidation. (5) For deciding dispute relating to the determination of exchange ratio of a plot or the valuation of a tree, well or other improvement existing on a plot, the Consolidation Officer shall make a local inspection of the plot concerned, prepare an inspection memo and place it on the connected file." 8. (5) For deciding dispute relating to the determination of exchange ratio of a plot or the valuation of a tree, well or other improvement existing on a plot, the Consolidation Officer shall make a local inspection of the plot concerned, prepare an inspection memo and place it on the connected file." 8. This Court in the case of Chaturgan vs. D.D.C. and Others , 2005 (98) RD 244 has held that opportunity of hearing is to be afforded to the tenure holder before expunging the revenue entry of the plot of the parties. 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. 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. 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. Aligarhv 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. 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)." 9. This Court in the case reported in Bansh Raj and Others Vs. Deputy Director of Consolidation and Others , 2015 (127) RD 163 has held that provisions of Rule 26 (2) of the U.P.C.H. Rules are mandatory in nature. 10. In the instant matter, the title dispute has been decided within period of 15 days without framing issues in the proceeding as well as without affording opportunity of hearing to the recorded tenure holder. 11. Impugned orders have been passed in violation of principle of natural justice, as such, alternative remedy will not be bar for petitioner to challenge the impugned order passed by Consolidation Officer before this Court by way of writ petition under Article 226 of the Constitution of India in view of the ratio of law laid down by Hon'ble Apex Court in the case reported in Committee of Management and another Vs. Vice-Chancellor and Others , 2009 (1) AWC 437 (SC). 12. Vice-Chancellor and Others , 2009 (1) AWC 437 (SC). 12. Considering the entire facts and circumstances of the case, the impugned order dated 9.10.2024 passed by respondent no.5/ Consolidation Officer cannot be sustained in the eye of law. The order dated 9.10.2024 passed by respondent no.5/ Consolidation Officer in case No. 0669 of 2024 is liable to be set aside and is hereby set aside. The impugned order dated 10.10.2024 passed by respondent no.5, Consolidation Officer, Bisauli District Badaun in case No. 0670 of 2024 under Section 9 A (2) of U.P.C.H. Act which is consequence of the order dated 9.10.2024 is also liable to be set aside and the same is hereby set aside. The impugned order dated 15.10.2024 passed in case No. 0671 of 2024 under Section 42 -A of U.P.C.H. Act passed by respondent no.5/ Consolidation Officer, Bisuali District Badaun which is also consequence of the aforementioned order dated 9.10.2024/ 10.10.2024 is liable to be set aside and the same is hereby set aside. 13. All the three writ petitions stands allowed in part and matter is remitted back before the respondent no.5, Consolidation Officer, Bisauli, District Badaun to register the case No. 0669 of 2024 on its original number and decide the same impleading the petitioner as opposite party, framing issues in the proceeding and affording opportunity of hearing to the parties to lead evidence in accordance with law. The aforementioned proceeding shall be decided expeditiously preferably within period of six months from the date of production of certified copy of this order before him. It is further directed that till the disposal of aforementioned proceeding under Section 9A (2) of U.P.C.H. Act passed by the Consolidation Officer, Bisuali District Badaun, status quo with respect to nature and possession of the plot in question shall be maintained by the parties to the dispute. The proceedings of revision No. 0670 of 2024 and revision No. 0671 of 2024 shall be subject to the proceeding of revision No. 0669 of 2024. 14. No order as to costs.