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2024 DIGILAW 483 (ALL)

Ramashankar v. State Of UP

2024-02-13

CHANDRA KUMAR RAI

body2024
JUDGMENT : Chandra Kumar Rai, J. 1. The learned counsel for the petitioner is permitted to implead the Additional Collector as respondent No.7 in the writ petition during course of the day. 2. Heard Mr. Vidya Dhar Yadav, learned counsel for the petitioners, Mr. Arun Kumar Tiwari, holding brief of Narendra Kumar Pandey, learned counsel for respondent Nos.4, 5 and 6 and Dr. Govind Kumar Saxena, learned Additional Chief Standing Counsel for the State-respondents. 3.The instant writ petition has been filed for the following relief: "(I) Issue a writ, order or direction in the nature of certiorari quashing the impugned judgment/order dated 26.03.2018 and order dated 25.07.2023 passed by the respondent Nos. 3 and 2 respectively. (II) Issue a writ, order or direction in the nature of certiorari quashing the entire proceeding initiated by the respondent Nos.4, 5 and 6 and their mother (since dead) under Section 28 of Land Revenue Act bearding case No. D 2015166700434 of 2015 Ashok Kumar and others vs. State, in regard to correction of map of plot No. 45 area 11 Biswa 8dhoor situate in village Unj Mugaraha, Post-Unj, Taluka Korh, Tehsil-Gyanpur, District-Bhadohi." 4. Learned counsel for the petitioners submitted that proceeding initiated under Section 28 of the U.P. Land Revenue Act at the instance of the respondent Nos.4, 5 and 6 cannot be entertained as the right has been claimed on the basis of fraudulent entry, which cannot be relied upon. He submitted that except the alleged entry made in the C.H. Form 23 (1) there is no other document in support of the alleged order of Consolidation Officer dated 08.02.2004. He further submitted that by earlier order of Additional Collector dated 23.09.2017, the report submitted by Naib Tehsildar/Tehsildar dated 21.07.2015 was found erroneous, as such the matter was remitted back before Tehsildar Gyanpur to submit fresh report according to confirmed map, C.H Form 23 (1), C.H. Form 41, C.H. Form 2-ka as well as in respect to the plot situated in the same sector. He further submitted that against the order of Additional Collector dated 23.09.2017 revision was filed by contesting respondents before the Commissioner, which was allowed in part vide order dated 26.03.2018 modifying the order of Additional Collector dated 23.09.2017 to the effect that in place of examining the entire plots of the Sector, authority shall measure the adjoining plot, C.H. Form 23 (1) C.H. Form 41 and C.H. Form 2 ka. He further submitted that petitioners challenged the order of Commissioner dated 26.03.2018 before the Board of Revenue that interference made by the Commissioner was not in accordance with law and the authority should proceed according to the order of Additional Collector or drop the proceeding as the basis of the claim of contesting respondent is alleged entry made in C.H. Form 23 (1) made on the basis of the order of Consolidation Officer, which is fraudulent as such the proceeding initiated under Section 28 of U.P. Land Revenue Act, cannot be entertained. 5. On the other hand, learned counsel for respondent Nos.4, 5 and 6 submitted that proceeding under Section 28 of U.P. Land Revenue Act was initiated in accordance with law on the basis of the entry of the plot No.45 in the revenue record. He further submitted that Additional Collector has found the earlier report submitted in the proceeding as erroneous as such directed the Tehsildar to submit fresh report in respect to the entire plots of the Sector as well as considering the other record accordingly order was challenged and the Commissioner has rightly modified the order, which requires no interference by this Court. He further submitted that proceeding under Section 28 of U.P. Land Revenue Act initiated by contesting respondent is still pending, as such the petitioners should appear in the pending proceeding which shall be decided in accordance with law rather writ petition before this Court. He further submitted that order of the Consolidation Officer has rightly been passed and the same is rightly mentioned in C.H. Form 23 (1) ...as such the proceeding initiated under Section 28 of U.P. Land Revenue Act, cannot be rejected on the ground of fraudulent entry of the plot in question. He further submitted that no interference is required in the matter and writ petition is liable to be dismissed. 6. I have considered the arguments advanced by the learned counsel for the parties and perused the record. 7. He further submitted that no interference is required in the matter and writ petition is liable to be dismissed. 6. I have considered the arguments advanced by the learned counsel for the parties and perused the record. 7. There is no dispute about the fact that proceeding under Section 28 of U.P. Land Revenue Act, was initiated by respondent Nos. 4, 5 and 6 in which report dated 21.07.2015 was submitted by the Naib Tehsildar/Tehsildar to Additional Collector who found that the report submitted by Naib Tehsildar/Tehsildar is erroneous, as such he directed for submission of fresh report in the proceeding under Section 28 of U.P. Land Revenue Act. There is no dispute about the fact that Commissioner in revision filed by the contesting respondents has modified the order of Collector to the effect that in place of sending report to the entire plots of the Collector the report in respect to adjoining plot of the plot in dispute shall be sent by the authorities. There is also no dispute about the fact that Board of Revenue has dismissed the revision filed by the petitioners. 8. In order to appreciate the controversy involved in the matter perusal of Section 28 of U.P. Land Revenue Act is relevant, which is as under: "28. Maintenance of map and field-book. -The Collector shall in accordance with rules made under Section 234, maintain a map and field-book of each village in his district and shall cause annually, or at such longer intervals as the [State Government] may prescribe, to be recorded therein all changes in the boundaries of each village [* * *] or field and shall correct any errors which are shown to have been made in such map or field-book." 9. Perusal of the Section reveals that authorities have to proceed according to the provision contained under Section 28 of U.P.Land Revenue Act to decide the application submitted by any tenure holder. 10. In the instant matter, the Additional Collector has found that the report dated 21.07.2015 submitted by Naib Tehsildar/Tehsildar in the proceeding is not in accordance with the provisions of the Act, as such he disapproved the report and ordered for submission of fresh report by revenue authorities. Additional Collector has mentioned one version for submission of fresh report and Commissioner has mentioned another version for submission of the fresh report by the authority. Additional Collector has mentioned one version for submission of fresh report and Commissioner has mentioned another version for submission of the fresh report by the authority. So far as the submission of the report by the Revenue authority in the proceeding under Section 28 of U.P. Land Revenue Act is concern, the full procedure has been prescribed under the Act for deciding the application under Section 28 of U.P. Land Revenue Act so the same should be followed. So far the entry of the plot in question is concern, the petitioners have full opportunity to file objection before the same authority with respect to the entry of the plot in question as well as the alleged order of the Consolidation Officer which has been relied upon by the contesting respondents. The authority concern shall examine the entire issues in the light of the provisions contained under Section 28 of U.P. Land Revenue Act and decide the application under Section 28 of U.P. land Revenue Act filed by respondent Nos.4, 5 and 6 after calling report of revenue authority in accordance with law as well as after affording opportunity of hearing to both the parties within a period of three months from the date of production of certified copy of this order before Authority concern. The order passed by Additional Collector dated 23.09.2017 and order of Commissioner dated 26.03.2018 are modified to the aforementioned extent. 11. With the aforesaid observation/direction, the writ petition is finally disposed of.