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- 38
C.M.Appli. No.305122 of 2010
in
Case :- WRIT - C No. - 597 of 2006
Put up this case for further hearing on 1.11.2010 with all the connected
matters.
List this case as well as all the connected matters for further hearing on
22.11.2010.
On the request made on behalf of the opposite parties that Sri V.K. Singh,
Addl. Advocate General will appear in this case, therefore,the matter may be
adjourned. In such circumstances, list this case on 14.12.2010 for further
hearing.
Put up on 21.12.2010.
As prayed, list this case on 6th January, 2011 for further hearing.
On the request of the learned counsel for the applicant, put up this case
tomorrow.
Put up on 24.1.2011.
List this case on 02.05.2011 with a clear indication that it will not be
adjourned on the request made by the respondent.
Present writ petition has been filed for quashing the order dated
21.11.2005 passed by respondent No.1 in Case No.5 purported under Sections
33 and 39 of the U.P. Land Revenue Act (Annexure 1 to writ petition).
Facts arising out of writ petition are that petitioners are aggrieved by the
order dated 21.11.2005 passed by respondent No.1 in Case No.5 of 2005-06
holding therein that name of petitioners were wrongly recorded in Khatuni
relating to property in question. According to petitioners, no notice or
intimation was ever given even to the co-holders nor any opportunity was ever
given or any proceeding was ever initiated against petitioners or their co-
tenure holders.
After obtaining transferable Bhumidari rights, seven patta holders out of 14,
transferred the land in favour of one M/s Ashok Sanyukt Kheti Samiti, Ltd.
The Samiti applied under judicial orders and their names were recorded in the
revenue record. The land in question transferred in favour of Samiti vide
registered sale deeds by different patta holders on 23.11.1966. During
consolidation proceeding village Matiala was de-notified under Section 52 of
Consolidation of Holdings Act, 1956. The plots existing before consolidation
operations were converted and sub-divided into various new plots.
Subsequently, this property of Samiti was transferred in favour of three
persons vide registered sale deed dated 16.3.1970. They made an application
before the consolidation authorities and their names were also mutated.
Subsequently this property has been purchased vide registered sale deed dated
16.7.1974 by petitioners. It appears that some enquiry was made and none of
the petitioners or their transferors or patta holders were party to any ex-parte
enquiry.
Sri Ajit Kumar, learned counsel appearing for petitioners submits that
3
before passing the order impugned no notice or opportunity was ever given to
petitioners or patta holders even relating to enquiry, petitioners have got no
knowledge, no enquiry was ever shown either to petitioners or their
transferors or even patta holders and at no point of time any explanation was
ever called for. The order impugned is bad in law being fact that before
passing the order, no date or proceeding was ever intimated. Patta was granted
to 14 persons under the law applicable in the calender year 1955 and it was
granted in conformity with Gram Samaj Manual and under Section 198 and
Rule 173 and 194 as existed in the year 1955. There was no statutory nor
other bar for not allotting the land to any other person. By passage of time,
patta holders or their children or their transferees after sale of property have
shifted to other places, that does not mean that they or their ancestors or
transferees were not residents of village Matiala at the relevant time. The
amended provisions which were not in the year 1955 cannot be made
applicable.
2004(1) SCC 287 Rafique Bibi (dead) by LRS. Vs. Sayed Waliuddin
(Dead) by LRS. and others
(1993) 2 SCC 458 Hiralal Moolchand Doshi Vs. Barot Raman Lal
Ranchhoddas (Dead) by LRS.
not fall within the ambit of Section 6 of the Act and it did not vest
in the State. The original plaintiff in the present case namely, Shri
Jagdevsinhji was the plaintiff in that case also. He was the ex-
Ruler of Umeta State and he was also a registered Talukdar and
owner of five villages, namely, Umeta, Kothiyakhad, Sankhyad,
Anmrol and Asarms. In that case, he was concerned with Village
Kothiyakhad. He filed a suit for declaration and for possession
that he was the owner of suit land in Survey No.247 measuring
100 acres and 30 guntas situated at Village Kothiyakhad. The trial
court, by its judgment dated 30.3.1971 declared that he was the
owner of the said land. The State of Gujarat filed appeal to the
High Court which was dismissed. Thereafter, they filed appeal in
this Court. This Court in para 4 has held thus:
16. On OS No.185 of 1953, the trial court held that five talukdari
villages including Umeta were of private ownership of the plaintiff
as Talukdar. Although the suit was confined to a portion of 30
acres of land in Survey No.410, Issue 6, as already noticed above
while narrating the facts, as framed was whether the plaintiff was
the owner of Survey No.410 of Umeta and the issue was answered
in favour of the plaintiff holding that the plaintiff was the owner of
the entire land in Survey No.410. Even under Issue 5 in that suit, a
finding was recorded that the rights of the plaintiff as owner of the
five villages were kept intact under the merger agreement. In
Second Appeal No.826 of 1962 filed against the judgment passed in
Civil Appeal No.60 of 1960, the High Court, after extracting
Section 6 of the Act, elaborately considered as to whether the land
in Survey No.410 fell in any one of the categories so as to vest in
the State under section 6 of the Act. Having considered the
evidence and looking to the findings recorded by the courts below,
the High Court concluded that an area of 30 acres of land in
Survey No.410 did not vest with the State under Section 6 of the
Act. In the said judgment, it is stated thus:
7
17. The High Court in the said second appeal, as already stated
above looked into oral and documentary evidence, concluded that
the lower appellate court was right and no exception could be
taken thereto in forming the opinion that the disputed land did not
fall within any one of the three categories specified in Section 6 of
the Act as claimed by the respondent State. Under the
circumstances, second appeal was also dismissed by the High
Court.
2004 (7) SCC 381 Ajmer Kaur Vs. State of Punjab and others.
Relevant para 10 is being quoted below:-
the Collector as not surplus with the land owner. The effect of
permitting such a situation will be that the land will remain in a
situation of flux. There will be no finality. The very purpose of the
legislation will be defeated. The allottee will not be able to utilise
the land for fear of being divested in the event of deaths and births
in the family of the land owners. Deaths and births are events
which are bound to occur. Therefore, it is reasonable to read a
time limit in sub-section (5) of Section 11. The concept of
reasonable time in the given facts would be most appropriate. An
application must be moved within a reasonable time. The facts of
the present case demonstrate that re-determination under sub-
section (5) of Section 11 almost 5 years after the death of Kartar
Kaur and more than 6 years after the order of Collector declaring
the land as surplus had become final, has resulted in grave
injustice besides defeating the object of the legislation which was
envisaged as a socially beneficial piece of legislation. Thus we
hold that the application for re-determination filed by Daya Singh
under sub-section (5) of Section 11 of the Act on 21st June, 1985
was liable to be dismissed on the ground of inordinate delay and
the Collector was wrong in re-opening the issue declaring the land
as not surplus in the hands of Daya Singh and Kartar Kaur.
12. We have also mentioned above that the landlord had instituted
proceedings under S. 88-C of the Act seeking certificate of
exemption of the lands from operation of the provisions contained
in Ss. 32 to 32-R of the Act as the lands were 'economic holdings'
within the definition of the Act having annual income not exceeding
Rs. 1500/-. On the said application under S. 88-C of the Act, a
certificate was issued in favour of the landlord. The proceedings
declaring the lands to have been granted for sugarcane cultivation
under S. 43-A and the certificate granted under S. 88-C of the Act
clearly took out the lands in question from the purview of
provisions of Ss. 32 to 32-R of the Act. The above orders in favour
of the landlord under Ss. 43-A and 88-C were taken up by the
tenant to the Maharashtra Revenue Tribunal and they have
attained finality in favour of the landlord. Those orders were not
separately challenged by the tenant in further proceedings before
the High Court. Since the above orders under S. 43-A and S. 88-C
have become final and conclusive between the parties, the
authorities under the Act rightly held that proceedings under S. 32-
G, to enable the tenant to purchase the land as 'deemed purchaser'
under S. 32, were liable to be dropped. It has also come on record
10
14. In our considered opinion, the High Court was clearly in error
in observing that not all the lands have been found to have been
leased for sugarcane cultivation. It also committed a serious error
in overlooking the fact that all proceedings undertaken by the
landlord for terminating tenancy, obtaining possession under S. 29,
declaration under S. 43-A and exemption certificate under S. 88-C
of the Act had attained finality. The High Court, therefore, grossly
erred in quashing all orders of the authorities under the Act and
remanding the matter to the original authority for proceeding
afresh under S. 32-G of the Act.
Further submission has been made that admittedly before passing the
order impugned petitioners have not been afforded an opportunity. Petitioners
have placed reliance upon the following judgements:-
2006 (2) ADJ, 689, Rakesh and others Vs. Collector /District Deputy
Director of Consolidation, Baghpat and others.
Paras 14 and 16 of the said judgement are being quoted below:-
16. It is also essential that the party moving the application for post
decisional hearing must file all such evidence which he considers
necessary in support of his case along with the application. The
Supreme Court in the case of A.M.U. Aligharh v. M.A.Khan, AIR
2000 SC 2783 has ruled that a person complaining about denial of
opportunity of hearing must show that in case opportunity would
have been provided to him what cause he would have shown or
what defence he would have taken.
2009 (6) ADJ 183, Bachchu Ram Singh and another vs. Additional
13
33. This decision thus lays down that even before cancelling
allegedly farzi entries in revenue record, it is necessary to hear the
person in whose name the entry is continuing.
35. This decision thus lays down that whether an entry in revenue
record is fake or based on some forgery or fraud is a question of
fact and is required to be established and proved like any other
fact which necessarily implies an opportunity of hearing to the
affected persons. The finding in respect of fraud or forgery cannot
be recorded ex parte and it cannot be ruled that the principles of
natural justice in such cases have no application at all. Thus in
accordance with principles of natural justice a notice and
opportunity of hearing to the affected person is a must before
expunging entry even in cases where the authority is prima facie of
the opinion that entry was a result of some fraud, forgery or
manipulation.
AIR 2009 SCW 6874, Satwati Deswal Vs. State of Haryana and
others.
Para 5, 7 and 9 of the said judgement are being quoted below:-
7. Such being the position and in veiw of the admitted fact in this
case that before termination of the services of the appellant, no
disciplinary proceeding was initiated nor any opportunity of
hearing was given to the appellant. It is clear from the record that
the order of termination was passed without initiating any
14
Learned counsel for petitioners further submits that the order passed by
respondents is without jurisdiction. If an authority is having no jurisdiction,
the jurisdiction cannot be assumed and any order passed will always be treated
to be without jurisdiction. In the present case also, Assistant Collector was
having no jurisdiction to pass such order. Power conferred for passing the
order is with District Magistrate. Further submission has been made that as
regards contention of respondents that petitioners have an alternative remedy,
according to petitioners, if order is without jurisdiction and the authority who
has passed the order was not competent to pass such order then there will be
no bar of alternative remedy. Further submission has been made that once
counter and rejoinder affidavits have already been exchanged, therefore, it will
not be in the interest of justice to re-delegate the petitioners to avail remedy
available, if any, before the authorities below. He has placed reliance upon
various judgements. The same are being quoted below:-
2003(50) ALR 730, Reevan Singh Vs. State of U.P. and another (See
para 15)
2001(19) LCD 168, Subodh Kumar Trivedi Vs. State of U.P. and
others (see para 38)
2010 (28) LCD 1248, Dhirendra Kumar Rai Vs. State of U.P. (See
paras 29, 35, 36, 39, 51)
AIR 2009 SCW, 3705 Mohd. Ishaq Vs. S. Kazam and Anr.(See para
21)
AIR 2009 SCW, 654 Mariamma Roy Vs. Indian Bank and Ors.( See
para 3)
2006 (4) SCC 683 State of Karnataka and another Vs. All India
Manufacturers Organisation and others (See paras 59, 61, 62)
It has also been submitted that long standing entries in the revenue
record cannot be set aside under Sections 33 and 39 of the Land Revenue Act.
Admittedly, from the record, after grant of patta, name of patta holders were
recorded and subsequently it was sold after becoming bhumidar and after
depositing ten times of land revenue. Therefore, respondent no.1 was not
having any jurisdiction to get the order set aside under Section 33 and 39 of
the Land Revenue Act. Petitioners have placed reliance upon following two
judgements of this Court.
2009 (6) ADJ, 183 Bachchu Ram Singh and another Vs. Additional
Commissioner (Judicial) Allahabad Division, Allahabad and others.
Paras 29, 33 and 35 of the said judgement are being quoted below:-
33. This decision thus lays down that even before cancelling
allegedly farzi entries in revenue record, it is necessary to hear the
person in whose name the entry is continuing.
16
35. This decision thus lays down that whether an entry in revenue
record is fake or based on some forgery or fraud is a question of
fact and is required to be established and proved like any other fact
which necessarily implies an opportunity of hearing to the affected
persons. The finding in respect of fraud or forgery cannot be
recorded ex parte and it cannot be ruled that the principles of
natural justice in such cases have no application at all. Thus in
accordance with principles of natural justice a notice and
opportunity of hearing to the affected person is a must before
expunging entry even in cases where the authority is prima facie of
the opinion that entry was a result of some fraud, forgery or
manipulation.
2006 (2) ADJ, 689 Rakesh and others Vs. Collector /District Deputy
Director of Consolidation, Baghpat and others.
Paras 12, 13 and 14 of the said judgement are being quoted below:-
stage, Mr. Madhusudan Gupta, whose name was recorded in the khatuni
representing Ashok Sahkari Samiti and being President of the Society
appeared through his counsel but in spite of repeated opportunity and date
fixed no evidence has been led. Then the impugned order has been passed on
the basis of relevant record available before the authorities on 21.11.2005.
Petitioners being purchaser have been affected by the order impugned.
Various other writ petitions have been filed but petitioners have not availed
alternative remedy available to them under Section 219 of the U.P. Zamindari
Abolition and Land Reforms Act.
Learned counsel for respondents submits that this writ petition is not
maintainable being fact that petitioners are having alternative remedy of
revision under Section 219 of U.P. Zamindari Abolition and Land Reforms
Act. Notices were served upon recorded tenant over the land in dispute and the
President of the Society but they did not choose to lead evidence before the
Trial Court, therefore, the order impugned has been passed. Further
submission has been made that it is settled in law that fraud vitiates all the
orders and proceedings. The order in favour of petitioners during
consolidation proceeding is liable to be treated as null and void. Petitioners
have not challenged each and very finding recorded in the order impugned,
therefore, no relief can be granted to petitioners. Patta granted in favour of
patta holders is not in existence. It has never been produced either before the
court below or before this Hon'ble Court. The order of amaldaramad on the
basis of patta is not correct. The lease holders have got no right to deposit ten
times of land revenue to become bhumidar. Right to deposit ten times land
revenue has been given to those tenants who have become Sirdar under
Section 19 of the U.P. Zamindari Abolition and Land Reforms Act. Therefore,
there was no question to deposit ten times of land revenue by the alleged lease
holders and then purchase of the same by Ashok Sahakari Society. Before
enforcement of the Act No.4 of 1969 patta granted by the Committee is liable
to be attested and registered in the Sub Registrar office. No such lease has
been registered in the office of the Registrar concerned in any year till-date.
19
(2002) 9 SCC, 509 Vikram Singh Junior High School Vs. District
Magistrate (Finance & Revenue and others).
Para 3 of the said judgement is being quoted below:-
“3. The matter may also be examined from another angle. The
appellant was neither a bhumidhar, sirdar nor asami of the land
in dispute. The alleged resolution dated 15.8.1973 had no legal
sanctity in the absence of an approval of the Assistant Collector,
First Class, in charge of the sub-division and, therefore, the
resolution did not convey any title whatsoever in favour of the
appellant. The entry in the revenue record must have a legal
basis. Further there was no adjudication of dispute as regards
continuance of the wrong entry. The appellant could not have
claimed any title over the land in dispute merely on the basis of
wrong entry which continued in its favour through negligence or
failure of the Revenue Officer or the Consolidation Officer to
correct the record, in pursuance of the order of the Board of
Revenue which had attained finality. In the consolidation
proceedings, the Collector is also the District Deputy Director of
Consolidation on under the U.P. Consolidation of Holdings Act
and is authorised to correct any wrong entry continued in the
consolidation record in that capacity in the exercise of power
under Section 48 of the U.P. Consolidation of Holdings Act.
Merely because a wrong provision was quoted by the Collector
for exercising his power while deleting the name of the appellant
from the revenue record would not invalidate the order if it is
shown that such an order could be passed under the other
provisions of the Act viz. Under Section 48 of the U.P.
Consolidation of Holdings Act. In that view of the matter, we do
not find any infirmity in the order passed by the Collector.
AIR 1957 Allahabad 205 Jai Pal Vs. Board of Revenue and others
2000 RJ 101 Pramod Kumar and others Vs. Sub Divisional Officer,
Khaga, Fatehpur and others.
Para 7 of the said judgement is being quoted below:-
I have considered the submissions of the parties and perused the record.
From perusal of record it appears that a registered patta was executed by
LMC, Dasna in favour of petitioners on 30.5.1955 and that was approved by
the SDO concerned. This was never challenged or cancelled and their names
were also directed to be recorded in the revenue record. From the record it also
appears that patta holders after holding Sirdari rights applied for conversion
21
into bhumidari rights and after depositing ten times revenue they have become
bhumidar with transferable rights and after that this property was transferred
to Ashok Sanyukt Sahkari Kheti Samiti Ltd and the Samiti apply their names
to be mutated in the revenue record and same was also done in the revenue
record. From the record it also appears that during consolidation proceedings
and after de-notification under Section 52 of the Consolidation Holding Act,
plots existing before the consolidation operation were converted and sub-
divided into various new plots and thereafter chaks were allotted on the
allotted land. From the record, it does not appear that any objection was ever
filed against petitioners and, therefore, it appears that Samiti has also
transferred the property in question in pursuance of the sale deed dated
16.3.1997.
The foremost question would be in the present case that whether Sub-
Divisional Officer was having any jurisdiction to pass such order or not and
whether any notice and opportunity to petitioners have been given. From
perusal of order impugned it does not appear to the Court that opportunity to
petitioners or the persons recorded in the revenue record was given. The order
having civil consequences effecting right of petitioners, a person is entitled to
get an opportunity. From the record it also appears that there is a long standing
entry in favour of petitioners under Section 33 and 39 of the U.P. Land
22
Revenue Act. In various cases, it has been held that if it has been proved
beyond doubt that entry made in the revenue record is by fraud or forgery then
it can pass an order expunging the entries obtained by fraud but unless and
until it is established that it has been obtained by fraud, an opportunity to that
effect must be given to effected persons. In case the order is passed in
violation of the principle of natural justice then normally this Court in such
circumstances re-delegated the matter to the authority concerned to pass fresh
orders after affording opportunity to parties but one thing has to be seen by
this Court as the argument has been raised on behalf of petitioners that Sub-
Divisional officer was no jurisdiction to pass such order and if an order has
been passed without jurisdiction, this Court cannot confer the jurisdiction of
the same authority remanding the case to same authority.
after considering the issue has remanded the matter to the authority concerned
to take appropriate decision after hearing both the parties. In that case also
question was whether allotment made in favour of those petitioners were valid
or not and order passed in a proceeding under Sections 33 and 39 of the Land
Revenue Act was challenged before this Court on the ground that opportunity
was not given and only on the basis of an enquiry, the order was passed.
No order as to costs.