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Court No.

- 38
C.M.Appli. No.305122 of 2010

in
Case :- WRIT - C No. - 597 of 2006

Petitioner :- Mrs. Ajmer Kaur & Others


Respondent :- Asst. Collector/Sub-Divisional Officer, Ghaziabad & Others
Petitioner Counsel :- Ajit Kumar
Respondent Counsel :- C.S.C.,Mahendra Pratap,V.K. Singh

Hon'ble Shishir Kumar,J.

As prayed put up this case on Friday, i.e. on 22.10.2010.

Order Date :- 20.10.2010


Pr/-
Court No. - 38

Case :- WRIT - C No. - 597 of 2006

Petitioner :- Mrs. Ajmer Kaur & Others


Respondent :- Asst. Collector/Sub-Divisional Officer, Ghaziabad & Others
Petitioner Counsel :- Ajit Kumar
Respondent Counsel :- C.S.C.,Mahendra Pratap,V.K. Singh

Hon'ble Shishir Kumar,J.

Put up on 27.10.2010 along with connected matters.

Order Date :- 22.10.2010


V.Sri/-
Court No. - 38

Case :- WRIT - C No. - 597 of 2006

Petitioner :- Mrs. Ajmer Kaur & Others


Respondent :- Asst. Collector/Sub-Divisional Officer, Ghaziabad & Others
Petitioner Counsel :- Ajit Kumar
Respondent Counsel :- C.S.C.,Mahendra Pratap,V.K. Singh

Hon'ble Shishir Kumar,J.

As prayed, put up this case tomorrow i.e. 28th October, 2010

Order Date :- 27.10.2010


SKD
Court No. - 38

Case :- WRIT - C No. - 597 of 2006

Petitioner :- Mrs. Ajmer Kaur & Others


Respondent :- Asst. Collector/Sub-Divisional Officer, Ghaziabad & Others
Petitioner Counsel :- Ajit Kumar
Respondent Counsel :- C.S.C.,Mahendra Pratap,V.K. Singh

Hon'ble Shishir Kumar,J.

Put up this case for further hearing on 1.11.2010 with all the connected
matters.

Order Date :- 28.10.2010


V.Sri/-
Court No. - 38

Case :- WRIT - C No. - 597 of 2006

Petitioner :- Mrs. Ajmer Kaur & Others


Respondent :- Asst. Collector/Sub-Divisional Officer, Ghaziabad & Others
Petitioner Counsel :- Ajit Kumar
Respondent Counsel :- C.S.C.,Mahendra Pratap,V.K. Singh

Hon'ble Shishir Kumar,J.

Put up on 9th November, 2010.

Order Date :- 1.11.2010


SKD
Court No. - 38

Case :- WRIT - C No. - 597 of 2006

Petitioner :- Mrs. Ajmer Kaur & Others


Respondent :- Asst. Collector/Sub-Divisional Officer, Ghaziabad & Others
Petitioner Counsel :- Ajit Kumar
Respondent Counsel :- C.S.C.,Mahendra Pratap,V.K. Singh

Hon'ble Shishir Kumar,J.

As prayed, put up tomorrow, i. e. on 10.11.2010 for further hearing.

Order Date :- 9.11.2010


Pr/-
Court No. - 38

Case :- WRIT - C No. - 597 of 2006

Petitioner :- Mrs. Ajmer Kaur & Others


Respondent :- Asst. Collector/Sub-Divisional Officer, Ghaziabad & Others
Petitioner Counsel :- Ajit Kumar
Respondent Counsel :- C.S.C.,Mahendra Pratap,V.K. Singh

Hon'ble Shishir Kumar,J.

List this case as well as all the connected matters for further hearing on
22.11.2010.

Order Date :- 11.11.2010


Pr/-
Court No. - 10

Case :- WRIT - C No. - 597 of 2006

Petitioner :- Mrs. Ajmer Kaur & Others


Respondent :- Asst. Collector/Sub-Divisional Officer, Ghaziabad & Others
Petitioner Counsel :- Ajit Kumar
Respondent Counsel :- C.S.C.,Mahendra Pratap,V.K. Singh

Hon'ble Shishir Kumar,J.

As prayed put up this case tomorrow.

Order Date :- 25.11.2010


V.Sri/-
Court No. - 10

Case :- WRIT - C No. - 597 of 2006

Petitioner :- Mrs. Ajmer Kaur & Others


Respondent :- Asst. Collector/Sub-Divisional Officer, Ghaziabad & Others
Petitioner Counsel :- Ajit Kumar
Respondent Counsel :- C.S.C.,Mahendra Pratap,V.K. Singh

Hon'ble Shishir Kumar,J.

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.

Order Date :- 30.11.2010


V.Sri/-
Court No. - 10

Case :- WRIT - C No. - 597 of 2006

Petitioner :- Mrs. Ajmer Kaur & Others


Respondent :- Asst. Collector/Sub-Divisional Officer, Ghaziabad & Others
Petitioner Counsel :- Ajit Kumar
Respondent Counsel :- C.S.C.,Mahendra Pratap,V.K. Singh

Hon'ble Shishir Kumar,J.

Put up on 21.12.2010.

Order Date :- 14.12.2010


V.Sri/-
Court No. - 10

Case :- WRIT - C No. - 597 of 2006

Petitioner :- Mrs. Ajmer Kaur & Others


Respondent :- Asst. Collector/Sub-Divisional Officer, Ghaziabad & Others
Petitioner Counsel :- Ajit Kumar
Respondent Counsel :- C.S.C.,Mahendra Pratap,V.K. Singh

Hon'ble Shishir Kumar,J.

As prayed, list this case on 6th January, 2011 for further hearing.

In the meantime, Sri V.K.Singh, learned Additional Advocate General, if he


feels, may file an affidavit.

Order Date :- 20.12.2010


SKD
Court No. - 10

Case :- WRIT - C No. - 597 of 2006

Petitioner :- Mrs. Ajmer Kaur & Others


Respondent :- Asst. Collector/Sub-Divisional Officer, Ghaziabad & Others
Petitioner Counsel :- Ajit Kumar
Respondent Counsel :- C.S.C.,Mahendra Pratap,V.K. Singh

Hon'ble Shishir Kumar,J.

Put up this case on 10.1.2011 for further hearing.

Order Date :- 6.1.2011


V.Sri/-
Court No. - 10

Case :- WRIT - C No. - 597 of 2006

Petitioner :- Mrs. Ajmer Kaur & Others


Respondent :- Asst. Collector/Sub-Divisional Officer, Ghaziabad & Others
Petitioner Counsel :- Ajit Kumar
Respondent Counsel :- C.S.C.,Mahendra Pratap,V.K. Singh

Hon'ble Shishir Kumar,J.

On the request of the learned counsel for the applicant, put up this case
tomorrow.

Order Date :- 10.1.2011


V.Sri/-
Court No. - 10

Case :- WRIT - C No. - 597 of 2006

Petitioner :- Mrs. Ajmer Kaur & Others


Respondent :- Asst. Collector/Sub-Divisional Officer, Ghaziabad & Others
Petitioner Counsel :- Ajit Kumar
Respondent Counsel :- C.S.C.,Mahendra Pratap,V.K. Singh

Hon'ble Shishir Kumar,J.

As prayed, put up this case on Monday, i.e. on 17.01.2011.

Order Date :- 11.1.2011


Pr/-
Court No. - 10

Case :- WRIT - C No. - 597 of 2006

Petitioner :- Mrs. Ajmer Kaur & Others


Respondent :- Asst. Collector/Sub-Divisional Officer, Ghaziabad & Others
Petitioner Counsel :- Ajit Kumar
Respondent Counsel :- C.S.C.,Mahendra Pratap,V.K. Singh

Hon'ble Shishir Kumar,J.

As prayed, put up tomorrow, i.e. 18.01.2011

Order Date :- 17.1.2011


Pr/-
Court No. - 10

Case :- WRIT - C No. - 597 of 2006

Petitioner :- Mrs. Ajmer Kaur & Others


Respondent :- Asst. Collector/Sub-Divisional Officer, Ghaziabad & Others
Petitioner Counsel :- Ajit Kumar
Respondent Counsel :- C.S.C.,Mahendra Pratap,V.K. Singh

Hon'ble Shishir Kumar,J.

As prayed. put up this case day after tomorrow, i.e. on 20.01.2011.

Order Date :- 18.1.2011


Pr/-
Court No. - 10

Case :- WRIT - C No. - 597 of 2006

Petitioner :- Mrs. Ajmer Kaur & Others


Respondent :- Asst. Collector/Sub-Divisional Officer, Ghaziabad & Others
Petitioner Counsel :- Ajit Kumar
Respondent Counsel :- C.S.C.,Mahendra Pratap,V.K. Singh

Hon'ble Shishir Kumar,J.

Put up on 24.1.2011.

Order Date :- 20.1.2011


V.Sri/-
Court No. - 19

Case :- WRIT - C No. - 597 of 2006

Petitioner :- Mrs. Ajmer Kaur & Others


Respondent :- Asst. Collector/Sub-Divisional Officer, Ghaziabad & Others
Petitioner Counsel :- Ajit Kumar
Respondent Counsel :- C.S.C.,Mahendra Pratap,V.K. Singh

Hon'ble Shishir Kumar,J.

As prayed, list this case on 11th April, 2011.

Order Date :- 1.4.2011


Pr/-
Court No. - 19

Case :- WRIT - C No. - 597 of 2006

Petitioner :- Mrs. Ajmer Kaur & Others


Respondent :- Asst. Collector/Sub-Divisional Officer, Ghaziabad & Others
Petitioner Counsel :- Ajit Kumar
Respondent Counsel :- C.S.C.,Mahendra Pratap,V.K. Singh

Hon'ble Shishir Kumar,J.

As prayed, put up this case on Wednesday i.e. on 20.04.2011.

Order Date :- 16.4.2011


Pr/-
Court No. - 19

Case :- WRIT - C No. - 597 of 2006

Petitioner :- Mrs. Ajmer Kaur & Others


Respondent :- Asst. Collector/Sub-Divisional Officer, Ghaziabad & Others
Petitioner Counsel :- Ajit Kumar
Respondent Counsel :- C.S.C.,Mahendra Pratap,V.K. Singh

Hon'ble Shishir Kumar,J.

List this case on 02.05.2011 with a clear indication that it will not be
adjourned on the request made by the respondent.

Order Date :- 20.4.2011


Jaideep/-
Reserved

Civil Misc. Writ Petition No.597 of 2006

Mrs. Ajmer Kaur & others


Vs.
Asstt.Collector/Sub-Divisional Officer, Ghaziabad and others

Hon'ble Shishir Kumar, J.

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.

Certain lands of various villages including Matiala were duly allotted to


various persons. Allotments were approved by Sub-Divisional Officer,
Ghaziabad vide its order dated 30.5.1955 holding that allotment was duly
made in favour of 14 persons and their names were duly ordered to be mutated
in the revenue record maintained by respondents. The order of mutation was a
judicial order regarding allotment of lands. The patta holders after obtaining
Sirdari rights, applied for conferment of bhumidari rights upon them in
conformity with the provisions of Section 134 to 137 of U.P. Zamindari
Abolition & Land Reforms Act after depositing ten times of annual land
revenue. An enquiry was held and adjudication to that effect was made and
under judicial orders Bhumidhari rights upon patta holders after accepting ten
times of land revenue was granted. Admittedly, that order has become final.
2

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.

Before or after passing any order, no date of proceedings was ever


initiated. The manner in which the impugned order has been passed it cannot
be passed. The validity of patta and their approval can only be adjudicated as
per law applicable in the year 1955 and not in accordance with the present
law. A summary proceeding under Sections 33 and 29 of the Act was not
available to respondent No.1. Patta granted in favour of patta holders cannot
be cancelled or made non-est by means of the impugned order. Further it is
clear from the record that no notice whatsoever of any kind was ever issued
either to petitioners or their co-tenure holders or even to the transferors or
patta holders. They were not permitted to have their say, therefore, order
passed by respondents is totally against the principle of natural justice. The
proceeding can only be initiated before the Collector. Admittedly respondent
No.1 is the Assistant Collector, therefore, has got no jurisdiction to pass such
order.

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.

Even admitting this fact in alternative that if patta holders having


obtained possession, as alleged that it was unlawful and it was retained
illegally but rights have been matured under sections 210 of U.P. Zamindari
Abolition and Land Reforms Act on the basis of illegal possession. Gaon
Sabha should have filed a suit under Section 209 of the Act. Gaon Sabha or
the State having not sued within time as provided under Rule 338 of the U.P.
Zamindari Abolition and Land Reforms Act could not disturb the rights of
patta holders or their transferee like petitioners. Summary forum adopted by
respondent under Sections 33 and 39 of the U.P. Land Revenue Act was not
available to respondent. Pattas granted in favour of petitioners can only be
challenged within time specified for it but no proceeding is initiated thereafter.
Further it has been also submitted that a proceeding under Section 198 (4) of
the Act can only be initiated before the Collector not before any other persons.

According to petitioners the order passed by respondents is without


jurisdiction as long standing revenue entries cannot be set aside in a
4

proceeding under Sections 33 and 39 of the U.P. Land Revenue Act.

Further submission has been made that judgements passed by the


Consolidation Court and revenue court has not been challenged and that has
become final. Therefore, the authority concerned has no jurisdiction to re-
open the matter and to take a decision that too without any notice and
opportunity to petitioners. It has also been submitted that judgement passed by
consolidation Court and entries on that basis recorded in the revenue record,
now that is not open to challenge by respondents. On one hand, respondents
have taken a plea that proceeding under Sections 33 and 39 of the Land
Revenue Act is a summary proceeding and on the other hand they have passed
a detailed order expunging the name of petitioners over the property in
question without considering the judicial orders passed from time to time
passed by revenue court as well as by the consolidation authority. Therefore,
such order can be challenged by means of filing present writ petition. He has
also placed reliance upon following judgements which are quoted below:-

AIR 1966 SC 1061 State of West Bengal,Appellant Vs. Hemant


Kumar Bhattacharjee and others, Respondents.

1969 RD 344 FB Raghunath and others Vs. Ram Khelawan and


others

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.

2004(8) SCC 121, Dhanvanthkumariba and others Vs. State of


Gujarat. Relevant para Nos.14 to 18 are being quoted below:-

“14. In the case of Mahisagar Bhatha Coop.Agriculture Coop.


Society Ltd. this Court had occasion to consider as to the
ownership of the plaintiff as Talukdar of Umeta State itself in
respect of another village. In the said decision, it is held that the
plaintiff as Talukdar of Umeta State was entitled to full ownership,
use and enjoyment of the said five villages. It was further held that
suit land in that case which formed part of one such village, did
5

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:

“4. We have heard learned counsel for the parties and


have thoroughly perused the record. It was contended
on behalf of the defendant-appellants that the land
came to be vested in the State of Gujarat under the
provisions of Section 6 of the Taluqdari Abolition Act.
We don not find any force in this contention. Ext. 102
merger agreement dated 24.5.1948 has been placed on
record which clearly mentioned that the plaintiff as the
Talukdar of Umeta State was entitled to the full
ownership, use and enjoyment of all the private
properties. An inventory of such private properties
which formed part of such merger agrement clearly
mentioned five talukdari villages in Borsad taluka of
Kaira district. Ext. 129 letter dated 31.1.1949 written
by the Collectorand Chief Administrator, Kaira to the
plaintiff clearly mentions that the matter regarding the
five talukdari villages in Borsad taluka had been
referred to Government for orders. The Government
then vide Ext.128 dated 11.4.1950 clearly admitted the
five talukdari villages as the private property of the
plaintiff. The letter Ext.128 reads as under:-

My dear Thakore Saheb,


I am to say that the inventory of private
property securities and cash balances furnished by
you in accordance with Article 3 of the instrument
of merger executed by you has been considered. A
copy of the inventory as finally accepted, is
attached for your information. The decisions
submitted therein have the approval of the
Government of India in the Ministry of State.
As regards the five talukdari villages
claimed by you as your private property, I am to
6

say that Government has agreed to concede your


claim to these villages but as the revenues of these
villages have been included in the average annual
revenues of Umeta State for purposes of
calculation of your privy purse, the same (i.e. the
revenues of these villages) have now been
excluded from the average revenues of the State
and your privy purse has been finally fixed at
Rs.14,450 per annum instead of at Rs.19,200 per
annum as previously communicated to you.
I am to request you to acknowledge the
receipt of this letter and copy of the inventory
enclosed herewith.

15. Having stated so in para 4 as extracted above, this Court


observed that the Government had agreed to the claim of the
plaintiff to the five villages as his private property as part of the
merger agreement and there was no escape from the conclusion
that the land in question which lies in one of the five villages being
the personal private property of the plaintiff, could not fall within
the ambit of Section 6 of the Act. The merger agreement dated
24.5.1948 and the letter of the Government dated 11.4.1950
equally cover the legal position in regard to the land in Survey
No.410 of Umeta in question. To this judgment, the State of
Gujarat was a party. In other words, this judgment, being inter
parties between the original plaintiff and the State of Gujarat, is
binding on the State of Gujarat.

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

“Numerous contentions were raised by the defendant


State in the trial court for resisting the plaintiff's suit. It
is not necessary to refer to any of those contentions as
the only point that is urged before this Court is that the
lower appellate court had committed an error of law in
forming the opinion as regards the category of the land
in dispute. The learned Assistant Government Pleader
for the appellant State has argued that the disputed land
falls within one or the other of the three categories,
namely, river bed or waste or land which was not
cultivated for three years immediately preceding
15.8.1950, the date on which the Act came into force.
The appellate Court ought to have come to the
conclusion that the disputed land had vested unto the
State Government in as much as it fell within one or the
other of the aforesaid three categories envisioned by
Section 6 of the Act. The only question that arises for
decision in the present appeal, therefore, is whether the
lower appellate court has committed any error of law in
rejecting the contention of the State as regards the
category of the land.”

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.

18. Thus, in the light of the judgment in Mahisagar bhatha Coop.


Agriculture Coop. Society Ltd. and also the judgment of the High
Court in Second Appeal No.826 of 1962 arising out of OS No.185
of 1953 in regard to the very Survey No.410, it can be safely
concluded that the land in Survey No.410 of Umeta as claimed by
the original plaintiff did not vest in the State under Section 6 of the
Act and the plaintiff was the owner of the said land, it being his
private property. This apart, in OS No.185 of 1953, it was not the
case of the respondent State that the remaining area in Survey
No.410, after excluding area of 30 acres which was the subject-
matter of that suit, was either river bed area or a wasteland or
uncultivated land. On the other hand, the issue framed in the said
suit covered the entire land in Survey No.410 about which the
reference is made already in relation to the issues and findings.
The trial court was right in the present suit in holding that the
8

judgment and decree passed in OS No.185 of 1953 were binding


on the parties and they operate against the respondent State on the
principle of res judicata. The first appellate court committed an
error in taking a contrary view on this question merely on the
ground that in the earlier suit, subject-matter was confined to only
30 acres of land in Survey No.410 without looking to the issues
raised in the earlier suit. The issues raised in earlier suit as
regards ownership of the land in Survey No.410 or vesting of the
said land under Section 6 were not confined to an area of 30
acres. On the other hand, they covered the entire land in Survey
No.410. The Division Bench also committed the same error in
affirming the judgment of the learned single Judge. The contention
htat the plaintiff did not challenge the order dated 27.11.1958
passed under Section 37(2) of the Bombay Land Revenue Code in
the proceedings initiated by his brother Mahendrsingji has no
force for reasons more than one. The original plaintiff was not a
party to those proceedings; it was confined to an area of 147 acres
and 15 guntas; the ownership of the original plaintiff in regard to
Survey No.410 and it not vesting in the state under section 6 of the
act were specifically decided in OS No.185 of 1953; the judgment
and decree passed in that suit attained finality when the High
Court dismissed the second appeal filed by the State affirming the
decree passed in the said suit. This decree binds the respondent
State as it was a party to the said suit. In this view, the order
passed under section 37(2) in the proceeding initiated by the
brother of the plaintiff cannot override or take away the effect of
the above-mentioned civil court decree.

2004 (7) SCC 381 Ajmer Kaur Vs. State of Punjab and others.
Relevant para 10 is being quoted below:-

10. Permitting an application under Section 11(5) to be moved at


any time would have disastrous consequences. The State
Government in which the land vests on being declared as surplus,
will not be able to utilise the same. The State Government cannot
be made to wait indefinitely before putting the land to use. Where
the land is utilised by the State Government a consequence of the
order passed subsequently could be of divesting it of the land.
Taking the facts of present case by way of an illustration, it would
mean the land which stood mutated in the State Government in
1982 and which was allotted by the State Government to third
parties in 1983, would as a result of reopening the settled position,
lead to third parties being asked to restore back the land to the
State Government and the State Government in turn would have to
be divested of the land. The land will in turn be restored to the
land owner. This will be the result of the land being declared by
9

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.

AIR 2004 SC 1324 Ramakant Dattatraya Deshpande,


Appellant Vs. Dadu Bhagoji Pati (D) by L.Rs. And others,
Respondents. Relevant para 12 is being quoted below:-

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

that during his minority the landlord, through his natural


guardian, terminated the tenancy of the tenant on the ground of
continuous defaults in payment of rent. He thereafter instituted
proceedings under S. 29(2) of the Act and obtained possession of
the lands. When the tenant tried to interfere with the possession of
the landlord, a civil suit was filed in the Court of Second Civil
Judge (Jr. Division), Kolhapur being Civil Suit No. 464 of 1971
and a decree of permanent injunction was obtained against the
tenant by judgment dated 30th April, 1974. A second suit being
Civil Suit No. 1005 of 1977 was again filed by the landlord against
the tenant and others for grant of a perpetual injunction against
them not to cause interference and obstruction in the possession of
the landlord over the lands. The second suit was decreed on 21-7-
1986. These decrees of the Civil Court have also attained finality.

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.

1972 RD 94 Smt. Kailaso Vs. Board of Revenue and others

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:-

1997 (15) LCD 273, M/s Mahalakshmi Land and Finance


Co.(Private) Ltd. Vs. Board of Revenue, U.P. Lucknow and others.
Para 18 is relevant which is being quoted below:-

18. From a perusal of the impugned order passed by the learned


Member, Board of Revenue what I found as his reason for not
giving any opportunity to petitioner is contained in one sentence.
I quote it. “There is no provision to give chance of hearing if one
is guilty of forgery.” The learned Member by this sentence has
not only made the petitioner “an accused” but he has also held
him “guilty'. This conclusion of the learned Member is not legally
11

justifiable by any judicial tenets. The approach is wholly


feudalistic. By no stretch of judicial consideration can a person
be held guilty without evidence and it should not be forgotten that
to hold anyone guilty of any act of omission or commission
evidence is necessary and so is the opportunity of hearing. Then it
is a big question as to how the petitioner is guilty of forgery. It is
not said by the learned Member that the petitioner had any role in
preparation or maintenance of record of right. It is common
knowledge that under Land Records Manual, the Lekhpal is
responsible for preparation of record of right or annual registers.
He is also keeper of the record of right. Then how could the
petitioner be termed a forgerer without any evidence. So the
learned Member's view that no opportunity of hearing was
necessary to the petitioner cannot be upheld.”

AIR 1989 SC 620, Raghunath Thakur, Appellant v. State of Bihar


and others, Respondents.
Para 4 of the said judgement is being quoted below:-

4. Indisputably, no notice had been given to the appellant of the


proposal of blacklisting the appellant. It was contended on behalf
of the State Government that there was no requirement in the rule
of giving any prior notice before blacklisting any person. In so far
as the contention that there is no requirement specifically of
giving any notice is concerned, the respondent is right. But it is an
implied principle of the rule of law that any order having civil
consequence should be passed only after following the principles
of natural justice. It has to be realised that blacklisting any person
in respect of business ventures has civil consequence for the future
business of the person concerned in any event. Even if the rules do
not express so, it is an elementary principle of natural justice that
parties affected by any order should have right of being heard and
making representations against the order. In that view of the
matter, the last portion of the order in so far as it directs
blacklisting of the appellant in respect of future contracts, cannot
be sustained in law. In the premises, that portion of the order
directing that the appellant be placed in the blacklist in respect of
future contracts under the Collector is set aside. So far as the
cancellation of the bid of the appellant is concerned, that is not
affected. This order will, however, not prevent the State
Government or the appropriate authorities from taking any future
steps for blacklisting the appellant if the Government is entitled to
do so in accordance with law, i.e. giving the appellant due notice
and an opportunity of making representation. After hearing the
appellant, the State Government will be at liberty to pass any
order in accordance with law indicating the reasons therefor. We,
12

however, make it quite clear that we are not expressing any


opinion on the correctness or otherwise of the allegations made
against the appellant. The appeal is thus disposed of.

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:-

“14. The next question, which arises, is the course to be adopted by


the Courts in cases where orders have been passed to expunge the
entries obtained by fraud or forgery without hearing the affected
persons. Normally the Courts do not hesitate in setting aside an
order passed in violation of principles of natural justice and
relegate the matter back to the authority concerned to consider the
case afresh after following the principles of natural justice. But
whether such a course should be adopted in cases where there is
strong evidence, though ex parte, of fraud or forgery is also a
question to be considered. The biggest draw back in adopting the
normal course of setting aside the ex parte order and relegating
the matter back, in such cases, may create an opportunity for the
wrong doer to take advantage of the situation and he may transfer
the land to a third party or change its nature creating further
complication. No doubt the Courts are not powerless in this regard
and such a person can be put to terms by passing appropriate
orders. But again the same may not be a complete safeguard and
an innocent person unaware of the true situation, misguided by
continuing entries may fall into trap. To strike a balance between
the two situations so that the alleged wrong doer may not be able
to take any advantage of his own alleged misdeeds, if any, on one
hand and he may also not be condemned unheard on the other
hand, such a person may be given a post decisional hearing. The
proposition that in such cases a post decisional haring would
satisfy the principles of natural justice was accepted by the Hon'ble
Apex Court in the case of Menika Gandhi v. Union of India, AIR
1978 SC 597.

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

Commissioner (Judicial), Allahabad Division, Allahabad and


others.
Para 29, 33 and 35 of the said judgement are being quoted below:-

29. In this regard, reference may be made to the decisions relied


upon by Sri M.N. Singh, learned counsel for the petitioners.

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:-

5. In our view, the High Court had fallen in grave error in


rejecting the writ petition on the aforesaid ground. First such an
order of termination was passed without issuing any show cause
notice to the appellant and without initiating any disciplinary
proceedings by the authorities and without affording any
opportunity of hearing. It is well settled that a writ petition can be
held to be maintainable even if an alternative remedy available to
an aggrieved party where the court or the tribunal lacks inherent
jurisdiction or for enforcement of a fundamental right ; or if there
had been a violation of a principle of natural justice; or where
vires of the act were in question.

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

disciplinary proceeding and without affording any opportunity of


hearing to the appellant. In that view of the matter, we are of the
view that the writ petition was maintainable in law and the High
Court was in error in holding that in view of availability of
alternative remedy to challenge the order of termination, the writ
petition was not maintainable in law.

9. Accordingly, the impugned judgment of the High Court is set


aside and the order of termination passed against the appellant is
quashed and the writ petition stands allowed. However, it would be
open to the authorities, if so desire, to initiate disciplinary
proceedings against the appellant for her termination from service
and if such disciplinary proceedings are initiated, the authorities
shall give proper opportunity of hearing and permit the parties to
adduce evidence in support of their respective stands and after
giving such opportunity, the disciplinary authorities thereafter shall
give hearing to the appellant and then pass a final order on the
question of termination of service of the appellant in compliance
with the concerned statutory rules applicable to the appellant.

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:-

1997(15) LCD 273 M/s Mahalakshmi Land and Finance


Co.(Private) Ltd. Vs. Board of Revenue, U.P., Lucknow and others
(See para 8 & 23)
15

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)

AIR 1999 SC 22, Whirlpool Corporation, Appellant Vs. Registrar of


Trade Marks, Mumbai and others, Respondents (Para 20, 21)

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:-

29. In this regard, reference may be made to the decisions relied


upon by Sri M.N.Singh, learned counsel for the petitioners.

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:-

12. It is no doubt correct that entries made in revenue records on


the basis of forged or non-existing order cannot be allowed to
continue as soon as the facts come to light. However, the question
which arises for consideration is whether in such a situation the
affected persons are entitled for an opportunity of hearing before
the entries of their names could be expunged.

13. 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. Equally important
is that any action based on fraud has to be set aside and the person
cannot be allowed to take any advantage of his own misdeeds even
for a moment. But 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. It may be
that the person affected be possessed of sufficient materials by
which he may be able to establish that entries are not a result or
based on any fraud or forgery. Thus in accordance with principles
of natural justice a notice an 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.

14. The next question, which arises, is the course to be adopted by


the Courts in cases where orders have been passed to expunge the
entries obtained by fraud or forgery without hearing the affected
persons. Normally the Courts do not hesitate in setting aside an
order passed in violation of principles of natural justice and
17

relegate the matter back to the authority concerned to consider the


case afresh after following the principles of natural justice. But
whether such a course should be adopted in cases where there is
strong evidence, though ex parte, of fraud or forgery is also a
question to be considered. The biggest draw back in adopting the
normal course of setting aside the ex parte order and relegating the
matter back, in such cases, may create an opportunity for the wrong
doer to take advantage of the situation and he may transfer the land
to a third party or change its nature creating further complication.
No doubt the Courts are not powerless in this regard and such a
person can be put to terms by passing appropriate orders. But again
the same may not be a complete safeguard and an innocent person
unaware of the true situation, misguided by continuing entries may
fall into trap. To strike a balance between the two situations so that
the alleged wrong doer may not be able to take any advantage of his
own alleged misdeeds, if any, on one hand and he may also not be
condemned unheard on the other hand, such a person may be given
a post decisional hearing. The proposition that in such cases a post
decisional haring would satisfy the principles of natural justice was
accepted by the Hon'ble Apex Court in the case of Menika Gandhi
v. Union of India, AIR 1978 SC 597.

Admittedly, the order has been passed without impleading petitioners as


a party and without issuance of any notice to petitioners. Further from the
record it is also proved that petitioners have not been afforded any
opportunity. Therefore, the order passed by respondents is bad in law and is
liable to be quashed.

On the other hand, Sri V.K.Singh, learned Additional Advocate General


has submitted that land in dispute recorded as Banjar in 1359 fasli on the date
of vesting was belonging to State. Certain complaints were made regarding
some forged entry over the land in dispute in favour of Ashok Sanyukt
Sahkari Samiti and its members including petitioners and other purchasers.
An enquiry was made on the direction issued by the Collector concerned. He
has submitted a report on 18.6.2005. Thereafter, tehsildar also submitted his
report on 9.11.2005. After receipt of aforesaid report, the Sub-Divisional
Officer proceeded in the matter initiated proceedings under Section 33/39 of
the U.P. Land Revenue Act and issued notices to Ashok Sanyukt Sahkari
Samiti, whose name was fraudulently entered in the revenue record. On initial
18

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

According to respondents, long standing entries based on forgery can be


set aside or corrected by the competent authority under section 33/39 of the
U.P. Land Revenue Act. Enquiry report dated 18.6.2005 given by the
Additional District Magistrate, Ghaziabad, is based upon the instructions of
original records of the record room and findings of fact is also based
according to that. Respondents have placed reliance upon various judgements
the same are being quoted below:-

(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.

2007 (103) RD 64 Mushtaq Ahmad Vs. State of U.P. and others.


Para 16 of the said judgement are being quoted below:-
20

16. In view of these rulings if the entries were procured by


playing fraud then no benefit can be given to such person. And in
the present case, it appears that the entries are fictitious obtained
fraudulently by the petitioner with connivance of the Lekhpal.
And it can be inferred that the petitioner has not come with clean
hands and he himself is guilty for forgery.

1995 RD 183 Sri Kishun and others Vs. C.R.Yadav, D.D.C.(A)


Gorakhpur and others

1979 RD 226 Chatar Singh Vs. Sahayak Sanchalak Chakbandi,


U.P. Lucknow

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:-

“7. In a summary proceeding like this, we cannot adjudicate the


claim of title of the petitioner. In fairness to Sri Malik we put on
record his submission that the authority concerned had completely
misconceived the orders passed by the Consolidation authorities
passed in favour of the petitioners which became final after
denotification and Khataunies were also prepared in favour of the
petitioners and even by this Court in some cases as stated in
Paragraph 8 of this writ petition and that the lands were wrongly
claimed to vested in Gaon Sabha by Respondent No.3 and the Land
Management Committee by filing suit under Section 229-B of
U.P.Z.A. & L.R. Act, which was dismissed but pending in appeal.”

Judgement dated 24.11.2010 passed by Hon'ble Mr.Justice S.U.Khan in


Writ Petition No.42282 of 2002 (Jal Singh and others Vs. State of
U.P. and others)

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 only question to be considered by this Court is whether the order


under sections 33 and 39 of the U.P. Zamindari Abolition and Land Reforms
Act can be passed by Assistant Collector or not that too on an enquiry made
by Sub-Divisional Magistrate concerned. A finding has been recorded by
respondent No.1 that after due enquiry it has been found that 20 persons have
been made bhumidhar from Sirdar after accepting ten times revenue and on
page 465 of the register malkan, after the sale deed it has been recorded in the
name of Ashok Sanyukt Sahkari Kheti Samiti Ltd. From the record it also
appears that grant of patta has never been denied. Revenue entry in favour of
petitioners have not been expunged at any point of time.

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.

On the question raised regarding notice and opportunity, respondents'


counsel have submitted before the Court that if this Court comes to
conclusion that proper opportunity has not been given to petitioners then
matter can be remanded to the authority concerned to decide after giving an
opportunity to the parties. Though respondents have cited various decisions
that in case there is an alternative remedy, this Court should not entertain
petition and petitioners should be re-delegated to the authority but from
perusal of record I am of opinion that admittedly an opportunity has not been
provided to petitioners and order impugned has been passed. Prima-facie
contention of petitioners to this effect regarding maintainability of application
before the Sub-Divisional Magistrate concerned appears to be correct. Further
it is settled in law that law applicable on the date, can be made applicable. As
the allotment of patta made in favour of petitioners was granted in 1955,
therefore, the rules applicable on that day will be applicable. Admittedly,
amended provisions cannot be made applicable which did not exist in the year
1955.

Respondents have placed reliance upon decision in Writ Petition


No.42282 of 2002 and has submitted that in a similar circumstances, the Court
23

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.

In view of aforesaid facts and circumstances and arguments raised on


behalf of parties, it is clear from the record that name of patta holders were
recorded on the basis of grant of patta. Revenue entries shows that permission
was given to deposit ten times of revenue to become bhumidar and after that
property was sold in the name of Samiti. The name of Samiti was also
recorded in the revenue records. Therefore, all these things have to be seen by
the authority concerned i.e. respondent No.1 that whether entries and grant of
patta was valid or not, only on the basis of an enquiry, such order cannot be
passed that too without proper opportunity to petitioners.

In such circumstances, I am of opinion that order impugned passed by


respondent no.1 cannot be sustained in law. It is hereby quashed. The writ
petition is allowed.

Matter is remanded to competent authority to pass appropriate orders


after affording full opportunity to relevant parties. First the authority
concerned will see whether application under Section 39 and 33 is
maintainable before the SDM concerned or not under the Act. After recording
such finding on the basis of objection by relevant parties, then the authority
concerned will proceed in the matter to be decided on merits. The question of
jurisdiction has also to be taken into consideration by the authority concerned
while passing appropriate orders. Admittedly petitioners are in possession of
the property in dispute, therefore, it is made clear that till decision is taken,
24

respondents are restrained from interfering in possession of petitioners.

No order as to costs.

Dt. May 31 , 2011.


SKD

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