Chhotti vs State of U.P. and Others

Sibghat Ullah Khan, J.—This writ petition is directed against order dated 22.4.2009 passed by Deputy Collector, Nageena district Bijnor in Case No. 215 of 2008-09, State v. Choti, through which name of the petitioner has been directed to be expunged from the revenue records pertaining to the land in dispute. Learned Counsel for the petitioner states that asami patta was granted to the petitioner in the year 1995. By virtue of Rule 176A of the Rules framed under U.P.Z.A. and L.R. Act maximum period of asami patta is 5 years.

It is correct that such type of order shall not be passed without hearing the person concerned and entry of person in the revenue record particularly if it is continuing since long shall not be expunged without hearing him. However, as held by the Supreme Court in Ashok Kumar Sonkar Vs. Union of India (UOI) and Others, and Aligarh Muslim University and Others Vs. Mansoor Ali Khan, if some one challenges an order before the High Court in writ petition on the ground that it was passed without hearing him then he must show in the writ petition that in case opportunity of hearing had been provided then what plausible cause he would have shown.

By virtue of proviso to Rule 176A(1) of the Rules the maximum period of asami patta is five years. Accordingly, maximum period of the lease granted to the petitioner expired in the year 2000. Thereafter he has got absolutely no right to continue. Learned Counsel for the petitioner has not been able to show or say anything in this regard.

Accordingly, even after holding that the impugned order is bad in law as no opportunity of hearing was provided to the petitioner still it cannot be set aside as learned Counsel for the petitioner has not been able to show that petitioner has got least right to continue in possession.

Learned Counsel for the petitioner has cited a judgment of this Court dated 8.10.2009 given in Writ Petition No. 51912 of 2009, Kuwar v. State of U.P. and Ors., holding that order could be passed after drawing the proceedings u/s 176A (2) of U.P.Z.A. and L.R. Rules, 1952.

As by virtue of the aforesaid rule maximum period of the lease is five years and petitioner has not stated anything in this writ petition that in case opportunity of hearing is provided to him, what plausible cause he will be able to show hence it is not appropriate to remand the matter for fulfilment of useless formality of opportunity of hearing. The proceedings in which impugned order was passed were in fact under Rule 176A(2).

At this juncture reference may also be made to the Authority in Hari Ram v. Collector 2004 (97) RD 360, wherein it has been held that for eviction of asami it is not necessary to file suit u/s 202 of the Act and it may be done by passing orders under Sections 33/34/39 of U.P.L.R. Act also.

Accordingly, there is no merit in the writ petition hence it is dismissed.