Mayawati vs S.D.O. And Others

Irshad Ali, J

Heard Sri Mohd. Arif Khan, learned Senior Counsel assisted by Sri Mohd. Aslam Khan, learned counsel for the petitioner and Sri Shatrughan Chaudhary, learned Additional CSC for the respondent -State.

The present writ petition has been filed challenging the order dated 24.05.1997 passed by respondent No.1 - Sub Divisional Officer contained as Annexure-5 to the writ petition.

Factual matrix of the case is that the present writ petition arises out of the order dated 24.05.1997 passed by the Sub-Divisional Officer, Colonelganj, District Gonda, whereby without issuing any notice to the petitioner, without affording any opportunity of hearing and without registering any case for correction of revenue records or directing the parties to seek remedy before the competent court, the name of the petitioner was illegally expunged from the revenue records and the land in dispute was ordered to be recorded in the name of the Gaon Sabha.

The petitioner's father Yadunath was recorded as bhumidhar over plot Nos. 1092, 1249, 1254, 1250, 1251 and 1258 (hereinafter referred to as the land in dispute) and he remained in continuous possession over the said plots during his lifetime.

After the death of the petitioner's father Yadunath, mutation was effected in favour of the petitioner being his daughter and the sole legal heir and accordingly the petitioner's name came to be recorded in the revenue records. Name of the petitioner is recorded as bhumidhar in the Khatauni of Fasli years 1402 to 1407, a photocopy whereof is annexed as Annexure No.2 to this writ petition.

During the lifetime of the petitioner's father he remained in possession over the land in dispute and after his death the petitioner continued in possession over the said land. The Gram Panchayat / Gaon Sabha, arrayed as opposite party No.3, has neither any title nor possession over the land in dispute.

During consolidation operations in village Ramapur, where the land in dispute is situated, the Consolidation Officer, Gonda vide order dated 28.03.1967 directed that the name of the petitioner's father be recorded over the land in dispute. A photocopy of the Amaldaramad order recording the name of the petitioner's father is annexed as Annexure No.3 to this writ petition.

The Gaon Sabha along with the State of U.P. instituted Regular Suit No.421 of 1997 before the Court of Civil Judge (Junior Division), Gonda and also moved an application for temporary injunction. The said application for injunction as well as the maintainability of the suit was opposed by the petitioner, who was arrayed as a defendant in the suit, and the learned trial court, after considering the matter, found that the suit before the civil court was not cognizable and therefore the application for injunction was rejected vide order dated 13.05.1997.

When the Gram Panchayat failed to get the petitioner's name deleted through lawful proceedings, it adopted an indirect method and obtained a report from the Tehsildar, Gonda dated 24.05.1997 and on the basis of the said report the Sub-Divisional Officer, Colonelganj passed the impugned order dated 24.05.1997 directing that the name of the petitioner be expunged from the revenue records and the land be recorded in the name of the Gaon Sabha. A true copy of the report of the Tehsildar along with the impugned order is annexed as Annexure No.5 to this writ petition.

The civil suit filed by the Gaon Sabha is still pending and the impugned order dated 24.05.1997 has been obtained by the Gaon Sabha during the pendency of the said proceedings. No show cause notice or opportunity of hearing was afforded to the petitioner before passing the impugned order and even the alleged enquiry conducted by the Tehsildar was made ex-parte, without giving any opportunity to the petitioner.

The petitioner subsequently approached the Collector, Gonda, seeking a directive for the issuance of certified copy of the order. While the Collector, Gonda, did direct the Sub-Divisional Officer to "do the needful," the petitioner claims that the copy has still not been provided. Hence, the present writ petition has been preferred before this Court.

Submission of learned Senior Counsel for the petitioner is that the impugned order is wholly arbitrary, illegal and liable to be quashed as the same has been passed in gross violation of the principles of natural justice, inasmuch as no notice whatsoever was issued to the petitioner, nor any opportunity of hearing was afforded before passing the said order.

He further submitted that it is a settled proposition of law that no adverse order affecting civil rights of a person can be passed without affording an opportunity of hearing and the impugned order having been passed in complete breach of audi alteram partem is liable to be set aside on this ground alone.

He next submitted that the Sub-Divisional Officer has acted wholly without jurisdiction in directing expunction of the petitioner's name from the revenue records without initiating any proceedings in accordance with law, without registering any case for correction of revenue entries and without relegating the parties to a competent court of jurisdiction.

He submitted that the petitioner derives her title from her father, late Yadunath, who was admittedly recorded as bhumidhar over the land in dispute, namely plot Nos. 1092, 1249, 1254, 1250, 1251 and 1258, and remained in continuous possession thereof during his lifetime. After the death of the petitioner's father, the petitioner, being his sole legal heir and daughter, was duly mutated in the revenue records and her name has been recorded as bhumidhar in the Khatauni of Fasli years 1402 to 1407, thereby establishing her lawful title and possession over the land in dispute. The possession over the land in dispute has always remained with the petitioner's family; firstly with her father during his lifetime and thereafter with the petitioner and at no point of time has the Gaon Sabha ever been in possession or acquired any right, title or interest over the said land.

He submitted that during consolidation operations, the Consolidation Officer, Gonda, vide order dated 28.03.1967, had already adjudicated the rights of the parties and directed recording of the name of the petitioner's father over the land in dispute, which attained finality and continues to hold the field. The Gaon Sabha having failed to establish its claim through lawful means, instituted Regular Suit No.421 of 1997 before the Civil Judge (Junior Division), Gonda, which was opposed by the petitioner and the learned trial court, upon consideration, rejected the application for temporary injunction and also found that the suit was not cognizable by the civil court.

He submitted that during pendency of the said civil proceedings, the Gaon Sabha, in a mala fide and clandestine manner, procured a report from the Tehsildar dated 24.05.1997 and on the basis of the said ex-parte report, got the impugned order passed from the Sub-Divisional Officer on the very same date, thereby circumventing due process of law.

He next submitted that the alleged enquiry conducted by the Tehsildar was wholly ex-parte, without issuing any notice to the petitioner or affording her any opportunity to present her case, rendering the entire proceedings vitiated in law.

He submitted that the impugned order has been passed during the pendency of the civil suit and, therefore, the same is not only without jurisdiction but also amounts to interference with the judicial process, and is liable to be set aside on this ground as well.

He submitted that the action of the respondents is clearly arbitrary, mala fide and an abuse of process of law, undertaken with the sole intent to deprive the petitioner of her lawful rights over the land in dispute. The petitioner has further been prejudiced by the fact that despite approaching the Collector, Gonda for obtaining a certified copy of the impugned order, the same has not been supplied to her, thereby depriving her of an effective opportunity to seek appropriate legal remedies. In view of the aforesaid facts and circumstances, the impugned order dated 24.05.1997 is unsustainable in the eyes of law and is liable to be quashed by this Hon'ble Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. In support of his submissions, he placed reliance in the case of Gopal Das Jain Vs. Board of Revenue reported in Neutral Citation No.2525: : AHC-LKO; 38961.

On the other hand, learned Additional CSC submitted that the basis of the petitioner's writ and the relief sought is absolutely baseless and fabricated. The petitioner has approached this Hon'ble Court with unclean hands, concealing the fact that the entries in the revenue records were obtained through a fraudulent process. Consequently, the writ petition is liable to be dismissed at the threshold.

He next submitted that the entry of the order of the Consolidation Officer dated 28.03.1967 (Case No. 2873/218/173) was made in the Mutation Register (R-6) of Tehsil Gonda on 20.08.1985. This execution was carried out after an unexplained delay of 18 years. Investigation reveals that no such file or record exists in the District Record Room, as confirmed by reports dated 05.05.1997 and 06.05.1997. The entry was obtained without relevant records by colluding with department employees.

He further submitted that the execution of the Parwana Amaldaramad (Warrant for Entry) was contrary to the U.P. Consolidation of Holdings Rules, 1954. Under Rule 109, the execution of an order must be carried out by the Assistant Consolidation Officer (A.C.O.) himself after due inspection and coming to the Tehsil. In the present case, no such procedure was followed, rendering the entry legally unsustainable and void ab initio.

He submitted that the disputed property, specifically Gata (plot) nos. 1092, 2449, 2254, 1250, 1251, and 1258, belongs to the Gram Sabha/Gram Samaj. These plots include areas recorded as "Banjar", "Pond/Talab", and a "Pathway". Under the law, no individual-including the petitioner or their father, Yadunath-can have legal possession or accrue any rights over such public utility land.

He submitted that the petitioner has attempted to deceive this Hon'ble Court by submitting a tampered photocopy of the execution order. It is submitted that the photocopy was prepared by taking the original document and pasting paper over a scribbled note on the lower right portion to hide adverse remarks. This constitutes direct evidence of forgery and a deliberate attempt to mislead the judicial process.

His submission is that based on complaints filed by a villager (Jaganmani) and the Gram Pradhan, a thorough inquiry was conducted. Legal opinion was obtained from the District Government Counsel (Civil) and the Sub-Divisional Officer (SDO), Colonelganj, passed the cancellation order on 24.05.1997. This order was issued only after due examination of evidence and recorded statements, ensuring the integrity of the revenue records.

He submitted that the petitioner's claim regarding the lack of notice is misleading. The petitioner had full knowledge of the investigation and submitted multiple objection letters and applications (dated 05.05.1997 to 24.05.1997) during the process. Furthermore, as per settled law (Ref: A.W.C. [1992] Revenue Pg 58 and Chandra Dutt vs. State), a fraudulent entry can be cancelled suo motu by the competent authority without the necessity of a formal hearing for the party benefiting from the fraud.

It is further submitted that the provisions of Section 33/39 of the Land Revenue Act, 1901, as cited by the petitioner, are inapplicable here. Those provisions relate only to the correction of minor errors or omissions in annual registers, whereas the present case involves a deep-rooted fraud and forgery affecting the title of Gram Sabha land. Therefore, his submission is that the impugned order does not suffer from any infirmity or illegality and is just and valid.

In rebuttal, learned Senior Counsel for the petitioner submitted that the respondent's challenge to the petitioner's title is barred by the principle of finality of judicial proceedings. The land in question was recorded in the name of the petitioner's father, Yadunath, pursuant to a valid order dated 28.03.1967 passed by the Consolidation Officer in Case No. 2873/218/173 under Section 9-A (2) of the U.P. Consolidation of Holdings Act. This order was duly given effect in the revenue records under Rule 109-A of the Act. The respondent's attempt to characterize this as a "suit" is factually incorrect as it was a registered case that has attained finality.

He further submitted that the order dated 04.05.1997, which cancelled the long-standing revenue entries in the name of the petitioner's mother, Smt. Mayawati, is legally unsustainable as the entry was cancelled without affording the recorded tenure holder an opportunity of hearing or to lead evidence.

He next submitted that the Sub-Divisional Officer (SDO) passed a "cryptic order" by merely writing "Approved" on an ex-parte report submitted by the Tehsildar. Such a summary cancellation of a long-standing entry, based on a "legal opinion" from a District Government Counsel (Civil) rather than the DGC (Revenue), is without jurisdiction and contrary to the law laid down by this Hon'ble Court.

He further submitted that the respondents' claim that the entries were "forged and fictitious" is a bald allegation unsupported by record. He submitted that the original records (Case No. 2873/218/173) were weeded out after the requisite period, as evidenced by the question-answer submitted as Annexure SA-1. The petitioner has produced secondary evidence, including entries in Qaida 24, Volume No. 5, Page 174, Sl. No. 38 (Annexure S-3), which confirms the existence of the 1967 order.

He submitted that the respondents are estopped from claiming the land as "Gram Sabha" land due to previous failed litigations as a Civil Suit filed by the Gaon Sabha (Opposite Party No. 3) regarding this dispute was dismissed. The Gaon Sabha's application for stay (dated 13.05.1997) was rejected and the subsequent appeal was also dismissed by the Special Judge, Gonda on 29.11.1997. The respondents cannot now seek to achieve through a summary administrative order what they failed to achieve through a competent Civil Court.

He lastly submitted that the petitioner's title stems from a valid, decades-old consolidation order. The subsequent administrative action in 1997 to cancel these entries is a "misconceived" exercise of power, conducted in gross violation of the principles of natural justice and in defiance of the dismissal of the Gaon Sabha's own civil suit.

I have considered the submissions advanced by learned counsel for the parties and perused the material on record as well as judgment relied upon by learned Senior Counsel for the petitioner.

To resolve the controversy involved in the matter, relevant portion of the judgment relied upon by learned Senior Counsel for the petitioner is being quoted below:

"21. The order impugned has been passed without providing opportunity of hearing to the petitioner by the respondent No.1 and without issuing show cause notice to him. Respondent No.1 cannot expunge name of the petitioner from khatauni without registering a case for correction of records under Sections 33 & 39 of Land Revenue Act.

Hon'ble Supreme Court has followed the doctrine of principles of natural justice in the case reported in paragraph 19 of the judgment. The fact remains that without giving opportunity of hearing the order has been passed, therefore, there is clear violation of principles of natural justice, therefore, the orders impugned are liable to be set aside."

From perusal of the record, it transpires that the name of the petitioner's father, late Yadunath, had been recorded over the land in dispute pursuant to the order dated 28.03.1967 passed by the Consolidation Officer during consolidation proceedings and, after his death, the petitioner, being his daughter and sole legal heir, came to be recorded in the revenue records. The Khatauni of Fasli years 1402 to 1407 also reflects the petitioner's name as bhumidhar over the plots in question. The said entries admittedly continued for a considerable period and formed the basis of the petitioner's claim and possession over the land in dispute.

It further emerges from the record that the Gaon Sabha had already instituted Regular Suit No.421 of 1997 in respect of the same dispute before the competent civil court and the application for temporary injunction moved therein had been rejected on 13.05.1997. Thus, the dispute relating to the nature of the land and entitlement of the parties was already engaging consideration before a competent forum. During pendency of the said proceedings, the impugned order dated 24.05.1997 came to be passed by the Sub-Divisional Officer directing expunction of the petitioner's name from the revenue records and recording the land in the name of the Gaon Sabha.

The foremost issue which arises for consideration before this Court is as to whether the Sub-Divisional Officer could have directed deletion of the petitioner's name from the revenue records without initiating any regular proceedings under the relevant provisions of law and without affording any opportunity of hearing to the petitioner.

The record does not disclose that any regular proceedings for correction of revenue entries were ever instituted against the petitioner. Neither any case number was assigned nor any notice was issued requiring the petitioner to show cause against the proposed deletion of her name. The impugned order appears to have been passed merely on the basis of an ex-parte report submitted by the Tehsildar on the same date i.e. 24.05.1997 and the Sub-Divisional Officer mechanically approved the same without recording any independent satisfaction or reasons. Such exercise of power, which has drastic civil consequences affecting valuable rights recorded in favour of the petitioner for decades, could not have been undertaken in such a summary and clandestine manner.

It is well settled that any order adversely affecting civil rights of a person must conform to the principles of natural justice. Even in cases where allegations of irregularity or fraud are levelled, the person whose rights are sought to be affected is entitled to notice and opportunity of hearing before any adverse action is taken. The doctrine of audi alteram partem is ingrained in our constitutional and administrative jurisprudence and cannot be dispensed with in a casual manner.

In the present case, the respondents have failed to place any material before this Court demonstrating issuance of notice to the petitioner or affording her opportunity to participate in the alleged enquiry conducted by the Tehsildar. Mere assertion that the petitioner had knowledge of the proceedings or had submitted certain applications would not satisfy the mandatory requirement of a lawful hearing contemplated under law. The impugned order, therefore, stands vitiated on account of gross violation of principles of natural justice.

This Court finds that the controversy involved in the present matter is squarely covered by the judgment relied upon by learned Senior Counsel for the petitioner in the case of Gopal Das Jain Vs. Board of Revenue (Supra), wherein this Court categorically held that the revenue authorities cannot expunge the name of a recorded tenure holder from the revenue records without registering appropriate proceedings under Sections 33 and 39 of the Land Revenue Act and without providing opportunity of hearing to the affected person. The relevant observations extracted hereinabove clearly support the case of the petitioner. The ratio laid down therein fully applies to the facts of the present case, inasmuch as the petitioner's name has been deleted from the revenue records behind her back without any regular proceedings and without affording any opportunity of hearing.

The submission advanced on behalf of the respondents that the entries were obtained fraudulently and, therefore, could be cancelled suo motu without hearing the petitioner, does not impress this Court. Allegations of fraud are serious in nature and require adjudication on the basis of cogent evidence in proceedings conducted in accordance with law. Fraud cannot be presumed merely on the basis of administrative suspicion or absence of old records from the record room, particularly when the petitioner has produced supporting revenue entries and secondary evidence indicating existence of the consolidation order.

Moreover, the respondents themselves admit that the entries in favour of the petitioner's predecessor had continued in the revenue records for a long duration. Such long-standing entries affecting substantive rights could not have been annulled summarily by an executive fiat. If the respondents were of the opinion that the entries had been procured fraudulently or that the land belonged to the Gaon Sabha, the proper course available to them was to initiate appropriate proceedings before the competent forum in accordance with law and establish their claim by leading evidence.

The contention of learned Additional CSC that the land in dispute is recorded as pond, banjar or pathway and, therefore, no rights could accrue in favour of the petitioner also involves disputed questions relating to title and nature of land, which could not have been conclusively determined by the Sub-Divisional Officer in summary proceedings conducted without notice. Such issues necessarily require adjudication before the competent authority/forum after giving due opportunity to all concerned parties.

Equally untenable is the submission that the provisions relating to correction of revenue records were inapplicable in the present matter. Once the petitioner's name stood recorded in the revenue records and the same was sought to be deleted, the authority was bound to proceed strictly in accordance with the prescribed statutory procedure. The respondents could not bypass the requirement of lawful proceedings by merely branding the entry as fraudulent.

This Court also cannot lose sight of the fact that the impugned order came to be passed during pendency of litigation initiated by the Gaon Sabha itself regarding the same property. The sequence of events, namely rejection of the injunction application on 13.05.1997 followed by the Tehsildar's report and the impugned order dated 24.05.1997, lends credence to the petitioner's contention that the impugned action was undertaken to circumvent due process of law and to achieve indirectly what could not be obtained before the competent court.

The judgments relied upon by learned counsel for the respondents relating to cancellation of fraudulent entries without hearing are clearly distinguishable on facts. In the present case, the entry in favour of the petitioner traces its origin to consolidation proceedings and remained in existence for decades. No categorical adjudication of fraud has ever been made by any competent court or authority after affording opportunity to the petitioner. Thus, the respondents cannot derive any benefit from the said judgments in absence of a duly established finding of fraud recorded in proceedings conducted in accordance with law.

This Court is of the considered opinion that the impugned order dated 24.05.1997 passed by the Sub-Divisional Officer, Colonelganj, District Gonda suffers from manifest illegality, arbitrariness and violation of principles of natural justice. The same has been passed without jurisdiction, without instituting any regular proceedings, without issuance of notice and without affording opportunity of hearing to the petitioner. The order further reflects complete non-application of mind, having been passed merely on the basis of an ex-parte report submitted by the Tehsildar.

Accordingly, the writ petition deserves to be allowed and is hereby allowed.

The impugned order dated 24.05.1997 passed by respondent No.1 - Sub-Divisional Officer, Colonelganj, District Gonda, contained as Annexure-5 to the writ petition, is hereby quashed.

It is, however, made clear that this Court has not adjudicated upon the inter se title of the parties over the land in dispute and it shall remain open to the respondents/Gaon Sabha to avail such remedy as may be available to them under law before the competent forum. In the event any proceedings are initiated, the same shall be decided strictly in accordance with law after affording full opportunity of hearing to all concerned parties, without being influenced by any observation made hereinabove.

There shall be no order as to costs.