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Judgment
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 cotenure 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 and 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.
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 u/s 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 exparte 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 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 u/s 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 u/s 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 u/s 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 proceeding under Sections 33 and 39 of the U.P. Land Revenue Act.
Further submission has been made that judgments 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 judgment 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 judgments which are quoted below:
State of West Bengal Vs. Hemant Kumar Bhattacharjee and Others,
1969 RD 344 FB Raghunath and Ors. v. Ram Khelawan and Ors.
Rafique Bibi (D) by Lrs. Vs. Sayed Waliuddin (D) by Lrs. and Others,
Hiralal Moolchand Doshi Vs. Barot Raman Lal Ranchhoddas (Dead) by L.Rs.,
Dhanvanthkumariba and Others Vs. State of Gujarat, are being quoted below:
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 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:
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 agreement 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 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.
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.
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 u/s 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 u/s 6 of the Act. In the said judgment, it is stated thus:
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.
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.
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 u/s 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 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 u/s 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 that the Plaintiff did not challenge the order dated 27.11.1958 passed u/s 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 u/s 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 u/s 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.
Ajmer Kaur Vs. State of Punjab and Others, is being quoted below:
Permitting an application u/s 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 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 allotted will not be able to utilize 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.
Ramakant Dattatraya Deshpande Vs. Dadu Bhagoji Patil (D) through Lrs. and Others, is being quoted below:
We have also mentioned above that the landlord had instituted proceedings u/s 88C of the Act seeking certificate of exemption of the lands from operation of the provisions contained in Section 32 to 32R 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 u/s 88C of the Act, a certificate was issued in favour of the landlord. The proceedings declaring the lands to have been granted for sugarcane cultivation u/s 43A and the certificate granted u/s 88C of the Act clearly took out the lands in question from the purview of provisions of Section 32 to 32R of the Act. The above orders in favour of the landlord u/s 43A and 88C 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 u/s 43A and Section 88C have become final and conclusive between the parties the authorities under the Act rightly held that proceedings u/s 32G, to enable the tenant to purchase the land as ''deemed purchaser'' u/s 32, were liable to be dropped. It has also come on record 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 u/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.
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 u/s 29, declaration u/s 43A and exemption certificate u/s 88C 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 u/s 32G of the Act.
1972 RD 94 Smt. Kailaso v. Board of Revenue and Ors.
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 judgments:
1997 (15) LCD 273, M/s Mahalakshmi Land and Finance Co. (Private) Ltd. v. Board of Revenue, U.P. Lucknow and Ors. Para 18 is relevant which is being quoted below:
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 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.
Raghunath Thakur Vs. State of Bihar and Others, of the said judgment is being quoted below:
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 there for. We 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 Ors. v. Collector District Deputy Director of Consolidation, Baghpat and Ors. 12. Paras 14 and 16 of the said judgment are being quoted below:
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 Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another,
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 Aligarh Muslim University and Others Vs. Mansoor Ali Khan, 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 Anr. v. Additional Commissioner (Judicial), Allahabad Division, Allahabad and Ors. Para 29, 33 and 35 of the said judgment are being quoted below:
In this regard, reference may be made to the decisions relied upon by Sri M.N. Singh, learned Counsel for the Petitioners.
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.
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 v. State of Haryana and Ors. Para 5, 7 and 9 of the said judgment are being quoted below:
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 virus of the act were in question.
Such being the position and in view 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 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.
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 judgments. The same are being quoted below:
1997 (15) LCD 273 M/s Mahalakshmi Land and Finance Co.(Private) Ltd. v. Board of Revenue, U.P., Lucknow and Ors. (See para 8 and 23)
2003 (50) ALR 730, Reevan Singh v. State of U.P. and Anr. (See para 15)
2001 (19) LCD 168 , Subodh Kumar Trivedi v. State of U.P. and Ors. (see para 38)
Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others,
2010 (28) LCD 1248, Dhirendra Kumar Rai v. State of U.P. (See paras 29, 35, 36, 39, 51)
AIR 2009 SCW 3705 Mohd. Ishaq v. S. Kazam and Anr.(See para 21)
AIR 2009 SCW 654 Mariamma Roy v. Indian Bank and Ors.( See para 3)
State of Karnataka and Another Vs. All India Manufacturers Organization and Others,
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 u/s 33 and 39 of the Land Revenue Act. Petitioners have placed reliance upon following two judgments of this Court.
2009 (6) ADJ 183 Bachchu Ram Singh and Anr. v. Additional Commissioner (Judicial) Allahabad Division Allahabad and Ors. Paras 29, 33 and 35 of the said judgment are being quoted below:
In this regard, reference may be made to the decisions relied upon by Sri M.N. Singh, learned Counsel for the Petitioners.
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.
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 Ors. v. Collector/District Deputy Director of Consolidation, Baghpat and Ors. Paras 12, 13 and 14 of the said judgment are being quoted below:
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.
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.
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 Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another,
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 u/s 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 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 u/s 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 u/s 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 u/s 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.
According to Respondents, long standing entries based on forgery can be set aside or corrected by the competent authority u/s 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 judgments the same are being quoted below:
Vikram Singh Junior High School Vs. The District Magistrate (Fin and Rev) and Others, of the said judgment is being quoted below:
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 u/s 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. u/s 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 v. State of U.P. and Ors. Para 16 of the said judgment are being quoted below:
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 Ors. v. C.R. Yadav, D.D.C.(A) Gorakhpur and Ors.
1979 RD 226 Chatar Singh v. Sahayak Sanchalak Chakbandi, U.P. Lucknow
Jaipal Vs. Board of Revenue and Others,
2000 RJ 101 Pramod Kumar and Ors. v. Sub Divisional Officer, Khaga, Fatehpur and Ors. Para 7 of the said judgment is being quoted below:
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 de-notification 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 u/s 229-B of U.P.Z.A. and L.R. Act, which was dismissed but pending in appeal.
Judgment dated 24.11.2010 passed by Hon''ble Mr. Justice S.U. Khan in Writ Petition No. 42282 of 2002 (Jal Singh and Ors. v. State of U.P. and Ors.)
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 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 u/s 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 u/s 33 and 39 of the U.P. Land 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 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 u/s 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 Respondents are restrained from interfering in possession of Petitioners.
No order as to costs.