M/s. Vidya Erectors and Engineers Pvt. Ltd. vs State of U.P. and Others

Sibghat Ullah Khan, J.—Heard Shri N.K. Seth, learned counsel for the petitioner and Shri M.A. Khan, learned senior counsel assisted by Shri Pankaj Gupta and Shri J.N. Pandey, learned counsel for contesting respondents. This writ petition arises out of proceedings u/s 28 of U.P. Land Revenue Act for correction of map. Proceedings started on the application of O.P. No. 5, Ariz Abbas, dated 14.01.2013, copy of which is Annexure No. 6 to the writ petition. It was filed by Ariz Abbas as M.D. Dragon Edge Realtors Pvt. Ltd. The company Dragon Edge is O.P. No. 6 in the writ petition. It was mentioned in the application that applicant was Bhumibhar in possession of plot No. 35, area 0.036 hectare and plot No. 38 area 0.420 hectare situate in Village Sarai Sheikh, Pargana, Tehsil and Distt. Lucknow. Thereafter, in para 2, it was stated that the area of the said plots as shown in khatauni, was more than in the map. Prayer for correction of map was made in the application. In para. 4 of the application numbers of the plots on the four sides of plot No. 38 were mentioned as plot No. 48 R.K. Agarwal and Vijay Sinha, plot Nos. 40 and 41, plot No. 49 and plot No. 39.

In Annexure 6, the application on which proceedings started, opposite parties were shown as Smt. Vandana Pandey, Vijay Sinha and R.K. Agarwal.

Petitioner is a company. Writ petition has been filed through its Director Arun Gupta.

Addl. Collector (Admn.) Lucknow where the matter had been registered as case No. 17 of 2012-2013, Ariz Abbas Smt. Vandana Pandey decided the case on 21.9.2013.

In the order dated 21.9.2013, it is mentioned that the plot was got inspected by Tehsildar Sadar, Lucknow who submitted its report dated 04.4.2013. From the perusal of order dated 21.9.2013, it is clear that after submission of report of tehsildar notice was issued to the opposite parties. Thereafter, it is mentioned that O.P. Nos. 2 and 3, i.e., Vijay Sinha and R.K. Agarwal filed objection. Thereafter, it is mentioned that consolidator was also called in court to measure the map in accordance with the area mentioned in the records. It is also mentioned that Additional Collector himself inspected the spot and prepared note/plan. It is further mentioned that consolidator submitted report according to which plot No. 47 was having excess area of 0.155 hectares and plot No. 48 contained an excess area of 0.067 and by adding these two areas (0.222 hectare) the deficiency in the area of plot No. 38, was located. Thereafter, requisite correction in the map by giving specific directions was directed to be made by the said order. Against the said order revision was filed in the form of L.R. Revision No. 539 of 2012-13, Vidya Erectors and Engineering v. Ariz Abbas and others. Additional Commissioner Lucknow Division, Lucknow dismissed the revision on 08.11.2013. Copy of the said order is annexure No. 21 to the writ petition and through this writ petition both the orders have been challenged.

Against order of vacation of interim order passed in the revision writ petition had been filed in this Court which was disposed of on 07.11.2013, restoring the stay order and directing that absolutely no application by anyone should be entertained in the revision.

Shri. N.K. Seth, learned counsel argued that through judgment dated 07.11.2013 it was directed that no party should file any application in the revision, however, before the revisional court the contesting respondents filed some documents. Learned counsel for the respondents has argued that along with certified copy of judgment dated 07.11.2013 only copy of joint venture (consortium) agreement had been filed.

Learned counsel for the petitioner further argued that the reports submitted by tehsildar, consolidator and inspection report of the Trial Court (Addl. Collector) were not correct and also contained some contradictions.

It was also argued that petitioner being a company should have been impleaded in the application as such. It was also argued that in respect of certain plots certificate u/s 143 of U.P.Z.A. & L.R. Act had been granted. In the revenue record pertaining to the plots of the petitioner, the tenure holder has been described as Vidya Erectors through R.K. Agarwal. In any case, by virtue of the Supreme Court authority reported in United Bank of India Vs. Naresh Kumar and others, , some technical error in description of party or signature on pleadings in case of companies or corporations cannot frustrate the main cause.

In my opinion before making inspection it was utmost essential to give advance notice to all the parties concerned. In proceedings under sections 28 and 41 of U.P. Land Revenue Act it is also essential that notice must be given to all the adjoining plot holders.

It was also argued by learned counsel for the petitioner that in any case no order for possession could be granted as firstly it was beyond the scope of section 28 and secondly in the application O.P. No. 6 had himself stated that he was in possession.

Learned counsel for the contesting respondents argued that the impugned orders were perfectly legal and based on correct reports which were and fully justified on the basis of the areas of different plots mentioned in the khatauni. It was also argued that firstly due notice was given and secondly it is duty of the Collector to maintain correct records, including map hence, it was not necessary to hear anyone. With the last argument I do not agree in the least. It is duty of every court or authority to decide the matter which is brought before it, however, this does not dispense with the necessity to hear the party which is likely to be affected by the order.

In my opinion, the matter requires rehearing for the following three reasons:--

(i) All tenure-holders of the adjoining plots which could be affected were not duly heard.

(ii) Inspection was not done in the presence of and after due notice to all the parties concerned.

(iii) No opportunity was provided to file objections against the inspection reports or inspection note of the Presiding Officer.

Accordingly both the impugned orders are set aside. The trial court is directed to decide the matter afresh. On the expense of applicant O.P. No. 5 Ariz Abbas a notice in such daily Hindi Newspaper which has got wide circulation in the area shall be published indicating therein that application for correction of map pertaining to plot Nos. 35 and 38 has been filed, hence, all the tenure holders of the adjoining plots may file objections or participate in the proceedings. Both sets of parties in this writ petition are directed to appear before the trial court on 23.01.2014. Advertisement must be issued in the newspapers at least one week before 23.01.2014 and it must be indicated therein that the matter would be taken up on 23.01.2014. On 23.01.2014 a date for survey shall be fixed which shall be at least one week thereafter. Survey should be done either by one revenue officer or by team of revenue officers. Parties may also take help of expert surveyors on the date of survey. The application may be treated to be u/s 28 as well as 41 of U.P. L.R. Act. Copy of complete survey report with map shall be provided to all the parties and they shall be granted time to file objections. Thereafter matter shall be decided. The argument relating to grant of certificate u/s 143 of U.P. Z.A. & L.R. Act may also be considered.

Learned counsel for both the parties cited lot of authorities, however, in view of above order I do not consider it necessary to discuss the authorities cited by the parties. Writ petition is accordingly disposed of.