Nem Singh and Another. vs Addl. Commissioner and Others.

Hon''ble Sibghat Ullah Khan, J.—Heard learned counsel for the petitioners and learned standing counsel for respondent nos. 1 to 4. Respondent no.5 - Dheeraj Singh complainant has not appeared in spite of sufficient service. No counter affidavit has been filed.

This writ petition is directed against the orders dated 10.6.1999, 3.5.2001 and 27.1.2004 copies of which are contained in Annexures 5,8 and 7 respectively to the writ petition.

Petitioners claim that Gaon Sabha/Land Management Committee, Bhatoh through its resolution dated 10.8.1985 sold the land (area 1.20 acres of plot no.271) to them. It is further alleged that after taking the approval of the Sub Divisional Officer lease deed was executed by Ashok Kumar Pradhan on 31.8.1985, copy of which is Annexure-1 to the writ petition (para-3 of the writ petition). In para-4 of the writ petition it is mentioned that petitioners'' name were mutated in khatauni 1393-1398 fasli. Sub Divisional Officer, Karhal through order dated 16.7.1993 expunged the name of the petitioners from the revenue records on the ground that no allotment had been made in their favour. The said order was passed in proceedings u/s 33/39 of U.P. Land Revenue Act. According to the petitioners the order was passed without issuing notice to them. Against the said order petitioners filed revision which was dismissed by the Commissioner. Thereafter, petitioners filed application for recall of order dated 16.7.1993 before the S.D.O. and the S.D.O. through order dated 22.6.1994 recalled his earlier order dated 16.7.1993. In the said order it was stated that as consolidation had started hence proceedings stood abated u/s 5 of Uttar Pradesh Consolidation of Holdings Act, 1953. The cancellation proceedings had been initiated on the application of respondent no.5. Thereafter respondent no.5 filed objection before Consolidation Officer which were rejected on 20.7.1995 through Annexure-3 (para-5 of the writ petition). Order dated 20.7.1995 passed by Consolidation Officer, Karhal is only of two and half lines to the effect that "applicant Dheeraj Singh was absent hence time barred objection was rejected."

Thereafter, respondent no.5 filed regular application under U.P.Z.A.&L.R. Act for cancellation of patta. The Collector, Mainpuri through first impugned order dated 10.6.1999 held that on the basis of some non-existent order of Naib Tehsildar, Karhal, name of the petitioners had been entered in the khatauni of 1393-1398 fasli hence name of the petitioners deserved to be scored off from the revenue records (in consolidation in lieu of the allotted land petitioners had been allotted plot no.285 area 0.246 and plot no.272 area 0.233). Ultimately the Collector while exercising the power of District D.D.C. u/s 48(3) of U.P. Consolidation of Land Holdings Act, through the order dated 10.06.1999, directed Settlement Officer of Consolidation to prepare the reference and send the same to it (Collector) through Consolidation Officer and S.O.C. and parties must be directed to appear. The reference was accepted on 3.5.2001 (second impugned order) by Collector/District D.D.C., Mainpuri in case no.83 of 1998-99. Meanwhile, petitioners had filed revision against order of Collector dated 10.6.1999 which was dismissed on 27.1.2004 by Additional Commissioner (Administration), Agra division, Agra (third impugned order) on the ground that the Collector had passed final order on 3.5.2001.

It has been stated in the writ petition and argued by the learned counsel for the petitioner that before passing order dated 3.5.2001 petitioners were not heard. However, it is admitted to the petitioners that before passing the order dated 10.6.1999 petitioners were heard (para-8 of the writ petition). In the khatauni 1393 to 1398 fasli, copy of which is Annexure-2 to the writ petition it is mentioned that in view of order of Naib Tehsildar dated 27.9.1990 name of the petitioners were being entered in the revenue record over the land which was earlier banjar. In the order dated 10.6.1999 it is repeatedly mentioned that Naib Tehsildar had not passed any order on 27.9.1990 however, in the writ petition it has not been stated anywhere that such order was passed by Naib Tehsildar. Copy of the order has also not been annexed. Date of approval by S.D.O. has also not been given. No document except typed copy of Aakar Patra-58 under Rule 176 was filed. It is mentioned in the order dated 10.6.1999 that no file regarding allotment was available.

When order of S.D.O. dated 16.7.1993 had been confirmed in revision on 7.2.1994, S.D.O. could not recall his order on 22.6.1994. C.O. did not decide anything. It only said that objection filed by respondent no.5 was rejected in default. As there is absolutely no evidence of any allotment or any order of mutation and as there is absolutely no explanation as to why for five years mutation of name of petitioner did not take place hence this writ petition is liable to be dismissed. It is evident that petitioners played fraud for usurping the gaon sabha property. In view of this writ petition can not be allowed on ultra technical ground.

Even in this writ petition petitioners have not been able to show that any valid allotment has been made in their favour or any mutation order was passed in their favour. Accordingly, writ petition is dismissed. Petitioners are directed to be evicted positively within three months and for the last 24 years for which they have remained in possession they must be liable to pay damages at the rate of Rs.3,000/-per year i.e. Rs.63,000/-which may be recovered like arrears of land revenue.

Office is directed to supply a copy of this order free of cost to Shri S.P.Misra, learned standing counsel for immediate communication to the Collector and the S.D.O. concerned.