Prahlad vs The Collector and Others

Shishir Kumar, J.—This writ petition has been filed quashing the order dated 7.11.2008 passed by Sub Divisional Officer in Case No. 4 of 2008 (contained as Annexure 6 to writ petition).

The facts arising out of present writ petition are that one Ram Kishun was the Bhumidhar of the plots who transferred the possession of the plots in favour of petitioner after receiving consideration, therefore, petitioner came into actual physical cultivatory possession over the plots in question. Petitioner matured his right by virtue of Section 164 of the U.P. Zamindari Abolition & Land Reforms Act. Petitioner has submitted an application before the Collector on 14.3.2002 with a request for recording his name over the land in question. A report was called and Additional Collector after making spot inspection vide its order dated 23.3.2002 accepted the reference of petitioner and directed the Additional Collector, Chauri Chaura to record the name of petitioner over the land in dispute. Despite the aforesaid order, name of petitioner was not recorded over the land in question, therefore, petitioner filed a Writ Petition No. 55169 of 2003 (Prahlad v. Collector, Gorakhpur and Ors.) which was finally disposed of on 15.12.2003 directing the Registrar Qanungo to implement the order dated 23.3.2002. An application was moved by petitioner before the Commissioner on 7.5.2004 appending the order dated 15.12.2003 passed by this Court and the Additional Collector has directed the tehsildar concerned to comply the said order. The name of petitioner was recorded and entry was also made in the Register Malikan. A questionnaire dated 25.6.2004 regarding entry made in register Malikan has been filed as Annexure 5 to writ petition.

A submission has been made that tehsildar concerned without initiating any proceeding an ex-parte report was submitted dated 3.11.2008 and Sub- Divisional Officer without issuing any notice and without providing any opportunity to petitioner has approved the report by a non-speaking order dated 7.11.2008. Further argument has been made that before passing the said order, no opportunity has been given. There is no provision under the U.P. Zamindari Abolition and Land Reforms Act or under U.P. Land Revenue Act, which empowers tehsildar or Sub-Divisional Officer to expunge the entry of petitioner over the land in question. From perusal of order, it appears that a non-speaking order has been passed which is not permissible under the law. While passing the order, respondent No. 2 has placed reliance upon an ex-parte report dated 3.11.2008 and therefore, the order impugned suffers from manifest error of law.

Learned Counsel for petitioner has placed reliance upon a judgement of Uttaranchal High Court reported in 2006(100) RD 78 Manzoor v. State of Uttaranchal and others. Placing reliance upon aforesaid judgement, learned Counsel for petitioner submits that if an order has been passed in utter violation of the principle of natural justice or it has been passed in violation of Sub Section (5) of Section 198 of U.P. Zamindari Abolition & Land Reforms Act, that too without assigning any reason, is liable to be quashed.

As counter and rejoinder affidavits have been exchanged, therefore, this writ petition is being disposed of finally with consent of parties.

While considering the case, this Court has directed the learned Standing Counsel to file counter affidavit specifically stating therein regarding the orders passed by authorities in favour of petitioner. In the counter affidavit filed on behalf of respondents, it has specifically been stated that order dated 23.3.2002 is a non-existent order and it has never been passed by District Magistrate, Gorakhpur. In paragraph 5 of the counter affidavit, by a letter/ notice dated 27.5.2009 petitioner was informed regarding verification of the order dated 23.3.2002. Then it was found that same has not been passed by District Magistrate, therefore, petitioner was directed to appear and to explain regarding the aforesaid order. Petitioner was also asked to give details of the case number and name of parties and other details to check the genuineness of the aforesaid order. But in spite of the service upon the petitioner, he has not appeared on 29.5.2009 and has refused to sign the copy of the letter dated 3.6.2009. A specific averment has been taken that in spite of notice, petitioner has not appeared before respondent No. 2 for verification of the order dated 23.3.2002. Further it has been brought to the notice of the Court that petitioner has earlier filed a Writ Petition No. 39888 of 2008 on which a detailed order was passed by this Court requiring petitioner to file a supplementary affidavit producing the copy of order dated 23.3.2002 but petitioner in spite of filing the certified copy has got that writ petition dismissed as not pressed on 15.10.2008. Petitioner in spite of notice has not cooperated in the enquiry held by respondent No. 2 regarding the genuineness of the order and, therefore, report was submitted that order dated 23.3.2002 is a forged order and is not in-existence. Respondents have come with a case that order dated 23.3.2002 is a non-existent order. Petitioner has committed fraud upon the authorities and on that basis of forged and manufactured order, has got a direction by this Court for implementation of the said order. When it was found that no order is in existence in the record in favour of petitioner, notices were issued but petitioner has never turned up in-spite of service and in spite of direction has not produced the certified copy of the order alleged to have been passed in favour of petitioner.

Further an impleadment application has been filed on behalf of Sri Durga Prasad and others permitting them to implead as respondents in the writ petition. In the said application, it was alleged that they are allottee of the said land and an FIR has been lodged against petitioner for committing forgery. After hearing learned Counsel for parties and after perusal of record as well as the orders passed in earlier writ petition and in the present writ petition by which a direction was issued to petitioner to file copy of those orders alleged to have been passed in favour of petitioner. Further, earlier writ petition was numbered as Writ Petition No. 39888 of 2008, filed by petitioner for a direction challenging the notice dated 25.7.2008 issued by tehsildar directing petitioner to produce the certified copy of the order dated 23.3.2002 but learned Standing Counsel has raised an objection that order dated 23.3.2002 was a forged and fabricated order, therefore, petitioner was directed to produce the certified copy of the order. Petitioner instead of producing the said order, when the case was listed on 15.10.2008 got the writ petition dismissed as not pressed. Therefore, the contention of the petitioner in the present writ petition that he was not having any knowledge regarding the notice issued by tehsildar and the order impugned is not correct. In the earlier writ petition, notice issued by tehsildar to produce the order dated 23.3.2002 was challenged mentioning thereby that petitioner was not aware regarding the proceeding initiated against petitioner. Instead of filing certified copy of the order petitioner got the writ petition dismissed as not pressed and when the order impugned dated 3.11.2008 on the basis of proceeding and report submitted by competent authority, was passed, petitioner has challenged the said order in the present writ petition.

In this writ petition also petitioner has not filed the certified copy of the order dated 23.3.2002. A specific query was made by this Court to produce the said order but the petitioner has not filed the certified copy of the said order. The judgement cited by petitioner will not be applicable in the present case as from the record it is clear that petitioner was having full knowledge regarding the proceeding initiated against petitioner in view of fact that notice itself was challenged by petitioner in earlier writ petition. Competent authority has also directed petitioner to produce the certified copy of the order which was the basis of claiming right by petitioner but the same has never been filed, therefore, this Court presumes that order dated 23.3.2002 is a non-existent order manufactured by petitioner only to get the name mutated upon property of the State. Admittedly, from the record, it clearly appears that petitioner has not approached this Court with a clean hand and on the basis of forged order established by respondents, wanted to get relief from this Court. In such circumstances, this Court has no option but to dismiss the present writ petition imposing a cost, which is assessed to Rs. 5,000/-.

The writ petition is dismissed with cost. Interim order is hereby discharged.

The cost of Rs. 5,000/- imposed upon petitioner is payable to Mediation Centre within a period of three weeks from the date of receipt of certified copy of the order. If the cost is not deposited within three weeks, the District Magistrate, Gorakhpur is directed to recover the said amount from petitioner as arrears of land revenue and to deposit the said amount before the Registrar, Mediation Centre, High Court, Allahabad.

Registrar General is directed to send a copy of this order to District Magistrate, Gorakhpur, for compliance.