Vinod Kumar vs Board of Revenue

Anjani Kumar Mishra, J.—Heard Shri R.C. Singh for the petitioner and Shri Vijay Kumar Pandey for the contesting respondent No. 4.

The writ petition arises out of proceedings under Section 41 of the U.P. Land Revenue Act for demarcation and is directed against the orders passed by the respondents 1, 2 and 3 respectively.

The facts of the case briefly stated are that the application under Section 41 of the Act was filed by the respondent No. 4 stating therein that he was owner of plot No. 136 area 1 bigha 6 biswa 19 dhur situated in Village Patwan Mutfarkha, Pargana Mah, Tehsil Handia, District Allahabad. It was alleged that it required demarcation as it had been encroached upon by the owners of the adjoining plots.

It appears that prior in time, the petitioner had filed an application under Section 28 of the Act for correction of the map as the area of his plot No. 135 as shown in the map was less than its settlement area.

The map was ordered to be corrected and it is submitted that this order has attained finality not having been challenged by anybody.

In the proceedings for demarcation, under Section 41, at the instance of the contesting respondent, it appears that a report was submitted on 20.07.1989, indicating that some area of plot No. 136 had been included in plot Nos. 140, 143, 144 and 145. It was additionally reported that some area of plot No. 136 was also included in plot No. 135.

On the basis of the aforesaid report, the Sub Divisional Officer, vide order dated 13.02.1996 stayed the proceedings for demarcation, till such time, the map was rectified.

Against this order, the respondent No. 4 filed a recall application.

The recall application was allowed on 02.11.1996 and the report dated 20.07.1989 was confirmed on the ground that there was no proof that the map pertaining to plot No. 135, belonging to the petitioner, had been corrected in proceedings under Section 28 of the Act.

Aggrieved, the petitioner filed an appeal, which was allowed. The order passed by the Sub Divisional Officer on 02.11.1996 was set aside and directions were issued that the proceedings be drawn afresh in accordance with the map, as amended at the instance of the petitioner, in proceedings under Section 28 of the Act.

It appears that thereafter, a fresh report was submitted on 01.07.2005.

The Sub Divisional Officer, however, by his order dated 10.09.2008 rejected the report and directed for a fresh survey, by a duly constituted revenue team.

It is submitted that in pursuance of the order of the Sub Divisional Officer, a fresh report was submitted on 29.10.2009.

Instead of the matter being decided on the basis of the report dated 29.10.2009, which had been prepared relying upon the amended map on plot No. 135, the matter remained pending.

Subsequently, the respondent preferred a writ petition before this Court, which was disposed of on 07.04.2010. The relevant portion of this order is quoted herein below:-

"It appears that Tehsildar is not carrying out the directions given by the Sub Divisional Officer/Magistrate, Tehsil Hadia, District Allahabad in Case No.106/246/117/2006-07-08 : Manika Prasad v. Paras Nath.

The grievance of the petitioner is that he is running from pillar to post but either Tehsildar or Deputy Tehsildar for one reason or the other are postponing the matter.

This is an old matter relating to demarcation. The Tehsildar, Hadia is hereby commanded to see that the aforesaid order dated 10th of September, 2008 is complied with at any cost within a period of one month and he should file a compliance report within the aforesaid period failing which he is required to appear in person in Court on the date fixed.

........."

It appears that taking shelter of the aforesaid direction, a fresh report was submitted on 29.04.2010 and relying upon this report, the Sub Divisional Magistrate decided the case by his order dated 30.12.2010.

Aggrieved by the order, the petitioner preferred an appeal, which was dismissed on 05.09.2012 and the consequential revision has been dismissed by the Board of Revenue on 23.11.2012. Hence this writ petition challenging the orders dated 30.12.2010, 05.09.2012 and 23.11.2012.

The contention of learned counsel for the petitioner is that the report dated 29.04.2010, which is the basis of the impugned orders, was prepared on the basis of the unamended map. The map as amended at the instance of the petitioner in proceedings under Section 28 of the U.P. Land Revenue Act, was not the basis of this report. This and various other objections raised against the report dated 29.04.2010 have not been considered by the Courts below.

It is next submitted that the report dated 29.10.2009, which was available on record and had been prepared on the basis of the amended map of the plot No. 135, has not been adverted to. Once this report was available on record, there was no justification for calling for another report.

In any case, the report dated 29.10.2009 was necessarily required to be considered before deciding the matter and in failing to do so, the Courts below have ignored relevant material, available on record. The impugned orders therefore, are clearly vitiated.

Learned counsel for the respondent has tried to justify the impugned orders. He submits that the report dated 29.04.2010, which is the basis of the impugned orders was a report submitted by a high powered revenue team. This report has been accepted by all the three Courts below and, therefore, the impugned orders call for no interference.

I have considered the submissions made by learned counsel for the parties and have perused the record.

It is not in issue that proceedings under Section 41 of the U.P. Land Revenue Act are decided on the basis of the survey reports submitted by the subordinate revenue staff. It is also not disputed that consequent to the remand by the appellate Court, a report submitted on 01.07.2005 was rejected and a fresh survey report by a revenue team was called for by the Sub Divisional Officer. This report was duly submitted on 29.10.2009 and it is alleged to be in favour of the petitioner.

Under the garb of the order passed by the writ Court, which did not provide that a fresh survey be submitted by the revenue team, a fresh report was submitted and has been made the basis of the impugned orders. This report was against the petitioner.

Under the facts and circumstances of the case, this Court is of the considered opinion that there was no justification for furnishing the fresh report dated 29.04.2010.

The objection filed to this report, among other things, stated that it did not contain any field book. It is also contended that this report was prepared without taking into consideration the amended map as regards plot No. 135 belonging to the petitioner. These specific objections have not been dealt with in the impugned orders.

Besides, this Court also finds that the report dated 29.10.2009, which was already available on the record of the proceedings when the writ petition No. 18740 of 2010 was filed by the respondent, has not been dealt with, in any of the orders. This document, being available on the record of the proceedings and the same having been prepared in pursuance of the directions contained in the order of the Sub Divisional Officer dated 10.09.2007, there was no justification for any additional report being brought on record, till such time this report had been rejected.

The writ Court did not issue any directions for submitting a fresh report, as has been done by the authorities. The directions of the writ Court were confined to compliance of the order dated 10.09.2008 of the Sub Divisional Officer and it appears that this order had been duly complied with prior to the order being passed by the writ Court. The direction was, therefore, a redundant direction.

This report, dated 29.10.2009, as already observed, is stated to be in favour of the petitioner. Since this report has not been adverted to by any of the authorities below, the impugned orders, in my considered opinion, cannot be sustained and are liable to be set aside.

It is also observed that the subsequent report dated 29.04.2010, which is the basis of the impugned orders, was not required to be filed and the same appears to have been filed malafide. This report could not have been made the basis of the impugned orders.

Since the orders passed by the three authorities below are liable to be, set aside, they are hereby set aside and the matter is remanded back to the Sub Divisional Officer to decide the proceedings on the basis of the report dated 29.10.2009, which was filed on record in pursuance of his order dated 10.09.2008.

In case this report is not accepted, for cogent reasons, the Sub Divisional Officer shall call for a fresh survey report by a joint revenue team, which shall conduct such survey on the basis of the map on plot No. 135 as amended vide order dated 19.05.1990. The matter shall thereafter be decided by the Sub Divisional Officer after hearing all concerned.

Accordingly and subject to the directions/observations made herein above, this writ petition is allowed. The impugned orders dated 30.12.2010, 05.09.2012 and 23.11.2012 passed by the respondents are set aside and the matter is remanded to the Sub Divisional Officer, respondent No. 3, to proceed in accordance with the directions contained in the body of the judgment.