Disposed

Vivek Prem Kumar Gupta and Another v. State of U.P. and 4 Others

Allahabad HC22 Mar 2023WRIC/5486/2021

Case brief

AI extract

What is this about?

Challenge to orders rejecting maintainability of applications under U.P. Revenue Code, 2006 regarding revenue record correction. Court directs SDM to conclude Section 38(2) proceedings expeditely via statutory appeal rather than through writ.

What did the court decide?

Petition disposed; directed SDM to conclude Section 38(2) proceedings within four months and allow parties to file statutory appeal under Section 38(4).

Vivek Prem Kumar Gupta and Another Vs State of U.P. and… — Property and Title | Allahabad HC (2023)

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Court No. - 52

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Case :- WRIT - C No. - 5486 of 2021

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Petitioner :- Vivek Prem Kumar Gupta And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Vishal Khandelwal,Usha Kiran Counsel for Respondent :- C.S.C.,Ajay Kumar Singh,Ashish Kumar Singh,Mahendra Ram Maurya

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Hon'ble Kshitij Shailendra,J.

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Heard Ms. Usha Kiran, learned counsel for the petitioners, Sri Ashish Kumar Singh, learned counsel for the respondent nos.4 & 5 as well as learned Standing Counsel for the State-respondent nos.1, 2 & 3 and perused the record.

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This writ petition has been filed challenging the order dated 22.12.2020, whereby the Sub Divisional Magistrate, Sadar, District Muzaffarnagar has rejected an application dated 11.12.2020 filed by the petitioners as not maintainable. Another order under challenge is dated 18.1.2021, whereby the Additional Commissioner (Administration), Saharanpur Division, Saharanpur has dismissed the revision filed by the petitioners against the order dated 22.12.2020 as not maintainable at the admission stage itself.

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Learned counsel for the petitioners submits that erroneously date of first order impugned has been wrongly mentioned as 22.10.2020, although the said order is not under challenge. It is the order dated 22.12.2020, which should be treated as impugned in the present petition.

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The contention of learned counsel for the petitioners is that the property in dispute was initially recorded in the name of one Smt. Meera Rani Swaroop, who was the mother of the petitioners and sister of the respondent nos.4 & 5. It is contended that Smt. Meera Rani Swaroop died on 29.4.2018, thereafter, certain sale deeds were executed by respondents in the year 2020. It is further contended that the respondent no.5 moved an application dated 6.9.2019 purported to be the application under Section 32/38 of the U.P. Revenue Code, 2006 stating that in certain khataunies relating to 1421-1426 fasli in khata no.279 & 342, an erroneous entry in the name of Meera Rani Swaroop exists, which should be corrected as "Neera Rani Swaroop". The said application was allowed on 25.9.2019 by the Sub Divisional Magistrate concerned and when the petitioners came to know about the same, a recall

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application was filed by the petitioners on 4.3.2020 along with delay condonation application, which was allowed by the Sub Divisional Magistrate concerned observing that the order dated 25.9.2019 was ex-parte, which is liable to be set aside. Accordingly, the case under Section 38(2) of the U.P. Revenue Code, 2006 was restored to its original number and status. It is contended that after such restoration, the petitioners moved an application dated 11.12.2020 stating that the original proceedings were launched against Meera Rani Swaroop, who had died and, therefore, the proceedings were not maintainable against a dead person. It was prayed that the application dated 6.9.2019 filed by the respondent no.5 may be rejected as not maintainable. Learned counsel for the petitioners submits that by the impugned order dated 22.12.2020, the application dated 11.12.2020 has been rejected as not maintainable. The revision filed against the said order has also been dismissed.

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The contention of learned counsel for the petitioners is that the proceedings launched by the respondent no.5 were not maintainable and, therefore, the application dated 11.12.2020 was entitled to be allowed. Certain dispute regarding power of attorney dated 8.2.2019 was also raised, however, the Sub Divisional Magistrate concerned in the order dated 22.12.2020 has observed that the said power of attorney was brought on record. The said power of attorney also forms part of the record as Annexure-9 to the writ petition.

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Sri Ashish Kumar Singh, learned counsel for respondent nos.4 & 5 submits that the application dated 6.9.2019 was very much maintainable as only correction was sought in the revenue records. He further submits that the property was transferred by Rati Ram and Paltu by means of registered sale deed 16.8.1965 in favour of Sanjiv Kumar Swaroop, Sangita Rani and Smt. Neera Rani Swaroop, a copy whereof has been filed as Annexure No.CA-2 to the counter affidavit filed on behalf of the respondent nos.4 & 5. He, therefore, submits that in revenue records, name of Smt. Meera Rani Swaroop was wrongly continuing in place of correct name "Smt. Neera Rani Swaroop" and, therefore, the application dated 6.9.2019 was rightly moved.

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Having heard learned counsel for the parties, I find that there are rival contentions with regard to the merits of the case on correction of entries. Whereas the submission of learned counsel for the petitioners is that long standing entries cannot be corrected in summary proceedings, the contention of learned counsel for the respondent nos.4 & 5 is that khatauni should have been prepared

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on the basis of transfer deed and if there was certain error in mentioning the name, its correction was possible in the proceedings under Section 38 of the U.P. Revenue Code, 2006.

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This writ petition has remained pending for more than two years and there is an order dated 23.7.2021, whereby the proceedings under Section 38(2) of the Code, 2006 were directed to go on with a restraint that the final order shall not be passed.

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Having heard learned counsel for the parties, this Court is of the considered opinion that once after recalling the ex-parte order dated 25.9.2019, the proceedings under Section 38(2) of the Code were restored to their original number and status, contention of learned counsel for the parties cannot be decided by moving miscellaneous applications from one pretext to other and the same will fall for consideration by passing final order under Section 38(2) of the Code, which would further be appealable under Section 38(4) of the Code by means of statutory appeal, at the instance of aggrieved party.

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In view of above, this writ petition is being disposed of with a direction to the Sub Divisional Magistrate/respondent no.3 to conclude the proceedings under Section 38(2) of the Code, expeditiously and preferably, within a period of four months from the date a certified copy of this order is produced before him, after providing reasonable opportunity of being heard to the rival parties. All the objections taken by the respective parties shall be thoroughly examined in the proceedings on the basis of material available on record by passing the reasoned and speaking order.

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Order Date :- 22.3.2023 Anil K. Sharma

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Digitally signed by :- ANIL KUMAR SHARMA High Court of Judicature at Allahabad

Vivek Prem Kumar Gupta and Another v. State of U.P. and 4 Others

Case brief

What is this about?

What did the court decide?

Vivek Prem Kumar Gupta and Another v. State of U.P. and 4 Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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