Ashraf Ali Vs State of U.P. and 3 Others

Court No. - 52

Case :- WRIT - C No. - 5704 of 2023

Petitioner :- Ashraf Ali Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Deena Nath,Sunita Dhusia Counsel for Respondent :- C.S.C.,Pradeep Singh

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Hon'ble Kshitij Shailendra,J.

¶5

Heard Shri D.N. Joshi, learned counsel for the petitioner, learned Standing Counsel representing the State-respondents and Shri Prem Bahadur Singh, learned counsel holding brief of Shri Pradeep Singh, learned counsel for the respondent-Gaon Sabha.

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This writ petition has been filed with the prayer to quash the order dated 05.11.2022 passed by the respondent no.2-Sub Divisional Magistrate, Tehsil and District-Bhadohi in Case No.6490 of 2022 (Computerized Case No.T-202216670506490) under Section 38(1) of the U.P. Revenue Code-2006. Further prayer is to issue direction to respondents not to dispossess the petitioner from Khata No.21, Gata No.5M area 1.250 Hectares and Gata No.6 area 0183 Hectares situated in Village/Pargana Bazar Salavat Khan, Tehsil and District Bhadohi in pursuance of the aforesaid impugned order.

¶7

Learned counsel for the petitioner submits that in identical circumstances, three writ petitions numbered as Writ C No.27905 of 2022 (Smt. Kaushilya Devi v. State of U.P. & 5 Ors.), Writ C No 3433 of 2023 (Shikha Gupta v. State of U.P. & 4 Ors.) and Writ C No.3593 of 2023 (Rajendra Gupta v. State of U.P. & 4 Ors.) have been allowed by the Co-ordinate Benches of this Court. The orders passed in the aforesaid writ petitions are quoted as under:-

¶8

" Order Dated 2.1.2023 in Writ C No.27905 of 2022

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Supplementary affidavit filed today is taken on record.

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2. Heard Mr. D. N. Joshi, Counsel for the petitioner and learned Standing Counsel for respondent Nos. 1 to 6.

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3. With the consent of the parties, the writ petiton is being disposed of finally without inviting counter affidavit.

¶12

4. The instant writ petition has been filed against the impugned order dated 20.07.2022 passed by the Up-Ziladhikari, Bhadohi in Case No.3783 of 2022, computerized Case No. T202216670503783, under Section 38(1) of U.P. Revenue Code-2006 pertaining to Khata No.152 Gata No.260 M

¶13

area 0.072 hectare situated in Mauja Rajpura Town, Taluka Chauthar, Pargana and Tehsil, Bhadohi, District-Bhadohi.

¶14

5. Brief facts of the case are that Khata No. 300 plot No. 260 situated in village - Rajpura, Pargana - Bhadohi, Tahsil-Gyanpur, District-Varanasi was recorded in the name Babu Bechan Ram, Babu Mewa lal sons of Anant Prasad and Shiv Balak Ram son of Goverdhan Das in the khatauni of 1365 fasli. After death of Shiv Balak Ram the name of Rajesh and Rajendra was mutated being legal heirs of Shiv Balak Ram. Petitioner purchased plot No. 260 area 5 biswa 13 dhoor through registered saledeed dated 27.07.2012 executed by Rajesh and Rajendra sons of Shiv Balak Ram and the name of petitioner was mutated in the place vendor Rajesh and Rajendra by order of Tehsildar dated 22.09.2012. Petitioner wants to raise construction of her house in the purchased land then objection was raised by the persons on the ground that the plot is reserved for Ramleela accordingly District Magistrate constituted five members committee to enquire the matter, the detailed enquiry was conducted and completed under the order of this Court and the enquiry report dated 07.08.2019 was submitted to the effect that plot No. 260M area 0.0720 hectare is bhumidhari of petitioner. Later on some tampering was made in the revenue record and lekhpal submitted a report dated 16.06.2022 mentioning that plot No. 260/0-12-12 was recorded as bhita in 1371 fasli and on the basis of report of lekhpal a case under Section-38(1) of U.P. Revenue Code 2006 has been registered before U.P. Zila Adhikari who vide order dated 20.07.2022 expunged the petitioner's entry and ordered to record the same as bhita land hence this writ petition.

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6. Counsel for the petitioner submitted that petitioner is recorded in the revenue record on the basis of registered sale deed executed by recorded tenure holder. He further submitted that proceeding under Section 38 of U.P. Revenue Code,2006 has been initiated in which the order for expunging the petitioner's entry has been passed and the plot in dispute was ordered to be recorded as Bhita. He further submitted that without affording proper opportunity of hearing to the petitioner, impugned order has been passed, as such the petitioner has challenged the order passed by Up Ziladhikari, by filing writ petition under Article 226 of the Constitution of India without availing the remedy of appeal as order is exparte and no opportunity of hearing has been given to the petitioner. He next submitted that a detailed enquriy has been conducted by the District Magistrate, in which it has been held that petitioner is recorded owner of the plot in dispute and there is no mention in the detailed inquiry report that plot in dispute was recorded as Bhita in the revenue record in 1371 fasli. He further submitted that without taking into consideration the detailed enqiry report conducted by the State authority, the ex-parte order for expunging the petitioner's entry has been passed.

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7. On the other hand, learned Standing Counsel submitted that petitioner has remedy to challenge the order in appeal as provided under Section 38 (4) of the U.P. Revenue Code, 2006 or petitioner can apply for recall of the order, if impugned order is ex-parte. He further submitted that land was recorded as Bhita in 1371 fasli as such petitioner is not entitled to any relief in respect to the public utility land.

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8. I have considered the arguments advanced by the counsel for the parties and perused the record.

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9. There is no dispute about the fact that the proceeding under Section 38 of U.P. Revenue Code, 2006 has been initiated in respect of the petitioner's plot, which is recorded in the name of the petitioner as Bhumidhar transferable rights in the khatauni pertaining to 1424 fasli to 1429 fasli and the name of the petitioner has been ordered to be expunged from the disputed plot under the impugned order without affording proper opportunity of hearing to the petitioner. There is also no dispute about the fact that the detailed inquiry report of the State authority dated 07.08.2019 has not been taken into consideration while passing the impugned order dated 28.07.2022.

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10. Since the petitioner was recorded as Bhumidhar with transferable right when the proceeding under Section 38 of U.P. Revenue Code, 2006 has been initiated as such, without affording opportunity of hearing to the petitioner, name of the petitioner cannot be expunged. It is also material that the inquiry report dated 07.08.2019 has also not been taken into consideration while passing impugned order, as such interest of justice requires that the impugned order dated 28.07.2022 be set aside only on the ground of opportunity of hearing and the matter be send back before the Up Ziladhikari to examine the matter afresh after considering the report dated 07.08.2019.

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11. The provision contained under Rule 36 (4) and 36(5) are relevant, which prescribe procedure for deciding the application/case under Section 38 of U.P. Revenue Code 2006, the same are as under:

¶21

"36.Correction of error or omission (Section 38)-(1) Every application for correction of any error or omission in the map, field-book (Khasra) or record-of rights (Khatauni) referred to in section 38(1) shall contain the following particulars:-

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(a) Name, parentage and address of the applicant.

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(b) The document for the correction whereof the application is being made.

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(c) Particulars of the land to which the error or omission relates.

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(d) The precise nature of the error or omission.

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(e) The application shall be accompanied by a certified copy of the map, Khasra or Khatauni to which the alleged error or omission relates.

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(2) Proceedings for correction of the map, field book or record-of-rights may be initiated even without any application under sub-rule (1), if the error or omission otherwise comes to the knowledge of the Tahsildar.

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(3) If during the preparation of new Khatauni, partal, spot verification and local visit or inquiry, the Lekhpal, Naib Tahsildar, Revenue Inspector or any other revenue officer has reasons to believe that any error or omission (including any fake or fraudulent entry but excluding the errors or omissions referred to in the explanation to section 38) has crept in the map, field book or the record of rights, he shall refer the matter to the Tahsildar who shall initiate necessary proceedings under this rule.

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(4) In proceedings for correction of errors and omission under this rule,

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the Tahsildar shall call for a report from the Revenue Inspector or the Lekhpal and after affording reasonable opportunity of hearing to the parties concerned and making summary inquiry, refer the case to the Collector in the case of map correction and to the Sub-Divisional Officer in the case of other correction along with his report within a period of thirty days from the date of registration of the application.

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(5) The Collector or the Sub-Divisional Officer, as the case may be, shall allow the parties to file objection, if any, against the report of the Tahsildar submitted under sub-rule (4), and then decide the dispute. If the Collector or the Sub-Divisional Officer, as the case may be, is of the opinion that the map, field book or record of rights contains any error or omission, he shall direct for the correction thereof."

¶32

12. Considering the facts and circumstances of the case, the writ petition is allowed. The impugned order date 20.07.2022 passed by UpZiladhikari, Bhadohi is hereby set aside and the matter is remitted back before the Up Ziladhikari to register the case under Section 38 (1) of U.P. Revenue Code, 2006 on its original number for decision afresh after affording opportunity of hearing to the petitioner expeditiously preferably within a period of three months from the date of production of certified copy of this order.

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13. No order as to costs."

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"Order dated 8.2.2023 pa ssed in Writ C No.3593 of 2023

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Heard Mr. D. N. Joshi, Counsel for the petitioner and learned Standing Counsel for respondent Nos. 1 to 6.

¶36

With the consent of the parties, the writ petiton is being disposed of finally without inviting counter affidavit.

¶37

The instant writ petition has been filed against the impugned order dated 18.07.2022 passed by the Up-Ziladhikari, Bhadohi in Case No.3874 of 2022, computerized Case No. T202216670503874, under Section 38(1) of U.P. Revenue Code-2006 pertaining to Khata No.291 Gata No.262 M area 0.548 hectare situated in Mauja Rajpura Town, Taluka Chauthar, Pargana and Tehsil, Bhadohi, District-Bhadohi.

¶38

Brief facts of the case are that Khata No. 300 plot No. 260 situated in village - Rajpura, Pargana - Bhadohi, Tahsil-Gyanpur, District-Varanasi was recorded in the name Babu Bechan Ram, Babu Mewa lal sons of Anant Prasad and Shiv Balak Ram son of Goverdhan Das in the khatauni of 1365 fasli. After the death of Shiv Balak Ram the name of Rajesh, Rajendra and Shiksha Gupta was mutated being legal heirs of Shiv Balak Ram. That as per the report of Tehsildar dated 20.6.2022 the gata no.262 area 4-15-0 khasara zild bandobast 1371 fasali in kism araji, talab is recorded which in present fasali year 1424-1429 khatauni khata no.291, gata no.262M area 0.598 hectare is recorded in the name of Rajesh son of Shiv Balak, Shiksha Devi wife of Shiv Balak, S.Gupta son of Akhilesh and Chaya Devi daughter of Akhilesh as Sankramaniya Bhumidhar. Gata no.262 as per fasali is recorded a Case No6490 of 2022 (Computerized Case No.T-202216670506490) under Section 38(1) of the U.P. Revenue Code-2006 s talab which is public utility land hence the name of aforesaid persons may be deleted and land be mutated in the name of talab.

¶39

On the other hand, learned Standing Counsel submitted that petitioner has remedy to challenge the order in appeal as provided under Section 38 (4) of the U.P. Revenue Code, 2006 or petitioner can apply for recall of the order, if impugned order is ex-parte. He further submitted that land was recorded as Talab in 1371 fasli as such petitioner is not entitled to any relief in respect to the public utility land.

¶40

I have considered the arguments advanced by the counsel for the parties and perused the record.

¶41

There is no dispute about the fact that the proceeding under Section 38 of U.P. Revenue Code, 2006 has been initiated in respect of the petitioner's plot, which is recorded in the name of the petitioner as Bhumidhar transferable rights in the khatauni pertaining to 1424 fasli to 1429 fasli and the name of the petitioner has been ordered to be expunged from the disputed plot under the impugned order without affording proper opportunity of hearing to the petitioner.

¶42

The provision contained under Rule 36 (4) and 36(5) are relevant, which prescribe procedure for deciding the application/case under Section 38 of U.P. Revenue Code 2006, the same are as under:

¶43

"36.Correction of error or omission (Section 38)-(1) Every application for correction of any error or omission in the map, field-book (Khasra) or record-of rights (Khatauni) referred to in section 38(1) shall contain the following particulars:-

¶44

(a) Name, parentage and address of the applicant.

¶45

(b) The document for the correction whereof the application is being made.

¶46

(c) Particulars of the land to which the error or omission relates.

¶47

(d) The precise nature of the error or omission.

¶48

(e) The application shall be accompanied by a certified copy of the map, Khasra or Khatauni to which the alleged error or omission relates.

¶49

(2) Proceedings for correction of the map, field book or record-of-rights may be initiated even without any application under sub-rule (1), if the error or omission otherwise comes to the knowledge of the Tahsildar.

¶50

(3) If during the preparation of new Khatauni, partal, spot verification and local visit or inquiry, the Lekhpal, Naib Tahsildar, Revenue Inspector or any other revenue officer has reasons to believe that any error or omission (including any fake or fraudulent entry but excluding the errors or omissions referred to in the explanation to section 38) has crept in the map, field book or the record of rights, he shall refer the matter to the Tahsildar who shall initiate necessary proceedings under this rule.

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(4) In proceedings for correction of errors and omission under this rule, the Tahsildar shall call for a report from the Revenue Inspector or the Lekhpal and after affording reasonable opportunity of hearing to the parties concerned and making summary inquiry, refer the case to the Collector in the case of map correction and to the Sub-Divisional Officer

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in the case of other correction along with his report within a period of thirty days from the date of registration of the application.

¶53

(5) The Collector or the Sub-Divisional Officer, as the case may be, shall allow the parties to file objection, if any, against the report of the Tahsildar submitted under sub-rule (4), and then decide the dispute. If the Collector or the Sub-Divisional Officer, as the case may be, is of the opinion that the map, field book or record of rights contains any error or omission, he shall direct for the correction thereof."

¶54

Considering the facts and circumstances of the case, the writ petition is allowed. The impugned order date 20.07.2022 passed by Up-Ziladhikari, Bhadohi is hereby set aside and the matter is remitted back before the Up Ziladhikari to register the case under Section 38 (1) of U.P. Revenue Code, 2006 on its original number for decision afresh after affording opportunity of hearing to the petitioner expeditiously preferably within a period of three months from the date of production of certified copy of this order.

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No order as to costs."

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Order dated 17.2.2023 passed in Writ C No.3433 of 2023.

¶57

Heard learned counsel for the petitioner and learned Standing Counsel for State respondents.

¶58

With the consent of the parties, the writ petition is being disposed of finally without inviting counter affidavit.

¶59

The instant writ petition has been filed against the impugned order dated 20.07.2022 passed by the Up-Ziladhikari, Bhadohi in Case No.3784 of 2022, Computerized Case No. T202216670503784, under Section 38(1) of U.P. Revenue Code-2006 pertaining to Khata No.509 Gata No.261 area 0.098 hectare situated in Mauja Rajpura Town, Taluka Chauthar, Pargana and Tehsil, Bhadohi, District-Bhadohi.

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Brief facts of the case are that Khata No. 300 plot No. 260 area 112:12 situated in Village-Mauja Rajpura, Pargana - Bhadohi, Tahsil-Gyanpur, District-Varanasi was recorded in the name Babu Bechan Ram, Babu Mewa lal sons of Anant Prasad and Shiv Balak Ram son of Goverdhan Das in the khatauni of 1365 fasli. After the death of Shiv Balak Ram the name of Rajesh, Rajendra and Shiksha Gupta was mutated being legal heirs of Shiv Balak Ram. That as per the report of Tehsildar dated 20.6.2022 the gata no.261 area 0-07-14 khasara zild bandobast 1371 fasali in kism araji, talab is recorded which in present fasali year 14241429 khatauni khata no. 509, gata no.261, area 0.098 hectare is recorded in the name of Rajesh son of Shiv Balak, Shiksha Devi wife of Shiv Balak, S.Gupta son of Akhilesh and Chaya Devi daughter of Akhilesh as Sankramaniya Bhumidhar. Gata no.261 as per fasali is recorded as talab which is public utility land hence the name of aforesaid persons may be deleted and land be mutated in the name of talab.

¶61

On the other hand, learned Standing Counsel submitted that petitioner has remedy to challenge the order in appeal as provided under Section 38 (4) of the U.P. Revenue Code, 2006 or petitioner can apply for recall of the order, if impugned order is ex-parte. He further submitted that land was

¶62

recorded as Talab in 1371 fasli as such petitioner is not entitled to any relief in respect to the public utility land.

¶63

I have considered the arguments advanced by the counsel for the parties and perused the record.

¶64

There is no dispute about the fact that the proceeding under Section 38 of U.P. Revenue Code, 2006 has been initiated in respect of the petitioner's plot, which is recorded in the name of the petitioner as Bhumidhar transferable rights in the khatauni pertaining to 1424 fasli to 1429 fasli and the name of the petitioner has been ordered to be expunged from the disputed plot under the impugned order without affording proper opportunity of hearing to the petitioner.

¶65

The provision contained under Rule 36 (4) and 36(5) are relevant, which prescribe procedure for deciding the application/case under Section 38 of U.P. Revenue Code 2006, the same are as under:

¶66

"36.Correction of error or omission (Section 38)-(1) Every application for correction of any error or omission in the map, field-book (Khasra) or record-of rights (Khatauni) referred to in section 38(1) shall contain the following particulars:-

¶67

(a) Name, parentage and address of the applicant.

¶68

(b) The document for the correction whereof the application is being made.

¶69

(c) Particulars of the land to which the error or omission relates.

¶70

(d) The precise nature of the error or omission.

¶71

(e) The application shall be accompanied by a certified copy of the map, Khasra or Khatauni to which the alleged error or omission relates.

¶72

(2) Proceedings for correction of the map, field book or record-of-rights may be initiated even without any application under sub-rule (1), if the error or omission otherwise comes to the knowledge of the Tahsildar.

¶73

(3) If during the preparation of new Khatauni, partal, spot verification and local visit or inquiry, the Lekhpal, Naib Tahsildar, Revenue Inspector or any other revenue officer has reasons to believe that any error or omission (including any fake or fraudulent entry but excluding the errors or omissions referred to in the explanation to section 38) has crept in the map, field book or the record of rights, he shall refer the matter to the Tahsildar who shall initiate necessary proceedings under this rule.

¶74

(4) In proceedings for correction of errors and omission under this rule, the Tahsildar shall call for a report from the Revenue Inspector or the Lekhpal and after affording reasonable opportunity of hearing to the parties concerned and making summary inquiry, refer the case to the Collector in the case of map correction and to the Sub-Divisional Officer in the case of other correction along with his report within a period of thirty days from the date of registration of the application.

¶75

(5) The Collector or the Sub-Divisional Officer, as the case may be, shall

¶76

allow the parties to file objection, if any, against the report of the Tahsildar submitted under sub-rule (4), and then decide the dispute. If the Collector or the Sub-Divisional Officer, as the case may be, is of the opinion that the map, field book or record of rights contains any error or omission, he shall direct for the correction thereof."

¶77

Considering the facts and circumstances of the case, the writ petition is allowed. The impugned order date 20.07.2022 passed by Up-Ziladhikari, Bhadohi is hereby set aside and the matter is remitted back before the Up Ziladhikari to register the case under Section 38 (1) of U.P. Revenue Code, 2006 on its original number for decision afresh after affording opportunity of hearing to the petitioner expeditiously preferably within a period of three months from the date of production of certified copy of this order.

¶78

No order as to costs."

¶79

Learned counsel for the petitioner submits that petitioner is similarly situated with those who were petitioners in the aforesaid writ petitions and since the impugned order has been passed committing the violation of principles of natural justice, this writ petition should also be allowed on the same terms as has been done by this Court in the aforesaid three writ petitions.

¶80

This Court has perused the orders passed by the Co-ordinate Benches of this Court in the aforesaid writ petitions and finds that the matter has been remanded back to the Sub Divisional Officer concerned to decide the same afresh after affording full opportunity of hearing to the petitioners within a period of three months from the of production of certified copy of the orders.

¶81

Considering the entire facts and circumstances of the case and constitutional parity enshrined under Article 14 of the Constitution of India, this writ petition is allowed. The impugned order dated 05.11.2022 passed by the respondent no.2-Sub Divisional Magistrate-Bhadohi in Case No.6490 of 2022 (Computerized Case No.T-202216670506490) under Section 38(1) of the U.P. Revenue Code-2006 is hereby quashed . The matter is remanded back to the respondent no.2Sub Divisional Magistrate, Tehsil and District Bhadohi to decide the same within a period of three months from the date of production of certified copy of this order, after affording full opportunity of hearing to all the parties concerned.

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Order Date :- 17.3.2023

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Jyotsana

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Digitally signed by :- JYOTSANA SINGH High Court of Judicature at Allahabad

Ashraf Ali v. State of U.P. and 3 Others

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Ashraf Ali v. State of U.P. and 3 Others

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