Lion School Lal Diggi West Roadcity Mirzapur vs State of U.P. and 4 Others

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Neutral Citation No. - 2025:AHC:64353

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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD

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(Sl. No.219)

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Court No. - 53

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Case :- WRIT - C No. - 7412 of 2025

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Petitioner :- Lion School Lal Diggi West Roadcity Mirzapur Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Rekha Singh,Sanjeev Singh Counsel for Respondent :- C.S.C.

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Hon'ble Anish Kumar Gupta,J.

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Heard Sri Sanjeev Singh, learned counsel for the petitioner, Sri M.N. Mishra, learned Additional Chief Standing Counsel for the State and Sri Anand Bhaskar, learned Standing Counsel for the State.

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Respondent no. 5 is vendor of the petitioner as well as legal heirs of the vendor of the petitioner. The instant writ petition arises out of proceeding under Section 31/32 of U.P. Revenue Code, 2006, as such State and Gaon Sabha are necessary parties, who are represented by learned counsel. One of the issue raised in the matter is violation of principle of natural justice, as such the matter should be disposed of finally without inviting counter affidavit.

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Brief facts of the case are that Arazi No. 1800 Ga (old no. 1584 minjumla) admeasuring area 0.354 hectare situated at Village- Barkachha Kalan, Tappa-84, Pergana-Kantit, Tehasil-Sadar, District-Mirzapur was leased out on 02.02.1976 to Mool Chand recorded tenure holder, who had sold to Bachche Lal on 02.05.2016, who had sold to Chhote Lal and he sold thereafter to Ramdhar/respondent no.5. The petitioner (an educational institution) had purchased Arazi no. 1800 Ga (old no. 1584 minjumla) admeasuring area 0.354 hectare from Ramdhar who was thus the recorded tenure holder of plot in question. In the proceeding under Section 31/32 of the U.P. Revenue Code, 2006, the entry of the plot in question has been expunged without affording any opportunity of hearing to the petitioner as well as the recorded tenure holder vide order dated 14.10.2024. Hence this writ petition for following reliefs:-

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"(a) Issue a writ, order or direction in the nature of certiorari calling for the records and quashing the impugned order dated 14.10.2024 passed by the SubDivisional Officer, Tehsil-Sadar, District-Mirzapur/respondent no. 3 in case no. 10601 of 2024 (Computer Case No. T202416530110601) filed under Section 31/32 of the U.P. Revenue Code, 2006.

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(b) Issue a writ, order or direction in the nature of mandamus directing the statutory respondents to record the name of the petitioner in the revenue record of the Arazi No. 1800-Ga (old no. 1584 minjumla) admeasuring area 0.354 hectare situated at Village Barkachha Kalan, Tappa-84, Pargana-Kantit, Tehsil-Sadar, District-Mirzapur."

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Learned counsel for the petitioner submitted that plot in question was initially

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allotted to one Moolchand on 02.02.1976. He further submitted that later on Ramdhar was recorded over the plot in question on the basis of sale-deed executed in his favour. He further submitted that petitioner, who is an educational institution, purchased the plot in question from recorded tenure holder by way of registered sale deed accordingly petitioner came in possession over the same. He submitted that summary proceeding cannot be initiated to expunge the long standing entry of the plot in question unless proceeding for cancellation of lease as well as sale-deed is initiated in proper manner. He further submitted that no opportunity has been afforded to the petitioner or the recorded tenure holder before expunging the entry of the plot in question.

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Learned Additional Chief Standing Counsel for the State submitted that order impugned is appealable and revisable, as such no interference is required in the matter. They further submitted that land comes under class-6 (4) category, as such no right will accrue to anybody. They next submitted that no opportunity is required to be afforded if the entry of the plot in question is forged and fictitious They further submitted that petitioner is not ordered to be recorded over the plot in question, as such instant writ petition cannot be entertained.

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

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There is no dispute about the facts that in the proceeding under Sections 31/32 of the U.P. Revenue Code, 2006, the Sub-Divisional Officer has passed the order for expunging the entry of the plot in question.

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So far as the initiation of summary proceeding is concerned, proper opportunity of hearing must be given to the parties, even in the case entry is forged or fraudulent and without affording proper opportunity of hearing, entry cannot be expunged as held by this Court in Chaturgan vs. State of U.P. and Others, 2005(98) RD 244. Paragraph No.8 of the judgment is quoted hereunder:-

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"8. Accordingly it is held that whenever an entry in the revenue record is to be cancelled and substituted particularly when the entry is continuing for more than a year, notice must be given to the party in whose favour entry stands even if prima facie authority/Court concerned (i.e. Deputy Collector/Sub Divisional Officer in most of the cases) is of the opinion that the entry is result of fake order or fraud. Similarly if name of an Asami pattedar is to be expunged from the revenue records on the ground of expiry of period of patta or any other ground, notice must be given to him before expunging his name. In a recent authority reported in Hari Ram v. Collector, 2004 (2) RD 360 it has been held by this Court that apart from suit for ejectment under Section 202 of UPZA and LR Act Asami pattedar may be evicted after expunging his name from the revenue records under Section 34 of UPZA and LR Act but it can be done only after providing opportunity of hearing to the pattedar/les-see. However if entry is expunged or any other order is passed without hearing the person affected then he is entitled to file an application for post decisional hearing and recall of the order before the court/authority which passed the ex-parte order. If such an application is filed then the court/authority concerned shall hear the applicant and in case it comes to the conclusion that the earlier order is not correct then the said order shall be set aside. In such situation it is not necessary to first set aside the order and then hear the party concerned. Along with such application such evidence must be

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filed which the party considers necessary for his case. It has been held by the Supreme Court in A.M.U. Aligarh v. M.A. Khan, (2000) 7 SCC 529 : AIR 2000 SC 2783 that a person who complains about denial of opportunity of hearing must show that in case opportunity had been provided to him, what cause he would have shown or what defence he would have taken. (Similar view has been taken in S.L. Gupta v. A.D. Gupta, 2003 AIR SCW 7089 (para 29) and Canara Bank ((2003) 4 SCC 557 : AIR 2003 SC 2041) (supra). Against ex-parte orders of expunging of names it is not proper to file revision and appeal etc. directly. However, if revision, appeal etc. is directly filed then revisional court/appellate Court may also instead of deciding the revision or appeal on merit may grant leave to the affected party to apply for post decisional hearing and recall of order before the trial court/authority. The, revisional/appellate authority may also decide the matter on merit after providing opportunity of post decisional hearing (i.e. opportunity to show that earlier entry was not fake) as mentioned in the judgment of Supreme Court in Canara Bank (supra)."

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So for as provision contained under U.P. Revenue Code, 2006 is concerned, Rule 36(4) and 36(5) of U.P. Revenue Code Rules, 2016 specifically provides for offording reasonable opportunity of hearing to the parties in the proceeding for correction in record as well as right to file objection to the parties against the report of the authority. Rule 36(4) and 36(5) of U.P. Revenue Code Rules, 2016 are as under:-

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"36. Correction of error or omission (Section 38).-

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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 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 SubDivisional 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."

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A perusal of the order of Sub-Divisional Officer fully demonstrates that no opportunity of hearing has been afforded to the petitioner in whose favour a registered sale deed has been executed or the recorded tenure holder of the plot in question. No fruitful purpose will be served by keeping this petition pending rather matter should be remitted back before Sub-Divisional Officer to register the proceeding to its original number and decide the same after affording proper opportunity to the tenure holder of the plot in question considering the objection of the petitioner regarding maintainability of the proceeding.

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So far as alternative remedy is concern Hon'ble Apex Court in the case reported in 2009 (1) AWC (437) (SC) Committee of Management and another Versus Vice Chancellor and others h as held that if the principle of natural justice is violated then alternative remedy will not be bar to challenge the

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impugned order under Article-226 of the Constitution of India. Paragraph no. 24, 25 and 26 of the judgement rendered by Hon'ble Apex Court in Committee of Management (Supra) will be relevant for perusal which are as under:-

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"24. Whether in a case of this nature such a power has properly been exercised or not, in our opinion, being an intricate question should ordinarily fall for determination by the High Court itself. Our attention has also been drawn to a decision of a Seven-Judge Bench of this court in the case of P.A. Inamadar & Ors. v. State of Maharashtra & Ors. (2005) 6 SCC 537 wherein it has been held :

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"126. The observations in para 68 of the majority opinion in T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481 on which the learned counsel for the parties have been much at variance in their submissions, according to us, are not to be read disjointly from other parts of the main judgment. A few observations contained in certain paragraphs of the judgment in Pai Foundation if read in isolation, appear conflicting or inconsistent with each other. But if the observations made and the conclusions derived are read as a whole, the judgment nowhere lays down that unaided private educational institutions of minorities and non-minorities can be forced to submit to seat-sharing and reservation policy of the State. Reading relevant parts of the judgment on which learned counsel have made comments and counter-comments and reading the whole judgment (in the light of previous judgments of this Court, which have been approved in Pai Foundation) in our considered opinion, observations in para 68 merely permit unaided private institutions to maintain merit as the criterion of admission by voluntarily agreeing for seat-sharing with the State or adopting selection based on common entrance test of the State. There are also observations saying that they may frame their own policy to give freeships and scholarships to the needy and poor students or adopt a policy in line with the reservation policy of the State to cater to the educational needs of the weaker and poorer sections of the society."

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25. Keeping in view the legal questions arising in the matter, we are of the opinion that it was not a fit case where the High Court should have refused to exercise its discretionary jurisdiction to entertain the writ application.

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26. For the aforementioned reasons, the impugned order cannot be sustained and is set aside accordingly. The appeal is allowed accordingly. The High Court is requested to consider the matter on merits. No costs."

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Considering the entire facts and circumstances of the case, the impugned order dated 14.10.2024 passed by respondent no. 3-Sub-Divisional Officer is liable to be set aside and same is hereby set aside. The writ petition stands allowed and matter is remitted back before the respondent no. 3-Sub-Divisional Officer to restore the proceeding to its original number and decide the same afresh, after affording proper opportunity of hearing to the parties as well as considering the objection of the petitioner as well as the recorded tenure holder regarding maintainability of the proceeding in proper manner expeditiously preferably within a period of three months from the date of production of a certified copy of this order.

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Order Date :- 25.4.2025 Ashish Pd.

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(Anish Kumar Gupta,J.)

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Digitally signed by :- ASHISH PRASAD High Court of Judicature at Allahabad

Lion School Lal Diggi West Roadcity Mirzapur v. State of U.P. and 4 Others

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