High Court
Case Details
Neutral Citation No. - 2023:AHC:169804 Court No. - 51 Case :- WRIT - C No. - 5759 of 2023 Petitioner :- Manturi And 6 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Bhawesh Pratap Singh,Adesh Kumar,Barkha Chaudhary Counsel for Respondent :- C.S.C,Sunil Kumar Singh Hon'ble Chandra Kumar Rai,J.
Legal Reasoning
1. Heard Mr. J. Nagar, learned Senior Counsel assisted by Mr. Adesh Kumar, learned Counsel for the petitioners, Mr. M.N. Mishra, learned Additional Chief Standing Counsel for the State-respondents and Mr. Sunil Kumar Singh for respondent no. 4, Gaon Sabha. 2. The instant petition has been filed for the following reliefs:- "(i) Issue a writ, order or direction in the nature of certiorari quashing the order dated 8.7.2022 passed by respondent no.3, Tehsildar, Tehsil- Mawan District- Meerut. (ii) Issue a writ, order or direction in the nature of mandamus directing the respondent no.3 to register the case under Section 39 of U.P. Revenue Code, 2006 and suitable proceeding be initiated to record the name of the petitioners in the revenue record on the basis of patta granted by the Land Management Committee in Gata No. 113 situated in Village Khanpur Garhi, Pargana Kithaur, Tehsil- Mawana, District Meerut within stipulated time frame as fixed by this Court. " 3. With the consent of the learned Counsel for the parties, the petition is being heard and disposed of finally without inviting counter-affidavit.
Decision
4. Brief facts of the case are that Land Management Committee has executed patta in favour of petitioners' ancestors on 8.6.1966 in respect to Khasra No. 113M area 0.030 hectare situated in Village Khanpur Garhi, Pargana- Kithaur, Tehsil- Mawana, District- Meerut and certificate of patta i.e. Z.A. Form 58 under Rule 176 was issued in favour of petitioners' ancestors. The patta executed on 8.8.1966 was approved on 18.8.1966. Petitioners' ancestors came in possession of the plot in dispute. In the revenue record plot in dispute was recorded as navin parti hence petitioners filed an application before the revenue authorities to correct the revenue entry and record their name on the basis of lease which has not been cancelled till date. Petitioners filed a Writ C No. 1368 of 2022 before this Court for mandamus for consideration of their pending application in accordance with law to record their name in revenue record, this Court vide order dated 11.2.2022 disposed of the writ petition directing the respondent no.3 to register the case of the petitioner if maintainable in law and disposed of within period of three months. In pursuance of the order of this Court dated 11.2.2022, petitioners filed an application dated 12.4.2022 before respondent no.3 for disposal of their claim but respondent no. 3 vide order dated 8.7.2022 rejected the claim of petitioners as not maintainable under Section 39 of U.P. Revenue Code, 2006 hence this writ petition on behalf of petitioners challenging the order dated 8.7.2022. 5. Learned Senior Counsel for the petitioners submitted that petitioners were granted lease in respect to the plot in dispute in the year 1966. He further submitted that lease of the petitioners has not been cancelled in accordance with law as provided under the U.P.Z.A. and L.R. Act or under the U.P. Revenue Code, 2006, as such, the petitioner is entitled to be recorded over the plot in dispute on the basis of lease granted in favour of the petitioners. He submitted that earlier Writ C No. 1368 of 2022 was filed at the instance of the petitioners before this Court which was disposed of vide order dated 11.2.2022 directing the respondent no.3 to register the case of the petitioners and decide the same in accordance with law within period of three months. He further submitted that in pursuance of the order of this Court, the impugned order has been passed without affording proper opportunity of hearing to the petitioners. He submitted that impugned order dated 8.7.2022 be set aside and matter be sent back to decide the proceeding afresh after affording proper opportunity of hearing to the petitioners as well as taking into consideration the lease executed in favour of the petitioners in the year 1966. 6. On the other hand, Mr. M.N. Mishra, learned Additional Chief Standing Counsel for the State-respondents and Mr. Sunil Kumar Singh for Gaon Sabha submitted that writ petition is not maintainable against the order passed by Tehsildar in pursuance of the earlier order of this Court. He submitted that petitioners' case was examined in proper manner and it has been found that lease appears to be fictitious, as such, petitioners are not entitled to be recorded over the plot in dispute. 7. I have considered the arguments advanced by learned Counsel for the parties and perused the records. 8. There is no dispute about the fact that earlier writ petition filed by petitioners was disposed of vide order dated 11.2.2022 directing the respondent no.3 to decide the dispute within period of three months and there is also no dispute about the fact that respondent no.3 has rejected the petitioners' application vide impugned order dated 8.7.2022. 9. In order to appreciate the controversy, the perusal of Section 38 and 39 of the U.P. Revenue Code, 2006 as well as Rule 36 of U.P. Revenue Code Rules 2016 will be relevant which are as under:- U.P. Revenue Code, 2006 "Section 38- Correction of error and omission (1) An application for correction of any error or omission in the map, field-book (Khasra) or record of rights (Khatauni) shall be made to the Tahsildar in the manner prescribed. [(2) On receiving an application under sub-section (1) or on any error or omission otherwise coming to his knowledge, the Tahsildar shall make such inquiry as may appear to him to be necessary, and refer the case along with his report to the Collector in the case of map correction and to the Sub-Divisional Officer in matter of other correction. (3) The case shall be decided by the Collector or the Sub- Divisional Officer, as the case may be, after considering any objection filed and evidence produced before him or before the Tahsildar. (4) Any person aggrieved by an order of the Collector or the Sub-Divisional Officer, as the case may be, under sub- section (3), may prefer an appeal to the Commissioner within a period of thirty days from the date of such order, and [The decision of the Commissioner shall, subject to the provisions of Section 210, be final]. [(5) Any forged or manipulated entry in the map, the khasra or the record of rights (khatauni) may be expunged under this section. (6) Notwithstanding anything contained in other provisions of this Code, the Revenue Inspector may correct any undisputed error or omission in the record of rights (khatauni) or khasra in such manner and after making such inquiry, as may be prescribed.] Explanation.?The power to correct any error or omission under this section shall not be construed to include the power to decide a dispute involving question of title. Section 39 -Certain orders of revenue officers not to debar a suit.-No order passed by a Revenue Inspector under section 33, or by a Tahsildar under sub-section (1) of Section 35 or by a Sub-Divisional Officer under sub-section (3) of section 38 or by a Commissioner under sub-section (4) of section 38 shall debar any person from establishing his rights to the land by means of a suit under section 144." U.P. Revenue Code Rules, 2016:- "Rule 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— (a) Name, parentage and address of the applicant. (b) The document for the correction whereof the application is being made. (c) Particulars of the land to which the error or omission relates. (d) The precise nature of the error or omission. (e) The application shall be accompanied by a certified copy of the map, Khasra or Khatauni to which the alleged error or omission relates. (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. (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. (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. (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. (6) An endeavour shall be made to conclude the proceeding for correction under Section 38 within the period of 45 days from the date of receiving the application with the report and if the proceeding is not concluded within such period the reasons for the same shall be recorded. (7) The Revenue Inspector may correct any undisputed error or omission in the Record-of-Rights (Khatauni) or Khasra after making such inquiry in the manner contained in the Land Record Manual." 9. The perusal of the provisions contained under Sections 38 and 39 of the U.P. Revenue Code, 2006 reveals that petitioners' case should be examined under Section 38 of U.P. Revenue Code, 2006 rather under Section 39 of the U.P. Revenue Code, 2006 which is not applicable in the matter and the appropriate authority under Section 38 of U.P. Revenue Code, 2006 is Sub-Divisional Officer, as such, the exercise of power by Tehsildar while rejecting the petitioners' claim under Section 39 of U.P. Revenue Code, 2006 is not in interest of justice rather Tehsildar should refer the matter before Sub-Divisional Officer to register the proceeding under Section 38 of U.P. Revenue Code, 2006 and decide the same in accordance with law after proper opportunity of hearing to the parties as provided under Section 38 of U.P. Revenue Code, 2006 along with Rule 36 of U.P. Revenue Code, Rules 2016. 10. The application filed by the petitioners for correcting the entry on the basis of lease executed in their favour has not been considered in the light of the provisions contained under Section 38 of the U.P. Revenue Code, 2006. Respondent no.3 has passed the impugned order without giving proper opportunity of hearing to the petitioners to establish his claim on the basis of lease executed in the year 1966. It is also material that no proceeding of cancellation has been initiated, as such, unless the lease is cancelled, the petitioners cannot be deprived to be recorded over the plot in dispute if it is found that lease was executed in favour of petitioners. 11. Considering the entire facts and circumstances as well as the provisions contained under Section 38 of the U.P. Revenue Code, 2006, the impugned order dated 8.7.2022 passed by respondent no.3 is liable to be set aside and the same is hereby set aside. Writ petition stands allowed in part and matter is remitted back before respondent no.2, Sub- Divisional Magistrate Mawana, Tehsil- Mawan, District- Meerut to register the proceeding under Section 38 of the U.P. Revenue Code, 2006 and decide the same in the light of the provisions contained under Section 38 of the U.P. Revenue Code, 2006 after affording opportunity of hearing to the parties expeditiously preferably within period of three months. It is further directed that petitioners should file proper application under Section 38 of U.P. Revenue Code, 2006 before respondent no.2 along with certified copy of the order of this Court as earlier application filed by petitioners was not in accordance with the provisions of U.P. Revenue Code, 2006. Order Date :- 22.8.2023 Vandana Y. Digitally signed by :- Digitally signed by :- VANDANA YADAV VANDANA YADAV High Court of Judicature at Allahabad High Court of Judicature at Allahabad