Tawraj Khan & Anr. v. Board Of Revenue U.P. And 14 Others

Singh Vijaypur Estate. Sri Niwas Prasad Singh s/o Raja Beni Madho Prasad Singh become the permanent tenure holder of the entire land of village Kantit. After the death of the father, his name was accordingly recorded in the Khewat of 1358 Fasli the entry continued even in 1375 Fasli. Sri Niwas Prasad Singh (permanent tenure holder) executed a registered sale deed dated

18.09.1958 in favour of Mussamat Jarina Bibi, the predecessor of respondent No.3rd set in respect of the plot no. 1565 and others. The name of Mussamat Jirina Bibi has been mutated in the revenue record of Non Z.A. Khatanui of 1366 Fasli. Petitioners are bonafied predecessor of plot No.1565/1, on the basis of registered sale deed dated 22.02.2020 executed by recorded tenure holder Mussamt Jarina Bibi, the name of petitioners were recorded in the revenue record of the basis of proceeding under Section 34 of the U.P. Land Revenue Act. The sale deed of the petitioners as well as sale deed of the vendor of the petitioners have not been challenged by any body before the competent Court. The Sub Divisional Officer-respondent No.3 suo moto called for a report from Tehsildar who submitted his report dated 28.10.2020, accordingly, case No.10097/20 was registered and without giving any notice or opportunity of hearing to the petitioners order dated 09.11.2020 was passed expunging the petitioners' entry in respect of the disputed plot and petitioners challenged the order dated 09.11.2020 before the Board of Revenue through revision under Section 210 of the U.P. Revenue Code, 2006 taking specific ground in the grounds of revision that order was passed in ex-parte manner against the petitioners. Board of Revenue vide order dated 28.09.2021 dismissed the petitioners' revision, hence this writ petition. This court while entertaining writ petition has passed the following interim order dated 02.12.2021:- "Heard Mr. Sanjeev Singh, learned counsel for petitioners, learned Standing Counsel for the State-respondent Nos. 1 to 4 and perused the record. The instant writ petition under Article 226 of Constitution of India has been filed for quashing of impugned order dated

09.11.2020 including the endorsement dated 18.11.2020 passed by Sub Divisional Officer, Mirzapur in Case No. 10097 of 2020 (State vs Mustaq Ahamad and others) under section 31/32 of U.P. Land Revenue Code, 2006 in respect of Arazi No. 1565/1 area 0.126 hectare situated in village Kantit, Tappa-96, Pargana Kantit, Tehsil Sadar, district Mirzapur as well as the order dated 28.09.2021 passed in Revision No. 1939 of 2020 Computer No. AL20201653001939 (Tawraj Khan and another vs State and others) passed by the Board of Revenue, whereby the revision filed by writ petitioners was dismissed. It is contended by the learned counsel for the petitioners that the impugned order has been passed by the Sub Divisional Magistrate without issuing any notice. They claimed their right on the basis of sale deed dated 18.09.1958, which is alleged to have been executed by Shri Niwas Prasad Singh, son of Raja Beni Madho Prasad Singh. Thereafter, the name of purchaser Mussamat Jarina Bibi was mutated in the revenue record as non Z.A. in Khatauni 1366 fasli. The present petitioners purchased the said land vide registered sale deed dated

22.02.2020 from the legal heirs of Mussamat Jarina Bibi and their names were duly mutated in the Khatauni 1423-1428 fasli. It is further contended by the learned counsel for the petitioners that the petitioners are recorded on the basis of sale deed and as such they have a right to be heard by Sub Divisional Magistrate in a proceedings under section 31/32 of U.P. Land Revenue Code,2006. Matter requires consideration. Issue notice to respondent Nos. 5 to 15, returnable at an early date.Steps be taken within a week by registered/speed post. All the respondents are directed to file counter affidavit within four weeks. Put up this matter again in the third week of January, 2022 as a fresh. Till the next date of listing, the parties are directed to maintain status quo at the spot as on today. "

4. In pursuance of the order dated 02.12.2021 Standing Counsel has filed his counter affidavit along with the application for vacation of interim order. Petitioners have filed their rejoinder affidavit also to the counter affidavit filed by State-respondents.

5. Learned counsel for the petitioners submitted that the name of petitioners was recorded in the revenue records on the basis of proceedings u/s 34 of the U.P. Land Revenue Act. He further submitted that proceedings under section 31/32 of the U.P. Revenue Code 2006 has been initiated on the basis of ex-parte report and without giving opportunity of hearing to the petitioners entry has been expunged. He further submitted that land in dispute is Non Z.A. land and Non Z.A. land are governed by the Provisions of United Provinces Tenancy Act, 1939 and not by the U.P.Z.A. and L.R. Act 1950, as such the Sub Divisional Officer has no jurisdiction under Section 31/32 of the U.P. Revenue Code, 2006 to interfere in respect of the Non Z.A. Land. He further submitted that Non Z.A. Land belonging to the Khewat of then Raja Beni Madho Prasad Singh Vijaypur Estate was never debarred in the State of U.P., as such the Sub Divisional Officer/ Assistant Collector had no jurisdiction to entertain the proceedings. He further submitted that revision has been filed, by the petitioners before Board of Revenue which was also dismissed without considering the case of the petitioners.

6. On the other hand, learned Standing Counsel submitted that the land in dispute was recorded as "Kabristan" in the revenue record of settlement year as such there is no need to give opportunity of hearing to the petitioners.

7. In reply, learned counsel for the petitioners has submitted that petitioners once recorded in the revenue records on the basis of proceedings u/s 34 of U.P. Land Revenue Act as such unless the order passed u/s 34 of the U.P. Land Revenue Act is recalled, set aside or modified another summary proceedings cannot be initiated.

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

9. Since the impugned order has been passed under Section 31/32 of U.P. Land Revenue Code, 2006 without giving opportunity of hearing to the petitioners as such the same cannot be sustained. There is one more material aspect of the case that the name of the petitioners were recorded on the basis of proceedings u/s 34 of the U.P. Land Revenue Act as such unless the order passed in the proceedings u/s 34, is recalled set aside or modified, another summary proceedings cannot be initiated.

10. The basis of of impugned order dated 09.11.2020 is the report dated 28.10.2020. No opportunity has been given to the petitioners either before submitting the report dated 28.10.2020 or before deciding the dispute vide order dated 09.11.2020. It is also material to mention that report was submitted by the revenue authorities on 28.10.2020 and impugned order has been passed on 09.11.2020 which shows that impugned proceeding has been conducted within the very short period, as such, the impugned order passed on the basis of the ex parte report cannot be sustained in the eye of law.

11. This Court in the case of reported in 2019 (143) RD 792 Hari Krishna Vs. State of U.P. and others has held that opportunity of hearing must be afforded to the person, who was recorded in the revenue records at the relevant time before expunging his entry, the paragraph No. 8 of the judgment is relevant, which is as follows: "Having heard the learned counsel for the petitioner and learned Standing Counsel, this Court is of the view that if any revenue record, howsoever wrong it might be, if was being sought to be corrected then the parties involved in the case had to be heard after a report was called by the Authorities who were to decide the case as per Rule 36 (4) & (5) of the U.P. Revenue Code, 2006. Since it is apparent from the reading of the impugned order as also from the record of the case that the petitioner was not afforded any opportunity of hearing before the impugned order was passed, the order cannot be sustained in the eyes of law and, therefore, is being set aside. The matter is being remanded back to the respondent no. 4, the Up- Ziladhikari, Bansgaon, District - Gorakhpur, who shall decide the matter afresh within a period of two months from the date of presentation of this order."

12. Considering the facts and circumstances of the case as well as ratio of law laid down in Hari Krishna (Supra) the impugned orders dated 09.11.2020, 18.11.2020 passed by Sub Divisional Officer, Sadar, Mirzapur as well as the order dated 28.09.2021 passed by Board of Revenue are hereby set aside.

13. The Writ petition is allowed and matter is remanded back before the respondent no. 3 to decide the case afresh on merit after affording opportunity of hearing to the parties expeditiously preferably within period of 6 month from the date of production of certified copy of this order.

14. No order as to costs. Order Date :- 15.11.2022 PS* Reason: Location: High Court of Judicature at Allahabad