Allahabad High Court
Ravindra Singh And 2 Others vs State Of U.P. And 12 Others on 29 July, 2022
Author: Dinesh Pathak
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 32 Case :- WRIT - B No. - 525 of 2022 Petitioner :- Ravindra Singh And 2 Others Respondent :- State Of U.P. And 12 Others Counsel for Petitioner :- Kamlesh Kumar Tiwari,Kripa Shankar Pandey Counsel for Respondent :- C.S.C., A.P.Singh Hon'ble Dinesh Pathak,J.
1. Heard Sri Kripa Shankar Pandey, Sri Kamlesh Kumar Tiwari, learned counsel for the petitioners, Sri A.P. Singh, learned counsel for the private respondent No. 7, learned Standing Counsel representing respondent nos. 1 to 4 and perused the record.
2. Challenge in the present writ petition is order dated 18.11.2021 (annexure No. 11) passed by Board of Revenue (respondent No. 2) affirming the order dated 6.4.2016 (annexure No. 9) passed by Additional Commissioner (respondent No. 3) arising out of order dated 26.2.2010 (annexure No. 7) passed by Additional Collector (Administration), Azamgarh in a proceeding under Section 33/39 of UP Land Revenue Act (in brevity, 'LR Act').
3. The grievance of the petitioner is that the Additional Commissioner (respondents No. 3) and Board of Revenue (respondent No. 2) have illegally reversed the order of Additional Collector passed under Section 33/39 of LR Act without applying its judicial mind and without considering the sanctity of the earlier order dated 21.6.1973 passed by Settlement Officer of Consolidation.
4. A perusal of record reveals that, during the consolidation proceeding, order dated 21.6.1973 was passed by the Settlement Officer of Consolidation in favour of Ram Nidhi alias Nidhi Narayan (father of the present petitioners). But aforesaid order could not be given effect to in the consolidation records. After the lapse of 33 years, petitioners have moved an application dated 7.12.2006 under Rule 109 of U.P.C.H. Rules to give effect to the order dated 21.6.1973 passed by Settlement Officer of Consolidation. Aforesaid application, under Rule 109 of U.P.C.H. Rules was rejected vide order dated 7.11.2007 passed by the Consolidation Officer. Being aggrieved, petitioners have preferred an appeal before the Settlement Officer of Consolidation, which is still pending as per the statement of the learned counsel for the petitioners.
5. During the pendency of the aforesaid proceeding, a second round of litigation has been started at the behest of the petitioners by instituting a suit for declaration under Section 229B of UP ZA and LR Act dated 16.5.2006 being original suit No. 200 of 2006. During the pendency of the aforesaid suit for declaration, petitioners have tried to take their chance by moving an application for correction of record under Section 33/39 of LR Act. The said application moved on behalf of the petitioners was allowed by Additional Collector vide order dated 26.2.2010. Being aggrieved against the order of the Additional Collector, contesting respondents have preferred a revision, which was allowed by respondent No. 3 vide its order dated 6.4.2016 reversing the order dated 26.2.2010. Feeling aggrieved with the order dated 6.4.2016 passed by the respondent No. 3, present petitioners have preferred revision before the respondent No. 2, who has dismissed the revision vide impugned order dated 18.11.2021, which are under challenge before this Court.
6. Learned counsel for the petitioners submits that initially an objection, filed by the contesting respondents, was illegally allowed by the Consolidation Officer but the same was reversed in appeal filed on behalf of the father of the petitioners vide order dated 21.6.1973 passed by the Settlement Office of Consolidation. Due to one or the other reasons, order passed by the Settlement Officer of Consolidation could not be incorporated in the consolidation record. Consequently, names of the contesting respondents continued in the revenue record. When this fact come to the knowledge of the petitioners, they moved an application under Rule 109 of UP Consolation of Holding Rules. Simultaneously, they have also filed an application for correction under Section 33/39 of LR Act. It is submitted that the application under Section 33/39 of the LR Act has rightly been allowed by the Additional Collector but respondents No. 2 and 3 have reversed the order dated 26.2.2010 without appreciating the evidence on record and without adhering to the grievance of the petitioners. Learned Additional Collector has given a finding of forgery, which has illegally been ignored by the respondents No. 2 and 3, therefore, orders passed by the respondents No. 2 and 3 are illegal, perverse, cryptic and suffers from infirmity and liable to be quashed.
7. Per contra, learned counsel for the contesting respondent has contended that the respondents No. 2 and 3 have rightly discarded the application under Section 33/39 of LR Act on the ground of pendency of the suit under Section 229B of UP ZA and LR Act, which was also filed at the behest of the present petitioners, therefore, there was no occasion for clerical error to be corrected in the revenue record. Moving an application under Section 33/39 of the LR Act is blatantly erroneous and is liable to be rejected. It is further contended that due to long standing entry, valuable right is vested in the recorded tenure holder i.e. contesting respondents, therefore, any change in the revenue record amounts declaration of bhumidhari rights. Orders passed by the respondents No. 2 and 3, are legal, valid and suffers from no infirmity. Accordingly, the writ petition is liable to be dismissed.
8. Carefully considered the submissions advanced by the learned counsel for the parties and perused the record. A short question involved in the instant writ petition qua the legality of the proceeding for correction of record moved on behalf of the petitioners under Section 33/39 of LR Act.
9. Present petitioners are claiming their right and title over the property in question on the basis of the order dated 21.6.1973 passed by the Settlement Officer of Consolidation, which could not be given effect to in the consolidation record. At a very belated stage, petitioners have resorted to the three separate proceedings to redress their grievances so that their names may be recorded in the revenue record in pursuance of the order dated 21.6.1973. Firstly, they moved an application dated 17.12.2006 under Rule 109 of U.P.C.H. Rules, secondly, they have filed a suit being original suit No. 200 of 2016 dated 16.12.2006 for declaration of rights under Section 229B of UP ZA and LR Act and thirdly, they moved an application for correction under Section 33/39 of UP Land Revenue Act.
10. The present writ petition is arising out of proceeding under Section 33/39 of the LR Act. Additional Collector, vide its order dated 26.2.2010, has allowed the aforesaid application on the ground of fraud with an observation that the name of existing recorded tenure holder came to be recorded by playing fraud on the record. Order dated 26.2.2010 passed by the Additional Collector was reversed by the Additional Commissioner in revision filed on behalf of the contesting respondents with an observation that the proceeding under Section 33/39 of the LR Act relates to the clerical mistake and the matters relating the right and title of the parties over the property in question or matter of fraud relating to entries can properly be adjudicated upon by court competent for which declaratory suit under Section 229B of UP ZA and LR Act is already pending. Board of Revenue has affirmed the order passed by the Additional Commissioner with an observation that long standing entries cannot be expunged in a proceeding under Section 33/39 of the LR Act, which is ministerial proceeding for the correction of record unless it is proved by adducing evidence that the entries are a result of fraud and manipulation. It has also been observed that the application under Section 33/39 of the LR Act was filed against the dead persons namely Dasrath and Vikrama. Consequently, the order was passed against the dead persons.
11. In this conspectus as above, I am of the considered view that once the petitioners have resorted to the proceeding for declaration of right and title over the property in question, an application under Section 33/39 of LR Act moved at their behest is not the befitting recourse to be adopted by them. It is a matter of scrutiny as to whether the contesting respondents had got their name recorded by playing fraud or not and as to whether there is any existence of order dated 21.6.1973 or not. Long standing entries cannot be expunged in a summary proceedings inasmuch as the valuable right vested in the person who is recorded in the revenue record. All these questions can more appropriately be redressed by the court competent in a regular suit, which is already pending before the court competent and the parties have full opportunity to get their right and title examined in the said suit. Respondents No. 2 and 3 have rightly passed the order discarding the claim of the petitioner qua correction of record in a proceeding under Section 33/39 of LR Act. There is no perversity or ambiguity in the order under challenge. Learned counsel for the petitioner has failed to substantiate his submission advanced in assailing the impugned orders. There is nothing on record to demonstrate as to what prejudice is caused to the present petitioners or there is a likelihood of gross miscarriage of justice to the petitioners due to the impugned orders passed by the respondents No. 2 and 3.
12. Resultantly, instant writ petition being misconceived and devoid of merits, is dismissed with no order as to the cost.
Order Date :- 29.7.2022 vinay