Allahabad High Court
Prem Nath Son Of Late Ganga Ram Alias ... vs State Of U.P. Through Its District ... on 7 March, 2005
Equivalent citations: 2005(2)AWC1038
Author: Rakesh Tiwari
Bench: Rakesh Tiwari
JUDGMENT Rakesh Tiwari, J.
1. Heard counsel for the petitioner and the standing counsel appearing for the respondents and also perused the record.
2. This writ petition has been filed for issuance of a writ, order or direction in the nature of certiorari quashing the impugned order dated 16.3.2002 (Annexure-4 to the writ petition) passed by respondent No. 2, Sub Divisional Magistrate, Chunar, District Mirzapur and for a direction in the nature of mandamus directing the respondents not to dispossess and interfere in peaceful farming and cultivation by the petitioner over the land in dispute.
3. The petitioner is alleged to be in possession over the plot Nos. 40, 57, 85 and 175 (old) situated in village Belua Bajahur, Pargana Sakteshgarh, Tehsil Chunar, District Mirzapur since prior to 1986 on the basis of a Patta given to him in pursuance of a resolution passed by the Gram Panchayat concerned. The village came in survey proceedings in the year 1989-90. The Assistant Revenue Officer vide order dated 14.12.1993 directed the name of the petitioner to be recorded in the revenue records. Prapatra-9 was prepared by the Revenue Department and extract of the Khatauni was also issued to him by the area Lekhpal. After survey record operation new plot numbers were allotted in place of old plot numbers and in the khatauni the same were shown as plot No. 79-Kha.
4. The petitioner claims that he was in peaceful possession on the land in dispute. Respondent nos. 4 to 6 moved an application on the Tehsil Divas on 30.10.2001 inter-alia stating that the property in question belonged to them and the petitioner has got his name mutated in the revenue records by manipulation of records. The application was registered as application No. 17/432. From paras 11, 12 and 14 of the writ petition it appears that respondent No. 2 without affording any opportunity to the petitioner vide order dated 16.3.2002 directed to expunge the name of the petitioner and for recording the name of respondent Nos. 4 to 6 in his place in the revenue records. In paragraph 8 of the writ petition it is averred that no appeal or revision was ever filed against the order dated 17.12.1993 passed by the A.R.O. In reply of para 8 of the writ petition in the counter affidavit the respondents have simply denied the averments inter-alia; that the contents of para 8 of the writ petition as stated are denied but no reason has been given why no objections, appeal or revision had been filed against the order of the Assistant Revenue Officer.
5. It is urged that in the case of Abdul Malik v. State of U.P. reported in 2001 Revenue Law Times page No. 339 the Court has held that such type of long entry can not be removed in summary proceedings, even if it was forged. It has further been held by the Court that the principle of natural justice must be applied but respondent No. 2 without considering this relevant fact in summary proceedings passed the order impugned, thus, he has committed the manifest error of law and the impugned order is liable to be quashed by this Court. It is lastly submitted that by means of Annexure-1 of the counter affidavit of respondent Nos. 4 to 6 are trying to establish their case that their names were recorded in the revenue records but they have never stated in any paragraph of the counter affidavit that in what manner and under which order their names were recorded in the revenue records.
6. From perusal of Annexure-1 of the counter affidavit, it is evdient that the said document is not an authentic one as it does not bear signature of any authority, as such it is alleged that respondent Nos. 4 to 6 have committed the fraud and by means of the said forged document, they are trying to mislead this Court.
7. The proceedings under Section 54 of the Act are mandatory in nature. The A.R.O. has exercised the power and also passed the order on 24.12.1993 in prapatra 6 and on 17.12.93 in prapatra 9. According to Section 54(8)(A) of the Act the order of A.R.O. is final under Sections 210 and 219 of the Act, as such respondent No. 2 has no right to pass order to expunge the name of the petitioner from over the plots in question. By means of order dated 24.12.93 passed by the A.R.O., at the time of preparation of Prapatra 6 and Prapatra 9, the name of the petitioner had already been recorded in the revenue records but after expiry of about 8-9 years, on the application of respondent Nos. 4 and 6 in Tehsil Divas the respondent No. 2 passed the impugned order without affording any opportunity of hearing as well as without giving any notice to the petitioner, which can not be sustained.
8. The counsel for the respondents submits that the Patta was obtained by the petitioner by fraud. He states that from perusal of Annexure CA-1 it is evident that all the persons who had been granted Patta are still alive and the petitioner showing them to be dead and himself to be their heir has obtained the Patta by fraud.
9. The case of the petitioner admittedly is that no opportunity has been granted to him before passing the impugned order dated 16.3.2002. On the other hand fraud vitiates every proceedings and the person resorting to fraud has no legal right. The respondents claim that pattas were obtained by the petitioner by fraud, hence, the facts have to be ascertained by the authorities by examining the oral and documentary evidence of the parties allowing them to adduce oral evidence in support of their case.
10. In these circumstances, the writ petition is disposed of directing the Sub Divisional Magistrate to enquire whether 'Patta' has been obtained by fruad or not and decide the matter within a period of four months from the date of production of a certified copy of this judgment by either of the parties. The Sub Divisional Magistrate shall pass a speaking and reasoned order in accordance with law, after the parties have been given opportunity of evidence and hearing.