Heard learned counsel for the parties.
Under challenge in this petition is an order dated 27.01.2010 passed by the Sub Divisional Officer, Nawabganj, Barabanki in a proceeding initiated on a report under section 33/39 of U.P. Land Revenue Act which relates to correction of revenue records. The petitioners also challenge the order dated 11.03.2019 whereby the revision petition filed by the petitioners against the order dated 12.02.2018 passed by the Sub Divisional Officer has been dismissed.
The facts of the case, which can be gathered from the record available on this writ petition, are that a report was submitted by the tehsil authorities on 18.05.2009 to the Sub Divisional Officer giving details of certain land which was recorded as talab and subsequently which came to be recorded in the name of individual tenure holders as bhumidhars with transferable rights. Accordingly, a recommendation was made for correcting the said revenue entries. The said report submitted by the tehsil authorities to the Sub Divisional Officer dated 18.05.2009 has been annexed as annexure 5 to the writ petition. In the said report, it has inter alia been mentioned that old plot no.139, having an area of 32-7-16 was assigned new plots as 381 to 388, 391, 400, 403 to 409, 412, 414 and 415 and that these new plots are recorded as bhumidhari with transferable rights in the name of individual tenure holders.
Submission of learned counsel for the petitioners is that the description made in the report dated 18.05.2009 in relation to plot nos.''391, 400' has been misread by the Sub Divisional Officer while he passed the order on the basis of the said report on 27.01.2010 as plot nos. ''391 to 400'. Submission of learned counsel for the petitioners thus is that if plot nos.''391, 400' is construed as plot nos.''391 to 400', that would include new plot no.397 as well which is petitioners' bhumidhari land and despite there being no such recommendation in the report dated 18.05.2009, plot no.397 has also been included in the order dated 27.01.2010 by misconstruing plots no.''391, 400' as plot nos. ''391 to 400' which has resulted in serious prejudice to the petitioners inasmuch as bhumidhari land has been ordered to be recorded as talab.
On the basis of the said report dated 18.05.2009 the Sub Divisional Officer passed an order on 27.01.2010 directing therein expunction of the names of the tenure holders from plot numbers mentioned in the report dated 18.05.2009 and ordering that the said land be recorded as talab. Report dated 18.05.2009 has been made part of the order dated 27.01.2010.
On some application, the order dated 27.01.2010 passed by the Sub Divisional Officer was partly modified by the Additional Magistrate-First, Barabanki vide his order dated 04.06.2015 whereby it was ordered that gata no.43M having an area of 8.636 hectare be recorded in the name of Human Welfare Charitable Trust. The petitioners when came to know about the said orders dated 27.01.2010 as modified by the order dated 04.06.2015, moved an application seeking restoration of the said case under section 201 of U. P. Land Revenue Act on 20.10.2015, however, the said application has also been rejected by the order dated 12.02.2018 passed by the Additional Officer-First, Barabanki. Challenging the said order dated 12.02.2018, the petitioners preferred a revision petition before the Additional Commissioner, Ayodhya Division, Ayodhya which too has been dismissed vide impugned order dated 11.03.2019 on the ground that since in another revision petition filed by one Sohan Lal and others against the order dated 12.02.2018, the order dated 12.02.2018 has already been set aside and as such revision petition filed by the petitioners against the same order dated 12.02.2018 is not maintainable and accordingly it has been dismissed.
The report on the basis of which proceedings under section 33/39 were initiated, dated 18.05.2009 gives details of old plot numbers and new plot numbers. So far as the new number plot no.397 which is the subject matter of this writ petition is concerned, in the entire report the said plot does not find mentioned. The new plot nos.391, 400 have been mentioned in the report which have been carved out of old plot no.139 which appears to be a big plot having an area of 32-7-16, out of the said big plot no.139 various plots were carved out which have been mentioned in the report dated 18.05.2009, namely, plot nos.381 to 388, 391, 400, 403 to 409, 412, 414 and 415. However, it is relevant to notice at this juncture that the said report does not make a mention that plot no.397 was carved out of old plot no.139. The said fact also finds support from the QnZeqrkfcdr (comparative khasra) prepared in the consolidation operation, according to which plot no.397 was carved out of old plot numbers 125M, 126M, 141M, 143M and 163M. The said document, which has been annexed as annexure 4 to the writ petition, does not anywhere indicate that any area of old plot no.139 was included in plot no.397. It is in this background it appears that the report dated 18.05.2009 does not make a mention of new plot no.397 having been carved out of old plot no.139. The report only mentions plot nos. ''391, 400' which prima facie appears to have been misread by the Sub Divisional Officer while passing the order dated 27.01.2010 as plot nos.''391to 400' which would include plot no.397 as well.
The case of the petitioner is that the report dated 18.05.2009 does not make a mention of new plot no.397 which belongs to the petitioners and that it is on account of the mistake and misreading of the said report that the Sub Divisional Officer in his order dated 27.01.2010 has ordered plot no.397 as well to be expunged from his name and be recorded as talab. His submission is that this aspect of the matter is crucial though has not been considered by any of the courts below. the restoration application moved by the petitioners has been rejected by the order dated 12.02.2018 passed by the Additional Officer, First, Barabanki stating that if the some order has been passed on merits the same cannot be said to be an ex parte order and accordingly no restoration application would lie.
Strangely the Sub Divisional Officer while considering the restoration application moved by the petitioner has not considered the aforesaid discrepancies which prima facie appear to have crept in the order dated 27.01.2010 passed by the Sub Divisional Officer wherein despite there being no mention of plot no.397 in the report dated 18.05.2009, plot nos.''391, 400' have been read to plot nos.''391 to 400'. The order dated 27.01.2010 as modified by the order dated 04.06.2015 by the learned trial court involved large number of individual tenure holders and parties and if at the instance of one party a revision petition against the order dated 12.02.2018 has been allowed, it cannot be said that at the instance of any other party who is aggrieved by the order dated 12.02.2018 the revision petition would not be maintainable. Thus the Additional Commissioner while rejecting the revision petition filed by the petitioners against the order dated 12.02.2018 has clearly erred in law.
In the light of the aforesaid, the writ petition is allowed in the following terms:
(i) The order dated 16.03.2019 passed by the Additional Commissioner (Judicial), Ayodhya Division, Ayodhya, which has been annexed as annexure 2 to the writ petition is hereby quashed.
(ii) The order dated 27.01.2010 as modified by the order dated 04.06.2015 passed by the Sub Divisional Officer/Additional Magistrate-First, Barabanki so far as it relates to new gata no.397 is also hereby quashed.
(iii) The Sub Divisional Officer concerned is directed to reconsider the claim of the petitioners in respect of gata no.397 and decide the same as expeditiously as possible, say within a period of four months from the date of production of certified copy of this order.
(iv) The petitioners shall be permitted to take all possible pleas which may be available to them under law and will also annex all the relevant documents on which they intend to rely. For the said purpose, the petitioners are permitted to move a fresh objection/claim along with the documents within a fortnight from today.
(v) The claim of the petitioners shall, thus, be decided in accordance with law afresh after giving opportunity of hearing to the learned counsel representing the Land Management Committee/Gaon Sabha concerned.
Order Date :- 26.8.2019 akhilesh/