JUDGMENT Krishna Murari, J.
1. This writ petition is directed against the order dated 3.6.2003 passed by the Deputy Director of Consolidation, Baghpat, in exercise of power conferred by Section 48(3) of the U. P. Consolidation of Holdings Act (for short the Act) directing to expunge 'Amaldaramad' of the names of the petitioners from the land in dispute.
2. The facts as set out in the writ petition are that the Land Management Committee of Village Barnawa District Meerut (now District Baghpat) made allotment of certain land in favour of the petitioners 1st Set and pro-forma respondents No. 7, 8 and 9, in the year 1983. The village was notified for consolidation operation on 27.6.1983. Time barred objections under Section 9 of the Act was filed by the petitioners 1st Set for mutation of their names on the basis of the said allotment. The Consolidation Officer vide order passed on different dates condoned the delay and allowed the objections filed by the petitioners 1st Set. Similarly, objections filed by pro-forma respondent No. 7 were also allowed. In so far as petitioner No. 9 is concerned he had filed objections under Section 9 of the Act on the allegation that he was landless agricultural labour belonging to scheduled caste and was in cultivatory possession over the land in dispute for more than 15 years and hence had acquired rights under Section 122B (4f) of the U.P. Zamindari Abolition and Land Reforms Act. This objection was also allowed by the Consolidation Officer. The orders passed by the Consolidation Officer on various objections were duly incorporated in CH Form -11.
3. The petitioners 2nd Set claiming to be purchasers of the land in dispute from petitioners No. 3, 4 and 5 through sale deed dated 24.4.1988 filed objection under Section 12 of the Act for mutation of their names. On the basis of the compromise between the parties the Assistant Consolidation Officer vide orders passed on various dates directed the mutation of the names of the petitioners 2nd Set. The said orders were also given duly effect to in consolidation records. Chaks were accordingly carved out in the names of the petitioners and they were put in possession.
4. On 14.5.2002, respondent No. 6 is alleged to have moved an application before the Collector on Tehsil Diwas alleging that the pattas on the basis of which the petitioners have got their names mutated was forged and fabricated and the petitioners have got their names mutated fraudulently. A report was called for. Tehsildar after making enquiries submitted his report on 4.7.2002 pointing out that the Land Management Committee has never passed any resolution for allotment of any land in favour of the petitioners. Their names have been mutated on the basis of forged patta in connivance with the Consolidation Officer and other subordinate consolidation staff. In the meantime, another application dated 30.5.2003 was filed by respondents No. 4 and 5 to the same effect. The respondent No. 1 again called for a report from the Consolidation Officer who after making enquiries submitted a report dated 31.5.2003 again confirming that the land in dispute was a public utility land and the mutation of the names of the petitioners is a result of fraud and manipulation. Respondent No. 1, on the basis of the aforesaid reports, passed the impugned order dated 3.6.2003 to expunge the names of the petitioners.
5. I have heard Sri Sankatha Rai, learned Counsel appearing for the petitioners, learned standing counsel for State respondents and Sri S. A. Sah appearing, for respondent No. 4.
6. A number of grounds have been urged on behalf of the petitioners to assail the impugned order.
7. The first argument advanced is that enquiry reports which have formed the basis of the impugned order are ex parte and the enquiries were made behind the back of the petitioners without any notice or opportunity. It has further, been urged that even respondent No. 1 also did not provide any opportunity of hearing before passing the impugned order and the same is in violation of the principles of natural justice. It has further been pointed out that within 5 days of making the application the enquiry was completed the report was submitted and the impugned order was passed which in itself is sufficient to establish the haste with which the authorities proceeded.
8. It has further been submitted that the Deputy Director of Consolidation cannot exercise powers conferred by Section 48 (3) of the Act suo motu and for exercising the said power a reference has to be made to him by a Subordinate Authority after following the prescribed procedure and allowing the parties an opportunity of hearing. It has also been contended that Consolidation Authorities have no authority or jurisdiction to cancel or set aside a lease or allotment made by the Land Management Committee under the provisions of U.P.Z.A. and L. R. Act. Reliance in support of the said contention has been placed on a Full Bench decision in the case of Shimilesh Kumar v. Gaon Sabha and Ors., .
9. In reply, it has been contended that 'Amaldaramad' was made on the basts of forged pattas as such there was no requirement of giving any opportunity. It has further been urged that fraud vitiates every thing and in any view of the matter even if the Deputy Director of Consolidation wrongly exercises the power this Court should not interfere as the same would result in reviving an equally illegal order which was a result of fraud and forgery. Distinguishing Full Bench decision in the case of Shimilesh Kumar, learned Counsel for the respondent has urged that since the patta being forged was a void document, there was no need to cancel the same and can be ignored by the Consolidation Authorities.
10. I have considered the contentions, advanced by the rival parties and perused the records.
11. There is no manner of doubt that the enquiry was conducted behind the back of the petitioners and the impugned order has also been passed without any notice or opportunity to them. Respondent No. 1 while passing the impugned order has found that the entries of the names of the petitioners in the revenue record was a result of fraud and manipulation.
12. It is no doubt correct that entries made in revenue records on the basis of forged or non-existing order cannot be allowed to continue as soon as the facts come to light. However, the question which arises for consideration is whether in such a situation the affected persons are entitled for an opportunity of hearing before the entries of their names could be expunged.
13. Whether an entry in revenue record is fake or based on some forgery or fraud is a question of fact and is required to be established and proved like any other fact which necessarily implies an opportunity of hearing to the affected persons. Equally important is that any action based on fraud has to be set aside and the person cannot be allowed to take any advantage of his own misdeeds even for a moment. But the finding in respect of fraud or forgery cannot be recorded ex parte and it cannot be ruled that the principles of natural Justice in such cases have no application at all. It may be that the person affected be possessed of sufficient materials by which he may be able to establish that entries are not a result or based on any fraud or forgery. Thus in accordance with principles of natural justice a notice or opportunity of hearing to the affected person is a must before expunging entry even in cases where the authority is prima facie of the opinion that entry was a result of some fraud, forgery or manipulation.
14. The next question, which arises, is the course to be adopted by the Courts in cases where orders have been passed to expunge the entries obtained by fraud or forgery without hearing the affected persons. Normally the Courts do not hesitate in setting aside an order passed in violation of principles of natural justice and relegate the matter back to the authority concerned to consider the case afresh after following the principles of natural Justice. But whether such a course should be adopted in cases where there is strong evidence, though ex parte, of fraud or forgery is also a question to be considered. The biggest drawback in adopting the normal course of setting aside the ex parte order and relegating the matter back, in such cases, may create an opportunity for the wrongdoer to take advantage of the situation and he may transfer the land to a third party or change its nature creating further complication. No doubt the Courts are not powerless in this regard and such a person cart be put to terms by passing appropriate orders. But again the same may not be a complete safeguard and an innocent person unaware of the true situation, misguided by continuing entries may fall into trap. To strike a balance between the two situations so that the alleged wrong doer may not be able to take any advantage of his own alleged misdeeds, if any, on one hand and he may also not be condemned unheard on the other hand, such a person may be given a post decisional hearing. The proposition that in such cases a post decisional hearing would satisfy the principles of natural justice was accepted by the Hon'ble Apex Court in the case of Maneka Gandhi v. Union of India, .
15. In almost identical facts and circumstances, two learned single Judges of our Court in the case of Muzeeb v. Deputy Director of Consolidation and Ors., 1996 (87) RD 66 and Chaturgun v. State of U. P., 2005 (2) AWC 1256 : 2005 (98) RD 244, have taken the same view. In the case of Chaturgun (supra) it has been observed as follows:
However, if entry is expunged or any order is passed without hearing the person affected then he is entitled to file an application for post decisional hearing and recall of the order before the Court/Authority which pass the ex parte order if such an application is filed then the Court/Authority concerned shall hear the applicant and in case it comes to the conclusion that the earlier order is not correct then the said order shall be set aside. In such a situation, it is not necessary to first set aside the order and then hear the party concerned.
16. It is also essential that the party moving the application for post decisional hearing must file all such evidence which he considers necessary in support of his case along with the application. The Supreme Court in the case of A.M.U., Aligarh v. M.A. Khan, , has ruled that a person complaining about denial of opportunity of hearing must show that in case opportunity would have been provided to him what cause he would have shown or what defence he would have taken.
17. In case the affected party is able to establish that the entry of his name in the revenue record is correct and is not based on any fraud or forgery then in that event the concerned authority would pass suitable orders in accordance with law.
18. For the aforesaid reasons and in the facts and circumstances of the present case, the petitioners are granted liberty to move an application for post decisional hearing/recall of the impugned order along with their objections and whatever evidence they consider necessary in support of their case before respondent No. 1 within one month from the date of receipt of certified copy of this judgment. The respondent No. 1 is directed to decide the matter afresh within two months thereafter in accordance with law and after notice an opportunity of hearing to all concerned.
19. Since the impugned order was passed without any notice or opportunity of hearing to the petitioners and the matter is being sent back to the respondent No. 1 to decide the matter afresh, I have not considered it necessary to enter into various other arguments raised by the learned Counsel for the parties either in support of or for assailing the impugned judgment. It is being made clear that respondent No. 1 shall proceed to decide the matter afresh without being influenced by any of the observation made hereinabove.
20. This Court while entertaining writ petition passed an interim order in favour of the petitioners as such it would be in the interest of justice to direct the parties to maintain status quo with regard to nature and possession over the land in dispute till an application to be filed by the petitioners is decided by respondent No. 1. It is further provided that in case the petitioners do not file the certified copy of this order along with their application/objection within one month from the date of receipt of certified copy of this judgment before respondent No. 1 then this writ petition shall stand dismissed.
21. Subject to aforesaid observations, the writ petition stands disposed of.