Court No. - 54
Case :- WRIT - C No. - 45106 of 2012 Petitioner :- Smt. Ram Rati Devi Respondent :- State Of U.P. Thru Secy. And Others Counsel for Petitioner :- Kripa Shanker Pandey,Rakesh Pandey Counsel for Respondent :- C.S.C.,Anand Kumar Srivastava,Shrawan Kumar Tripathi
Hon'ble Ajit Kumar,J.
1. Heard learned counsels for the parties.
2. By means of the present petition the petitioner has questioned the correctness of the order passed by the Chairman Nagar Palika Parishad, Basti dated 4.5.2011 whereby he has directed striking off the name of the petitioner recorded in the Municipal records of House No. 1600A of Ward No. 7 of the Municipality. The petitioner has also assailed the order dated 5.6.2012 passed by the Collector, Basti rejecting the appeal of the petitioner against the aforesaid order.
3. The claim set up by the petitioner is that she came to be recorded in Khatuni Part-I by virtue of transfer from a recorded tenure-holder of the land, namely, Ashok Kumar Singh s/o Ram Kalyan Singh in plot no. 166Sa with the measurement 1 biswa and 10 biswansi. Her name was recorded in the said khatuni by the Revenue Inspector on 20.1.1996.
4. When the house was got constructed, the petitioner applied for assessment in her name by means of an application dated 24.4.2010 on which the report was called for an appropriate action to be taken. It appears that on the basis of some report submitted in the case with regard to the claim set up by the present petitioner for the assessment of the house in question, the same came to be approved on 22.5.2010 by the Chairman of the Municipalities and thus, the assessment of the house took place of the present petitioner showing her to be in occupation. The assessment list bears the name of the present petitioner in the municipality tax register which has been filed with the present writ petition.
5. It further transpires from the record that soon thereafter on 5.10.2010 one application was moved by Indrawati Devi who happened to be the wife of the brother of the husband of the present petitioner, claiming that House No. 1600A situate on plot no. 166 area 1 biswa 10 biswansi was in her possession and in her ownership and the electric connection was already standing in her name. On the application so filed by the 5th respondent for recalling the order dated 22.5.2010 notices were issued to the present petitioner and the petitioner filed a detailed objection in which she had very categorically stated that the respondent no. 5 was staying in the house in the capacity of a licensee being wife of brother of husband of the petitioner and that she had already paid tax till 31.3.2012; she also claimed that the land was purchased from the original tenure- holder, namely, Ashok Kumar Singh and the name came to be recorded and, therefore, any entry subsequent to 20.1.1996, if any, standing in the name of respondent no. 5, automatically turns out to be forged one.
6. On the basis of objection filed by the respondent, the matter was got examined by calling for report and on the basis of the report submitted, the Chairman Municipal Board, Basti allowed the objection of the 5th respondent and recalled the order dated 25.5.2010 passed in favour of the present petitioner and directed that the name of Smt. Indrawati Devi be entered in the Municipal Record.
7. From the perusal of the order of the Chairman, impugned herein this petition it is clearly revealed that he has placed heavy reliance upon the spot inspection report submitted by the team present on 7.4.2011. It is worthwhile mentioning that there is no inspection carried on 7.4.2011 and yet the possession of Smt. Indrawati Devi, respondent no. 5 was found to be there in respect of the house in question. Thus it became a matter of serious contest of title between two parties: one claiming land by virtue of sale from the original tenure-holder and the other claiming on the basis of possession.
8. In contentious matter like this and where title is seriously disputed, if the authority wants to change the status quo with regard to the entries in the relevant revenue records of the Municipalities, it is required to give a well reasoned and convincing finding of fact as to how the authority comes to conclude that the order earlier passed in the first assessment of the house was incorrect and that the order was obtained by fraud or misrepresentation. Unfortunately there is no such finding recorded in the order passed by the Chairman of the Municipal Board, Basti.
9. In the appeal preferred by the present petitioner, the Collector, Basti has proceeded ahead further to record a finding on the basis of some entries recorded in khatuni part-II as Class 15 (2) in the records maintained as per the land record manual.
10. I have carefully gone through the relevant revenue extracts which have been filed along with the counter affidavit and also have been relied upon the Collector in rejecting the appeal of the present petitioner.
11. On the close scrutiny of the relevant revenue extracts, I find that the Khatuni part-II entry came to be recorded, for the first time, in the name of the respondent no. 5 in the fasli year 1405. Khatuni Part-II is an entry on the basis of possession. The entry which is standing in the name of the present petitioner in khatuni part-I, which is a revenue record/ extract indicative of title, bears the name of the petitioner in 1404 fasli, a fasli year prior to the one in which the possession was found to be with the respondent no. 5.
12. This Court may record that while the specific objection was taken that the petitioner had obtained title from the original recorded tenure holder and that the house in question was given to the respondent no. 5 as licensee, the court should have recorded a finding as to whether the khatuni of fasli year 1404 was fraudulent one or genuine one. In the absence of any finding in respect of the khatuni part-I, the finding of ownership or title on the basis of khatuni part-II entry which starts from the subsequent year cannot be approved of.
13. Thus, the finding returned by the Collector can also not be sustained and deserves to be quashed and the matter is remitted to the Chairman, Municipal Board, Basti to address the issues discussed hereinabove, afresh. Such exercise shall be carried out within three months from the date of production of a certified copy of the order. The parties shall be permitted to lead evidence and shall be heard reasonably.
14. In the meanwhile it will be open for the parties to pursue the common law remedy for declaration of their title and injunction in respect of their possession, if they are so advised.
15. In view of the above the orders dated 4.5.2011 passed by the Chairman Municipal Board, Basti and the order dated 5.6.2012 passed by Collector, Basti are hereby quashed.
16. The writ petition stands disposed of in terms of the observations and directions given hereinabove.
Order Date :- 30.7.2019 Nadeem Ahmad