Mohd. Rashid and others vs State of U.P. and others

A.P. Sahi, J.—Heard Sri Gajendra Pratap learned Senior Counsel for the petitioners, Sri T.P. Singh learned Senior Counsel for the respondent No. 5 and the learned Standing Counsel for the respondent Nos. 1 to 4.

Learned Counsel for the parties agree that the matter can be disposed of finally at this stage itself without awaiting for any further affidavits and therefore with the consent of the parties this petition is being disposed of finally.

This is a dispute arising out of summary proceedings which the petitioners allege to be without jurisdiction. It is also urged by the petitioners that the order passed by the Collector was without putting the petitioners to notice and therefore it was in violation of principles of natural justice and thirdly the proceedings which had been earlier finalized in the year 1981, the same has been completely ignored by the authorities below, hence the impugned orders deserve to be set aside.

The background in which the dispute arose is that the father of the petitioners under an order of the Consolidation Officer dated 25th July, 1966 claimed to have entered into as a tenure holder in the revenue records. It is alleged that on the basis of the orders of the Consolidation Authorities the predecessors in interest of the petitioners applied for mutation which was allowed on 5th November, 1981. Against the said order one Munni Devi is stated to have filed an appeal in which the respondent No. 5 was a party respondent. The said appeal, against the order dated 5.11.1981 was dismissed on 3rd April, 1991.

The respondent No. 5 claimed that he was the owner of the holding on the basis of a will said to have been executed by late Sarju Prasad the original recorded tenure holder on 25.11.1975. A suit came to be filed by the said respondent in respect of the property, which was allegedly dismissed in default on 9.10.1992.

A miscellaneous application is stated to have been filed by the respondent No. 5 before the Collector on 15.9.2003, on which the Collector passed an order on 9th June, 2005 directing expunging of the names of the petitioners and recording the names of the successors of late Sarju Prasad. In compliance of the said order the Tehsildar passed an order on 22nd July, 2005 which was recalled at the instance of the petitioners on 8.8.2005.

The petitioners however had filed a revision against the original order of the Collector dated 9th June, 2005 which has been dismissed by the impugned order on 20th August, 2011. Hence this petition.

Sri Gajendra Pratap submits that the order of the District Magistrate dated 9th June, 2005 is without jurisdiction on a miscellaneous application filed by the respondent No. 5, inasmuch as, there is no such power available with the Collector to entertain such a miscellaneous application and direct the expunging of the entries. He further contends that the revising authority has completely overlooked the finality attached to the proceedings of mutation carried out vide order dated 5.11.1981 and the dismissal of the appeal on 3rd April, 1991. He further contends that this miscellaneous application was entertained by the Collector without issuing any notice to the petitioners and was an ex-parte proceeding, yet even on a revision, the finding recorded is that it was not necessary to issue notices to the petitioners, which is erroneous. He further submits that on all three counts the impugned order deserves to be set aside.

Replying to the said submissions Sri T.P. Singh submits that there is absolutely no evidence of any order of the Consolidation Officer on the basis whereof mutation is being claimed by the petitioners on 5.11.1981. He has invited the attention of the Court to the order of the Collector to urge that duplicate consolidation records were available which indicated that the name of late Sarju Prasad continued to be recorded, hence taking undue advantage of a fire that took place in the Collectorate, the petitioners have allegedly succeeded in getting of this manipulation done in the revenue records in their favour. He submits that in view of the fact that the petitioners claim is founded on fraud, this Court should not interfere at the instance of the petitioners and the order of the Collector does not suffer from any infirmity either on facts or for want of jurisdiction.

The contention further raised on behalf of the respondents is that if the mutation of 1981 is founded on fraud, and technically if no finding has been recorded in respect thereof, yet this Court can take notice of such facts and refuse to interfere at the instance of the petitioners. Sri Singh therefore submits that in sum and sub-stance the claim of the petitioners deserves to be rejected even otherwise on merits.

Having heard learned Counsel for the parties and in view of the facts that are available on record it is evident that neither the Collector nor the revising authority have proceeded to advert to the contentions raised on behalf of the petitioners in relation to the mutation proceedings of 1981. It is also not indicated as to what would be the impact of the civil suit which is alleged to have been filed by the respondent No. 5 and has been dismissed in default on 9.10.1992. Apart from this, it is also apparent that one of the contentions raised by the petitioners is with regard to the assumption of jurisdiction by the Collector in entertaining a miscellaneous application. This aspect has also not been looked into by the revising authority. The issue raised by the respondent on fraud may also deserve an examination provided it is established in accordance with law.

In view of this, the order passed by the revising authority does not appear to have adverted to'' the issues raised and is accordingly perverse. The order dated 20.8.2011 therefore is unsustainable and is hereby set aside. The learned Commissioner shall now proceed to pass a fresh order keeping in view the observations made hereinabove within a period of three months from the date of presentation of a certified copy of this order before him.

The writ petition is allowed.