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Judgment
Shri Narayan Shukla, J.—Heard Mr. Hemant Kumar Misra, learned Counsel for the petitioner and the learned Standing Counsel.
The petitioner has challenged the order dated 16.1.2009 passed by the Assistant Collector (1st Class), Sadar, Lucknow i.e. opposite party No. I in Case No. 2/2/2/3/56/60/08-09, whereby a direction has been issued to delete the names of Vinay Kumar Bajpai and Vineet Kumar Bajpai sons of Ravindra Kumar and Smt. Asha Bajpai widow of Ravindra Kumar from Gata No. 800 measuring 5 Bigha.
The proceeding was initiated by the Collector on the basis of report submitted by the Tahsildar. The Tahsildar reported that the name of Ravindra Kumar over gata no. 800 measuring 5 Bigha has been found forged, which is liable to be deleted from the revenue records.
Relying upon the said report the Assistant Collector (Ist Class), Sadar, Lucknow passed the order in exercise of power provided under sections 33 and 39 of the Uttar Pradesh Land Revenue Act, 1901, which are reproduced herein-under:--
The Annual registers.-
(1) The Collector shall maintain the record of rights, and for that purpose shall annually, or at such longer intervals as the State Government may prescribe, cause to be prepared an amended (register mentioned in section 32).
The register so prepared shall be called the annual register.
(2) The Collector shall cause to be recorded in the annual register-
(a) all successions and transfers in accordance with the provisions of section 35; or
(b) other changes that may take place in respect of any land;.
and shall also correct all errors and omissions in accordance with the provisions of section 39;
Provided that the power to record a change under Clause (b) shall not be construed to include the power to decide a dispute involving any question of title.
(3) No such change or transaction shall he recorded without the order of the Collector or as hereinafter provided, of the Tahsildar or the Kanungo.
(4) The Collector shall cause to be prepared and supplied to every person recorded as bhumidhar, whether with or without transferable rights, assami or Government Lessee a Kisan Bahi [Pass book] which shall contain-
(a) such extract from the annual register prepared under ''sub-section (1) relating to all holdings of which he is so recorded (either solely or jointly with others);
(b) details of grants sanctioned to him; and
(c) such other particulars as may be prescribed :
Provided that in the case of joint holding it shall be sufficient for the purpose of this sub-section if Kisan Bahi (Pass Book) is for the purpose of this sub-section if Kisan Rahi (Pass Book) is supplied to such one or more of the recorded co-sharers as may be prescribed.
(4-A) The Kisan Rahi (Pass Rook) referred to in sub-section (4) shall he prepared in such manner and on payment of such fee, which shall be realisable as arrears of land revenue, as may he prescribed.
(5) Every such person shall be entitled, without payment of any extra fee, to get any amendment made in the annual register under sub-section (2) incorporated in his Kisan Bahi (Pass Book).
(6) The State Government may make rules to carry out the purposes of this section (including, in particular, rules prescribing the mode of reception in evidence, and of proof in judicial proceedings, of entries in the Kisan Bahi (Pass Rook)], and the mode of its revision and authentication up-to-date and for issue of duplicate copies thereof, and the fees, if any, to be charged for any of the said purposes.
(7) In this section, "prescribed" means prescribed by rules made by the State Government.
(8) Nothing in sub-sections (4) to (7) shall apply in relation to any areas which is either under consolidation operations or under record operations.
Correction of mistakes in the annual register-
(1) An application of the correction of any error or omission in the annual register shall be made to the Tahsildar.
(2) On receiving an application under sub-section (1) or any error or omission in the annual register coming to his knowledge otherwise, the Tahsildar shall make such inquiry as appears necessary and then refer the case to the Collector, who shall dispose it of, after deciding the dispute in accordance with the provisions of section 40;
[Provided that nothing in this sub-section shall be construed to empower the Collector to decide a dispute involving any question of title.]
(3) The provisions of sub-sections 1 and 2 shall prevail notwithstanding anything contained in the U.P. Panchayat Raj Act, 1947.
As is evident from the provisions of section 39 of the Act the Collector has been empowered to make correction in the annual register after deciding the dispute in accordance with law.
The provision of section 40(1) speaks that all the disputes regarding entries in the annual registers shall be decided on the basis of possession.
(2) If in the course of inquiry into a dispute under this section the collector or the Tahsildar is unable to satisfy himself as to which party is in possession, he shall ascertain by summary inquiry who is the person best entitled to the property and shall put such person in possession.
It is not in dispute that the petitioner''s name is recorded in the revenue records as is established from the extract of Khatauni of 1410-F issued in her favour, on the basis of which the petitioner is in possession over the land in dispute. The Tehsildar only on the ground that the name of Mr. Ravinda Kumar whose sons; namely; Vinay Kumar and Vineet Kumar were recorded in the revenue records in the forged manner passed the order to delete their names.
In order to support the action taken by the respondents the learned Standing has placed reliance upon the following judgments:--
Sri Kishun and others v. C.R. Yadav, D.D.C. (A) Corakhpur and others, 1995 RD183, Muzeeb Vs. Dy. Director of Consolidation, Azamgarh and others, , Ram Shiroman and Others Vs. District Deputy Director of Consolidation, Allahabad and Others, ?, Buddha Singh v. Sancha lak/Sahayak Sanchalak, Chakhandi, Uttar Pradesh and others, 1990 RD 52, Basdeo and others v. Deputy Director of Consolidation, Azamgarh and others, 1991 RJ 448 and Purshollam Das Verma v. 2nd Addl, Distt. Judge. 1991 LCD 567
Whereas on the other hand, learned Counsel for the petitioner placed reliance upon the following judgments:--
Chaturgun and others v. State of U.P. and others, 2005 (98) RD 244 (All), Narendra Singh and others v. Jal Bhagwan and others, 2005 (1) JCLR 343 (SC), Bachchu Ram Singh and another v. Additional Commissioner (Judicial), Allahabad Division, Allahabad and others, 2009 (107) RD 532 (All), and Ram Avadh and others v. Ram Das and others, 2009 (106) RD 625 (SC) in which it has been held that entry in the revenue records treating as fake cannot be deleted without providing opportunity of hearing to affected persons as well as the persons whose names are entered in the revenue records.
It is not in dispute that Collector concerned proceeded to pass the order impugned only on the basis of report submitted by the Tahsildar without providing opportunity of hearing to the petitioner; whereas keeping in view the judgments referred hereinabove I am of the view that the respondents were under obligation to provide opportunity of hearing to the petitioner before passing the order. More over since the petitioner is a bona fide purchaser, her name is recorded in the revenue records as is evident from extract of Khatauni of 1410 Fasli and is also in the possession over the land in dispute, I find that prima facie, the entry in the revenue records cannot be said to be forged one rather it leads towards the dispute of title, for which the Collector concerned is not empowered to adjudicate upon in light of proviso of section 39 of the Act.
Therefore, order dated 16.1.2009 passed by the opposite party No. 1 is hereby quashed with liberty to the respondents to raise dispute of title before the Court/authority of competent juriscdiction.
In the aforesaid term, the writ petition is allowed