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Prem Chand v. The Collector Azamgarh And Others - WRIT - B No. 766 of 2003  RD-AH 7221 (19 April 2007)
Civil Misc. Writ Petition No.766 of 2003
Prem Chand Vs. The Collector and Others
Hon. Janardan Sahai,J
The dispute relates to a portion of plot no.121 which was recorded in the C.H. Form 45 in the earlier consolidation proceedings as Pashuchar/ Pasture land. According to the petitioner his name was entered in C.H.form 23 but was wrongly omitted to be mentioned in C.H. Form 45 and therefore he filed application for correction of papers , which was allowed by the Asstt. Collector by the order dated 15.2.79. It is alleged that the Gaon Sabha filed a restoration application, which was dismissed. Then a suit was filed by the Gaon Sabha under Section 229B of the U.P. Zamindari Abolition & Land Reforms Act in the year 1979 itself and the said suit abated on the ground of fresh notification under Section 4(2) of the U.P. Consolidation of Holdings Act for Consolidation operation in the village. The petitioner is aggrieved by the order of the Addl. Collector purporting to exercise power under Section 48 of the U.P. Consolidation of Holdings Act by which the name of the petitioner was directed to be expunged on the ground that the entry of the petitioner's name is fraudulent.
I have heard Sri Ram Niwas Singh counsel for the petitioner and Sri D. S.Singh counsel for the respondents.
It was submitted by Sri Ram Niwas Singh that the petitioner had earlier come to this court in writ petition no.45987 of 2002, which was disposed of on 28.10.02 with the direction that the petitioner's objections relating to the maintainability of the case before the Addl. Collector be disposed of by a reasoned order, which direction it is submitted has not been complied with. It is submitted that the hearing before the Addl. Collector took place only in respect of the maintainability of the proceedings and not on the merits and the Addl. Collector has passed an order on the merits directing the name of the petitioner to be expunged. It is also submitted that the application on which the cognizance was taken by the Addl. Collector was moved by the District Government Counsel and not by the Gaon Sabha.
It is submitted by Sri R.N.Singh that the petitioner on the basis of an order of the Consolidation Officer was entered in CH form 23 but his name was wrongly omitted in CH form 45. The copy of that order has not annexed with the writ petition without which it is difficult to accept this contention. The finding of the Addl. Collector is that the Pashuchar land of the Gaon Sabha has been fraudulently got entered into the petitioner's name. The petitioner has not filed any material on the basis of which it can be said that he was entitled to get his name entered.
Sri R.N.Singh has taken me through the order of the Addl. Collector in which he has referred to the objections relating to the maintainability of the case taken by the petitioner and the recital in the order is that the petitioner was heard on those objections. This recital it is submitted is not about any hering on merits but only abouont maintainability. It is submitted that there was no hearing on merits. There appears to be some merit in this contention.
Another contention of the petitioner's counsel is that the District Govt.Counsel (Revenue) could not have applied before the Collector. He relied upon para 17 of the writ petition in which it is stated that the respondent no.1 has no jurisdiction to entertain such application and the application filed by the Gaon Sabha through the District Govt.Counsel(Revenue) is not maintainable and is liable to be dismissed. It is not alleged that there was no resolution of the Gaon Sabha for getting the entry expugned. The District Govt. Counsel represents the Gaon Sabha. The copy of the application has not been filed.The contention of Sri R.N.Singh cannot therefore be accepted. In any case the Collector has suo moto power under Section 48 of the U.P. Consolidation of Holdings Act to correct a wrong entry. It is submitted by Sri Ram Niwas Singh that in such a case as the present one, the provision under Section 48 of the Act could not be invoked and the same can be invoked only if there is a mistake in the consolidation proceedings or if there is some mistake in an order passed in the consolidation proceedings. In the case of Vikram Singh Jr.Hiigh School 2002(93) RD 278 the apex court has considered the scope of the power of the Dy. Director of Consolidation under Section 48 as follows:-
"In the consolidation proceedings the Collector is also the District Dy. Director of Consolidation under the U.P.Consolidation of Holdings Act and is authorised to correct any wrong entry continued in the consolidation record in that capacity in the exercise of power under Section 48 of the U.P. Consolidation of Holdings Act. Merely because a wrong provision was quoted by the Collector for exercising his power while deleting the name of the appellant from the revenue record would not invalidate the order if it is shown that such an order could be passed under other provision of the Act viz. Under Section 48 of the U.P.Consolidation of Holdings Act. In that view of the matter, we do not find any infirmity in the order passed by the Collector."
In view of the decision of the apex court the contention of Sri R.N.Singh cannot be accepted.
Sri Ram Niwas counsel for the petitioner relies upon the decision reported in 1999(90) RD Daya Ram Singh Vs. Dy. Director of Consolidation,114 in support of his contention that an order for expunging even a fraudulent entry can be passed only after opportunity of hearing. There is merit in this contention. The question now is as to whether the order of the Collector should be quashed and he may be directed to decide the case afresh after hearing the petitioner or post-decisional hearing be provided to the petitioner. It appears that the entries in favour of the petitioner are not long standing entries. The name of the petitioner was not entered in CH Form 45. His name was permitted to be entered by the order of the Sub-Divisional officer passed in the year 1979. The Gaon Sabha immediately filed a suit under Section 229B of the U.P.Zamindari Abolition & Land Reforms Act which ultimately abated. Thereafter consolidation proceedings started in the village on 27.6.81. Thus this is not a case of a long standing entry in favour of the petitioner being directed to be expunged. In the circumstances in my opinion, post-decisional hearing would meet the ends of justice and it is not necessary to set aside the order of the Addl. Collector. This view finds support from the decision reported in AIR 1996 Alld.88, Muzeeb Vs. Dy. Director of Consolidation, Azamgarh & others. The petitioner may apply to the Collector with a copy of this order to give him opportunity of hearing. He may also file all the material he wishes to rely upon in support of his case. Sri R.N.Singh counsel for the petitioner states that the petitioner will file the material which he relies upon within 6 weeks from the date a certified copy of this order is produced before the authority concerned. Thereafter the Collector; shall decide the case expeditiously.
With these observations, the writ petition is disposed of.
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