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Mohammad Farooq v. Addl. Commissioner-Ii Allahabad Division & Others - WRIT - C No. 39762 of 2004  RD-AH 11258 (11 July 2006)
CIVIL MISC. WRIT PETITION NO. 39762 OF 2004
The Additional commissioner-II, Allahabad Division, Allahabad and others.
HON. SHISHIR KUMAR, J.
By means of the present writ petition the petitioner has approached this Court for quashing the impugned order dated 17.8.2004 passed by respondent no.1 in Revision No. 91 of 2004, Annexure-7 to the writ petition and the impugned order dated 5.1.2004 passed by respondent no.2 in Case No. 76 of 1983, Annexure-5 to the writ petition.
The facts arising out of the writ petition are that the dispute relates to plot no.267 total area 2 Bighas 12 Biswas (Area in dispute 1 Bigha 6 Biswas) situate in village Usmapur, Pargana Mah, Tehsil-Handia district-Allahabad. One Ram Jatan respondent no.3rd set filed an application under Sections 33/39 of U.P. Land Revenue Act in the year 1983 which was registered as Case No.76 of 1983 in the Court of Sub Divisional Magistrate, Handia, district- Allahabad. This application appears to have been filed with the allegation that he purchased the land, half share of plot no.267 from one Ram Surat son of Ram Sunder and applied for mutation and by order passed by the Settlement Officer, Consolidation dated 1.3.1982 his application for mutation was allowed but the order could not be given effect to by the Settlement Officer Consolidation. It was further alleged that the order passed by the Settlement Officer, Consolidation could not be given effect to on papers, hence by means of the present application under Sections 33/39 of the Act, a prayer has been made for implementation of the said order. An objection was filed on behalf of the petitioner stating therein that Ram Surat had no right to execute any sale-deed of the land in dispute and the land does not belong to him and plot no.267 was recorded in the name of the petitioner. Further objection was taken that the sale-deed is illegal and void and Settlement Officer Consolidation did not pass any order on 1.3.1982 in favour of respondent no.3 Ram Jatan for recording his name and the order of the Settlement Officer Consolidation is forged and farzi. A submission has been made on behalf of the petitioner that there was a fire incident which took place in the record room of the Collectrate in the year 1977 and the entire records were burnt and the order said to have been passed by the Settlement Officer Consolidation was never passed. The application filed by the respondent is not maintainable. The Sub Divisional Officer, Handia district-Allahabad allowed the application of respondent no.3 on 30.3.1983.
Aggrieved by the order-dated 30.3.1983 the petitioner filed a revision in the court of Addl. Commissioner on 14.4.1983, which was registered as Revision No. 134 of 1983. The revisional court issued notice to the contesting respondents and after hearing both the parties and after perusal of the relevant records, passed an order dated 23.7.1983 holding therein that the application filed by respondent no.3 under Sections 33/39 of the Act is not maintainable and the only course open to the respondent was to apply under Rule 109 of the U.P. Consolidation of Holdings Rules read with Section 52 (2) of the Act. The Additional Commissioner referred the matter to the Board of Revenue for decision. A liberty was given to file objection within 30 days. But in spite of the liberty given, no objection was filed by the respondent against the reference order passed by the Additional Commissioner. The Board of Revenue accepted the reference and has dismissed the application under Sections 33/39 of the Act filed by the contesting respondents holding therein that the application is not maintainable. Copy of the same has been filed as Annexure-4 to the writ petition. It has further been submitted that the application no. 76 under Sections 33/39 of the Act filed by contesting respondents has been dismissed finally by the Board of Revenue on 27.2.1992. To the best knowledge of the petitioner no application for restoration was filed nor any writ petition before this Hon'ble Court was ever filed by the contesting respondents and the order passed by the Board of Revenue has become final.
It appears that after a long period the respondent filed a miscellaneous application before the Dy. Collector, Handia for implementing the order dated 30.3.1983 passed by the Sub Divisional Officer, Handia in Case No. 76 under Sections 33/39 of the Act. The petitioner was not impleaded as a party to the said application, which has been filed in 2003. The Deputy Collector without hearing the petitioner and without issuance of any notice on the said application was pleased to pass an order on 5.1.2004 for implementing the order dated 30.3.1983. When the petitioner came to know regarding the aforesaid order, he filed a revision in the court of Additional Commissioner respondent no.1, which was registered as Revision No.91 of 2004. It was pleaded before the respondent no.1 that the application is not maintainable. The similar application filed by the respondent has already been dismissed and against the order passed by the Sub Divisional Officer dated 30.3.1983, a revision was filed before the Commissioner and by order dated 23.7.1983, the order of Sub Divisional Officer, Handia had already been set aside With the memo of revision, the order dated 23.7.1983 was also filed. But respondent no.1 without understanding the controversy involved, whether the application filed by the respondent was maintainable and the finality has already been attached by the order of the Board of Revenue and order dated 30.3.1983 is not in existence, therefore there is no question of implementation of the order dated 30.3.1983. Respondnet no.1 without considering the aforesaid fact was pleased to dismiss the revision vide its order dated 17.3.2004. Aggrieved by the aforesaid order, the petitioner has filed the present writ petition.
While entertaining the writ petition this Court after noticing the fact has taken a very serious view relating to the report of the Tehsildar, the order passed by the Sub Divisional Officer and the order passed in revision filed by the petitioner and by order dated 27.9.2004 a detailed order was passed directing the respondent State to make an inquiry regarding conduct and functioning of respondents no.1 and 2 and Tehsildar who has submitted a report to the Sub Divisional Officer. It will be appropriate to reproduce the order-dated 27.9.2004:
"Notices meant for respondents 1 to 3 have been accepted by learned Chief Standing Counsel. Issue notice to respondent No.4. Steps will be taken within ten days. All the respondents may file counter affidavit by the next date.
Argument is that the application filed by the respondent no.4 for mutation of his name/ correction of the record was initially allowed by the Sub Divisional Officer by order dated 30.3.1983 which on filing revision by the petitioner was recommended to be set aside by the order of the Additional Commissioner dated 23.7.1983 which was accepted by the Board of Revenue by order dated 27.2.1992 and the order of the Sub Divisional Officer dated 30.3.83 was specifically set aside. Submission is that after lapse of about 11 years again application was filed before the Sub Divisional Officer for the direction that the order dated 30.3.83 may be got implemented which has been allowed by the order of the Sub Divisional Officer dated 5.1.2004 after getting some report form the Tehsildar Handia as is mentioned in the order of the Sub Divisional Officer. Submission is that revision filed against that order has been dismissed by respondent no.1 without considering the specific ground as was taken by the petitioner that order dated 30.3.83 was already set aside by the order of Additional Commissioner which was duly approved by the Board of Revenue copy of which was also filed. Thus submission is that both authorities have passed order without looking into the record and in a most arbitrary and wh9msical manner. In view of the aforesaid certain facts which clearly emerges from the record is being noticed here in the following manner.
i) Sub Divisional Officer by the order dated 5.1.2004 appears to have allowed application of the respondent no.4 without any notice and opportunity to the petitioner who happened to be recorded person. Tehsildar also appears to have given report without opportunity to the petitioner.
ii) The order of the Sub Divisional Officer dated 30.3.83 of which implementation was sought was already set aside by order of the Additional Commissioner dated 23.7.83 as approved by the board of Revenue by order dated 27.2.92.
iii) The details in respect to setting aside of the order of the Sub Divisional Officer dated 30.3.83 by the order of the Additional Commissioner was specifically mentio4d in the ground of revision before the respondent no.1 and the copy of the order passed by the Additional commissioner was also annexed along with memo of revision.
iv) The order of the Additional Commissioner (II) do not indicate that he has taken care even to look into the ground and the material as exists on the record, as noted above, which clearly indicates complete non application of mind to the facts which can not be expected from an officer/authority discharging the judicial function.
v) The report of the Tahsildar Handia dated 31.12.2003 as referred in the order of the S.D.O. Handia also appears to be prima facie against the record as has been placed before the court.
In view of the aforesaid, if the facts as stated in this petition in the light of the record as has been placed before this Court are found to be correct then this may be a case of serious lapses on the part of the respondent authorities which has caused serious prejudice and injustice to the petitioner for which he has to rush to various stages and also to this court and therefore, it is fit case in which certain scrutiny is required in the ends of justice for which following directions are required to be issued-
i) As the order was passed in revision by the Additional Commissioner II Allahabad let the matter be placed before the learned Commissioner of the Division who is called upon to issue notice to the concerned Additional Commissioner who has decided the revision and the S.D.O. Handia who has decided the application filed by respondent no.3 and also to Tahsildar Handia who has submitted report dated 31.12.2003 to place their version in this respect.
ii) After getting their version learned Commissioner of the Division will prepare a note of facts which he may gather from the reports of the officials and will send the same to the learned Chief Standing Counsel of this Court who while filing counter affidavit will place the same on record. The explanation which will be given by the aforesaid three officials will also be annexed by the Chief Standing Counsel along with counter affidavit. It is made clear that counter affidavit is to be filed by a Gazetted officer who may be entrusted with the facts and after being fully apprised with the record.
iii) After getting the explanation of the official along with comment of the learned Commissioner of the Division, while taking final decision in the case, the court may examine the entire facts and situation leading to passing of the impugned orders so that appropriate steps may be taken in this respect.
Learned Chief Standing Counsel is directed to ensure compliance of this order by the next date by making communication to the learned Commissioner of the division within one weeks from today.
List this matter on 2nd November, 2004.
On the facts and in view of the submissions noted above, it is provided as an interim measure that operation of the order passed by the Sub. Divisional Officer dated 5.1.2004 as confirmed by the Additional Commissioner II by order dated 17.8.2004 shall remain stayed and no change in the record pursuant to the impugned order shall taken place without leave of this court.
Let certified copy of this order be given to Sri A.N.Shukla, learned Standing Counsel within three days without payment of any charges."
A counter affidavit and a rejoinder affidavit have been filed as such with the consent of the parties this writ petition is being disposed of finally. It has been submitted on behalf of the petitioner that the application itself was not maintainable and as the petitioner was never impleaded as a party to the proceedings and the Deputy Collector, Handia respondent no.2 without hearing the petitioner and without issuance of any notice only on the basis of the wrong report given by the Tehsildar has passed an order on 5.1.2006 implementing the order dated 30.3.1983. Before the Additional Commissioner respondent no.1 all the relevant documents were filed and it was submitted that the order dated 30.3.1983 has already been set aside by the Board of Revenue and finality has already been attached, therefore, there cannot be any question to implement the order of Sub Divisional Officer, Handia dated 30.3.1983. The application itself was not maintainable. But the revisional Court without applying its mind and without going into the relevant record has recorded an absurd finding that the petitioner has manipulated the record and the act of the petitioner is a criminal in nature and the petitioner should be prosecuted accordingly and the present revision has been filed being based on fraud as such the same is dismissed. The petitioner submits that the subsequent order has been passed on extraneous consideration on the basis of report submitted by the Tehsildar, Handia and the Sub Divisional Officer and the Commissioner respondent no.1 has also not cared to see the documents, which has already been annexed with the memo of revision. This clearly goes to show the malafide intention of the respondents. That in spite of the finality attached, the order passed by the Board of Revenue, the application filed by the respondents is being entertained and the order is being passed in favour of the respondent. This clearly goes to show that these orders have been passed on behest of respondent no.4 on extraneous consideration.
A counter affidavit has been filed on behalf of the contesting private respondent and the contesting private respondent wanted to justify the order passed by the respondents.
I have heard the learned counsel for the petitioner and the standing counsel. On the basis of the order dated 27.9.2004 as this Court has directed that the matter be placed before the Commissioner of the division to issue the notice to the concerned Addl. Commissioner who had decided the revision and the sub Divisional Officer, Handia who had decided the application filed by respondent no.3 and also to Tehsildar who had submitted report dated 31.12.2003 to place their version in this respect. A compliance report in the shape of an affidavit has been filed by one Sri B.B. Singh who is presently working as Addl. Commissioner, Allahabad Division. Annexures 1 to 3 are the explanation given by the Addl. Commissioner who decided the case in favour of respondent in revision and Sub Divisional Officer, Handia and the Tehsildar, Handia and a report which has been filed as Anenxure-4 by the Commissioner. The Court has perused the explanation given by the three officers namely Addl. Commissioner, Sub Divisional Officer and the Tehsildar Handia. The Court is not satisfied with the explanation given by these three officers. The Court has also perused the report submitted by the Commissioner, Allahabad Division, dated 19.11.2004. It clearly appears from the report submitted by the Commissioner, Allahabad Division that he wanted to shelter the officers. He wanted to justify that due to slackness on the part of the petitioner as the petitioner has not submitted the certified copy of the order passed by the Board of Revenue, therefore, the officers were under the impression that the order dated 30.3.1983 passed by the Sub Divisional Officer can be implemented. Though in para 3 of the said report it has been stated that as the application for implementation of the order of 1983, after a lapse of 20 years was made, as such the officers should have taken care to the effect that a person who is recorded tenure holder, a notice should have been issued to him. It has also been stated in the said report that there is a mistake on the part of the Tehsildar as well as the Sub Divisional Officer. The Sub Divisional Officer as well as the Additional Commissioner wanted to justify their orders only on the ground that as the Tehsildar Handia Sri Munauvar Ali has submitted a report that the Amal Daramad can be made on the basis of the order dated 30.3.1983 and therefore, on the basis of the aforesaid recommendation and report, the Sub Divisional Officer has allowed the application and the Addl. Commissioner respondent no.1 has dismissed the revision filed by the petitioner.
I have perused the record. From the memo of revision filed by the petitioner it is clear that in para 4 of the revision a specific averment has been made that the petitioner has filed a revision before the Commissioner and the Commissioner has recommended to quash the order of Sub Divisional Officer passed on 30.3.83 and a copy of the judgment was also annexed. In para 6 of the memo of revision a specific averment has been made that no information or notice was ever served upon the petitioner before passing the order by the Sub Divisional Officer and the revisional Court has also not cared to look into the record that the dispute has already been finalized by the Board of Revenue in favour of the petitioner and no writ petition was ever filed by the respondent against the order passed by the Board of Revenue on 27.2.1992.
Another argument has been raised on behalf of the petitioner that the conduct of the relevant respondents clearly goes to show that the orders have been passed only on extraneous consideration on the behest of respondent no.4. In spite of this fact admittedly the name of the petitioner was recorded, therefore, the respondents ought to have issued notice to the petitioner and the petitioner should have been given an opportunity of being heard. As no notice or opportunity has been given to the petitioner, the orders passed by respondents no.1 and 2 are liable to be quashed on this ground alone because admittedly from the record it is clear that the petitioner has not been afforded an opportunity and the order passed by the respondents are against the principles of natural justice.
The submission made on behalf of the petitioner is fortified as this Hon'ble Court has taken a very serious view and has directed to make an inquiry regarding the performance and conduct of the officers who have passed such orders. As held above, the Court is not satisfied with the explanation of the Additional Commissioner, Sub Division Officer as well as the Tehsildar which have been filed as Annexures-1, 2 and 3 to the compliance affidavit dated 20.10.2004, 30.10.2004 and 9.11.2004. Sri C.B. Yadav learned Chief Standing Counsel has submitted that the Commissioner, Allahabad Division has referred the matter to the State Government for taking appropriate action against the three officers. But he is not in a position to disclose as on today what has happened.
In view of the aforesaid fact, I am of view that the actions of the respondents cannot be appreciated. It clearly goes to show that the conduct of the Additional Commissioner who has decided the revision, the Sub Divisional Officer who has passed the order in favour of the respondent and the Tehsildar Handia is only to give benefit to respondent no.4 on extraneous consideration because being a responsible officers it was their duty to look into the various record. Even the Additional Commissioner who has decided the revision in spite of the fact stated in the memo of revision has not cared to look into those records and has recorded an absurd finding in favour of respondent no.4 only to favour respondent no.4. If such officers are permitted to function and pass such illegal judicial orders, and no action is taken against these officers, this will be a bad precedent for the other officers who will also be encouraged to pass such illegal orders in spite of the fact that the controversy has already been settled and finalized.
In the result the writ petition is allowed and the impugned order dated 17.8.2004 passed by respondent no.1 in Revision No. 91 of 2004, Annexure-7 to the writ petition and the impugned order dated 5.1.2004 passed by respondent no.2 in Case No. 76 of 1983, Annexure-5 to the writ petition are quashed.
In view of the aforesaid fact and circumstances of the present case and in view of the explanation and the report submitted by the Commissioner I hereby recommend to initiate a disciplinary proceeding against Dr. M.L. Dwivedi who was working as Additional Commissioner, Allahabad Division in 2004, Sub Divisional Officer Sri D.P. Singh who has decided the case in favour of respondent no.3 and Tehsildar Handia Sri Munauvar Ali who has given the report in favour of respondent no.3. The Secretary, Board of Revenue is directed to make an inquiry regarding the conduct of these officers and a disciplinary proceeding should be initiated against them. The result of the disciplinary proceeding and the punishment which is awarded to these officers should be communicated to this Court within a period of three months.
As the total proceedings has been initiated on the behest of respondent no.4 on concealment of various facts as well as by concealing the various records only to obtain an order in his favour, knowing of this fact that order dated 30.3.1983 has been set aside by the Board of Revenue and finality has been attached. Therefore, a cost is being imposed upon respondent no.4 which is assessed at Rs.10,000/- (Ten thousands) which will be payable to the petitioner within a period of two months. If the same is not paid within the specified period above, the District Magistrate, Allahabad is directed to recover the said amount from respondent no.4, as arrears of land revenue within three months from today and the same will be paid to the petitioner.
Registrar General of this Court is directed to send copies of this judgment to the Secretary, Board of Revenue, Lucknow and to the District Magistrate, Allahabad for necessary action and compliance at their end.
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