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Vishwanath Singh v. Addl. Commissioner & Others - WRIT - C No. - 12588 of 2000  RD-AH 15968 (24 September 2007)
HIGH COURT OF JUDICATURE AT ALLAHABAD
Civil Misc. Writ Petition No. 12588 of 2000
Addl. Commissioner, Gorakhpur Division, Gorakhpur and others
Hon'ble Krishna Murari, J.
Heard learned counsel for the petitioner and Sri Rajeev Misra appearing for the contesting respondents.
This petition arises out of proceedings under Section 28 of the U. P. Land Revenue Act. An application was moved by contesting respondents no. 4 and 5 seeking correction in the map pertaining to plot no. 248 . A report was called for. Bhulekh Nirikshak after making spot inspection said to have submitted a report dated 10th January, 1995. Respondent no. 1 allowed the application filed by contesting respondents on the basis of the said report and directed necessary corrections in the map as was suggested in the report. Petitioner went up in revision. Additional Commissioner, Gorakhpur Division, Gorakhpur vide order dated 9.12.1999 dismissed the same. Aggrieved, petitioner has approached this Court.
It has been urged by the learned counsel for the petitioner that two courts below have wrongly placed reliance on the report of Bhulekh Nirikshak as the same cannot be read in evidence without being proved in accordance with law. In support of the aforesaid contention, learned counsel for the petitioner has placed reliance on the decision of the Division Bench in the case of State of U. P. Vs. Smt. Ram Sri (1) and judgment of the learned single Judge in the case of Radhey and another Vs. Board of Revenue and others 1990 RD-267.
In the Division Bench case relied upon by the learned counsel for the petitioner, it has been held in paragraph 28 as under :
"Further, we are of the opinion that the report of the Tehsildar is an expression of his impression gathered by him on the spot. The report is evidence only of the fact that he had been deputed to make an inquiry and that he came to the conclusion mentioned by him in his report and shown in the map. It will, however, be incorrect to say that the report is admissible under Sec. 35 of the Evidence Act, as submitted by the learned counsel for the respondents. Had the defendant examined the Tehsildar as witness the report might have become admissible under some other provision of the Evidence Act."
Based upon the judgment of the Division Bench, same view has been taken by a learned single judge of this Court in the case of Radhey and another Vs. Board of Revenue (supra).
The issue has been settled by the aforesaid judicial pronouncements. Since in the present case the judgment of the two courts below are solely based on the report of Bhulekh Nirikshak though it was not proved , the judgments are clearly vitiate in law as there is nothing on record of the case which may go to show that the report of Bhulekh Nirikshak relied upon by the two courts below was proved by producing him and any opportunity of cross-examination was given.
In view of the above, the impugned judgment placing reliance upon the report of Bhulekh Nirikshak is inadmissible and bad in law.
In the result, the writ petition succeeds and is allowed. The impugned order 31.7.1996 passed by the Additional Collector as well as the order dated 9.12.1999 passed by Additional Commissioner, Gorakhpur Division, Gorakhpur are quashed and the dispute is remanded back to the respondent no. 2, Additional District Magistrate, Deoria to be decided afresh in accordance with law in the light of the observations made herein above. Till the matter is decided by the respondent no. 2, the parties are directed to maintain status quo.
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