MAHMOOD AHMAD Vs. STATE OF U. P.

JUDGEMENT

(1.) Heard Mr. Ramesh Pundir, Counsel for the petitioners, learned Standing Counsel for State-respondents and Mr.Arun Kumar Pandey, counsel for respondent No.5 Gaon Sabha.

(2.) With the consent of the parties, the writ petition is being heard and disposed of finally without calling the counter affidavit.

(3.) Brief facts of the case are that khata No.186 Plot Nos.152/1 M area 0.205 hectare; 152/2 M area 0.039 hectare and 152/3 M area 0.009 hectare total area 0.253 hectare situated in Village Sabalgarh, Pargana and Tehsil-Najibabad, District-Bijnor, was recorded in the name of Tasleem Ahmad son of Mohd. Haneef and Smt. Khatija wife of Mohd. Haneef as bhumidhar with transferable rights. Copy of the revenue record has been annexed as annexure No.1 to the writ petition in order to demonstrate that aforementioned plots were recorded as bhumidhari plot of Tasleem Ahmad and Smt. Khatija. Mohd. Haneef. Mr. Tasleem Ahmad son of Mohd. Haneef sold out his 1/2 share to Mahmood Ahmad son of Shafiq Ahmad, who is petitioner No.1 in the instant petition through registered sale deed dtd. 3/5/2011. On the basis of sale deed executed on 3/5/2011, the name of petitioners were accordingly recorded in the revenue record. Copy of the sale deed as well as revenue record containing name of the petitioners have been annexed as Annexure Nos.2 and 3 to the writ petition. Petitioners are stated to be in actual physical and cultivatory possession over the purchased plot No.152 M area 0.253 hectare. During consolidation operation on the basis of report of Lekhpal, proceeding under Sec. 9-A(2) of U.P.C.H. Act has been initiated by the State- respondents and without giving notice or opportunity of hearing to the petitioners, the petitioners' entry has been expunged vide order dtd. 26/8/2016. Against the order dtd. 26/8/2016 passed by Consolidation Officer, Appeal under Sec. 11(1) of U.P.C.H. Act has been filed, which was dismissed vide order dtd. 31/5/2018. Against the appellate order dtd. 31/5/2018, petitioners filed Revision under Sec. 48 of U.P.C.H. Act, which has been dismissed by the Revisional Court vide order dtd. 27/1/2023, hence this writ petition. Counsel for the petitioners are submitted that petitioners are recorded tenure holders of the plot in dispute and in the proceeding under Sec. 9-A(2) of U.P.C.H. Act, the name of the petitioners has been expunged without affording opportunity of hearing to the petitioners. He further submitted that title objection has been decided in arbitrarily manner without following mandatory provisions as contained under Rule 25-A and Rule 26(2) of U.P.C.H. Rules. He next submitted that against the order of Consolidation Officer, Appeal under Sec. 11 (1) of U.P.C.H. Act was filed but the same was also dismissed only on the ground that plot in dispute is pond. He next submitted that against the appellate order revision filed by the petitioners has also been dismissed in arbitrary manner. Counsel for the petitioners placed reliance upon the judgment of this Court reported in 1993 RD 32 Raja Ram vs. D.D.C. Basti and others in which this court has held that provisions contained under Rule 26(2) of U.P.C.H.Rules is mandatory in nature and order passed without following the provisions contained under Rule 26(2) of U.P.C.H. Rules is illegal.