RAJESH Vs. STATE OF U P

JUDGEMENT

(1.) HEARD Sri Rajesh Mishra, for the petitioners, Standing Counsel, for State of U.P. and Sri Ashish Kumar Srivastav, Standing Counsel for Gram Panchayat. This writ petition has been filed against the orders of Sub -Divisional Officer dated 4.2.2011, deleting the names of the petitioners from the land in dispute, in the proceedings under section 33/39 of U.P. Land Revenue Act, 1901 (hereinafter referred to as the Act) and 30.5.2011, rejecting the recall application of the petitioners and Additional Commissioner dated 26.3.2014, dismissing the revision of the petitioners.

(2.) THE dispute is in respect of plot 467 (area 2.462 hectare) of village Surajpur Barkheda, pargana Alipur Patti, district Mainpuri. One Mahesh Singh son of Kripal Singh filed a complaint that Smt. Savitri Devi got her name recorded over the land in dispute by committing forgery and on the basis of forged entry, she was selling the land in dispute. On this complaint an inquiry was conducted and Tahsildar submitted his report that the name of Smt. Savitri Devi was recorded by the order of Tahsildar dated 20.3.1989, passed in Case No. 46, under section 33/39 of the Act, on the basis of the order of Consolidation Officer dated 7.1.1976, passed in Case No. 1061, under section 9 -A(2) of U.P. Consolidation of Holdings Act, 1953. Thereafter Smt, Savitri Devi executed sale -deeds in favour of Ram Sanehi Lal son of Ram Lal and Smt. Reshma Devi wife of Ram Sanehi Lal. After their death, the names of Rajesh, Hawaldar, Hans Raj and Mohan Lal (the petitioners) were recorded as their heirs. Thereafter, a report was called for from the office of Consolidation Officer, who submitted a report dated 20.8.2010 that in district Mainpuri, Consolidation Officer was appointed at the relevant time for the applications under Rule 109 -A of U.P. Consolidation of Holdings Rules, 1954. In CH Form -11, plot 613/3 (area 1.31 acre) was recorded as banjar, in khata 342 but the alleged order of Consolidation Officer dated 7.1.1976 was in respect of plot 613/3 (area 6.00 acre) and order of Tahsildar dated 20.3.1989 was in respect of 6.96 acre. This plot 613 was allotted new number 467. Notification under section 52 of the Act, of the village took place on 24.11.1979. Sub -Divisional Officer by order dated 4.2.2011 held that although plot 613/3 (area 1.31 acre) was recorded as banjar, in khata 342 but the alleged order of Consolidation Officer dated 7.1.1976 was in respect of an area of 6.00 acre of plot 613/3 and order of Tahsildar dated 20.3.1989 was in respect of 6.96 acre. Thus these orders were forged and have been passed contrary to total area of plot 613/3. He further found that Tahsildar had no jurisdiction to decide the application under section 33/39 under the Act. In district Mainpuri, Consolidation Officer was working at the relevant time for deciding the applications under Rule 109 -A of U.P. Consolidation of Holdings Rules, 1954. Thus entry of the name of Smt. Savitri Devi over plot 467 (area 2.462 hectare) of village Surajpur Barkheda, paregana Alipur Patti, district Mainpuri, was forged entry and on the basis of this forged entry, her transferees will not get any right over the land in dispute. On these findings he directed to delete the names of the petitioners.

(3.) THE Counsel for the petitioners submitted that Ram Sanehi Lal and Smt. Reshma Devi were bona fide transferee for valuable consideration. The name of Smt. Savitri Devi was recorded in the revenue record as such on the basis of sale -deeds executed Smt. Savitri Devi, the names of Ram Sanehi Lal and Smt. Reshma Devi were also recorded. After their death the names of the petitioners were mutated over the land in dispute. Sub -Divisional Officer did not issue any notice to the recorded tenure holders before passing order dated 4.2.2011. The names of Smt. Savitri Devi and thereafter Ram Sanehi Lal and Smt. Reshma Devi and the petitioners were recorded by the orders of the competent authority. Such an entries cannot be termed as a forged entry and were not liable to be deleted in the proceedings under section 33/39 of the Act. No proceeding has been taken for cancellation of patta of Smt. Savitri Devi nor any application was filed for recall of the order of Consolidation Officer dated 7.1.1976. As such the order of Consolidation Officer dated 7.1.1976 was liable to be given effect to in the records. It is immaterial that order was incorporated by Tahsildar and not by Consolidation Officer. So long as patta dated 13.4.1971, is not cancelled and order of Consolidation Officer dated 7.1.1976 is not set aside, mutation of the name of Smt. Savitri Devi cannot be termed as forgery in the record. The orders of the Courts below are illegal and liable to be set aside. He relied upon the judgment of Board of Revenue U.P. in Bahadur v. State of U.P. and others, 1980 RD 1 (FB), in which it has been held that in exercise of powers under section 33/39 of the Act, errors of the clerical nature alone can be corrected. Judgment of Uttaranchal High Court, in Ravi Kumar v. Board of Revenue, 2005 (99) RD 701, in which it has been held that long standing entries in the revenue records, duly verified in last settlement cannot be corrected in proceedings under section 33/39 of the Act. Judgment of Board of Revenue in Nagar Nigam Bareilly v. P.C. Azad High School, 2001 (92) RD 254(H), in which it has been held that in the proceedings under section 229 -B, validity of the patta cannot be examine and judgment of this Court in Abdul Shakoor v. DDC and other : 2005 (98) RD 439, in which it has been held that patta cannot be cancelled merely on the ground of irregularity.