Court No. - 6 Case :- WRIT - B No. - 3652 of 2007 Petitioner :- Smt. Kamta Mehra Respondent :- Board Of Revenue U.P. At Lucknow & Others Petitioner Counsel :- H.M.B. Sinha,G.N. Verma Respondent Counsel :- C.S.C.,O.P. Singh,Vijay Tripathi Hon'ble Prakash Krishna,J.
Heard Sri H.M.B.Sinha, learned counsel for the petitioner, Sri O.P.Singh, learned Senior Advocate along with Shri H.N. Singh for the private respondents, the learned Standing Counsel and learned counsel for the Gaon Sabha, in opposition to the writ petition.
Plot Nos 280 and 283 situate in Mohalla Naubasta District Kanpur Nagar are involved in the present writ petition.
The said plot was recorded in the name of the petitioner who has died during the pendency of the present writ petition, as Bhumidhar. Her name was mutated on the basis of the sale deed dated 3.1.1964.
It appears that some proceedings were initiated under section 34 of the U.P. Land Revenue Act on behalf of the contesting private respondents for mutation of their names on the ground that they have purchased the property in question in an auction sale. On the basis of the auction sale, it appears that the Tehsildar passed an order dated 16.12.2002 ordering the mutation of the names of the contesting respondents Nos. 2,3 and 4. The basis of order is the sale deed dated 28.12.1991. When the petitioner came to know about the said mutation order she filed an application to recall the order passed by the Tehsildar on the ground that it is an exparte order. The application was allowed by the Tehsildar by the order dated 31.1.2005. The said order of the Tehsildar was subject matter of challenge before the Board of Revenue in Revision which has been allowed by the order dated 5.12.2006.
The learned counsel for the petitioner submits that the Board of Revenue has committed illegality in setting aside the order dated 31.1.2005 passed by the Tehsildar whereby an opportunity of hearing was afforded to the petitioner. Elaborating the arguments he submits that the earlier order dated 16.12.2002 is an exparte order as no opportunity of hearing was given to the petitioner. Therefore, there was no illegality or perversity in the subsequent order of the Tehsildar recalling its earlier exparte order dated 16.12.2002.
Sri O.P. Singh, learned Senior Advocate, appearing on behalf of the contesting respondents on the other hand submits that no case for interference in the present writ petition has been made out as admittedly the present proceeding arises out of the mutation proceedings which are summary in nature. Moreover, the petitioner has already filed a suit for declaration of her right and, therefore, no useful purpose is going to be served by setting aside the order of the Board of Revenue.
Considered the respective submissions of the learned counsel for the parties and perused the record.
A bare perusal of the impugned order passed by the Board of Revenue would show that it ventured to enter into the merits of the case. There was no such occasion for it. The only limited question which was involved before the Board of Revenue was as to whether an opportunity of hearing should be afforded to the petitioner or not. The tenor of the order dated 16.12.2002 also supports the petitioner's case that it was passed exparte. It is not the case of the respondent even in the counter affidavit to the writ petition that the said order was passed after giving an opportunity of hearing to the petitioner. Indisputably the name of the petitioner was recorded in the revenue record. Before expunging the name of the petitioner in the revenue record an opportunity of hearing should have been afforded to her by the authority concerned. Since the order dated 16.12.2002 was passed behind the back of the petitioner, the said order is bad and cannot be allowed to stand. It is an acknowledged legal position, that at least an opportunity should be given to a person before passing of an adverse order. The name of the petitioner was recorded in the revenue records admittedly. The long standing entry in a record can not be set aside exparte, or in the manner as it was done by the order dated 16.12.2002. The auction sale is of the year 1991, and why the contesting respondents have waited for eleven years, has to be explained. The Tehsildar committed no mistake by recalling his order dated 16.12.2002. It follows that the Board of Revenue was not justified in interfering with the subsequent order passed by the Tehsildar restoring the case to its original number.
Apart from the above, there was no error of law or jurisdictional error in the order of the Tehsildar giving an opportunity of hearing to the petitioner. So far as the filing of the suit is concerned, it will be decided on its own merits. The facts remains that no opportunity of hearing was afforded to the petitioner before passing of the order dated 16.12.2002 whereby the name of the petitioner was expunged.
In view of the above discussions, I find sufficient force in the contentions of the learned counsel for the petitioner that the Board of Revenue exceeded in its jurisdiction in passing the impugned order.
In the result the writ petition succeeds and is allowed. The impugned order dated 5.12.2006 is hereby set aside. The matter is restored back to the Tehsildar who shall pass an appropriate order after giving an opportunity of hearing to the parties concerned, preferably within a period of 4 months from the date of production of the certified copy of this order.
The learned counsel for the parties jointly agreed that during the pendency of the mutation proceedings parties may maintain the status quo. They are directed accordingly.
Dated: 2.4.2010 Sh