# Bachchu Ram Singh & another v. Additional Commissioner

- **Citation:** (2009) 2 ILRA 521
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-05-06
- **Case number:** Civil Misc. Writ Petition No. 1671 of 2006
- **Bench:** S.P. Mehrotra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bachchu-ram-singh-another-v-additional-commissioner-41650
- **Pages:** 8

## Headnote

U.P.Z.A. & L.R. Act-Section 34-correction
of forged entry-forged and fraudulent
entry can not be allowed to continue-but
the entry can be corrected only after
giving opportunity of hearing to the
effected
persons-order
passed
in
violation of the principle of Natural
Justice can not sustain.

Held: Para 30

This
decision
thus
lays
down
that
whether an entry in revenue record is
fake or based on some forgery or fraud is
a question of fact and is required to be
established and proved like any other
fact
which
necessarily
implies
an
opportunity of hearing to the affected
persons. The finding in respect of fraud
or forgery cannot be recorded ex parte
and it cannot be ruled that the principles
of natural justice in such cases have no
application at all. Thus in accordance
with principles of natural justice a notice
and
opportunity
of
hearing
to
the
affected
person
is
a
must
before
expunging entry even in cases where the
authority is prima facie of the opinion
that entry was a result of some fraud,
forgery or manipulation.
Case law discussed:
2005 (98) RD 244, 2005 (1) AWC 919.

## Text

2 All] Bachchu Ram Singh and another V. Addl. Commissioner (J.) and others
521
16. Accordingly, as held above, on
the one hand, all the appointments were
utterly illegal and fraudulent; the then
D.D.O., Shiv Ram Bhatt made the
appointment
for
extraneous
considerations and no rule was followed.
Appointments were made in spite of
restraint order by the D.M. No interview
was held for these posts. Reasonable
opportunity to apply was not provided to
the general public. Accordingly, all the
appointments were illegal. However, I
find that the cancellation order dated
16.01.1992 is also not in accordance with
law as it did not give any reason and due
to this callousness of the then D.M., all
the writ petitioners got stay orders from
this Court.

17. Accordingly, writ petitions are
disposed of with following directions:

18. All the petitioners must be
permitted to continue to work on the posts
on which they were appointed until they
attain the age of superannuation. However
they must be paid the salary at the lowest
level of the same pay scale on which they
were appointed. They must not be entitled
for any increment or any revision of pay
subsequently affected. Petitioners of the
first three writ petitions were appointed in
the pay scale Rs.950-1500/-. Accordingly,
they must be continued to be paid only the
basic pay of Rs.950/- basic without any
increment or benefit of revision of pay
apart from dearness allowance admissible
on Rs.950/- pay. No other allowances
shall be given to them. They shall not be
entitled for any promotion. If any
promotion has already been granted, the
same
shall
stand
withdrawn
with
immediate effect. They shall not be
entitled for any retiral benefit apart from
the amount which they may have
contributed
towards
provident
fund.
However, salaries and other benefits paid
to the petitioners till date shall not be
refundable.

19. Sri Shiv Ram Bhatt, the then
D.D.O. is liable to pay damages of Rs.1
lac for each of the petitioners (total Rs.21
lacs). This amount shall be recovered
from him like arrears of land revenue. If
he has died, the amount shall be recovered
from the property left behind by him.
Recovery shall positively be made by the
Collector concerned within four months
and the amount shall be deposited in the
government treasury. The other two
members of selection committee are also
liable to pay Rs.25,000/- each per
petitioner as damages to the State (5.25
lacs each) as they were equal partners in
illegal design of D.D.O., Sri Shiv Ram
Bhatt. . The said amount shall also be
recovered from them in the same manner.

20. Compliance report shall be filed
within six months.

21. Office is directed to supply a
copy of this judgment to learned Chief
Standing Counsel within a week.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.05.2009

BEFORE
THE HON'BLE S.P. MEHROTRA, J.

Civil Misc. Writ Petition No. 1671 of 2006

Bachchu Ram Singh & another ...Petitioner
Versus
Additional
Commissioner
(Judicial)
Allahabad Division & others ...Respondents
522 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Counsel for the Petitioners:
Sri Mahendra Narain Singh
Sri Mahesh Narain Singh

Counsel for the Respondents:
Sri V.K. Singh
Sri B.N. Singh
Sri Dhirendra Singh
S.C.

U.P.Z.A. & L.R. Act-Section 34-correction
of forged entry-forged and fraudulent
entry can not be allowed to continue-but
the entry can be corrected only after
giving opportunity of hearing to the
effected
persons-order
passed
in
violation of the principle of Natural
Justice can not sustain.

Held: Para 30

This
decision
thus
lays
down
that
whether an entry in revenue record is
fake or based on some forgery or fraud is
a question of fact and is required to be
established and proved like any other
fact
which
necessarily
implies
an
opportunity of hearing to the affected
persons. The finding in respect of fraud
or forgery cannot be recorded ex parte
and it cannot be ruled that the principles
of natural justice in such cases have no
application at all. Thus in accordance
with principles of natural justice a notice
and
opportunity
of
hearing
to
the
affected
person
is
a
must
before
expunging entry even in cases where the
authority is prima facie of the opinion
that entry was a result of some fraud,
forgery or manipulation.
Case law discussed:
2005 (98) RD 244, 2005 (1) AWC 919.

(Delivered by Hon'ble S.P. Mehrotra, J.)

1. The present Writ Petition has
been filed by the petitioners under Article
226 of the Constitution of India, inter-alia,
praying for quashing the Judgment and
Order dated 29.11.2005 (Annexure-6 to
the
Writ
Petition)
passed
by
the
Additional
Commissioner
(Judicial),
Allahabad
Division,
Allahabad
(respondent no. 1) and the Judgment and
Order dated 28.3.2005 (Annexure-4 to the
Writ Petition) passed by the SubDivisional
Officer,
Khaga,
Fatehpur
(respondent no. 2).

2. It is, inter-alia, averred in the Writ
Petition that the land in question was
initially recorded as Naveen Parti, and by
resolution of the Gaon Sabha dated
18.9.1969, the Patta was granted for the
School in question. Copy of the said
Resolution dated 18.9.1969 of Gaon
Sabha has been filed as Annexure-1 to the
Writ Petition.

3. It is, inter-alia, further averred in
the Writ Petition that after the grant of the
aforesaid Patta, the name was also
recorded in the revenue record by the
order of the Sub-Divisional Officer,
Khaga in Case no. 754, Junior High
School Vs. Gaon Sabha. Copy of the
Order dated 28.7.1970 passed in Case no.
754 has been filed as Annexure-2 to the
Writ Petition.

4. It is, inter-alia, further averred in
the Writ Petition that since then, the
School in question is running over the
land in question, and the Junior High
School has upgraded to Intermediate
College; and that for the welfare of the
public at large in the locality, the
Graduate College was opened, and the
same has also been recognized by the
State Government with Art subject and
that for the purposes of Degree College,
namely,
Ram
Swaroop
Singh
Mahavidyalaya Ayurveda Shiksha Snatak
Mahavidyalaya,
Arhauli,
District
Fatehpur, the land in question has been
2 All] Bachchu Ram Singh and another V. Addl. Commissioner (J.) and others
523
purchased after fulfilling all formalities
through Gyan Singh, Manager of the Inter
College on 4.9.2002 by registered Sale
Deed, and the name has been mutated in
the revenue records. Copy of the said Sale
Deed dated 4.9.2002 has been filed as
Annexure-3 to the Writ Petition, a perusal
whereof shows that the said Sale-Deed
was executed by Gyan Singh, Manager,
Arhauli Inter College, Arhauli in favour
of Bachchu Ram Singh, Ram Swaroop
Singh Mahavidyalaya Ayurveda Shiksha
Snatak Mahavidyalaya, Arhauli, District
Fatehpur.

5. It is, inter-alia, further averred in
the Writ Petition that an order dated
28.3.2005 (Annexure-4 to the Writ
Petition) was passed by the SubDivisional
Officer,
Khaga,
Fatehpur
(respondent no. 2). By the said Order
dated 28.3.2005, the name of Bachchu
Ram
Singh,
Ram
Swaroop
Singh
Mahavidyalaya Ayurveda Shiksha Snatak
Mahavidyalaya, Arhauli, (petitioners) was
directed to be expunged from the revenue
record.

6. It is, interalia, further averred in
the Writ Petition that no notice or
opportunity of hearing was given to the
petitioners before passing the said order.

7. It is, inter-alia, further averred in
the Writ Petition that as soon as the said
Order dated 28.3.2005 came into the
knowledge of the petitioners, a revision
was
immediately
filed
before
the
Commissioner,
Allahabad
Division,
Allahabad. Copy of the memorandum of
Revision dated 20.5.2005 has been filed
as Annexure-5 to the Writ Petition.

8. By the order dated 29.11.2005
(Annexure-6 to the Writ Petition), the
respondent no. 1 dismissed the said
Revision filed by the petitioners.

9. Thereafter, the petitioners have
filed the present Writ Petition seeking the
reliefs as mentioned above.

10. A Supplementary Affidavit,
sworn on 16.1.2006, was filed on behalf
of the petitioners. Photostat copy of the
Sirdari Patta dated 12.1.1970 granted in
favour of Junior High School, pursuant to
the Resolution dated 18.9.1969 of Gaon
Sabha, has been filed as Annexure SA-1
to the said Supplementary Affidavit.
Photostat copy of Khatauni for the period
1376-1378 Fasli has been filed as
Annexure SA-2 to the Supplementary
Affidavit, which shows amaldaramad
over the land in question in favour of the
Junior High School, Arhauli as Sirdar on
10.9.1970.

11. A Counter Affidavit on behalf of
the respondent no. 4 (Gaon Sabha,
Arhauli) has been filed.

12. A Supplementary Counter
Affidavit has also been filed on behalf of
the respondent no. 4.

13. It is, inter-alia, averred on behalf
of
the
respondent
no.
4
in
the
supplementary
counter
affidavit
that
during the year 1964, the consolidation
proceedings took place in village Arhauli;
and that since there was no play-ground
for the children/students, as such, the land
about 19 bighas was allotted in the name
of the "School Farm" which was used as
play-ground, and for Agriculture work
and Bagwani by the students and that the
land is in use of/by Basic Primary School
and by local youth as play-ground for a
long time; and that the Nakal Khatauni of
524 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
the
"School
Farm"
issued
by
the
Tehsildar, Khaga for 1411-1416 Fasli
shows 25 plots in the name of the "School
Farm" out of which 12 plots were sold by
Gyan Singh to Bachchu Ram Singh and
Ram Swaroop Singh Mahavidyalaya
Ayurveda Shiksha Snatak Mahavidyalaya,
Arhauli, District-Fatehpur. Copy of the
said Nakal Khatauni has been filed as
Annexure
SCA-1
to
the
said
Supplementary Counter Affidavit.

14. A Rejoinder Affidavit has been
filed on behalf of the petitioners in reply
to the aforesaid Counter Affidavit and
Supplementary Counter Affidavit. In the
Rejoinder Affidavit, the petitioners have
reiterated the facts stated in the Writ
Petition and the Supplementary Affidavit.
It is, interalia, further stated in the
Rejoinder Affidavit that initially the land
in question was reserved and allotted in
the name of Junior High School/Higher
Secondary School, which was being run
over the land in question and which was
subsequently upgraded into the Degree
College and it is on account of the
aforesaid subsequent up-gradation of the
Junior High School into the Degree
College
that
by
Resolution
dated
14.11.2001 (Annexure RA-2 to the
Rejoinder Affidavit) passed by the
Management of the School, certain land
was separated for construction of building
and for other purposes of the Degree
College, and as on date the Degree
College
is
running
and
imparting
education
to
several
thousands
of
students.

15. I have heard Sri M.N. Singh,
learned counsel for the petitioners, the
learned Standing Counsel appearing for
the respondent nos. 1,2 & 3, and Sri B.N
Singh appearing for the respondent no. 4,
and perused the record.

16. It is submitted by Sri M.N.
Singh, learned counsel for the petitioners
that before passing the Order dated
28.3.2005 (Annexure-4 to the Writ
Petition) whereby the names of the
petitioners were expunged from the
revenue records and the name of Gaon
Sabha was directed to be recorded, no
notice or opportunity was given to the
petitioners. Sri Singh refers to Paragraph
11 of the Writ Petition.

17. It is further submitted by Sri
M.N. Singh that in any view of the matter,
the impugned orders suffer from manifest
illegality, and the findings recorded
therein are perverse.

18. Sri B.N. Singh, learned counsel
for the respondent no. 4 submits that the
Sub-Divisional Officer, Khaga, Fatehpur
(respondent no. 2) in the Order dated
28.3.2005 has found that the Order of
Naib Tehsildar dated 4.7.2003 (mentioned
in Annexure SCA-1 to the Supplementary
Counter Affidavit filed on behalf of the
respondent no. 4) was obtained by
committing fraud, and was based on a
void Sale Deed dated 4.9.2002, and the
same was liable to be set-aside.

19. The said Order dated 28.3.2005,
the submission proceeds, was upheld by
the respondent no. 1 by its Order dated
29.11.2005 passed in the Revision filed
by the petitioners. It is submitted that as
the names of the petitioners were recorded
by committing fraud, the impugned orders
have
rightly
been
passed
by
the
respondent nos. 1 and 2.
2 All] Bachchu Ram Singh and another V. Addl. Commissioner (J.) and others
525
I have considered the submissions
made by the learned counsel for the
parties.

In Paragraph 11 of the Writ Petition,
it is stated as under:-

"11. That, no notice or opportunity of
hearing has been given to the petitioner
before passing aforesaid order dated
28.03.2005 by the respondent no. 2 and as
such, as soon as it came into knowledge
of the petitioner, immediately a Revision
has been filed before the Commissioner,
Allahabad Division, Allahabad."

The averments made in Paragraph 11
of the Writ Petition have been replied to
in Paragraph 6 to the Counter Affidavit as
follows:-

"6. That the contents of Paragraphs
no. 9 to 11 of the Writ Petition are matter
or record. However, it is submitted that
the land in dispute belongs to Gaon
Sabha and recorded in the Khata of Gaon
Sabha and as such, there is no need with
regard to forged entry."

20. It will thus be noticed that the
categorical averments made in Paragraph
11 of the Writ Petition that no notice or
opportunity of hearing was given to the
petitioners before passing the said Order
dated 28.3.2005 by the respondent no. 2,
have not been specifically denied in the
Counter Affidavit.

21. In the circumstances, it is
evident that before passing the said Order
dated
28.3.2005,
the
Sub-Divisional
Officer, Khaga, Fatehpur (respondent no.
2) did not give any notice to the
petitioners. No opportunity of being heard
was given to the petitioners before the
said Order dated 28.3.2005 was passed.

22. The respondent no. 2, as is
evident from a perusal of the said Order
dated 28.3.2005, was of the view that in
case any order had been obtained by
committing
fraud,
no
notice
or
opportunity of hearing was required to be
given.

23. The respondent no. 1 in passing
the Order dated 29.11.2005 dismissing the
Revision filed on behalf of the petitioners
held that no notice was required to be
given before cancellation of the names of
the petitioners recorded in the revenue
records, and again recording the land in
question as "Sarvajanik bhumi".

24. I am of the opinion that the view
of the respondent nos. 1 & 2 that no
notice or opportunity was required to be
given to the petitioners before expunging
their names from the revenue records on
the ground that the same had been
recorded by committing fraud, is not
correct.

25. Admittedly, the entries in the
revenue records had already been made in
the names of the petitioners. In case the
said
entries
were
being
expunged/cancelled on the ground of
fraud or on any other ground, notice was
required to be given to the petitioners to
present their version. The recorded entries
in the names of the petitioners could have
been expunged/cancelled only after giving
reasonable opportunity of being heard to
the petitioners. This will be in accord with
the basic requirements of the principles of
natural justice.
526 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
26. In this regard, reference may be
made to the decisions relied upon by Sri
M.N. Singh, learned counsel for the
petitioners.

In Chaturgun and others Vs. State
of U.P. and others, 2005 (98) RD 244,
this Court laid down as under (Paragraphs
8 & 9 of the said RD):

8. Accordingly, it is held that when-ever
an entry in the revenue record is to be
cancelled and substituted particularly
when the entry is continuing for more
than a year, notice must be given to the
party in whose favour entry, stands
even if prima-facie authority/Court
concerned (i.e. Deputy Collector/SubDivisional Officer in most of the cases)
is of the opinion that the entry is result
of fake order or fraud. Similarly if
name of an Asami pattedar is to be
expunged from the revenue records on
the ground of expiry of period of patta
or any other ground., notice must be
given to him before expunging his
name. In a recent authority Hari Ram
V. Collector, 2004 (2) RD 360, it has
been held by this Court that apart from
suit for ejectment under section 202 of
U.P. Z.A. & L.R. Act, asami pattedar
may be evicted after expunging his
name from the revenue records under
section 34 of U.P.Z.A. & L.R. Act but
it can be done only after providing
opportunity
of
hearing
to
the
pattedar/lessee. However, if entry is
expunged or any other order is passed
without hearing the person affected
then he is entitled to file an application
for post decisional hearing and recall
of the order before the Court/authority
which passed the ex-parte order, if
such an application is filed then the
Court/authority concerned shall hear
the applicant and in case it comes to
the conclusion that the earlier order is
not correct then the said order shall be
set aside. In such situation it is not
necessary to first set aside the order
and then hear the party concerned.
Alongwith
such
application
such
evidence must be filed which the party
considers necessary for his case. It has
been held by the Supreme Court in
A.M.U. Aligarh v. M.A. Khan, AIR
2000 SC 2783, that a person who
complains about denial of opportunity
of hearing must show that in case
opportunity had been provided to him,
what cause he would have shown or
what defence he would have taken.
(Similar view has been taken in S.L.
Gupta v. A.D. Gupta, 2003 AIR SCW
7089 (para 29), and Canara Bank v.
S.D. Das, AIR 2003 SC 2041, supra).
Against ex-parte orders of expunging
of names it is not proper to file
revision and appeal etc. directly.
However, if revision, appeal etc. is
directly
filed
then
revisional
Court/appellate
Court
may
also
instead of deciding the revision or
appeal on merit may grant leave to the
affected party to apply for post
decisional hearing and recall of order
before the Trial Court/authority. The
revisional/appellate authority may also
decide the matter on merit after
providing
opportunity
of
post
decisional hearing (i.e. opportunity to
show that earlier entry was not fake)
as mentioned in the judgment of
Supreme Court in Canara Bank
(supra).
9. Revenue
authorities/Courts
must
remember that a party can in some
cases successfully show that entry of
his name in the revenue record is
correct and not fake or based upon
2 All] Bachchu Ram Singh and another V. Addl. Commissioner (J.) and others
527
fake order. This question can be
decided only and only after hearing the
party concerned and likely to be
affected."
(Emphasis supplied)

27. This decision thus lays down
that whenever an entry in the revenue
record is to be cancelled and substituted,
notice must be given to the party in whose
favour entry stands even if prima facie the
authority/Court concerned is of the
opinion that the entry is result of fake
order or fraud.

28. In Shardadeen Vs. State of U.P.
and others, 2005 (1) AWC 919, this Court
held as under (Paragraph 3 of the said
AWC):

"3. Today I have decided Writ
Petition No. 14 of 2005, Chaturgun and
others v. State of U.P. and others,
involving similar point. In the said
judgment
after
discussing
several
decisions of Supreme Court I have held
that even before cancelling allegedly farzi
entries in revenue record it is necessary
to hear the person in whose name entry is
continuing. In the said judgment I have
also held that in case revenue entry is
cancelled
without
hearing
person
concerned then he can apply for post
decisional hearing and recall of order."
(Emphasis supplied)

This decision thus lays down that
even before cancelling allegedly farzi
entries in revenue record, it is necessary
to hear the person in whose name the
entry is continuing.

29. In Rakesh and others Vs.
Collector/District Deputy Director of
Consolidation, Baghpat and others, 2006
(2) ADJ 689 (All), this Court laid down as
under (Paragraphs 12 & 13 of the said
ADJ):

"12. It is no doubt correct that
entries made in revenue records on the
basis of forged or non-existing order
cannot be allowed to continue as soon as
the facts come to light. However, the
question which arises for consideration is
whether in such a situation the affected
persons are entitled for an opportunity of
hearing before the entries of their names
could be expunged.
13. Whether an entry in revenue
record is fake or based on some forgery
or fraud is a question of fact and is
required to be established and proved like
any other fact which necessarily implies
an opportunity of hearing to the affected
persons. Equally important is that any
action based on fraud has to be set aside
and the person cannot be allowed to take
any advantage of his own misdeeds even
for a moment. But the finding in respect of
fraud or forgery cannot be recorded ex
parte and it cannot be ruled that the
principles of natural justice in such cases
have no application at all. It may be that
the person affected be possessed of
sufficient materials by which he may be
able to establish that entries are not a
result or based on any fraud or forgery.
Thus in accordance with principles of
natural justice a notice an opportunity of
hearing to the affected person is a must
before expunging entry even in cases
where the authority is prima facie of the
opinion that entry was a result of some
fraud, forgery or manipulation."
(Emphasis supplied)

30. This decision thus lays down
that whether an entry in revenue record is
fake or based on some forgery or fraud is
528 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
a question of fact and is required to be
established and proved like any other fact
which necessarily implies an opportunity
of hearing to the affected persons. The
finding in respect of fraud or forgery
cannot be recorded ex parte and it cannot
be ruled that the principles of natural
justice in such cases have no application
at all. Thus in accordance with principles
of natural justice a notice and opportunity
of hearing to the affected person is a must
before expunging entry even in cases
where the authority is prima facie of the
opinion that entry was a result of some
fraud, forgery or manipulation.

31. In view of the above, I am of the
opinion that the Orders dated 28.3.2005
and 29.11.2005 cannot be sustained, and
the same are liable to be quashed.

32. Accordingly, the Writ Petition is
allowed. The impugned Order dated
28.3.2005 (Annexure-4 to the Writ
Petition) passed by the respondent no. 2
and the impugned Order dated 29.11.2005
(Annexure-6 to the Writ Petition) passed
by the respondent no. 1, are quashed. The
matter is sent back to the respondent no. 2
(Sub-Divisional
Officer,
Khaga,
Fatehpur) for deciding the same afresh in
accordance
with
law
after
giving
reasonable opportunity of being heard to
all concerned including the petitioners.
The respondent no. 2 will decide the
matter expeditiously, preferably, within a
period of three months from the date the
petitioners and the respondent no. 4
appear
before
him
(Sub-Divisional
Officer, Khaga, Fatehpur) along-with
certified copy of this order.

33. Sri M.N. Singh, learned counsel
for the petitioners and Sri B.N. Singh
learned counsel for the respondent no. 4
are agreed that their respective parties will
appear before the Sub-Divisional Officer,
Khaga, Fatehpur (respondent no. 2) on
13th July 2009 along-with certified copy
of this order.

34. On the facts and in the
circumstances of the case, there will be no
order as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.05.2009

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

First Appeal No. 682 of 1992

Smt. Mithlesh

...Appellant

Versus
The Collectore, Agra and others

 ...Respondents

Counsel for the Appellant:
Sri K.C. Jain
Smt. Sunita Agrawal

Counsel for the Respondents:
Sri Shreekant
Sri R.C. Srivastava
Sri P.K. Singhal

Land Acquisition Act No. 68 of 1984Section 28A and 23-Award of additional
amount-in addition to market value and
interest-appeal confined in respect of
rate
of
interest
and
for
additional
amount-reference
made
on
27.2.90
much after the enforcement amended
provision-non
payment
of
excess
amount-court under statutory obligation
to
award
interest-held-entitled
for
interest on damage at the rate of 9%
one year of possession 15% thereafter
till the date of actual payment.

Held: Para 15