# Fakira & Ors v. State of U.P. & Ors

- **Citation:** (2022) 10 ILRA 786
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-18
- **Case number:** Writ-B No. 2093 of 2021
- **Bench:** Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/fakira-ors-v-state-of-u-p-ors-47786
- **Pages:** 6

## Headnote

Civil Law - U.P. Consolidation of Holdings
Act, 1953 - Section 9A (2) - U.P. Zamindari
Abolition and Land Reforms Act, 1950 -
Section 132 - Natural Justice - Opportunity of
hearing - Petitioners challenged the order
passed by the Consolidation Officer, under
Section 9A (2) of UP Consolidation of Holdings
Act whereby name of the petitioners have been
ordered to be expunged from the revenue
record treating the land in question covered
under Section 132 of U.P. Z.A. & L.R. Act -
Aforesaid order was passed behind the back of
the petitioners without issuing any notice and
without affording them opportunity of hearing -
Held - - Long standing entries in the name of
the
recorded
tenure
holders,
who
have
conferred
their
right
as
bhumidhar-withtransferable right by operation of law under
Section 131-A of UPZA and LR Act, cannot be
expunged in a rough and casual manner -
impugned orders are passed in blatant violation
of natural justice and fair play - order impugned
quashed - Parties relegated before the
Consolidation Officer to get the matter decided
de novo (Para 11, 12)

Allowed. (E-5)

List of Cases cited:

## Text

786 INDIAN LAW REPORTS ALLAHABAD SERIES
only on the grounds discussed in Ram
Dular (supra), Sheshmani (supra) and
Jagdamba Prasad (supra).

24. Revisional court exceeded his
jurisdiction in reversing the order of
Consolidation
Officer
and
Settlement
Officer (Consolidation) and upholding the
adoption deed as valid and genuine and
maintaining the basic year entry, the
revisional court has failed to consider the
evidences and findings recorded by courts
below, as such, impugned revisional order
is wholly illegal. No useful purpose will be
served by sending the matter back before
revisional court for fresh decision as the
order passed by Consolidation Officer
dated 7.10.2008 and Settlement Officer
(Consolidation Officer) dated 10.9.2014 are
based upon evidence on record as well as
on the principle laid down by this Court in
Harihar (supra). Dr. Jeevan Bahadur
Samaddar (supra) and Ram Vrat Tripathi
(supra), accordingly, the same are hereby
maintained.

25. Writ petition is allowed in part.
Impugned revisional order dated 8.3.2018
passed
by
Deputy
Director
of
Consolidation, Allahabad in Revision Nos.
759, 431 & 770 is quashed and the order
dated 7.10.2008 passed by Consolidation
Officer and order dated 10.9.2014 passed
by Settlement Officer (Consolidation) are
hereby maintained. No order as to costs.
----------
(2022) 10 ILRA 786
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.08.2022

BEFORE

THE HON'BLE DINESH PATHAK, J.

Writ-B No. 2093 of 2021
along with connected cases.

Fakira & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ranjeet Kumar Yadav

Counsel for the Respondents:
C.S.C., Sri Arun Kumar Pandey

Civil Law - U.P. Consolidation of Holdings
Act, 1953 - Section 9A (2) - U.P. Zamindari
Abolition and Land Reforms Act, 1950 -
Section 132 - Natural Justice - Opportunity of
hearing - Petitioners challenged the order
passed by the Consolidation Officer, under
Section 9A (2) of UP Consolidation of Holdings
Act whereby name of the petitioners have been
ordered to be expunged from the revenue
record treating the land in question covered
under Section 132 of U.P. Z.A. & L.R. Act -
Aforesaid order was passed behind the back of
the petitioners without issuing any notice and
without affording them opportunity of hearing -
Held - - Long standing entries in the name of
the
recorded
tenure
holders,
who
have
conferred
their
right
as
bhumidhar-withtransferable right by operation of law under
Section 131-A of UPZA and LR Act, cannot be
expunged in a rough and casual manner -
impugned orders are passed in blatant violation
of natural justice and fair play - order impugned
quashed - Parties relegated before the
Consolidation Officer to get the matter decided
de novo (Para 11, 12)

Allowed. (E-5)

List of Cases cited:

1. Hinch Lal Tiwari Vs Kamala Devi and Ors.,
AIR 2001 SC 3215

2. Canara Bank & ors. Vs Shri Debasis Das &
ors. reported in AIR 2003 Supreme Court 2041

3. Ram Bachan Yadav and another Vs State of
UP & ors., reported in 2018 (140) RD 39

(Delivered by Hon'ble Dinesh Pathak, J.)
10 All. Fakira & Ors. Vs. State of U.P. & Ors.
787

1. In this batch of cases, common
question of fact and law are involved qua
post order opportunity of hearing to the
persons adversely affected due to the
impugned orders passed ex-parte, as the
principles of natural justice and fair play
has been violated.

2. The grievance of the petitioners is
that they have been deprived of from their
valuable right, title and interest over the
land in question by the order under
challenge passed behind their back sans
opportunity of hearing accorded to them.

3. The Writ Petition (B) No. - 2093 of
2021 (Fakira and 12 others Vs. State of UP
and 4 others) is treated as a leading file in
the batch of the cases as captioned above
and, accordingly, remaining cases are being
decided.

4. It is apposite to mention that all writ
petitions relate to the land in question situated
in
village
Mustafapur,
Thakurdwara,
Moradabad. Order dated 19.10.2016 passed
by
the
Consolidation
Officer,
under
challenge, is common in all the writ petitions.
Apart from that, in some of the writ petitions
i.e. Writ Petition Nos. 1734 of 2021, 2094 of
2021, 2181 of 2021, 310 of 2021 order dated
23.12.2020 and in Writ Petition No. 2394 of
2021 order dated 23.11.2020 and in Writ
Petition No. 1233 of 2022 & Writ Petition
No. 1071 of 2022 order dated 19.11.2020
passed by the Consolidation Officer are
challenged as well whereby name of the
petitioners have been ordered to be expunged
from the revenue record treating the land in
question covered under Section 132 of UP
Zamindari Abolition and Land Reforms Act
(in brevity UPZA and LR Act).

5. Heard learned counsel for the
petitioners, learned counsel for the Gaon
Sabha,
learned
standing
counsel
representing State respondents and perused
the record.

6. In view of the peculiar facts and
circumstances of the case and order
proposed to be passed, this Court proceeds
to decide the instant writ petition at
admission stage with the consent of the
counsel for the parties present, without
their respective affidavits (counter and
rejoinder), with liberty to the respondents
that they may move recall application if
any facts, as averred in the instant writ
petition are found incorrect or misleading.
It is apposite to mentioned that, in
maximum
writ
petitions,
respective
affidavits could not be exchanged between
both the parties despite the direction given
by this Court to the parties concerned.

7. The petitioners have invoked
extraordinary jurisdiction of this Court
under Article 226 of the Constitution of
India
challenging
the
order
dated
19.10.2016 and 23.12.2020 passed by the
Consolidation Officer under Section 9A (2)
of UP Consolidation of Holdings Act (In
brevity, ''UPCH Act').

8. It is submitted by the learned counsel
for the petitioners that the petitioners are
the allottee of the land in question as
Sirdar. Subsequently, by operation of law,
they became bhumidhar with transferable
right under Section 131-A of UPZA and
LR Act. Long standing entry made in
favour of the petitioners has illegally been
disturbed by the order/s under challenge
passed by the Consolidation Officer in
proceeding under Section 9A(2) of UPCH
Act, which was initiated on the basis of the
ex-parte report submitted by the Assistant
Consolidation
Officer.
It
is
furhter
submitted that the Consolidation Officer by
788 INDIAN LAW REPORTS ALLAHABAD SERIES
order/s under challenge, has directed to
delete the exchange value of the plot in
question and keep the same out of
consolidation operation. Aforesaid order
was passed behind the back of the
petitioners without issuing any notice and
without affording them opportunity of
hearing.
At
subsequent
stage,
the
Consolidation Officer has passed fresh
order dated 23.12.2020 that too on the basis
of the ex-parte report submitted by the
Assistant
Consolidation
Officer/Consolidator. Aforesaid report was
registered as well under Section 9A (2) of
UP Consolidation of Holdings Act. The
Consolidation Officer, vide impugned order
dated 23.12.2020, has issued a direction to
expunge the name of the recorded tenure
holders from the land in question and the
same was ordered to be recorded in the
name of Ram Ganga under Class 6(2). It is
further submitted that even before passing
the order dated 23.12.2020 neither any
notice has been issued to the petitioners nor
opportunity of hearing had been afforded to
them.

9. On the pointed query raised to the
learned standing counsel qua opportunity of
hearing being accorded to the recorded
tenure holders whose name are expunged
from the revenue record, he has shown his
inability to contradict, despite sufficient
time granted to him, the submissions made
by the learned counsel for the petitioners.

10.

Having
considered
the
submissions advanced by the learned
counsel for the parties and perusal of
record, a short question for consideration in
the instant writ petition lies in a narrow
compass as to whether opportunity of
hearing had been afforded to the recorded
tenure holders or not, who are adversely
affected owing to the impugned orders
passed by the Consolidation Officer.

11. Perusal of the impugned order
dated 19.10.2016 and 23.12.2020 reveal
that no notice has been issued to the
recorded tenure holders. Entire proceeding
has been concluded only on the basis of the
report
submitted
by
the
Assistant
Consolidation Officer/Consolidator. In the
impugned order dated 23.12.2020, there is
an observation that the government counsel
for the State has been heard and submitted
that in view of the order dated 25.7.2001
passed by the Hon'ble Supreme Court in the
case of Hinch Lal Tiwari Vs. Kamala
Devi and Ors., AIR 2001 SC 3215, name
of the recorded tenure holders were liable
to be expunged. There is nothing in the
orders dated 19.10.2016 and 23.12.2020 to
demonstrate that the version of the
recorded tenure holders has also been
considered. There is no indication that the
present petitioners were heard or afforded
an opportunity of hearing before expunging
their names from the revenue record.

12. It is abundantly clear that right
and title of the petitioners are affected
owing to violation of natural justice and
fair play. They have been deprived of their
valuable rights sans adhering to the
cannons of natural justice. In the matter of
Muzeeb
Vs.
Deputy
Director
of
Consolidation, Azamgarh reported in AIR
1996 Allahabad 88, co-ordinate Bench of
this Court has held that a post order
opportunity of hearing is necessary to the
person adversely affected in the cases
where an entry is expunged or corrected in
the revenue record sans opportunity of
hearing. The relevant paragraph 5 of the
judgment dated 16.2.1995 in case of
Muzeeb (supra) is quoted hereinunder:
10 All. Fakira & Ors. Vs. State of U.P. & Ors.
789

"5. But the matter does not end here.
The possibility of an error creeping in by
authority concerned cannot be ruled out. The
authority passed order without hearing person
adversely affected. In such matters possibility
cannot be ruled out that the person affected
be possessed of sufficient material by which
he may be able to show that the order giving
rise to entry in dispute is not a forged one.
This requires safeguarding of interest of
person adversely affected by correction of
entry in revenue papers. This interest of
affected person can be safeguarded by
providing him a post order opportunity of
hearing. This will also exclude possibility of
error, which may arise due to want of
opportunity of hearing and a possible error
will also stand rectified in maintenance of
correct revenue entries. For said reason a post
order opportunity of hearing is necessary to
person adversely affected in cases where an
entry is expunged or corrected in revenue
records and order correcting entry is passed
without affording opportunity of hearing to
person adversely affected. Correcting an
entry to be based on forged or non-existing
order, to which person aggrieved raises an
objection that the order of correction has been
wrongly passed, the aggrieved person is
entitled to be heard after correction being
done."

13. Explaining the principle of natural
justice in the matter of Canara Bank and
others Vs. Shri Debasis Das and others
reported in AIR 2003 Supreme Court
2041,
Hon'ble
Supreme
Court
has
expounded that order passed in violation of
natural justice is no final decision on the
case. Relevant paragraphs 16 and 21 of the
judgment passed in Canara Bank and
others (supra) is quoted hereinbelow:

"16. Principles of natural justice are
those rules which have been laid down by
the
Courts
as
being
the
minimum
protection of the rights of the individual
against the arbitrary procedure that may be
adopted by a judicial, quasi-judicial and
administrative authority while making an
order affecting those rights. These rules are
intended to prevent such authority from
doing injustice.
21. How then have the principles of natural
justice been interpreted in the Courts and
within what limits are they to be confined?
Over the years by a process of judicial
interpretation two rules have been evolved
as representing the principles of natural
justice in judicial process, including therein
quasi judicial and administrative process.
They constitute the basic elements of a fair
hearing, having their roots in the innate
sense of man for fair-play and justice which
is not the preserve of any particular race or
country but is shared in common by all
men. The first rule is 'nemo judex in causa
sua' or 'nemo debet esse judex in propria
causa
sua'
as
stated
in
(1605)
12
Co.Rep.114 that is, 'no man shall be a judge
in his own cause'. Coke used the form
'aliquis non debet esse judex in propria
causa quia non potest esse judex at pars'
(Co.Litt. 1418), that is, 'no man ought to be
a judge in his own case, because he cannot
act as Judge and at the same time be a
party'. The form 'nemo potest esse simul
actor et judex', that is, 'no one can be at
once suitor and judge' is also at times used.
The second rule is 'audi alteram partem',
that is, 'hear the other side'. At times and
particularly in continental countries, the
form 'audietur at altera pars' is used,
meaning very much the same thing. A
corollary has been deduced from the above
two rules and particularly the audi alteram
partem rule, namely 'qui aliquid statuerit
parte inaudita alteram actquam licet dixerit,
haud acquum facerit' that is, 'he who shall
decide anything without the other side
790 INDIAN LAW REPORTS ALLAHABAD SERIES
having been heard, although he may have
said what is right, will not have been what
is right' (See Bosewell's case (1605) 6
Co.Rep. 48-b, 52-a) or in other words, as it
is now expressed, 'justice should not only
be done but should manifestly be seen to be
done'. Whenever an order is struck down as
invalid being in violation of principles of
natural justice, there is no final decision of
the case and fresh proceedings are left
upon. All that is done is to vacate the order
assailed by virtue of its inherent defect, but
the proceedings are not terminated."

14. In the case of Ram Bachan
Yadav and another Vs. State of UP and
others, reported in 2018 (140) RD 39, coordinate Bench of this Court has considered
the requirement of opportunity of hearing
before passing the adverse order against the
recorded tenure holder expunging his name
from the revenue record. The relevant
paragraphs No. 14, 16 and 17 of the
judgment in the case of Ram Bachan
(supra) are quoted hereinunder:

"14. In the following authorities
the Supreme Court has held that even
before
passing
administrative
orders
affecting rights of parties opportunity of
hearing shall be granted :

(1) Ashok v. Union of India, AIR
1997 SC 2298 (It was a case of ban of
particular insecticides).

(2) Sahi Ram v. Awtar Singh,
AIR 1999 SC 2169 (It was a case of mining
lease).

(3) G. Pharmaceuticals v. State of
U. P., AIR 2001 SC 3707 (It was a case of
black listing of contractor).

(4) H.A. Shakoor v. Union of
India, AIR 2002 SC 2423 (It was a case of
reduction of category of a contractor).

(5) Director General of Police v.
M. Sarkar, [1996] 3 SCR 530 (In this case
constables were discharged from service on
the ground that they produces a fake list
from
Employment
Exchange
without
providing opportunity of hearing. Supreme
Court approved the order of High Court
setting aside discharge order on the ground
of denial of opportunity of hearing).

(6) All India S.C. and S.T.
Employees Association v. A.A. Jeen,
[2001] 2 SCR 1183 (In this case hundreds
of employees were affected hence Supreme
Court held that they might be served in
representative capacity).

(7) Godawat Pan Masala Products
v. Union of India, AIR 2004 SC 4057 (In
this case it was held that notification
prohibiting manufacture and sale etc. of
pan masala and gutka was bad in law as it
had
been
issued
without
providing
opportunity to the manufactures of meeting
the facts relied upon in the notification in
respect of injurious effects of pan masala
and gutka).

(8) Canara Bank v. Debasis Das,
(2003) 2 LLJ 531 (SC) (In this authority
several
principles
of
natural
justice
expressed in Latin words have been
discussed in detail giving their history
(since 1215), scope and applicability.

16. Accordingly, it is held that
whenever 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/Sub Divisional Officer in
most of the cases) is of the opinion that the
entry is result of fake order or fraud.

17. 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 fake order. This
question can be decided only and only after
10 All. Yamuna Singh & Ors. Vs. State of U.P. & Ors.
791
hearing the party concerned and likely to be
affected."

15. In this conspectus as above, I find
substance in the submissions advanced by
the learned counsel for the petitioners that
orders under challenge are passed behind
the back of recorded tenure holders who are
adversely affected owing to orders passed
disturbing the revenue entries made in their
favour. There is no indication in the orders
impugned passed by the Consolidation
Officer qua issuance of notice to the
recorded tenure holders and affording them
opportunity of hearing. The impugned
orders are passed in blatant violation of
natural justice and fair play. Long standing
entries in the name of the recorded tenure
holders, who have conferred their right as
bhumidhar-with-transferable
right
by
operation of law under Section 131-A of
UPZA and LR Act, cannot be expunged in
such
a
rough
and
casual
manner.
Considering the long standing entry based
on allotment of land in lease, this Court
cannot remain oblivious to the valuable
rights vested in the recorded tenure holders
and they deserve fair trial to protect their
title over the property in question.

16. With this observation, without
considering the merits of the case as a
averred in the writ petition qua right and
title of the petitioners, the present writ
petition succeeds and is allowed, on the
limited point of opportunity of hearing. The
order impugned dated 19.10.2016 and
23.12.2020 are hereby quashed. The matter
before the Consolidation Officer is restored
to its file. Parties are relegated before the
Consolidation Officer to get the matter
decided de novo.

17. Petitioners are at liberty to file all
the relevant documents and take all
possible pleas available to them to defend
their right and title over the property in
question.
The
petitioners
are
hereby
directed to submit their complete pleading
along with the corroborative evidences in
support
of
their
claim
before
the
Consolidation Officer possibly on or before
30.9.2022. The Consolidation Officer, in
turn, shall make all endeavour to consider
and
decide
the
case
expeditiously
preferably within a period of five months
from September 30, 2022.

18. It is expected that the case of
every individual shall be considered and
decided by a reasoned and speaking order,
in accordance with law, after affording
opportunity of hearing to the parties
concerned
without
granting
them
unnecessary adjournments.

19. Remaining writ petitions in batch
of cases as captioned above are decided/
allowed as well in the terms and conditions
as discussed above and impugned orders
under challenge in said writ petitions are,
accordingly, quashed.
----------

(2022) 10 ILRA 791
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.08.2022

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ-A No. 10854 of 2022

Yamuna Singh & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri P.K. Upadhyay, Kalpana Upadhyay