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

- **Citation:** (2023) 8 ILRA 1118
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-16
- **Case number:** Writ-C No. 22367 of 2023
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shivnath-ors-v-state-of-u-p-ors-50508
- **Pages:** 6

## Headnote

Constitution of India, 1950 - Article 226 -
When an order is passed in violation of
principles of natural justice, alternative remedy
is no bar - Writ is maintainable.

Civil Law -U.P. Revenue Code, 2006 -
Sections 31/32, 38(4) & 210 - Summary
proceedings - Long-standing entry expunged
without impleading recorded tenure holder -
Violation of natural justice - Orders liable to be
quashed - Direction to hear afresh after
affording opportunity.

Held:
Expunging
a
long-standing
revenue
entry
without impleading the affected parties and
without affording them an opportunity of
hearing violates principles of natural justice.
Even in summary proceedings under Sections
31/32 of the U.P. Revenue Code, 2006, proper
notice must be given to the recorded tenure
holder. Alternative remedy under Section 210 of
the Code does not bar the writ petition where
there is manifest violation of natural justice. The
impugned orders dated 17.2.2018, 9.3.2021,
and 13.4.2023 are set aside. Matter remanded
to
the
Sub-Divisional
Magistrate,
Sadar,
Varanasi for fresh adjudication after affording
opportunity of hearing to the petitioners. Writ
allowed.

Case Law Discussed:

## Text

1118 INDIAN LAW REPORTS ALLAHABAD SERIES
cancelled then the forfeiture of the security
had to follow.

13. Having heard the learned counsel
for the petitioner and Sri Rahul Srivastava,
learned Standing Counsel, we are of the view
that the order of the District Magistrate dated
10.09.2020 and the order of the appellate
court dated 18.12.2020 cannot be sustained in
the eye of law. Even if it was found that the
CD was not to the satisfaction to the
authority, there was no finding at all with
regard to the fact that there was any financial
loss to the State. In such view of the matter,
we are of the view the authorities erred in
forfeiting the security amount.

14. Under such circumstances though
we uphold the order of the District
Magistrate dated 10.09.2020 and order of
the Commissioner of appellate court dated
18.12.2020 so far as they cancel the license
of the petitioner, we set aside the orders to
the extent they forfeit the security amount.

15. With the aforesaid observations,
the writ petition is partly allowed.
----------
(2023) 8 ILRA 1118
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.08.2023

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ-C No. 22367 of 2023

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

Counsel for the Petitioners:
Sri Abhishek Bhushan, Sri Arpan Srivastava, Sri
Pavan Kumar Pandey, Sri Anil Bhushan, Sri Anil
Bhushan (Sr. Advocate)

Counsel for the Respondents:
C.S.C., Sri Ashok Kumar Rai, Sri Pavan Kumar
Pandey, Sri Rajesh Kumar, Sri Mangla Prasad Rai
(Sr. Advocate)

Constitution of India, 1950 - Article 226 -
When an order is passed in violation of
principles of natural justice, alternative remedy
is no bar - Writ is maintainable.

Civil Law -U.P. Revenue Code, 2006 -
Sections 31/32, 38(4) & 210 - Summary
proceedings - Long-standing entry expunged
without impleading recorded tenure holder -
Violation of natural justice - Orders liable to be
quashed - Direction to hear afresh after
affording opportunity.

Held:
Expunging
a
long-standing
revenue
entry
without impleading the affected parties and
without affording them an opportunity of
hearing violates principles of natural justice.
Even in summary proceedings under Sections
31/32 of the U.P. Revenue Code, 2006, proper
notice must be given to the recorded tenure
holder. Alternative remedy under Section 210 of
the Code does not bar the writ petition where
there is manifest violation of natural justice. The
impugned orders dated 17.2.2018, 9.3.2021,
and 13.4.2023 are set aside. Matter remanded
to
the
Sub-Divisional
Magistrate,
Sadar,
Varanasi for fresh adjudication after affording
opportunity of hearing to the petitioners. Writ
allowed.

Case Law Discussed:

1. Chaturgan Vs St. of U.P. & ors., 2005 (98) RD
244

2. Committee of Management & anr.Vs ViceChancellor & ors., 2009 (1) AWC 437 (SC)

3. Whirlpool Corporation Vs Registrar of Trade
Marks, AIR 1999 SC 22

4. Godrej Sara Lee Ltd. Vs Excise & Taxation
Officer, AIR 2023 SC 781

(Delivered by Hon'ble Chandra Kumar
Rai, J.)
8 All. Shivnath & Ors. Vs. State of U.P. & Ors.
1119

1. Heard Mr. Anil Bhushan, learned
Senior Counsel assisted by Mr. Abhishek
Bhushan, Counsel for petitioners and Mr.
Mangla Prasad Rai, learned Senior Counsel
assisted by Mr. Ashok Kumar Rai for
respondent nos. 4 to 6 and Mr. Abhishek
Shukla, learned Additional Chief Standing
Counsel
for
the
State-respondents.
Respondent nos. 7 to 18 are stated to be
proforma respondents, as such, notice to
respondent nos. 7 to 18 are dispensed with.

2. The writ petition is being heard and
disposed of finally with the consent of the
learned Counsel for the parties without
inviting counter-affidavit.

3. Brief facts of the case is that
respondent no.4 filed an application dated
29.8.2014 under Section 33/39 of U.P.
Land Revenue Act impleading State of
U.P. as opposite party with the prayer to
expunge the name of petitioners from Arazi
No. 1052 area 0.134 hectare situated at
Village- Akhari, Pargana- Kaswar Raja,
Tehsil- Sadar, District- Varanasi. The
aforesaid application filed by respondent
no.4 was registered as case No. 9582 of
2016,
Computerized
case
No.
T20161470019582 under Section 31/32 of
U.P.
Revenue
Code,
2006
before
respondent
no.3/
Sub-Divisional
Magistrate, Sadar, Varanasi. A report was
submitted on 20.6.2015 by Lekhpal and a
report was submitted on 26.6.2015 by
Revenue Inspector as well as Naib
Tehsildar
and
Tehsildar
have
also
submitted their report on 18.3.2016/
10.2.2018
in
the
aforementioned
proceedings. Respondent no.3 heard the
aforementioned case and vide his order
dated 17.2.2018 expunged the petitioners'
entry. Petitioners applied for restoration on
29.8.2018 which was rejected as not
maintainable vide order dated 9.3.2021.
Petitioners filed an appeal No. 00683 of
2021,
Computerized
case
No.
C202114000000683 under Section 38 (4)
of U.P. Revenue Code, 2006 against the
order dated 9.3.2021, the aforementioned
appeal filed by petitioners was dismissed as
not maintainable by respondent no.2/
Additional Commissioner vide order dated
13.4.2023 hence this writ petition on behalf
of petitioners challenging the orders dated
17.2.2018, 9.3.2021 passed by respondent
no.3 and 13.4.2023 passed by respondent
no.2.

4. Learned Senior Counsel for the
petitioners submitted that long-standing
entry of the petitioners have been expunged
in the summary proceeding under Section
31/32 of the U.P. Revenue Code, 2006
without affording opportunity of hearing to
the petitioners. He further submitted that in
the summary proceeding, the long-standing
entry cannot be expunged. He further
submitted that petitioners' ancestors were
recorded over the plot in dispute since
27.10. 1952 on the basis of registered sale
deed. He further submitted that during
consolidation operation, petitioners' right
was also recognized. He further submitted
that petitioners were even not impleaded in
the proceeding, as such, there was no
question of any opportunity of hearing to
the petitioners. He placed reliance upon the
judgment of this Court reported in
Chaturgan vs. State of U.P. and Others,
2005(98) RD 244 in order to demonstrate
that opportunity of hearing must be
afforded to the recorded tenure holder
before
expunging
the
entry
by
the
authority.

5. On the other hand, Mr. Mangla
Prasad Rai, learned Counsel for the
respondents submitted that notice was
issued to the petitioners by the authorities
1120 INDIAN LAW REPORTS ALLAHABAD SERIES
and the order has been passed in
accordance with law. He further submitted
that jurisdiction has rightly been exercised
under Section 31/32 of the U.P. Revenue
Code, 2006, as such, no interference is
required against the impugned order. He
further submitted that order passed by
Additional Commissioner under Section 38
(4) of U.P. Revenue Code, 2006 is
revisable under Section 210 of the U.P.
Revenue Code, 2006, as such, writ petition
is liable to be dismissed on the ground of
alternative remedy.

6. Mr. Abhishek Shukla, learned
Additional Chief Standing Counsel for the
State-respondents submitted that order is
revisable as provided under Section 38 (4)
of the U.P. Revenue Code, 2006, as such,
writ petition is not maintainable and
petitioners should approach the Revisional
Court for redressal of their grievance
against the impugned orders.

7. I have considered the arguments
advanced by learned Counsel for the parties
and perused the records.

8. There is no dispute about the fact
that petitioners' entry has been expunged
without impleading the petitioners in the
proceeding under Section 31/32 of U.P.
Revenue Code, 2006.

9. In order to appreciate the
controversy, the perusal of Section 38 of
the U.P. Revenue Code, 2006 will be
relevant which is as under:-

"38.
Correction
of
error
and
omission?(1)
An
application
for
correction of any error or omission in the
map, field-book (Khasra) or record of
rights (Khatauni) shall be made to the
Tahsildar in the manner prescribed.

[(2) On receiving an application
under sub-section (1) or on any error or
omission
otherwise
coming
to
his
knowledge, the Tahsildar shall make such
inquiry as may appear to him to be
necessary, and refer the case along with
his report to the Collector in the case of
map correction and to the Sub-Divisional
Officer in matter of other correction.

(3) The case shall be decided by the
Collector or the Sub-Divisional Officer, as
the case may be, after considering any
objection filed and evidence produced
before him or before the Tahsildar.

(4) Any person aggrieved by an order
of the Collector or the Sub-Divisional
Officer, as
 the case may be, under sub-section (3),
may prefer an appeal to the Commissioner
within a period of thirty days from the
date of such order, and [The decision of
the Commissioner shall, subject to the
provisions of Section 210, be final].

[(5) Any forged or manipulated entry
in the map, the khasra or the record of
rights (khatauni) may be expunged under
this section.

(6)
Notwithstanding
anything
contained in other provisions of this Code,
the Revenue Inspector may correct any
undisputed error or omission in the record
of rights (khatauni) or khasra in such
manner and after making such inquiry, as
may be prescribed.]

Explanation.?The power to correct
any error or omission under this section
shall not be construed to include the
power to decide a dispute involving
question of title."

10.

This
Court
in
the
case
ofChaturgan (Supra) has held that before
expunging the long-standing entry, proper
opportunity of hearing be afforded to the
recorded tenure holder by the Court.
8 All. Shivnath & Ors. Vs. State of U.P. & Ors.
1121
Paragraph No. 8 of the judgment is relevant
which are as follows:-

"8. 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. 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 reported in 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 UPZA and
LR Act Asami pattedar may be evicted
after expunging his name from the
revenue records under Section 34 of
UPZA and LR Act but it can be done only
after providing opportunity of hearing to
the pattedar/les-see. 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. Along
with 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, (2000) 7 SCC 529 : 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 ((2003) 4 SCC 557 : 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)."

11. The perusal of the application
filed under Section 33/39 of the U.P. Land
Revenue Act/ 31/32 of U.P. Revenue Code,
2006 reveals that petitioners were not
impleaded in the proceeding, as such, the
order expunging/ altering the petitioners'
entry from the revenue records in respect to
the plot in dispute cannot be sustained.

12. So far as alternative remedy is
concerned, the Apex Court in the case
reported in 2009 (1) AWC 437 (SC)
Committee of Management and another
Vs. Vice-Chancellor and Others has held
that if the order has been passed in
violation of principles of natural justice, the
alternative remedy will not be bar to
1122 INDIAN LAW REPORTS ALLAHABAD SERIES
entertain the writ petition under Article 226
of the Constitution of India. Paragraph Nos.
21,24, 25 and 26 of the judgment rendered
in Committee of Management (Supra) shall
be relevant for perusal which are as under:-

"21. Furthermore, when an order
has been passed by an authority without
jurisdiction
or
in
violation
of
the
principles of natural justice, the superior
courts shall not refuse to exercise their
jurisdiction although there exists an
alternative remedy. In this context, it is
appropriate to refer to the observations
made by this Court in the case of
Whirlpool Corporation v. Registrar of
Trade Marks, Mumbai and Ors. AIR 1999
SC 22.
15. But the alternative remedy has been
consistently held by this Court not to
operate as a bar in at least three
contingencies, namely, where the writ
petition has been filed for the enforcement
of any of the Fundamental Rights or
where there has been a violation of the
principle of natural justice or where the
order or proceedings are wholly without
jurisdiction or the vires of an Act is
challenged.

In this case, albeit, before us for the
first time, the vires of the proviso
appended to Section 16 of the Act is in
question, besides other points noticed by
us hereinbefore.

24. Whether in a case of this nature
such a power has properly been exercised
or not, in our opinion, being an intricate
question
should
ordinarily
fall
for
determination by the High Court itself.
Our attention has also been drawn to a
decision of a Seven-Judge Bench of this
Court in the case of P.A. Inamdar and
Ors. v. State of Maharashtra and Ors. AIR
2005 SC 3226 wherein it has been held :

126. The observations in para 68 of
the majority opinion in T.M.A. Pai
Foundation v. State of Karnataka AIR
2003 SC 355 on which the learned
Counsel for the parties have been much at
variance in their submissions, according
to us, are not to be read disjointly from
other parts of the main judgment. A few
observations
contained
in
certain
paragraphs of the judgment in Pai
Foundation if read in isolation, appear
conflicting or inconsistent with each
other. But if the observations made and
the conclusions derived are read as a
whole, the judgment nowhere lays down
that
unaided
private
educational
institutions
of
minorities
and
nonminorities can be forced to submit to seatsharing and reservation policy of the
State. Reading relevant parts of the
judgment on which learned Counsel have
made comments and counter-comments
and reading the whole judgment (in the
light of previous judgments of this Court,
which have
been
approved
in Pai
Foundation) in our considered opinion,
observations in para 68 merely permit
unaided private institutions to maintain
merit as the criterion of admission by
voluntarily agreeing for seat-sharing with
the State or adopting selection based on
common entrance test of the State. There
are also observations saying that they may
frame their own policy to give freeships
and scholarships to the needy and poor
students or adopt a policy in line with the
reservation policy of the State to cater to
the educational needs of the weaker and
poorer sections of the society.

25. Keeping in view the legal
questions arising in the matter, we are of
the opinion that it was not a fit case where
the High Court should have refused to
exercise its discretionary jurisdiction to
entertain
the
writ
application.
8 All. M/s Santosh Preservation Pvt. Ltd. & Anr. Vs. Dakshinanchal Vidyut Vitran Nigam Ltd.
 & Anr.
1123

26. For the aforementioned reasons,
the impugned order cannot be sustained
and is set aside accordingly. The appeal is
allowed accordingly. The High Court is
requested to consider the matter on merits.
No costs."

13. Hon'ble Apex Court recently in
the case reported in AIR 2023 Supreme
Court 781 M/s Godrej Sara Lee Ltd. Vs.
Excise
and
Taxation
Officer-CumAssessing Authority and others has held
that power to issue prerogative writs under
Article 226 is plenary in nature and does
not impose any limitation or restraint on the
exercise of power to issue writs.

14. In the instant case, petitioners'
ancestors were recorded since 27.10.1952
and even during consolidation operation
petitioners' right were recognized, as such,
petitioners should be afforded proper
opportunity of hearing by respondent no.3
so that petitioners as well as contesting
respondents may demonstrate as to whether
long standing entry can be expunged in
summary proceedings or not.

15. Considering the ratio of law laid
down by this Court in Chatrugan (Supra)
as well as by Apex Court in Committee of
Management and another (Supra), the
impugned
orders
dated
17.2.2018,
19.3.2021 passed by respondent no.3 and
13.4.2023 passed by respondent no.2 are
liable to be set aside and the same are
hereby set aside. The writ petition is
allowed in part and the matter is remitted
back before the respondent no.3, SubDivisional Magistrate, Sadar, Varanasi to
register the proceeding on its original
number and implead the petitioners in the
proceeding under Section 31/32 of the U.P.
Revenue Code, 2006. It is further directed
that
respondent
no.3,
Sub-Divisional
Magistrate, Sadar, Varanasi shall decide the
case after affording opportunity of hearing
to the parties expeditiously preferably
within period of three months from the
date of production of certified copy of this
order.
----------
(2023) 8 ILRA 1123
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.07.2023

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE PRASHANT KUMAR, J.

Writ-A No. 27553 of 2019

M/s Santosh Preservation Pvt. Ltd. & Anr.
 ...Petitioners
Versus
Dakshinanchal Vidyut Vitran Nigam Ltd. &
Anr. ...Respondents

Counsel for the Petitioners:
Sri Mayank Kumar Agarwal

Counsel for the Respondents:
Sri Baleshwar Chaturvedi, Ms. Usha Kiran, Ms.
Usha Kiran

Facts: The petitioners, operating a cold storage
with a 280 KVA power load under HV-2 tariff,
were inspected on 12.06.2019. The inspection
revealed tampering with the main meter and
pole meter, with cut wires in R and B phases,
resulting in zero recorded consumption despite
transformer readings indicating usage. An
inspection report confirmed electricity theft
under Section 135 of the Electricity Act, 2003.
The petitioners paid Rs. 56 lakhs as a
compounding fee and Rs. 10 lakhs towards
anticipated
assessment.
A
provisional
assessment of Rs. 23,48,452 was issued, later
reduced
to
Rs.
20,54,895
in
the
final
assessment dated 22.08.2019. The petitioners
challenged the assessment, alleging procedural
lapses, including the lack of opportunity to test
the meter at an independent laboratory, and
sought a refund of the deposited amounts. The