Sibghat Ullah Khan, J. - (1.) HEARD learned Counsel for the Petitioner and learned standing counsel for the Respondents. The order which has been challenged through this writ petition is contained in Annexure -1 to the writ petition passed on 13.12.1995 by Chief Revenue Officer/Officer -in -charge, Revenue Record Room, Azamgarh in case No. 51 of 1995 under Sections 33/39/225 Land Revenue Act 1901. It is mentioned in the said order that report of the Lekhpal was perused and that on the application of Vishram Moharir, Jild chakbandi of village Ganipur Dagraha, Pargana Deogaon, Tahsil Lalganj, District Azamgarh was inspected and records of Gram samaj were also perused and it was found that over certain plots which were entered as pond, garaha, baha and banjar names of private persons were entered and it was further shown that the names were entered under order of Consolidation officer. It was further mentioned that according to different orders of different dates (22.8.1971,28.8.1973, 25.11.1971,12.5.1971 and 10.4.1972) purported to have been passed by Chakbandi Adhikari under Section 9 of U.P. Consolidation of Holdings Act, 1953, gaon sabha properties were directed to be entered in the names of private persons particularly the Petitioner which included pond at serial No. 1 512, garha at serial No. 2 -513, baha at serial No. 3 -514 and banjar at serial No. 4 -510 and banjar at serial No. 5. Thereafter it is mentioned that all the mutations were not mentioned in the index of the volume and in the mutation, number of list had not been mentioned and the cases in which orders were shown to have been passed by Consolidation Officer were not mentioned in goshwara. The first four properties mentioned in the said order were mutated in the names of Petitioners who are husband and wife. It was also held in the said order that all the mutations were doubtful. Thereafter, it was held that it was not necessary to hear the Petitioners and other affected persons. Annexures 2,3 and 4 to the writ petition are copies of orders passed by Consolidation Officer. The orders on the face of it are patently erroneous in law and just on the oral statement of one of the witnesses of Petitioner No. 1 that his possession was since before zamindari abolition, order has been passed in favour of the Petitioner No. 1. It is mentioned that Pradhan admitted the case of the Petitioner. Gaon sabha property is not personal property of Pradhan. Moreover, it is not mentioned in the said order that what was the stand of the State which was also party. There cannot be any manner of doubt that such order could be passed under Section 33/39 of U.P.Z.A. & L.R. Act vide Hari Ram v. State, 2004 (97) R.D. 360.
(2.) HOWEVER , in my opinion the only defect in the impugned order is that Petitioner was not heard. It was utmost essential to hear the Petitioner before passing the order. I have discussed this aspect in detail in "Chaturgan v. State : 2005 (98) RD 244 and Smt. Kunti v. Commissioner Meerut Division Meerut, 2009 (107) RD 405 para 8 of which is quoted below: 8. Executive officers must realise that some times by overdoing and showing undue haste they may spoil even excellent case. Even if order of cancellation is 100% legal and just still if it has been passed without hearing the persons concerned, the higher authority/Court where the order is challenged will have no option except to stay the operation of the order. After granting of stay matter may take years to be finalised. Attempt to save few days may result in the loss of few years, in the instant case it is quite possible that 300 bighas of State / Gaon Sabha land has illegally been occupied by the 36 persons and records have been forged/fictitious entries in the revenue records have been got made still the undue haste shown by the ADM might in the normal course would have delayed the eviction of the unauthorised occupants by years or even decades unless this unusual step had not been taken by me to direct for hearing the concerned persons by giving them notice through publication in the newspaper.
(3.) ACCORDINGLY , writ petition is allowed. Impugned order is set aside only on the ground that it was passed without hearing the Petitioners. The Chief Revenue Officer is directed to decide the matter afresh after hearing the Petitioners. No observation made in this judgment, regarding the orders alleged to have been passed by C.O., shall be taken into consideration while deciding the matter by the C.R.O. who shall take his own decision in this regard. The matter shall positively be decided within two months from the date of production of certified copy of this order. Petitioner is directed to appear before the Chief Revenue Officer alongwith certified copy of this judgment and his detailed objection on 10.3.2011 failing which this writ petition shall be deemed to have been dismissed.;