Ran Vijai Singh, J.@mdashThis writ petition has been filed by the petitioners challenging the order dated 16.9.2006 and consequential notice
dated 22.9.2006. From the perusal of the order dated 16.9.2006 passed by Sub-Divisional Officer, Jhansi it transpires that the Plot No. 1670 is
recorded as a pond but the petitioners have got their name entered in the khatauni fraudulently. After an enquiry this fact has transpired and a
decision was taken for expunging their name from khatauni. While passing this order an opportunity of post decisional hearing was offered to the
petitioners. Pursuant thereto a notice was issued to the petitioners on 22nd September, 2006 requiring their presence on 6.10.2006 before the
Sub-Divisional Officer, Jhansi to produce the relevant materials in support of their case.
2. The petitioners instead of appearing before the Sub-Divisional Officer, Jhansi have filed the present writ petition, in which this Court has stayed
the operation of the order dated 16.9.2006 and further directed the respondent not to interfere in the possession of the petitioners.
3. I have heard Sri Harish Chandra Mishra learned Counsel for the petitioners, learned standing counsel for respondent No. 2 and Sri V.K. Rai for
U.P. Jal Nigam.
4. Learned Counsel for the petitioners submits that: the impugned order dated 16.9.2006 is an ex parte order as no opportunity of hearing was
given to the petitioners, therefore, it deserves to be quashed. In his submissions the petitioners are in possession over the land in dispute for a quite
long time and on that basis their names have been recorded in khatauni and they are cultivating the land. Therefore, no order for expunging their
name could be passed without affording an opportunity of hearing. From the perusal of the order dated 16.9.2006 it transpires although a decision
was taken for expunging of their name but an opportunity of post decisional hearing was offered to the petitioners but instead of filing their reply
before Sub-Divisional Officer the petitioners have chosen to challenge the said notice through this writ petition.
5. From the perusal of the notice dated 16.9.2006 it transpires that the notice has been issued u/s 33/39 of U.P. Land Revenue Act requiring the
petitioners to produce the relevant material in support of their case. It is settled law that the proceeding under the U.P. Land Revenue Act are
summary in nature and it do not decide any right or title of the parties and the writ petitions are not generally maintainable in such matters.
6. The main thrust of the argument of the learned Counsel for the petitioner is the breach of principle of natural justice before passing the impugned
order dated 16.9.2006. In his submissions the long standing revenue entries cannot be expunged outrightly without affording an opportunity of
hearing. This Court in the Writ Petition No. 5101 of 1998, decided on 27.8.2008 has taken the view that when the order impugned leads to the
civil consequences affecting the right of the other persons then opportunity of hearing is necessary to be given before passing such order, but
simultaneously it is also settled law that opportunity of hearing is not a ritual which should be given in each and every case. If in a case even after
giving an opportunity of hearing same result is likely to come and the order has been passed without affording an opportunity of hearing then in that
circumstances the order passed should not be interfered with under Article 226 of the Constitution of India.
7. The Apex Court in the case of A.M.U., Aligarh v. M.A. Khan 2000 (4) AWC 2993 (SC), has ruled that a person complaining about denial of
opportunity of hearing must show that in case opportunity would have been provided to him what cause he would have shown or what defence he
would have taken. Here in the present case there is no concrete averment in the writ petition with regard to the right and title over the property in
dispute. Therefore, impugned order cannot be faulted.
8. Otherwise also the authority concerned while passing the impugned order has given a post decision hearing to the petitioners on 22.6.2006. The
principle of post decisional hearing is a well recognised principle under the judicial process, in view of the decision of the Apex Court in the case of
Union of India and Another Vs. Tulsiram Patel and Others, I.J. Rao, Asstt. Collector of Customs and Another Vs. Bibhuti Bhushan Bagh and
Another, Canara Bank Vs. V.K. Awasthy, ; Canara Bank v. V.K. Awasthi 2005 (5) AWC 4410 (SC), Muzeeb v. Deputy Director of
Consolidation and Ors. 1996 (87) RD 66 : 1995 (2) AWC 698 and Chaturgun and Others Vs. State of U.P. and Others,
In Chaturgun''s case, following observation has been made by the Court:
However, if entry is expunged or any 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 pass 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 a situation, it is not necessary to first set aside the order and then hear the party concerned.
9. In view of that I do not find any illegality in the order impugned, the writ petition fails and is hereby dismissed. The petitioners are directed to file
their reply to the show cause notice dated 22.9.2006 within six weeks from the date of receipt of the certified copy of the order. The office may
issue certified copy of the order to the petitioners if applied on payment of usual charges within a week from the date of receipt of this file in the
office.
10. In case such reply as desired by the notice dated 22.9.2006 is filed that may be considered and decided by the respondent No. 2 within a
further period of three months from the date of receipt of the reply alongwith the certified copy of the order of this Court.
11. It may be clarified that I have not addressed myself on the merit of the case and in case any observation has been made on the merit of this
case the authority concerned will not be influenced by the said observation and pass independent order after considering the reply of the petitioners
to the show cause notice dated 22.9.2006 in accordance with law.
12. This Court while entertaining the writ petition has passed an interim order in favour of the petitioners, therefore, it will be appropriate to direct
the parties to maintain status quo with regard to the nature and possession over the land in dispute till the decision is taken by the respondent No. 2
on the reply of the petitioners.