JUDGMENT :

Ajit Kumar, J.

List is being revised. Nobody is present on behalf of heirs of respondent no. 1 who have already been brought on record and are represented by one Sri Ram Jatan Yadav, learned Advocate.

2. Learned Standing Counsel is present but he has not filed any counter affidavit on behalf of respondent nos. 2 and 3. Despite time granted for the said purpose, the matter is of the year 2012 and so the Court proceeds to hear and decide the writ petition.

3. Heard learned counsel for the petitioners and learned Standing Counsel.

4. The present writ petition arises out of proceeding under Section 28 of the U.P. Land Revenue Act, 1901 wherein, the application of the deceased respondent no. 1 for correction of map came to be allowed on the basis of report submitted by the Nayab Tehsildar, Sadar Mau dated 24th February, 2003. The petitioners' revision against the order passed by the Collector has also been dismissed.

5. The sole ground taken in the present petition is that Collector, Mau fell in serious error of law in accepting the report of the Nayab Tehsildar as it is without examining the Nayab Tehsilar who had prepared the report on the spot. The contention is that until the report is duly proved by the person or the authority submitting report the same cannot be led in evidence nor, the authority adjudicating the issue can attribute it with any evidenciary value to be accepted as it is more especially, when the contesting party has raised objection to the report concerned. It is further contended that specific plea was taken as ground no. 5 in the memo of revision before Commissioner that report was not proved and yet Collector proceeded to rely upon the report against which objection was filed by the petitioner and, therefor, the argument is that orders passed by the Collector as well as the Additional Commissioner cannot be sustained in law and deserve to be set aside.

6. Per contra, the argument advanced by learned Standing Counsel is that the orders are justified as no ground seems to be forthcoming that the area assigned to the contesting respondent no. 1 now represented by his heirs became larger than the area prescribed or provided for in the Khatauni. He further submits that these are summary proceedings and the Collector does not act as a Court of law so as to bind him by the intricacies of the Indian Evidence Act, 1872. He submits that it is still open for the parties to litigate the matter in common law. He submitted that nobody was found to be in unauthorized possession or excessive area than the area given in the relevant annual register/Khatauni and thus, he defended the order impugned in the present writ petition for the reasons assigned therein.

7. Having heard learned counsel for the parties, their respective arguments against and for the orders passed by the authorities and have perused the records and having carefully examined the orders passed by the Collector and the Commissioner, I find that the Collector solely relied upon report of Nayab Tehsildar Sadar Mau while allowing the application of the contesting respondent no. 1 for correction of map. The observations that have come in the order passed by the Collector are indicative of the fact that he had himself examined the report and there is no recital to the effect that Nayab Tehsildar concerned had, at any point of time, appeared before the Collector and got himself examine. There is no statement recorded of the Nayab Tehsildar concerned. The Collector has referred to the objection raised by the petitioner but while dealing with objection, he held the report to be just and proper.

8. This Court fails to understand as to when proper objection has been raised to the report, what was the mechanism available to Collector to accept the report as it is. It is admitted fact that Collector did not visit the spot and it is equally admitted fact that the report presented before Collector by Nayab Tehsildar, was in fact not prepared by the Nayab Tehsildar was