IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Second Appeal No. 66 of 1987 State. ………………… Appellant.

Versus Virendra Kumar and Another.

……………Respondents.

With First Appeal No. 27 of 2006 State. ………………… Appellant.

Versus Ravi Kumar.

……………Respondent.

With First Appeal No. 28 of 2006 State. ………………… Appellant.

Versus Ravi Kumar.

……………Respondent.

With First Appeal No. 29 of 2006 State. ………………… Appellant.

Versus Smt. Shanti Devi and Others.

……………Respondents.

With First Appeal No. 30 of 2006 State. ………………… Appellant.

Versus Smt. Ishwari Devi (Deceased) and Others.

……………Respondents.

Present:

Mr. Yogesh Chandra Tiwari, learned Standing Counsel for the State.

Mr. D.S. Patni, learned senior counsel assisted by Mr. Karmanya Pande, learned counsel for the respondent.

Mr. Lalit Sharma and Mr. Piyush Garg, learned counsel for the respondent in the connected matter.

Hon’ble Mr. Justice Rakesh Thapliyal, J.

1. Mr. Yogesh Chandra Tiwari, learned Standing Counsel pointed out that the Hon’ble Apex Court in its judgment take note in para 20 of the judgment about the order of the Board of Revenue passed in review application, which was never been challenged by the respondent/plaintiff.

2. Mr. D.S. Patni, learned senior counsel today in response to the argument as advanced by Mr. Yogesh Chandra Tiwari on the previous date address on four points. The first point is that the order passed by the Collector expunging the long standing revenue entries is completely without jurisdiction since the procedure in terms of Section 39 of the L.R. Act was not followed at all by taking suo moto cognizance. He submits that as per the mandate of Section 39 of L.R. Act there has to be an application for correction of revenue entries therefore the Collector’s order expunging old revenue entries was bad in law. He further submits that even otherwise by virtue of Section 33 the Collector at the most can rectify the clerical error, therefore, expunging old revenue entries by an executive order by the Collector is not permissible.

3. In reference to Section 33 and 39 of the Land Revenue Act Mr. Patni placed reliance to para 11 and 12 of one of the judgment of Allahabad High Court rendered in the case of M/s Mahalakshmi Land and Finance Co. (Private) Ltd. Vs. Board of Revenue, Uttar Pradesh, Lucknow and others i.e. Writ Petition No. 1993 of 1996 decided on 30.09.1996, which read as under:

“11. The meaning of word errors used in Sub Section 2 of Section 33 of the Land Revenue Act cannot be stretched beyond ‘clerical errors’ or those due to oversight about undisputed claims. It means an error of an obvious nature, particularly a clerical one and not an alleged mistake involving a long drawn out dispute about rights. It contemplates a case where there is no real dispute between the parties and the only question is whether any accidental or clerical error was made in the previously prepared register.

12. The nature of jurisdiction exercised by the original court of S.D.O. or Commissioner or Board of Revenue in a correction case under section 33/39 of Land Revenue Act remains the same notwithstanding the change in stature of the court.”

4. Apart from this, Mr. Patni submits that even if the Collector was so adamant to expunge the revenue entries by invoking Section 33 of Z.A.L.R. Act then atleast he has to give an opportunity of hearing in terms of Section 39 of the Act. He submits that entire exercise of the Collector in expunging long standing entries appears to be a malafide.

5. Second submission of Mr. Patni is in reference to Section 227 of the L.R. Act that in terms of Section 227 Assistant Collector is the only competent authority and not the Collector to make necessary correction in the revenue entries, therefore on this account also the Collector’s order is bad.

6. The third submission of Mr. D.S. Patni is that by virtue of Notification dated 30.04.1948 the respondent/plaintiff got occupancy right over the land leased out in 1924 to Mr. V.John and after getting the occupancy right by virtue of A