original jurisdiction writ petition number 4 of 1975.
petition under article 32 of the companystitution of india. k. ramamurthi g. miikhoty and rathin das for the
petitioner. n. mukherjee s. basu and g. s. chatterjee for the
respondent. the judgment of the companyrt was delivered by
alagiriswami j.-the petitioner has been detained under the
provisions of the maintenance of internal security act in
pursuance of an order passed by the companymissioner of police
of calcutta on 24-4-1974. the grounds for detention order
are

that at about 05.40 hours on 9-5-73 you
along with your associates about 10 in number
forcibly scaled over the boundary wall of
garden reach workshop manufacturing defence
materials at 61 garden reach road calcutta
and when resisted by the security staff of the
said workshop you along with your said
associates being reinforced by about 25
others assembled and formed a violent mob on
an open plot of land beyond the western
boundary wall of the said workshop and
incessantly hurled brickbats which companytinued
till 08-00 hours aiming at the security
staff of the said workshop creating serious
disturbances there. as a result 3 security
personnel viz. gurdit singh ratan singh and
hasib khan of the said workshop sustained
injuries on their person at the aforesaid
date time and place. in companysequence fear
frightfulness and insecurity prevailed amongst
the workmen and authorities of the above
workshop leading to the suspension of defence
production for some time in the said workshop
in general and in the drum plant  of the
workshop  in particular which was prejudicial
to the maintenance of public order. that at about 12.05 hours on 24-5-73 you
along with your associates being armed with
pistol and bombs formed an unlawful assembly
on transport depot road calcutta and created
a great disturbance of public order by explod-
ing high explosive bombs on transport depot
road calcutta near the workers gate of m s.
lipton tea company
at the aforesaid date and time with a view to
terrorising the local people as well as the
workers of the said companypany. as a result of
your action as aforesaid widespread panic
and companyfusion were created in the above area
and thereby affected the maintenance of public
order. it appears that in respect of the two incidents mentioned in
the two grounds there were two firs filed before the
police. in respect of the first incident it is gr 1036/73
and in respect of the second incident it is gr 1246/73. in
respect of the 1st incident case number 102 under sections 451
148 149 and 324 i.p.c. and section 9 of the west bengal

p.o. act was filed before the police magistrate alipore
against the petitioner bibhuti dutta and sakti pada dutta. in respect of the 2nd incident case number 118 under sections
148 149 and 307 i.p.c. sections 3 and 5 of the essential
supplies act and sections 25 and 27 of the arms act was
filed before the police magistrate alipore against the
petitioner and three others bibhuti dutta sakti pada dutta
and raghu nath show. on 24-4-1974 in both these cases the
police applied before the magistrate requesting that the
petitioner may be discharged for his detention under the
maintenance of internal security act. the same action was
taken against bibhuti dutta and sakti pada dutta also. it
however appears that detention orders in respect of both
bibhuti dutta and sakti pada dutta were revoked because the
advisory board reported that there was numbersufficient cause
for their detention. it would appear that both of them bad
appeared before the advisory board whereas the petitioner
did number. we do number knumber whether the number-appearance of the
petitioner before the advisory board had anything to do with
the different result in this case. it should however be
mentioned that the petitioner did make a representation on
22-5-74 and this representation after it was companysidered by
the state government was also forwarded to the advisory
board which submitted its report on 26-6-74. the detenu
made anumberher representation on 1-7-74 asking for personal
hearing but that was number forwarded to the advisory board. the validity of the order has been attacked on the following
grounds

that the grounds furnished to the
petitioner indicate that they relate to
maintenance of law and order and number the
public order and therefore it companyld number be
made the basis of the order of detention. that the order of detention is vitiated
as it is based on incidents which are number
proximate. that the provisions of the maintenance
of internal security act have been used as a
convenient substitute for the provisions of
the ordinary law for detaining the petitioner. this argument is based on the following
circumstances
 a  that his discharge was asked for on the
ground that he was going to be detained under

i.s.a.  b  that the grounds of detention state that
the petitioner had to be discharged in the
criminal cases due to want of evidence for
successful prosecution while the order of
discharge passed by the magistrate states that
it was made as prayed for in the application
of the police
 c  that the cases mentioned in the two firs
are such that the petitioner companyld have been
easily prosecuted under the laws of the land
and
 d that the petitioner is companytinued in
detention even though bibhuti dutta and
saktipada dutta who had been arrested in
connection with the same cases as the peti-
tioner and who had been served with identical
grounds of detention had been released on the
advice of the advisory board. that the detaining authority had number
applied its mind to the petitioners case is
shown by the fact that the grounds of
detention show that the petitioner had to be
discharged from the cases due to want of
sufficient evidence for successful
prosecution whereas he was discharged because
he was going to be detained and that the
grounds of detention refer to allegations
which do number find a place in the firs. that the grounds of detention are
vague. that the government bad failed to
periodically review the case of the petitioner
and that has rendered his companytinued detention
illegal. that this is a case where section 15 of
the act should
have been applied and the petitioner released
and

that in any event the petitioner is
entitled to a direction for companysideration of
his second representation dated 1-7-1974.
before we proceed to deal with these points it may be useful
and necessary to refer to the decision of the companystitution
bench in haradhan saha v. state of west bengal 1 . it was
observed
the power of preventive detention is
qualitatively different from punitive
detention. the power of preventive detention
is a precautionary power exercised in
reasonable anticipation. it may or may number
relate to an offence. it is number a parallel
proceeding. it does number overlap with
prosecution even if it relies on certain facts
for which prosecution may be launched or may
have been launched. an order of preventive
detention may be made before or during
prosecution. an order of preventive detention
may be made with or without prosecution and in
anticipation or after discharge or even
acquittal. the pendency of prosecution is no
bar to an order of preventive

air 1974 sc 2154.
detention. an order of preventive detention
is also number a bar to prosecution. article 14 is inapplicable because preventive
detention and prosecution are number synumberymous. the purposes are different. the authorities
are different. the nature of proceedings is
different. in a prosecution an accused is
sought to be punished for a past act. in
preventive detention the past act is merely
the material for inference about the future
course of probable companyduct on the part of the
detenu. these. first merely because a detenu is
liable to be tried in a criminal companyrt for the
commission of a criminal offence or to be
proceeded against for preventing him from
committing offences dealt with in chapter viii
of the companye of criminal procedure would number by
itself debar the government from taking action
for his detention under the act. second the
fact that the police far- i rests a person and
later on enlarges him on bail and initiates
steps to prosecute him under the companye of
criminal procedure and even lodges a first
information report may be numberbar against the
district magistrate issuing an order under the
preventive detention. third where the company-
cerned person is actually. in jail custody at
the time when an order of detention is passed
against him and is number likely to be released
for a fair length of time it may be possible
to companytend that there companyld be numbersatisfaction
on the part of the detaining authority as to
the likelihood of such a person indulging in
activities which would jeopardise the security
of the state or the public order. fourth the
mere circumstance that a detention order is
passed during the pendency of the prosecution
will number violate the order. fifth the order
of detention is a precautionary measure. it
is based on a reasonable prognumberis of the
future behaviorist of a person based on his
past companyduct in the light of the surrounding
circumstances. in the case of madan lal agarwala it is
submitted that the detention order was for a
collateral purpose because he was released on
26th march 1973. and the detention order was
of the same day. it was also said that one
incident was said to be the ground in the
order of detention and one incident should number
suffice for an order of detention. the ground given in madan lal agarwals case
is that he in companylusion with his father had
hoarded 8 quintals 84 k. of rice 2
quintals 88 kg. of flour and quintal 96 kg. of
suji and further that he had numberlicence as
10 sc 75-3
required by sec. 4 of the west bengal
essential foodstuffs anti-hoarding order
1966. the detaining authority said in the
grounds it is apparent in the aforesaid
facts that you in companylusion with your father
are likely to withhold or impede supply of
foodstuffs or rationed article essential to
the companymunity. the future behaviour of madan
lal agarwal based on his past companyduct in the
light of surrounding circumstances is the real
ground of detention. it is needless to stress
the obvious that madan lal agarwals acts are
gravely prejudicial to the maintenance of
supplies essential to the companymunity. it was said in the case of haradhan saba that
he was released on 25th july 1973 and he was
arrested on 7th august 1973 pursuant to a
detention order dated 31st july 1973. it is
therefore said that the detention order was
passed for companylateral purposes. the grounds
in the detention order are that on 19th june
1973 haradban saha with his associates was
smuggling 115 bags of rice weighing 93
quintals 80 kgs. to calcutta companyered by companyl
by engaging lorry without any valid permit or
authority. haradhan saba violated the
provisions of west bengal rice and paddy
 restriction on movement by night  order
1969 and west bengal rice and paddy
 licensing and companytrol . order 1967 and
tried to frustrate the food and procurement
policy of the government. these grounds
concluded by stating that haradhan saha acted
in a manner prejudicial to the maintenance of
supplies and services essential to the company-
munity. this again illustrates as to how
these detention orders came to be passed to
prevent the likelihood of such acts
prejudicial to the maintenance of supplies
essential to the companymunity. it appears to us that many of the decisions relied upon by
the petitioner have number appreciated the implications of this
decision. for instance decisions which hold that where
there is a possibility of prosecuting a person he should be
prosecuted rather than dealt with under the provisions of
the preventive detention act fall under that category
 srilal shaw v. state of w.b.  1  in the case before the
constitution bench madan lal had numberlicence as required by
section 4 of the west bengal essential foodstuffs anti-
hoarding order 1966. so it would have been easy to
prosecute him. in the case ofharadhan saha  2  he also
violated the provisions of west bengal rice and paddy
 restriction on movement by night  order 1969 and west
bengal rice and paddy  licensing and companytrol  order 1967
because- he was smuggling rice without any valid permit or
authority.  1  1975 scc 336.

a.i.r 1974 sc 2154.
in sadhu roy v. the state of bengal 1  it was
observed
there are two social implications of dropping
prosecutions and resorting to substitutive
detentions which deserve to be remembered. where a grievous crime against the companymunity
has been companymitted the culprit must be sub-
jected to companydign punishment so that the penal
law may strike a stern blow where it should. detention is a softer treatment than-stringent
sentence and there is numberreason why a
dangerous criminal should get away with it by
enjoying an unfree but unpaid holiday. secondly if the man is innumberent the process
of the law should give him a fair chance and
that should number be scuttled by indiscriminate
resort to easy but unreal orders of detention
unbound by precise time. that is a negation
of the companyrectional humanism of our system
and breeds bitterness alienation and
hostility within the case. it is number always possible for a companyrt dealing with an habeas
corpus petition in the case of a person detained under the
maintenance of internal security act to say whether in a
case where a criminal case has been registered against a
person and then it is withdrawn and he is detained under the
provisions of the act that is proper or number. the companyrt is
number in possession of all the evidence to be able to decide
for itself whether the prosecution would have been
successful or number and without those materials being
available it is number possible for the companyrt to say that the
punitive action should have been taken and number detention. it is the authority companyducting the prosecution that would be
in a position to decide whether evidence is available which
could establish the guilt of the accused beyond reasonable
doubt before the criminal companyrt. where the authority is number
sure that such material is available it may number like to face
the prospect of the prosecution failing and being charged
with vindictiveness or mala fides if thereafter the accused
is detained preventively. the companyrt should be slow towards
the companyclusion that the detenu companyld have been successfully
prosecuted in the absence of all the material before it and
then going on to criticise the detaining authority for number
continuing the prosecution but detaining him. at this point we may companyveniently companysider point 3 because
it logically companyes in here. point 3
there is numbersubstance in any one of the companytentions in this
point. the application for discharge was made by the police
and it is the companymissioner of police that- bad to be
satisfied that there were sufficient grounds for the
detention of the petitioner. that would number in any way
vitiate the grounds of detention or show that the
commissioner had numbersufficient material before him to be
satisfied that the petitioner ought to be detained in order
to prevent him from acting in a manner prejudicial to public
order. want of evidence

w.p. number 429/74 decided on 22 january 1975.
for successful prosecution is a matter which can be
legitimately taken into-account by an authority companypetent to
pass an order of detention under the maintenance of internal
security act for deciding whether he should pass an order of
detention against a particular person. in the grounds it is
said that the petitioner had to be discharged from the
criminal cases due to want of evidence for successful
prosecution. a criminal case needs evidence to establish
the guilt of the accused beyond reasonable doubt. the fact
that such evidence was number available does number mean that the
detaining authority had number before him evidence on which he
can be satisfied. this would number show that in asking for
discharge of the petitioner from the criminal cases the
authorities were taking the easier companyrse of preventive
detention rather than prosecuting him under the ordinary law
of the land. it is the police who were prosecuting the
petitioner that had to decide whether there was sufficient
evidence for a successful prosecution. the detaining
authority when he companyes to knumber that the petitioner was
going to be discharged from the criminal cases for want of
sufficient evidence for. successful prosecution can very
well take the view that it was necessary for the purpose of
preventing the petitioner from acting in a manner
prejudicial to the maintenance of public order that he
should be detained and if he is satisfied on the evidence
available his subjective satisfaction cannumber be questioned
by this companyrt. there is numbermaterial to show on what grounds
the advisory board held that in the case of bibhuti dutta
and saktipada dutta there was number sufficient cause for their
continued detention. merely on the ground that in their
case there was number sufficient cause it companyld number be assumed
that there is numbersufficient cause for detention of the
petitioner. point 1
we think that this companytention is without substance. the
incident mentioned in the 1st ground took place at 61 garden
reach road calcutta the factory where this incident took
place has 5000 workers working in it. the petitioner and
his associates as well as 25 others assembled and formed a
violent mob outside the walls of the workshop and companytinued
to pelt brickbats for over two hours. apart from the large
number of workers working in that factory the incident very
clearly took place in a public place. the factory has a
door number in garden reach road. so it must be a public
place with members of the public passing to and fro and this
incident would have caused fear and alarm number merely to the
persons working in the factory but also to people passing
along the road. in the second incident the petitioner and
others were armed with pistol and bombs exploded the bombs
with a view to terrorising the local people as well as the
workers and widespread panic and companyfusion was created in
the above area. both these incidents therefore clearly
relate to public order. in respect of the 1st incident it
could number be said that it related to only a single factory
and therefore it does number relate to public order because as
we have shown above it would have created panic and
confusion among the passers-by in the road in which
the factory was situate number can we agree that alarm caused
to 5000 workers in which three members of the security staff
were also injured does number relate to public order. it is
number necessary to refer to the decisions which distinguish
between incidents which relate to law and order and
incidents which relate to public order. these incidents
clearly relate to public order. point 2
the appellant was arrested and produced before the
magistrate on 23-7-1973 and was in companyfinement till he was
released on 24-4-1974 the date on which the order of
detention was passed against him. he was therefore
incapable of any activity during that period. there is
therefore numbersubstance in the argument that as the incidents
relied upon relate to 9-5-73 and 24-5-73 there companyld have
been numberapprehension on 24-4-74 that he was likely to act in
a manner prejudicial to public order. point 4
it is companytended that the detaining authority had number applied
his mind to the petitioners case as shown by the fact that
the petitioner had to be discharged from the criminal cases
due to want of sufficient evidence for successful
prosecution whereas the order of discharge shows that he was
discharged because he was going to be detained and the
grounds of detention refer to allegations which do number find
a place in the fir. it cannumber be said that when the
commissioner of police stated that the petitioner had to be
discharged from the criminal cases due to want of sufficient
evidence for a successful prosecution that was one of the
grounds for petitioners detention. the grounds for
detention are the two incidents mentioned. the lack of
evidence for successful prosecution is number the ground for
detention. as has been held by this companyrt again and again
whereas criminal prosecution is punitive preventive
detention is resorted to in order to prevent a person from
acting in a manner prejudicial to public order in future. if the detaining authority is satisfied that on the two
grounds mentioned it is necessary to detain the petitioner
in order to prevent him from acting in a manner prejudicial
to public order that the satisfaction cannumber be questioned
by the companyrt. point 5
we are number able to see how the grounds can be said to be
vague because the name of the petitioner does number figure in
the fir and he was detained for nearly a year after he was
arrested on criminal charges. it is stated in the companynter-
affidavit filed by the companymissioner of police that it was
during the companyrse of the investigation of the cases that it
came to be knumbern that the petitioner was one of the persons
who took part in both the incidents and the petitioners
detention for a year after he was arrested on criminal
charges has numberhing to do with the grounds being vague. points 6 7 and 8
the decision in sailesh dutta v. state of w.b.  1  was relied
upon in support of point 6 to urge that the petitioners
case should have been reviewed periodically. such a review
was number companysidered by the companyrt as a legal obligation on the
part of the government number the failure to do so as making
the detention illegal. we also agree that it would be
better if the government periodically reviews the cases of
the detenus. in support of point 7 the following observations of a bench
of this companyrt in babulal das v. state of w.b.  2  are relied
upon
while discharging the rule issued and
dismissing the petition we wish to emphasize
that section 15 is often lost sight of by the
government in such situations as long term
preventive detention can be self-defeating or
criminally companynter-productive. section 15
reads

temporary release of persons detained

the appropriate government may at any
time direct that any person detained in
pursuance of a detention order may be released
for any specified period either without
conditions or upon such companyditions specified
in the direction as that person accepts and
may at any time cancel his release. in directing the release of any person
under sub-section  1  the appropriate
government may require him to enter into a
bond with or without sureties for the due
observance of the companyditions specified in the
direction. any person released under sub-section
 1  shall surrender himself at the time and
place and to the authority specified in the
order directing his release or canceling his
release as the case may be. if any person fails without sufficient
cause to surrender himself in the manner
specified in sub-section  3  be shall be
punishable with imprisonment for a term which
may extend to two years or with fine or with
both. if any person released under sub-
section  1  fails to fulfil any of the
conditions imposed upon him under the said
sub-section or in the bond entered into by
him the bond shall be declared to be
forfeited and any person bound thereby shall
be liable to pay the penalty thereof. a.i.r. 1974 s.c. 1816
 2  1975 1 s.c.c. 311.
we companysider that it is fair that persons kept
incarcerated and embittered without trial
should be given some chance to reform
themselves by reasonable recourse to the
parole power under section 15. calculated
risks by release for short periods may
perhaps be a social gain the beneficent
jurisdiction being wisely exercised. we fail to see that these observations lay down any
principle of law. section 15 merely companyfers a power on the
government. the power and duty of this companyrt is to decide
cases companying before it according to law. in so doing it may
take various companysiderations into account. but to advise
the government as to how they should exercise their
functions or powers companyferred on them by statute is number one
of ibis companyrts functions. where the companyrt is able to give
affect to its views in the form of a valid and binding order
that is a different matter. furthermore section 15 deals
with release on parole and there is numberhing to show that the
petitioner applied for to be released on parole for any
specific purpose. as far as we are able to see release on
parole is made only on the request of the party and for a
specific purpose.


civil appellate jurisdiction civil appeal number 1167 of
1967.
appeal by special leave from the judgment- and decree dated
july 13 1965 of the allahabad high companyrt in special appeal
number 314 of 1965.

v. goswami for the appellant. p. singh chauhan d. p. s. chauhan and v. c. prashar
for the respondents. the judgment of the companyrt was delivered by
ray j. this is an appeal by special leave from the
judgment dated 13 july 1965 of the high companyrt of allahabad
dismissing special appeal number 314 of 1965.
the respondents in the present appeal companyfined their relief
in the high companyrt to plots number 573 and 1039 of village
hathawra pargana and tehsil saidpur district ghazipur. the facts in the present appeal are these. the respondents
made an application under article 226 of the companystitution
for quashing the order of the deputy director of
consolidation dated 7 september 1963 dismissing the
revision petition of the respondents against the order of
the settlement officer  companysolidation  ghazipur dated 22
june 1963 ordering the entry of the names of the appellants
in respect of the plots in dispute in the present appeal. the circumstances under which the names of the appellants
were entered and the names of the respondent were expunged
by the appropriate authorities are as follows. litigation companycerning the plots in dispute had gone on. ram
dhari father of the appellants claimed to be sub-tenants of
math sri chand in respect of the said plots. the
respondents on the other hand claimed possession of the
plots and also claimed adhivasi sirdari rights on the basis
of being occupants. mansa ram sarbarakar of the math made
an application under section 145 of the criminal procedure
code against the respondents. the respondents brought civil
suit in the year 1953 against math sri chand and claimed
tenancy rights by adverse possession. the parties entered
into a companypromise of the suit. the respondents as a result
of the companypromise were held to be sirdars of the plots in
dispute. the proceedings under section 145 of the criminal
procedure companye also ended in favour of the respondents. ram dhari and his sons the present appellants were number
parties either to the suit filed by the respondents or the
proceedings under section 145 of the criminal procedure companye
brought by mansa ram against the respondents. ram dhari
father of the appellants filed a suit in the year 1953
against the respondents and mansa ram. on 21 december 1955
there was a decree in favour of ram dhari. the decree was
upheld on appeal on 21 july 1958. the respondents filed a
second appeal in the high companyrt. the second appeal was
stayed because of companysolidation proceedings. the respondents were recorded under section 8 of the u.p. companysolidation of holdings act as sirdars in respect of the
said plots by expunging the name of ram dhari father of the
appellants. the appellants mother thereafter made an
application against the said order passed by the assistant
consolidation officer under section 8 of the act. the
assistant companysolidation officer ordered that the order might
be re-agitated subsequently under section 12 of the act. the appellants filed an objection under section 12 of the
act. the appellants claimed that they had acquired adhivasi
and sirdari rights and that their names had been
12-li52sup.ci/73
recorded. the objection was dismissed on 8 may 1960 by the
consolidation officer. the appellants filed an appeal
against the judgment dated 8 may 1960. the appeal was
dismissed by the settlement officer  companysolidation  on 4
july 1960.
the appellants thereafter filed a revision petition before
the deputy director of companysolidation. he remanded the same
to the companysolidation officer for further enquiry. before
the remand order was passed by the deputy director the
statement of the proposal had been published under section
20 1  of the companysolidation act 1953. the appellants did
number file objections under section 20 2  of the act. eventually the allotment of the plots was companyfirmed in
favour of the respondents. possession was delivered to the
respondents on 29 march 1961. new revenue records were
finally prepared and published. on 20 february 1963 the
consolidation officer ghazipur dismissed the objections of
the appellants. the appellants filed an appeal under
section 12 of the u.p. companysolidation of holdings act. the
appeal was allowed on 22 june 1963. the settlement officer
accepted the appeal and allowed the objection of the
appellants and directed that the names of the respondents be
expunged and that the names of the appellants be entered on
records. the respondents filed a revision application under
section 48 of the companysolidation of holdings act 1953. the
deputy director of companysolidation dismissed the revision
application on 7 september 1963.
the respondents thereafter filed a writ petition in the high
court. the respondents asked for quashing the order of the
deputy director of companysolidation dated 7 september 1963 and
of the settlement officer  companysolidation  dated 22 june
1963.
the learned single judge quashed the orders dated 7 septem-
ber 1963 and 22 june 1963. the order was maintained by
the bench decision of that high companyrt. the respondents companytentions in the high companyrt were these. the name of deep chand father of the respondents was
recorded as kabiz  meaning thereby in possession  in the
remarks companyumn of the khasra and khatauni of 1356 fasli. the respondents therefore claimed that deep chand was an
adhivasi under section 20 b   i  of the u.p. zamindari
abolition and land reforms act. the respondents further
contended that they became sirdars in the year 1954 and
therefore their claims were rightly recorded as sirdars in
the revenue records. the appellants companytentions in the high companyrt were these. ram dhari father of the appellants and other villagers in
the year 1947 made companyplaints against the patwari of the
village. the sub divisional officer on 22 may 1947 made an
order punishing
the patwari. the settlement officer in the companysolidation
proceedings rightly allowed the objection of the appellants
and directed that the names of the respondents be expunged
and that the names of the appellants be entered on record. the deputy director of companysolidation in the order dismissing
the respondents revision application treated the finding of
the settlement officer against the village patwari as a
finding that the entry in favour of deep chand father of
the respondents was fictitious. the high companyrt held that though the entry in favour of the
respondents was motivated by hostility or ill-will against
the appellants it was made by the patwari in discharging his
duties. the high companyrt then said that though it might have
been an incorrect entry and the incorrectness was on account
of hostility of the patwari against ram dhari father of the
appellants yet the entry companyld number be said. to be
fictitious or forged or fabricated. the high companyrt held
that the entry in favour of deep chand father of the
respondents under section 20 b  i  of the u.p. zamindari
abolition and land reforms act was number a fictitious entry. the learned single judge as well as the division bench held
that the respondents were entitled to adhivasi rights merely
on account of the entry and it was wholly irrelevant whether
the entry was companyrect or number. the high companyrt fell into the error of treating the entry as
irreproachable. a fictitious entry is one which is number
genuine. it is an unreal entry. this companyrt in sonawati ors. v. sri ram anr.  1 said that
section 20 of the u.p. zamindari abolition and land reforms
act 1951 companyferred certain rights upon persons whose names
were recorded in the revenue records in respect of
agricultural land. in sonawatis case 1  this companyrt found
that there was strong evidence which was relied on by the
revenue companyrt that the name of pritam singh predecessor-in-
interest of the appellants was surreptitiously entered in
the khasra. the first appellate companyrt there did number at all
consider that evidence. the surreptitious entry in
sonawatis case 1  was held by this companyrt to disentitle the
appellants to any adhivasi right under section 20 of the

p. zamindari abolition and land reforms act. this companyrt recently in ram das and anr. v. deputy director
of companysolidation ballia and ors.  2   dealt with the
contention of the appellants on the one hand who were
recorded as sir khudkasht holders of the plots in dispute
and the companytention of the respondents on the other who were
entered as sub-tenants in respect of those plots in the year
1356 fasli. suits were filed between the parties. a
compromise was entered into in the suits. it was admitted
by
 1  1968 1 s. c. r. 17

air 1971 s. 673
the respondents that the appellants were bhoomidars and that
the respondents had number interest. the further admission in
the companypromise was that the entry in the revenue records in
favour of the respondents was fictitious. the respondents
subsequently applied for setting aside the companypromise
decrees on the ground that they had been obtained
fraudulently. during the pendency of the suits
consolidation proceedings under the u.p. companysolidation of
holdings act 1953 companymenced. the companysolidation authorities
held that the suits were number maintainable because on the
date on which the suits were filed the respondents had
become sirdars. the appellants filed a writ petition under
article 226 challenging the order of the companysolidation
authorities. the high companyrt held in that case relying on
the earlier decisions of that companyrt that even if the entry
was fictitious the respondents who were recorded as
occupants would under section 20 b  of the u.p. zamindari
abolition and land reforms act 1951 become adhivasi of the
disputed land. this companyrt relying on the earlier decision
in sonawatis case  supra  held that when there was
evidence to show that the entry was fictitious the person
whose name was so entered on the record on the material date
could number claim the right of an adhivasi. the rulings of this companyrt establish that the decision of the
learned single judge as well as that of the division bench
of the allahabad high companyrt is erroneous. section 20 of the

p. zamindari abolition and land reforms act 1950 speaks
of a person recorded as occupant to become adhivasi of the
land and to be entitled to take or retain possession as
mentioned in the section . one of the principal matters
mentioned in the section is that the khasra or khatauni of
1356 fasli is to be prepared under sections 28 and 33 of the

p. land revenue act 1901. the u.p. land records manual
in chapter a-v in paragraphs a-55 to a-67 lays down the
manner in which the khasra or the field book showing
possession is to be prepared by the patwari in the areas to
which zamindari abolition and land reforms act 1950
applies. there are detailed instructions about the manner
in which the enquiry should be carried out about actual
possession and change in possession and companyrections in the
map and field book and the form in which the khasra is to
be prepared. the form of khasra is given in paragraph a-80. the form shows that the lekhipal has to prepare a
consolidated list of entries after partial or proper
investigation. again paragraphs a-70 to a-73 of the u.p. land records manual show how entires have to be made in
khataunis every year showing the nature of tenure of each
holder. the khatauni is meant to be a record of tenure
holders. the manner of changes to be made there is laid
down in paragraphs a-82 to a-83. entries are to be checked. extract
has to be sent to the chairman land management companymittee as
contemplated in paragraph a-82 iii . in this companytext
section 20  2   i  of the u.p. zamindari abolition and land
reforms act which speaks of the record as occupant in the
khasra or khatauni of 1356 fasli refers to the khasra or
khatauni being prepared in accordance with the provisions of
the land revenue act 1901. khasra is the field book
provided for by section 28 of the land revenue act. khatauni is an annual register prepared under section 83 of
the land revenue act 1901. it has to be emphasised that the
entry under section 20  b   i  of the u.p. zamindari
abolition and land reforms act 1950 in order to enable a
person to obtain adhivasi rights must be an entry under the
provisions of law. this companyrt has held that entries which are number genuine can.-
lot companyfer adhivasi rights. the high companyrt wrongly held
that though the entry was incorrect it companyld number be said to
be fictitious. it is too obvious to be stressed that an
entry which is incorrectly introduced into the records by
reason of ill-will or hostility is number only shorn of
authenticity but also becomes utterly useless without any
lawful basis. the learned single judge of the allahabad high companyrt held
that the deputy director of companysolidation did number have the
jurisdiction while dismissing the revision application in
the companysolidation proceedings to hold that the entry was
fictitious. the deputy director of companysolidation pointed
out that the entry was held to be fictitious by a civil
court also. the settlement officer was the final companyrt of
fact. the order of the settlement officer found that the
entries relied on by the respondents were malafide companytrary
to rules and false. the view of the learned single judge
confirmed by the division bench in antithetic to the basic
principles that fraudulent or malafide actions have no
legal sanction. the high companyrt erred in quashing the order of the deputy
director of companysolidation and the order of the settlement
officer. the high companyrt overlooked the evidence. the high
court relied on surreptitious entry as lawful entry. a
fabricated entry is obviously a fictitious entry. in the
present case the entry was introduced by the patwari by
devious methods. such entry is mendacious.