Allahabad High Court
Smt Jaiwati vs State Of U.P. And 7 Others on 18 October, 2024
Author: Dinesh Pathak
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:165756 Court No. - 76 Case :- WRIT - B No. - 1599 of 2023 Petitioner :- Smt Jaiwati Respondent :- State Of U.P. And 7 Others Counsel for Petitioner :- Ruduvant Pratap Singh Counsel for Respondent :- Dinesh Kumar,Girish Pratap Singh,Kaushal Kishore Mani Hon'ble Dinesh Pathak,J.
1. Heard learned counsel for the petitioner, learned Standing Counsel for the State-respondent nos. 1 & 2, learned counsel appearing on behalf of Gaon Sabha (respondent no. 8) and learned counsel appearing for private respondent nos. 3 to 7.
2. Petitioner has shown her grievance against the order dated 17.02.2023 passed by the Deputy Director of Consolidation whereby restoration application moved on behalf of Gaon Sabha and State has been allowed and previous order dated 29.05.2017 has been recalled. Consequently, revision filed on behalf of the present petitioner has been restored to its original number.
3. Facts culled out from the records are that objection under Section 9-A(2) of U.P. Consolidation of Holdings Act filed on behalf of the petitioner has been rejected by the Consolidation Officer and same has been affirmed by the Settlement Officer of Consolidation. Having been aggrieved, petitioner has preferred revision being Revision No. 398 (Smt. Jaiwati v. State of U.P.). Revision of the petitioner was clubbed with the Revision No.748 (Rajendra Singh v. State of U.P.) and both the revisions were decided by common order dated 29.05.2017. Revision filed on behalf of Rajendra (Revision No. 748) has been dismissed, however, revision filed on behalf of the present petitioner (Revision No. 398) has been allowed whereby exchange value of Plot No. 1018/1 has been reduced from Rs.70/- paise to Rs.20/- paise and petitioner has been allotted chak over Plot No. 426 etc.
4. Having been aggrieved with the order dated 29.05.2017 passed by the Deputy Director of Consolidation, as many as four restoration applications were filed; i.e. (1) Restoration dated 18.01.2018/19.01.2018 filed by Ramdas S/o Dal Singh, (2) Restoration dated 19.01.2018 filed by Mainpal and others, (3) Restoration dated 10.01.2016 filed on behalf of Gaon Sabha and (4) Restoration dated 16.09.2022 filed on behalf of the State. Deputy Director of Consolidation, vide order dated 17.02.2023, has allowed the restoration application dated 10.01.2016 filed on behalf of Gaon Sabha and restoration application dated 16.09.2022 filed on behalf of the State, consequently, recalled the previous order dated 29.05.2017, which is under challenge in the instant writ petition.
5. Having considered the rival submissions advanced by learned counsel for the parties and perusal of record, it is manifested that order dated 29.05.2017 has been passed on the basis of the compromise took place between the two revisionists namely, Rajendra Singh and Smt. Jaiwati who have filed separate revisions intending to modify their Chaks. Learned D.G.C.(R.) for the State has vehemently opposed the alleged compromise arrived at between the two revisionists and came with a specific plea that such amicable settlement would substantially affect the reserved land of Gaon Sabha, thus, revisions may be rejected. Deputy Director of Consolidation, vide order dated 29.05.2017, has dismissed the revision filed on behalf of Rajendra Singh S/o of Dhoom Singh on the ground that he wants to continue with his chak over Plot No.100, therefore, he has not pressed his revision. However, second revision filed on behalf of Jaiwati (petitioner herein) has been allowed sans giving weightage to the contention raised on behalf of State through learned DGC(R). Restoration application on behalf of the Gaon Sabha and the State has been filed with a specific plea that Plot No. 428 which has been allotted in the Chak of the chak-holders including the petitioner was initially recorded as a Johad (pond), therefore, public utility land cannot be allotted to the chak-holders. Consolidation Officer in his report has unequivocally stated that plot no.428 was recorded in the name of Bahadar under Class-3 entry, however, in settlement 1370 Fasli same has been recorded as a Johad (pond), therefore, public utility land cannot be allotted to any chak-holder.
6. Learned counsel for the petitioner, while assailing the finding returned by the Deputy Director of Consolidation, has submitted that land in question was initially allotted as an 'Aasami' in favour of Bahadar (Bahadur). After lapse of five years, lease was automatically cancelled by operation of law, however, name of Bahadar was continued over the plot in question. At later stage, by order dated 06.06.2001 passed by Consolidation Officer, land in question has been ordered to be recorded as a 'Gaon Sabha land'. After field Padtaal, exchange value of plot in question has been fixed in the Statement of Principles and, accordingly, same has been allotted in the Chak of the petitioner. Land in question was never recorded as a 'Johad' (pond). Deputy Director of Consolidation has illegally returned finding that the land in question was initially recorded as a 'pond' sans opportunity of hearing accorded to the petitioner. It is next submitted that at no stage of consolidation operation, objection has been raised under Section 9 of U.P.C.H. Act with regard to the nature of the land, therefore, at the stage of Deputy Director of Consolidation, State Authorities have no locus to challenge the nature of the land. It is further submitted that Deputy Director of Consolidation has illegally reviewed his earlier order dated 29.05.2017 by subsequent order dated 17.02.2023.
7. In my considered opinion, it would not be justifiable to consider the plea raised on behalf of the petitioner at this juncture qua nature of the plot in question as to whether it was an 'Aasami' land under Class-3 entry or as a pond. Deputy Director of Consolidation, vide order dated 17.02.2023, has simply referred the report submitted by the Consolidation Officer qua plot no.428 and restored the proceeding of revision on its original number to examine the validity and genuineness of the entry relating to plot no.428 which has been said to be recorded in 1370 Fasli being a 'pond'. Submission raised on behalf of the petitioner may be a matter of concern, however, same can more appropriately be redressed by the Deputy Director of Consolidation after going through the land revenue record. He has not returned any categorical finding with respect to the nature of the plot in question rather reopened the revisional proceeding to examine the correctness of the report submitted by the Consolidation Officer. Nothing has been decided finally with respect to the right, title and interest of the petitioner over the property in question. He has still an opportunity to defend his case and raise all plea before the Deputy Director of Consolidation. Learned counsel for the petitioner has placed reliance upon the judgement passed by the co-ordinate Bench of this Hon'ble Court in the matter of Basdev v. State of U.P. and 05 others, Neutral Citation No. 2023 : AHC : 173700, decided on August 29, 2023 which is not much helpful to the petitioner inasmuch as same is distinguishable in the facts and circumstances of the present case.
8. I am skeptical of the second submission advanced by learned counsel for the petitioner as well that order dated 17.02.2023 is an order of review. Backdrop of the facts on which order dated 17.02.2023 has been passed, does not strengthen the submission advanced by learned counsel for the petitioner. Order under challenge dated 17.02.2023 evince that restoration application has been allowed and revision has been restored to its original number. No modification has been made in previous order dated 29.05.2017 encompasse prejudice to the right, title and interest of the parties over the property in question except to recall the order dated 29.05.2017. This Court cannot oblivious to the finding returned by the Deputy Director of Consolidation in its order dated 29.05.2017 that despite the strong oppose made on behalf of the State through learned DGC(R), Chak of the petitioner has been modified without considering his objection. In this eventuality, it cannot be said that DDC has passed the order dated 29.05.2017 in just and fair manner after affording proper opportunity of hearing to the learned DGC(R). Nature of the land in question being a pond is also a matter of concern which cannot be left unattended. In this respect, having regard to the nature of the land in question being a pond, paragraph nos. 29 of the order passed in the case of Basdev (supra) is relevant which is quoted herein below :-
"29. The argument that Deputy Director of Consolidation has taken cognizance of application at very belated stage i.e. after more than 2 decades, may be relevant but since there is per se presence of element of 'fraud on statute' and that Assistant Consolidation Officer has allotted a public land to petitioners without any 'necessity' or 'expediency' and without any alternative land being earmarked for said public purpose ('pasture land'), therefore, as it is well settled that a 'fraud' which also includes a 'fraud on statute', if detected, can be considered even at any later stage. Legal principle that 'fraud vitiates every solemn act' which also amounts to an abuse of the process, and the court or concerned Authority has inherent power to set aside, an order obtained by fraud practised upon it or a statute also and for that few paragraphs of a judgment passed by Supreme Court in Smriti Madan Kansagra vs. Perry Kansagra, 2021 SCC Online SC 909, would be relevant and being quoted below :-
"49. xxxx
23. Since fraud affects the solemnity, regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of court, the courts have been held to have inherent power to set aside an order obtained by fraud practised upon that court. Similarly, where the court is misled by a party or the court itself commits a mistake which prejudices a party, the court has the inherent power to recall its order.
xxxx
50. In United India Insurance Co. Ltd. v. Rajendra Singh, (2000) 3 SCC 581, this Court observed:-
"16. Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly-discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim."
(emphasis supplied)"
9. Thus, submission advanced by learned counsel for the petitioner that order impugned dated 17.02.2023 is an order of review has not found on merits, therefore, reliance placed by him on the full Bench decision in the matter of Smt. Shivraji and others v. DDC Allahabad, 1997 (88) RD Page 562 does not support his submissions.
10. In this conspectus, as above, nothing has been decided finally qua right, title and interest of the parties over the property in question. Thus, no justifiable ground is made out to entertain the instant writ petition and interfere in the order dated 29.05.2017 whereby restoration application has been allowed. There is no apparent illegality, perversity, irregularity or infirmity in the order under challenge so as to warrant the indulgence of this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. There is nothing on the record to demonstrate as to how the present petitioner is prejudiced, or if there is any likelihood of causing miscarriage of justice to her, owing to the order under challenge.
11. Resultantly, instant writ petition, being devoid of merits and misconceived, is dismissed with no order as to costs.
Order Date :- 18.10.2024 Rama Kant