Allahabad High Court
Jai Narain vs D.D.C. And Others on 12 May, 2023
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2023:AHC-LKO:33229 Reserved Court No. - 4 Case :- WRIT - B No. - 1672 of 1985 Petitioner :- Jai Narain Respondent :- D.D.C. And Others Counsel for Petitioner :- H.S.Sahai,Girish Chandra Sinha Counsel for Respondent :- C.S.C.,Pankaj Gupta Hon'ble Rajesh Singh Chauhan,J.
1. Heard Sri Girish Chandra Sinha, learned counsel for the petitioner, Sri A.S. Tiwari, learned Addl. C.S.C. for the State-respondents and Sri Pankaj Gupta, learned counsel for the Gaon Sabha.
2. By means of this petition the petitioner has prayed following relief:
"(I) that by a writ, direction or order in the nature of certiorari the orders dated 29.10.80 and 6.9.84 (Annexures nos. 6 and 7 to the writ petition) passed by the opposite party no. 1 may kindly be quashed."
3. The writ petition was admitted on 11.8.1987 and notice was issued to opposite party no. 2 i.e. Gaon Sabha but no interim order was granted. Despite the couple opportunity being given to the Gaon Sabha no counter affidavit has been filed.
4. The precise facts of the case are that the land in dispute i.e. Gata No. 175 and 205/1Mi situated at village Sarai Bhoopati, Pargana, Tahsil and District Pratapgarh is recorded as Banjar (Usar) in basic year khatauni which belongs to Gaon Sabha Property. It is also relevant to mention here that the said village was under consolidation operation and publication of section 9 of the UP Consolidation of Holdings Act also published on 19.3.1966. The petitioner has encroached the aforesaid land in dispute by using kachcha sahan and wants to grab the entire land in dispute which belongs to gaon sabha property.
5. The eviction proceedings under section 122B of U.P.Z.A. and L.R. Act has been initiated against the petitioner and order has also been passed against which the petitioner filed revision which is pending before the Commissioner, Faizabad Division, Faizabad.
6. After knowing the aforesaid proceedings, petitioner with mlafide intentions moved an application before the Settlement Officer of Consolidation, Pratapgarh on 23.09.1975 to change the category of land in question which belongs to gaon sabha property to Abadi class 6, which was itself not maintainable as the land in question belongs to gaon sabha property not the land of petitioner and it is also relevant to mention here that the petitioner has no right to move an application. The petitioner has not disclosed the proceedings of eviction initiated under the U.P.Z.A. & L.R. Act.
7. On the application moved by the petitioner, the Settlement Officer of Consolidation, Pratapgarh sent to Assistant Consolidation Officer, Pratapgarh to make an inquiry. After inquiry, the Assistant Consolidation Officer, Pratapgarh forwarded the report on 20.7.1975 before Consolidation Officer, Pratapgarh who admitted the case under section 9(A)2 of the U.P. Consolidation of Holdings Act, 1953 Act by registering the case bearing number 5667 and also passed an order to record the land in question as Abadi Class-6 without affording an opportunity of hearing to the Gaon Sabha.
8. It is also relevant to mention here that the proceedings under section 9(A)2 of the Act is not maintainable in the aforesaid case as the dispute only decided between the tenure holder in the said provisio. Feeling aggrieved from the said order passed by Consolidation Officer, the opposite party no. 2/gaon sabha filed an appeal before the Settlement Officer of Consolidation, Pratapgarh and the said appeal was allowed on 31.10.1975 and remanded the matter back to the Consolidation Officer with the direction to make an inquiry fresh giving opportunity of hearing to the Gaon Sabha concerned.
9. Thereafter, the consolidation officer without making inspection again passed an order in favor of the petitioner on 24.8.1977 and also given the benefit of section 5 of Limitation Act while neither any application/objection under section 9(A)2 of U.P. Consolidation of Holdings Act filed by the petitioner nor any application section 5 of Limitation Act before the consolidation officer.
10. That feeling aggrieved against the order dated 24.08.1977 passed by Consolidation Officer, Pratapgarh, opposite party no. 2 filed appeal before Settlement Officer of Consolidation and the same was dismissed on 17.10.1977 against which opposite party no. 2 preferred revision before Deputy Director of Consolidation, Pratapgarh and the same was allowed on 16.1.1978 and remand back to Consolidation Officer with the direction to consider as to whether the proceedings under section 9(A)2 of the Act is maintainable or not.
11. After remand the opposite party no. 2 appeared before Consolidation Officer who again passed an order dated 25.11.1978 by giving benefit of the limitation with cost to the petitioner and ignoring the direction given by the revisional court.
12. Feeling aggrieved against order dated 25.11.1978, the opposite party no. 2/gaon sabha filed revision and the same is allowed on 29.10.1980 after giving the full opportunity of hearing both the parties and passed a detailed and speaking order against which the petitioner filed review application before the opposite party no. 1 which is also not maintainable and the same has also beeen dismissed on 6.9.1984. Both the orders dated 29.10.1980 and 6.9.1984 passed by opposite party no. 1 are challenged in the instant writ petition.
13. Learned counsel for the petitioner has stated that the Assistant Consolidation Officer reported on 20.10.1975 that house and abadi of the petitioner is existing on the sold plots. The Assistant Consolidation Officer accepted that it was left to be reported during survey operation. Therefore, he reported u/s 12 that the entry regarding plot no. 175 & 205 be corrected in the field book and A.C.O. is duty bound to report u/s 12 if any complaint regarding wrong entry was made to him. The Consolidation Officer complained regarding entry on the basis of report of A.C.O. registered it as a case and issued notices to the concerned parties including the Land Management Committee through Pradhan. The Pradhan was served and he was also a member of consolidation committee but no any objection was filed by LMC/ Pradhan. However, one Badri Prasad a member of Gaon Sabha filed objection and raised only a technical question about the limitation. The Consolidation Officer himself visited site on 26.3.1977 and held that the land was in the nature of abadi and it is the duty of the consolidation department to up-date the records. Therefore, the C.O. vide order dated 24.8.1977 passed order to correct the entries and record the land as 'Verg-6' Abadi.
14. Learned counsel for the petitioner has also stated that the petitioner was in peaceful possession over his house and Abadi without any hindrance. However, proceedings against the petitioner drawn u/s 122B of U.P. Z.A. & L.R. Act evicting the petitioner from the land in question but the possession of the petitioner over the house property in question has not been taken. Sri Sinha has also stated that in the present writ petition no counter affidavit has been filed by the opposite parties, therefore, the averments of the writ petition may be treated undisputed.
15. Sri Pankaj Gupta, learned counsel for the Gaon Sabha has stated that after the remand order being passed by the Deputy Director of Consolidation the opposite party no. 2 appeared before the Consolidation Officer but the Consolidation Officer has passed the order dated 25.11.1978 without considering the submission of the Gaon Sabha, therefore, the Gaon Sabha filed revision which was allowed vide order dated 29.10.1980 after hearing the learned counsel for the parties. Against the order dated 29.10.1980 the review application was filed by the petitioner which was rejected vide order dated 6.9.1984. As per Sri Gupta both the aforesaid orders have been passed by affording an opportunity of hearing to the parties and those orders should not be interfered in the writ petition.
16. On being confronted Sri Pankaj Gupta as to whether the present petitioner has been dispossessed from his house property inasmuch as no interim order has been granted in his favour by this Court, Sri Gupta has stated that, however, the appropriate proceedings u/s 122B of the U.P.Z.A. & L.R. Act has been initiated but on account of pending revision against eviction order the petitioner could not be evicted. However, the parties are not aware about the stage and status of that revision.
17. Learned counsel for the petitioner has reiterated that the petitioner is still in peaceful possession over his house property. He has also submitted that the rectification of mistake in the entry of 'Field Book' as reported by the Assistant Consolidation Officer can be done at any stage before notification u/s 52 of the Act and the present case requires rectification of mistake in the entry of 'Field Book' inasmuch as the house and abadi of the petitioner is existing on the plots in question.
18. Having heard learned counsel for the parties and having perused the material available on record, I am of the considered opinion that the revisional authority should have not decided the revision only on the limited question of condonation of delay rather the merits of the case should have been considered. Further, one more consideration as to whether there was actually any issue of limitation into the matter when the proceedings under section 12 of the Act on the basis of report of Assistant Consolidation Officer. The rectification of the mistake in the entry of Field Book can be done at any stage before notification under section 52 of the Consolidation of Holdings Act. The Apex Court in re: Vidya Bhushan Chandra Shekhar and others vs. Parag Balbhadra and others, AIR 1964 Allahabad 360 : ILR (1964) 2 ALL 548 has held as under :
"....A Consolidation Officer has jurisdiction to pass orders on the objection only on receipt of a report from an Assistant Consolidation Officer and not otherwise. His jurisdiction is confined to passing order, on the Assistant Consolidation Officer's report "after such verification of facts from the parties concern as necessary..."
19. Para 3 of the aforesaid judgment is reproduced herein below:
"3.We agree with our learned brother that the Consolidation Officer had no jurisdiction to entertain the appellant's objection. Under Section 12(1) only an Assistant Consolidation Officer had jurisdiction to entertain it. He was bound by Section 12(2), to obtain the views of the Land Management Committee, hear the parties if necessary and submit his report on, the objection to the Consolidation Officer, who was then to dispose of the objection in the prescribed manner. Rule 34 made by the State Government also required that an objection under Section 12 should be made in writing to the Assistant Consolidation Officer and should be accompanied as far as possible by the relevant extract in CH. Form 20, that the Assistant Consolidation Officer should hear the parties in the village in order to ascertain from them the actual nature of the dispute and ascertain the views of the Consolidation Committee "on, each case and record them in the form of resolutions in the Proceedings book" and then prepare a report "in, each case specially mentioning the opinion of the Consolidation Committee on the points in dispute and his own views and forward it to the Consolidation Officer. It is clear from these provisions that an objection under Section 12 could be entertained only by an Assistant Consolidation Officer and could not be entertained by a Consolidation Officer. The procedure laid down in Section 12(2) and Rule 34 could be followed by him and was not contemplated to be followed by any other officer. A Consolidation Officer had jurisdiction to pass orders on the objection but only on receipt of a report from an Assistant Consolidation Officer, he had no jurisdiction to pass orders on it otherwise. His jurisdiction was confined to passing orders on the Assistant Consolidation Officer's report "after such verification of facts from the parties concerned as necessary", vide Rule 34(2)(a).
20. Since the petitioner is said to be in peaceful possession of the house property in question and the Consolidation Officer and the Assistant Consolidation Officer had twice observed that the land in question being abadi land and the rectification of mistake, if any, in the entry of field book can be done at any stage before the notification u/s 52 of the Act, so I find it in the interest of parties that the matter remanded back to the Consolidation Officer to adjudicate the issue as fresh as per law.
21. Accordingly, the orders dated 29.10.1980 and 6.9.84 (Annexure nos. 6 & 7 to the writ petition) passed by the opposite party no. 1 are hereby set aside.
22. The Consolidation Officer concerned is directed to adjudicate the issue on merits by affording an opportunity of hearing to the parties concerned and to make rectification of mistake in the entry of 'Field Book', if it is so found on the basis of evidences, so adduced by the parties after hearing the learned counsel for the parties concerned.
23. It is made clear that the Consolidation Officer shall pass independent order without being influenced from any finding or observation of this order.
24. In view of above, the writ petition is allowed.
25. No order as to costs.
.
(Rajesh Singh Chauhan, J.) Order Date :- 12.5.2023 Om