Allahabad High Court
Tauqeer Ahmad & Another vs Dy. Director Of Consolidation, ... on 12 July, 2010
Author: Bala Krishna Narayana
Bench: Bala Krishna Narayana
Court No. - 49 Case :- WRIT - B No. - 12824 of 2006 Petitioner :- Tauqeer Ahmad & Another Respondent :- Dy. Director Of Consolidation, Azamgarh & Others Petitioner Counsel :- A.P. Singh,Namwar Singh,S.A. Azmi,Sanjay Kumar Srivastava Respondent Counsel :- C.S.C.,Anuj Kumar,O.N. Mishra Hon'ble Bala Krishna Narayana,J.
Heard Sri Namwar Singh, learned counsel for the petitioners and Sri S. C. Verma, learned counsel appearing for the respondents as well as learned Standing Counsel on behalf the State and perused the record.
The dispute involved in the present writ petition pertains to plot No. 477, area 200 Kadi situated in village-Sidha Sultanpur, Tappa-Dubaitha, Pargana-Nizamabad, Tehsil-Sadar (now Nizamabad) District-Azamgarh (hereinafter referred to as 'the disputed plot'). The disputed plot was recorded as 'Abadi' in the basic year and during consolidation operation the same was kept out of the consolidation proceedings. During the consolidation survey the disputed plot was partitioned in two parts namely, plot no. 477/1 and plot no. 477/2 each having an area of 100 Kadi and earmarked for extension of 'Abadi' in C. H. Form 2-A. It appears that the respondents no. 4 to 9 filed objection under Section 9 A (2) of U. P. Consolidation of Holdings Act (hereinafter referred to as 'the Act') in respect of disputed plot before the Consolidation Officer, Sagri Azamgarh claiming that the disputed plot had been wrongly partitioned during the consolidation survey and plot no. 477/2 which was shown in the survey map in the western side, be shown in the eastern side and plot no. 477/1 which was shown in the survey map in the western side, likewise be shown in the eastern side on the ground that the land in dispute was 'Abadi' of the contesting respondents and their house was situated over the part of the land in dispute. The said objection was registered as Case No. 6733 of 1985; Ajay others Versus State of U. P. and another. The Consolidation Officer made spot inspection and prepared inspection memo on 19.9.2002. Against the said inspection memo, the petitioners filed objection dated 10.10.2002, copy whereof is annexed as Annexure 3 to the writ petition. The Consolidation Officer vide his order dated 13.3.2003, copy whereof is annexed as Annexure 4 to the writ petition, decided the Case No. 6733 of 1985 allowing the objection of the contesting respondents. Against the order of the Consolidation Officer the petitioners filed an appeal before the Settlement Officer (Consolidation) which was registered as Appeal No. 3483 of 2003 and transferred for disposal before the Assistant Settlement Officer (Consolidation), Azamgarh who vide his order dated 31.5.2004 allowed the said appeal and set aside the order of the Consolidation Officer dated 13.3.2003 restoring the position of the disputed plot as shown in the survey map. Aggrieved by the order dated 31.5.22004 passed by the Assistant Settlement Officer (Consolidation), the contesting respondents preferred a revision being Revision No. 756 under Section 48 of the Act before the Deputy Director of Consolidation, Azamgarh which was allowed vide his order dated 27.12.2005, copy whereof is annexed as Annexure 8 to the writ petition. This order dated 27.12.2005 passed by the Deputy Director of Consolidation, Azamgarh is under challenge in the present writ petition.
Learned counsel for the petitioners submitted that the impugned order was passed by the Deputy Director of Consolidation, Azamgarh without considering the objection as well as written argument filed by the petitioners. He next contended that the disputed plot was earmarked for the extension of 'Abadi' during the survey and thus, the consolidation authorities lacked jurisdiction to entertain any objection in respect of the disputed plot but the Deputy Director of Consolidation totally failed to consider this aspect of the matter and wrongly allowed the revision filed by the contesting respondents.
Learned counsel for the petitioners further submitted that the disputed plot was recorded as 'Abadi', as would be evident from the perusal of C.H. Form 2-A and hence the plot in dispute was covered under the Explanation clause of Section 3 and thus, it neither comes under the definition of land nor holding. Per contra, learned counsel for the respondents submitted that the impugned order is perfectly just and legal order and does not call for any interference by this Court. He further submitted that the consolidation authorities have not decided any right, title or interest regarding 'Abadi' land but have merely correctly relocated the two sub plots carved out of plot No. 477 which is 'Abadi' in the survey map. He lastly submitted that neither before the Consolidation Officer nor the Deputy Director of Consolidation the petitioners had raised the plea regarding lack of jurisdiction of the consolidation authorities to decide the objections of the contesting respondents hence, they cannot be permitted to raise the plea regarding lack of jurisdiction for the first time before this court in the writ jurisdiction under Article 226 of the Constitution of India. I have examined the submissions made by counsel for the parties and perused the record. The facts of the case, which are not in dispute, are that the disputed plot was initially recorded as 'Abadi' in the basic year. During the consolidation survey, the disputed plot was partitioned in two parts namely, 477/1 and 477/2 each having an area of 100 Kadi. This fact is borne out from the perusal of C. H. Form 2-A, copy whereof is annexed as Annexure 1 to the writ petition.
Thus, in view of the admitted factual position that the disputed plot is 'Abadi', the question which arises for consideration before this Court is, as to whether the consolidation authorities had any jurisdiction to adjudicate upon any dispute in respect of a plot recorded as 'Abadi'.
This Court while examining the identical issue in the case of Kamla Shanker and others Versus Deputy Director of Consolidation and others reported in 1979 RD page 78 held as under:
"The contention is well founded that in case on a spot inspection the consolidation authorities found that the land was covered by Abadi, the only jurisdiction which the consolidation authorities had, was to make an entry in the relevant column of C. H. Form No. 2-A that the land was Abadi on the spot. They did not have any jurisdiction to direct the names of the petitioners to be expunged from the papers showing them to be Bhumidhars...........".
In the case of Jai Narain and others Versus Deputy Director of Consolidation, Deoria and others reported in [2004 (97) RD 705] this Court while considering the similar issue again held that the consolidation authorities have no jurisdiction to declare the rights of either of the parties in respect of 'Abadi' land. The only jurisdiction which the consolidation authorities have, is to make entry of the land as 'Abadi'. In another decision in the case of Subhawati and others Versus Rajbali and others reported in 1996 RD (87) page 582, an issue was raised before this Court whether the consolidation authorities have jurisdiction to record any order in respect of the land which is recorded as 'Abadi'. This Court in para 9 of the judgement held as under:
"9. The contention of the appellant on the question of decision of the revenue court on the facts of the case is not an acceptable one. It is the undisputed case of the parties that the land stood recorded as an abadi. Once it was an abadi land, the consolidation authorities had no jurisdiction to record it as a 'bagh' as consolidation proceedings are not be taken for abadi lands. The case laws cited in this regard by the learned counsel for the respondent make it abundantly clear that the land being abadi the consolidation authorities had no jurisdiction to record any order in that regard. There was, therefore, no necessity to seek a cancellation of the order of the revenue court before going for a relief to the civil court and Section 49 of the U. P. C. H. Act was not applicable in the present set of facts so as to bar the filing of the civil suit for establishing the rights of the plaintiffs. Moreover, the revenue proceedings were taken in the absence of the present plaintiffs and the same could not have affected the rights of the plaintiffs and the judgement could not be used as resjudicata for the instant trial before the civil court."
Thus, after going through the authorities on the subject the settled legal position, which emerges, is that the consolidation authorities have no jurisdiction to record any order in respect of 'Abadi' land. The submission of learned counsel for the respondents that by the impugned orders the authorities have not adjudicated upon any right, title or interest in the 'Abadi' land, but have merely corrected the location of the two plots which were carved out from the original plot no. 477 and hence it cannot be said that the consolidation authorities have exceeded their jurisdiction, is totally mis-conceived and unsustainable. Once there is material on record to show that a particular plot is recorded as 'Abadi', the consolidation authorities have absolutely no jurisdiction to pass any order in respect thereof.
For the aforesaid reasons, the impugned order cannot be sustained.
In this view of the matter, the writ petition succeeds and is allowed. The impugned order dated 27.12.2005 (Annexure 8 to the writ petition) is quashed. No order as to costs.
Order Date :- 12.7.2010 HR