Allahabad High Court
Sher Singh And 2 Others vs Settlement Officer Of Consolidation ... on 2 May, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Reserved on 19.04.2023 Delivered on 02.05.2023 Court No. - 18 Case :- WRIT - B No. - 300 of 2021 Petitioner :- Sher Singh And 2 Others Respondent :- Settlement Officer Of Consolidation And 3 Others Counsel for Petitioner :- Rekha Pundir,Kamleshwar Singh Counsel for Respondent :- C.S.C.,Anup Swaroop Srivastava,Ram Kumar Dubey,Sukhendu Pal Singh Hon'ble Chandra Kumar Rai,J.
Heard Mr. Ramesh Pundir, Counsel for the petitioners, learned Standing Counsel for the State and Mr. Sukendu Pal Singh, Counsel for respondent No.3 and 4.
Brief facts of the case are that petitioners are chak holder No.685 and original holdings of the petitioners comprises of plot No.158 area 0.085 hectare, plot No.328/3 area 0.005 hectare situated in village-Vajirpur, Pargana-Syohara, Tehsil-Dhampur District-Bijnor. Respondent Nos.3 and 4 are chak holders No.369 and their original holdings were comprises of plot No.159 area 0.190 hectare, plot No.165 area 0.057 hectare, plot No.436/2 area 0.016 hectare plot No.436/4 area 0.029 hectare, plot No.482/1 area 0.215 hectare and plot No.482/2 area 0.0418. Chaks of both the parties were near the boundary of the village-abadi. Petitioners are using their chak as Gher so consolidation authorities kept out both the chaks outside the consolidation. Notification under Section 20 of U.P.C.H. Act has been issued in the concern village and chaks were carved out and proceeding reached upto the stage of Deputy Director of Consolidation. Revision of the petitioners was decided by Deputy Director of Consolidation vide order dated 28.02.2019. Against the order dated 28.02.2019 Writ-B No.731 of 2019 filed by Nek Chandra is pending before this Court in which interim order has been also passed on 09.04.2019. Notification under Section 4 of U.P.C.H. Act was published on 19.05.2011 in respect to the village Vazirpur, notification under Section 9 of U.P.C.H. Act was published on 10.11.2014 and notification under Section 20 of U.P.C.H. Act was published on 14.01.2016. Delivery of possession among tenure holders of the village have been concluded on 16.07.2018. Respondent No.3 filed a highly time barred objection before the Consolidation Officer, Bijnor under Section 9-A(2) of U.P.C.H. Act with the prayer that valuation be put to plot No.159 area 0.190 hectare and include the same into consolidation proceeding. Consolidation Officer sought a report from the authorities accordingly, report was submitted on 22.05.2019. Consolidation Officer allowed the objection vide order dated 23.10.2019 without making spot inspection as well as without notice and opportunity to the petitioners. Consolidation officer vide order dated 23.10.2019 accepted the objection of respondent No.3 put the valuation on plot No.159 as 90 paise without any notice and opportunity of hearing to the petitioners. Against the order dated 23.10.2019 passed by Consolidation Officer, petitioners filed an appeal under Section 11 (1) of U.P.C.H. Act along with the delay condonation application as well as Stay Application, the appeal was numbered as Appeal No.193 of 2021. Petitioners also filed Civil Suit No.1003 of 2020 before Civil Judge Junior Division Nagina, Bijnor which is pending before the Civil Court. On the basis of order dated 23.10.2019 passed by Consolidation Officer, Dhampura, notice was sent on 16.01.2021 to the petitioners to vacate the plot No.159 otherwise legal action will be taken. Hence this writ petition by the petitioner for quashing the notice dated 16.01.2021 issued by Consolidation Officer, Dhampur as well as order dated 23.10.2019 passed by Consolidation Officer under Section 9-A(2) of U.P.C.H. Act. It is also prayed that respondent No.1/Settlement Officer of Consolidation, Bijnor be directed to decide the petitioners' stay application filed in appeal as well as appeal under Section 11 (1) of U.P.C.H. Act and not to disturb the possession of the petitioners in respect to the plot in dispute.
This Court vide order dated 16.07.2021 issued notice to the private respondents and stay the effect and operation of the notice dated 16.01.2021. In pursuance of the order dated 16.07.2021, respondent Nos.3 and 4 have put in appearance and filed counter affidavit. Petitioners have also filed rejoinder affidavit also.
Counsel for the petitioners submitted order passed by Consolidation Officer is wholly illegal as the same has been passed without notice and opportunity of hearing to the petitioners. He further submitted that respondent No.3 has not even impleaded the petitioners in their objection under Section 9-A(2) of U.P.C.H,. Act and ex-parte order has been obtained by respondent No.3. He next submitted that Rule 26 (5) of U.P,.C.H. Rules 1954 provides that Consolidation Officer shall make inspection of the plot as well as prepare an inspection memo and place it on the record but the impugned order has been passed in violation of mandatory provisions contained under Rule 26 (5) of U.P.C.H. Rules, as such the impugned order is wholly illegal. He next submitted that petitioners have filed appeal under Section 11 (1) of U.P.C.H. Act against the illegal order of the Consolidation Officer which is pending before appellate court. He further submitted that notice dated 16.01.2021 issued by Consolidation Officer is without jurisdiction as Consolidation Officer has got no jurisdiction to issue notice with respect to the vacation of illegal encroachment. He next submitted that impugned order passed by Consolidation officer as well as the notice issued be set aside.
Counsel for the petitioner placed reliance upon the following judgments in support of his arguments.
(1) Kiran Devi Vs. DDC, Ghaziabad and others reported in 2008 (4) ADJ 28 (2) Gagoora and another vs. D.D.C. Meerut and others 1975 (2) SCC 568 (3) Mangal (Dead) Vs. DDC, Azmagarh and others reported in 2014 (123) RD 550 (4)Gam Sabjha Kudra Vs. Noor Mohd. Khan and others reported in 1974 RD 350, (5)Radhey Lal Vs. the DDC & others reported 1990 RD 190 (6) Lakhraj vs DDC and others reported 2005 (99) RD 813 (7) Tauqeer Ahmad and others Vs. DDC Azamgarh and others reported in 2010 (8) ADJ 385 (8) Ram Deo and others vs. DDC Basti and others reported in 2007 (5) (9) Kali Prasad vs. DDC Allahabad and others reported in 1986 AWC 950 (10) Randhir Singh vs. DDC and others reported in 1999 (88) RD 346 (11) Harbanslal Sahnia vs. Indian Oil Corp. Ltd. and others reported in 2003 (2) SCC 107 (12) The Assistant Commissioner of Sale Tax and others Vs. M/S Commercial Steel Ltd. reported in Civil Appeal No.5121 of 2021 in the Hon'ble Apex Court.
On the other hand, counsel appearing for respondent Nos.3 and 4 submitted that Consolidation Officer has passed an order dated 23.10.2019 in accordance with law and no interference is required against the same. He next submitted that petitioners have already filed an appeal under Section 11 (1) of U.P.C.H. as such writ petition filed by petitioners is not maintainable. He further submitted that petitioners have already filed civil suit also, which is pending before the civil court, as such writ petition against the order of consolidation officer as well as for interim protection is not maintainable. He further submitted that petitioners have not filed upto date C.H. Form 23 of the parties as such petitioners are not entitled to any relief in the matter. He further submitted that petitioners have no concern with plot No.159 but illegal encroachment has been made by petitioners over plot No.159 in the consolidation proceeding. He next submitted that old plot no.158 M was adjoining to old plot No.159 and old plot No.323/3 relating the petitioners was not adjoining area to plot No.158M. He further submitted that no interference is required and writ petition is liable to be dismissed.
I have considered the arguments advanced by counsel for the parties and perused the record.
There is no dispute about the fact that Consolidation Officer has passed the order dated 23.10.2019 under Section 9-A (2) of U.P.C.H. Act in case No.3/238. There is also no dispute about the fact that against the order of Consolidation Officer dated 23.10.2019, petitioners filed an appeal under Section 11 (1) of U.P.C.H. Act being appeal No.193 of 2021 along with stay application and delay condonation application, which is pending before Settlement officer of Consolidation, Bijnor.
For deciding the objection under Section 9-A(2) of U.P.C.H. Act the provisions contained under Rule 26 of U.P. C.H. Rules is relevant for consideration, which is as under:
26. Section 9-A. -(1) The cases received from the Assistant Consolidation Officer shall be entered in the Misilband register in C.H. Form 6 in the office of the Consolidation Officer.
(2) On the date fixed under sub-rule (2) of Rule 25-A, or on any subsequent date fixed for the purpose, the Consolidation Officer shall hear the parties, frame issues on the points in dispute, take evidence, both oral and documentary, and decide the objections.
(3) The notice, which it may become necessary for the Consolidation Officer to issue to any person in connection with the disposal of a dispute by him, shall be in C.H. Form 6-A. (4) Where all the tenure-holders of a joint holdings oppose partition and the Consolidation Officer is satisfied that the opposition of each co-tenure-holder is genuine, he shall not proceed with the partition, unless for reasons to be recorded by him in writing, he considers it necessary so to do in the interest of better consolidation.
(5) For deciding dispute relating to the determination of exchange ratio of a plot or the valuation of a tree, well or other improvement existing on a plot, the Consolidation Officer shall make a local inspection of the plot concerned, prepare an inspection memo and place it on the connected file.
The perusal of the provisions contained under Rule 26 of U.P.C.H. Rules demonstrate that compliance of the provisions are mandatory in nature. It is also relevant that Consolidation Officer has not afforded any opportunity of hearing to the petitioners while passing the impugned order as petitioners was not impleaded at all in the proceeding under Section 9-A(2) of U.P.C.H. Act initiated by respondent Nos.3 and 4.
This Court while entertaining the writ petition in the year 2021 has granted the interim protection in favour of the petitioners, which is continuing. The petitioners' appeal under Section 11 (1) of U.P.C.H. Act filed against the order of Consolidation officer dated 23.10.2019 is pending before the respondent No.1/Settlement Officer of Consolidation, Bijnor as such the interest of justice requires that necessary diction be issued to the respondent No.1 to decide the petitioners' appeal in accordance with law and till the disposal of the petitioners' appeal interim protection be granted to the petitioners.
So far as grant of interim protection during the pendency of the proceeding is concerned this Court in case of Ali Sher Vs. State of U.P. Through Collector, Bijnor and Others reported in 2007 (102) RD 498, has held that if the order under appeal and revision has serious civil consequences, then operation of the order must be suspended during the pendency of the appeal and revision. This Court in case of Ali Sher (Supra) has held as under in paragraph Nos.4 and 5 of the judgment:
"4. It is well settled that once an appeal or revision is entertained by a higher Court against an order having civil consequences stay normally should be granted to avoid swinging pendulum unless the Court for the reasons to be recorded finds that there is no case for grant of stay as observed by the Hon'ble Apex Court in the case of Mool Chand v. Raza Buland Sugar Industries.
5. Considering the facts and circumstances, impugned order dated 16.11.2006 is hereby quashed. Writ petition stands allowed. Appellate Court is directed to dispose of the appeal of petitioner in accordance with law as expeditiously as possible preferably within a period of two months from the date of production of certified copy of this order before him and till the disposal of appeal as directed above, parties shall maintain status quo with regard to nature and possession over the land in dispute."
Considering the entire facts and circumstances of this case as well as provision contained under the U.P.C.H. Act and the rules framed thereunder, the instant writ petition filed by the petitioners is disposed of directing the respondent No.1/ Settlement Officer of Consolidation Bijnor to decide the appeal No.193 of 2021 filed by the petitioners under Section 11 (1) of U.P.C.H. act in following manner.
(1) Respondent No.1/Settlement Officer of Consolidation shall consider the delay condonation application first filed along with appeal by the petitioners and decide the same taking liberal view in the matter in the light of the ratio of law laid down by the Apex Court reported in AIR 1987 SC 1353, Collector, Land Acquisition Anantnag and Another vs. Mst. Kantiji & Others. The aforementioned exercise shall be completed within period of six weeks from the date of production of certified copy of this order before respondent No.1. In case delay has already been condoned by appellate court then there is no question of further consideration of delay condonation matter.
(2) After passing the order on delay condonation matter, respondent No1 shall decide the petitioners' appeal after notice and opportunity to both the parties in accordance with law expeditiously preferably within a period of three months from the date of passing of the order on delay condonation matter or within period of four months from the date of production of certified copy of this order before respondent No.4.
(3) Till the disposal of the petitioners' appeal parties are directed to maintain strict status quo with respect to the nature and possession of the plot in dispute.
(4) It is further directed that operation of the impugned notice dated 16.01.2013 issued by Consolidation officer, Dhampur, Bijnor shall remain stayed during pendency of the appeal.
Order Date :- 2.5.2023 PS*