Allahabad High Court
Atiq Ahmad And Others vs Dy. Director Of Consolidation ... on 4 April, 2022
Author: Salil Kumar Rai
Bench: Salil Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 5.10.2021 Delivered on 4.4.2022 Court No. - 4 Case :- WRIT - B No. - 45740 of 2006 Petitioner :- Atiq Ahmad And Others Respondent :- Dy. Director Of Consolidation Allahabad And Others Counsel for Petitioner :- C. K. Rai,Chandra Kumar Rai Counsel for Respondent :- C.S.C.,Aprajit Yadav,D.V.Jaiswal,Deo Dayal,Jaishankar Prasad Tyagi,Lallan Chaubey,Punit Kumar Gupta,Rahul Agarwal,Raj Karan Yadav,Shashi Kumar Dwivedi,Shyam Lal Yadav Hon'ble Salil Kumar Rai,J.
The plots in dispute in the present writ petition as well as in the consolidation proceedings from which the writ petition arises are Plot Nos. 411, 413, 414, 415-A, 417, 418 and 607 (area 1.9860 Hectare) situated in Village Puresurdas , Pargana Jhunsi, District Allahabad. The plots are part of Khata No.3 and shall hereinafter be referred to as 'disputed plots' . It is the admitted case of the parties that one Hyder Ali was the original tenure holder of the disputed plots. It is also the admitted case of the parties that Hyder Ali had a daughter Smt.Madina Begum and son Mohd.Farooq Khan. It is also the admitted case of the parties that Smt.Madina Begum was married to Imam Ali Khan and had two sons Mohd.Khaliluddin Khan and Riyajuddin Khan. The petitioners are the descendants of Riyajuddin Khan while the contesting respondent nos. 4 to 9 are the descendants of Mohd. Khaliluddin Khan.
From the aforesaid pedigree, the petitioners claim half share in the disputed plots. The case of the petitioners is that after Hyder Ali, tenancy rights in the disputed plots devolved on Mohd.Farooq Khan. Mohd.Farooq Khan died issue-less and therefore, after his death, tenancy rights in the disputed plots devolved on Smt.Madina Begum and subsequently on Khaliluddin and Riyajuddin. The basic year records of the disputed plots showed only the name of Mohd.Khaliluddin Khan and his descendants as Bhumidar of the disputed plots and therefore, during the consolidation operation in the Village, the petitioners filed objections under Section 9-A(2) of the U.P Consolidation of Holdings Act, 1953 (hereinafter referred to as Act, 1953) claiming half share in the disputed plots. On the aforesaid objection of the petitioners, Case Nos. 339 and 2156 were registered before the Consolidation Officer, Sahson, District Allahabad (hereinafter referred to as ''C.O.'). The claim of the respondents before the consolidation authorities and before this Court is that Mohd.Farooq Khan had migrated to Pakistan and therefore, the disputed plots were declared to be Evacuee Property and vested in the Custodian. It was claimed by the respondents that Mohd. Khaliluddin Khan purchased the disputed plots from the Custodian and therefore, he was the owner of the disputed plots not by virtue of succession from Smt.Madina Begum but by virtue of the sale deed executed in his favour by the custodian. On the aforesaid averment, the respondents denied the claim of the petitioners and claimed ownership over the whole of the disputed plots.
The C.O., vide his order dated 26.2.2005 dismissed the objections filed by the petitioners. Against the order dated 26.2.2005 passed by the C.O., the petitioners filed appeal under Section 11 of the Act, 1953 before the Settlement Officer of Consolidation, Allahabad (hereinafter referred to as S.O.C.) which were registered and numbered as Appeal Nos. 1932 and 1933. The S.O.C after noting the fact that the petitioners had never filed any claim regarding other properties of which Hyder Ali was the original tenure holder accepted the claim of the contesting respondents that the ownership of the disputed plots had devolved on Mohd.Khaliluddin Khan by virtue of the sale deed executed by Custodian and not by succession from Smt.Madina Begum. Consequently, the S.O.C. Allahabad vide his order dated 24.4.2005 dismissed Appeal Nos.1932 and 1933.
Aggrieved, the petitioners filed Revision Nos. 1693 and 1694 before the Deputy Director of Consolidation, Allahabad (hereinafter referred to as D.D.C.). It appears that before the D.D.C., Allahabad, the contesting respondents filed a copy of the sale certificate allegedly issued in favour of Mohd.Khaliluddin Khan which was verified by the notary. After taking into consideration the aforesaid sale certificate allegedly issued in favour of Mohd.Khaliluddin Khan and after noting the fact that on the revenue records of 1366 Fasli, an order dated 25.6.1958 was transcribed which indicated that mutation orders had been passed in favour of Mohd.Khaliluddin Khan by the Tehsildar in a case registered against the Custodian, the D.D.C. vide his judgement and order dated 22.2.2006 dismissed Revision Nos.1693 and 1694. Hence, the present writ petition challenging the orders passed by the C.O., S.O.C., and D.D.C., referred above.
In the supplementary affidavit filed before this Court, the petitioners have brought on record the Receipt dated 20.6.1958 allegedly issued from the office of the Regional Settlement Commissioner, U.P which indicates that the disputed plots were unacquired evacuee property and certain amount in cash was received from Mohd.Khaliluddin Khan on 3.12.1954 and 4.12.1954. The petitioners through a supplementary affidavit have also filed a notice dated 28.6.1958 issued from the office of the Assistant Custodian, Allahabad to Mohd.Khaliluddin Khan and it is the case of the petitioner that no orders in the proceedings declaring the disputed plots as Evacuee Property had been passed.
The contesting respondents have filed their counter affidavit and a supplementary counter affidavit annexing the notice issued to Mohd.Khaliluddin Khan under Section 8(4) of the Administration of Evacuee Property Act, 1950 (hereinafter referred to as Act, 1950), the receipts dated 3.12.1954 and 4.12.1954 issued from the office of the Custodian of the Evacuee Property under Rule 25(2) of the Administration of Evacuee Property (Central) Rules, 1950, the Khatauni of 1366 Fasli which transcribes the order dated 25.6.1958 passed by the Tehsildar, Phoolpur, Allahabad directing for mutation of the name of Khaliluddin in place of Mohd.Farooq Khan and the notice/public proclamation of the mutation case regarding the disputed plots. The aforesaid documents have been filed along with the counter affidavit in support of the case of the respondents that the disputed plots were evacuee property and had vested in the Custodian and were sold by the custodian to Mohd.Khaliluddin Khan, the predecessor of the contesting respondents and consequently, the petitioners had no right or title in the disputed plots.
It was argued by the counsel for the petitioners that no order declaring the disputed plots as evacuee property had been passed. It was argued that the mere fact that proceedings were instituted under the Act, 1950 does not lead to the inference that the disputed plots were declared to be evacuee property. It was further argued that the sale certificate allegedly transferring the disputed plots to Khaliluddin was not produced by the contesting respondents before the consolidation courts. It was argued that Hyder Ali and Mohd.Farooq Khan were admittedly the Bhumidar of the disputed plots and in absence of any sale certificate issued in favour of the contesting respondents by the Custodian or any order indicating that the disputed plots were declared as evacuee property, the petitioners cannot be denied half share in the disputed plots. It was further argued that the mutation orders passed in favour of Mohd. Khaliluddin Khan were not binding on the consolidation courts and the D.D.C. has committed an error of law apparent on the face of record in dismissing the case of the petitioners by relying on the mutation order passed by the Tehsildar. It was argued that for the aforesaid reason, the impugned orders passed by the consolidation authorities are liable to be quashed and the writ petition is to be allowed.
Rebutting the argument of the counsel for the petitioners, the counsel for the respondents has argued that the documents annexed with the counter affidavit clearly show that the disputed plots were evacuee property and had vested in the Custodian and were subsequently transferred to Mohd. Khaliluddin Khan, who was the predecessor in interest of the contesting respondents. It was argued that in the aforesaid circumstances, there is no illegality or perversity in the findings of the consolidation courts which are concurrent findings of facts not amenable to interference by this Court under Article 226 of the Constitution of India. It was argued that for the aforesaid reasons, the petitioners have no right or title in the disputed plots and the petition is liable to be dismissed.
I have considered the submissions of the counsel for the parties.
At the outset, it may be noted that a sale certificate, if any, issued by the Custodian, is a public document. The sale certificate is to be registered in accordance with Section 89 read with Section 61 of the Indian Registration Act., 1908. The existence and the contents of a document can be proved under Sections 76 and 77 of the Indian Evidence Act, 1872 by producing the certified copies of the document in case the original was misplaced or not traceable. In the consolidation courts, the respondents did not file either the original sale certificate or the certified copies of the registered sale deed. The copy of the sale certificate verified by the notary was not admissible in evidence either as primary or secondary evidence. It is also relevant to note that sale of evacuee property by the custodian under the Act, 1950 can be done only in accordance with Section 10(2)(o) of the Administration of Evacuee Property Act, 1950 (hereinafter referred to as Act, 1950) i.e., after prior permission of the Custodian-General. No attempt was made by the consolidation courts to summon the records from the office of the Custodian to find out as to whether any permission had been granted by the Custodian-General for transfer of the disputed plots in favour of Mohd. Khaliluddin Khan or whether the disputed plots were evacuee property or whether the disputed plots were transferred to Khaliluddin.
The receipts allegedly issued to Khaliluddin by the Custodian and annexed with the counter affidavits cannot be accepted as evidence of any sale in favour of Khaliluddin as the notice/public proclamation issued by Tehsidar for mutation in the revenue records recording the name of Mohd. Khaliluddin Khan, as the owner of the disputed plots was issued on 2.7.1954 and the date fixed in the case was 20.7.1954. The proclamation has been annexed as Annexure C.A-8 to the counter affidavit. The receipts which according to the counsel for the contesting respondents prove that sale consideration of the disputed plots had been paid by Khaliluddin were issued in December, 1954. The proclamation for mutation could not have been issued before the sale consideration had been deposited as the payment of sale consideration is a condition for execution of the sale deed and mutation could have been ordered only after the sale deed had been executed. Accepting the claim of the contesting respondent would amount to accepting that the mutation case on the basis of a sale in favour of the contesting respondents was registered before the execution of the sale deed.
The notice that has been annexed as Annexure No.C.A-1 to the counter affidavit indicates that the said notice was issued under Section 8(4) of the Act, 1950. The notice, if genuine, is sufficient indication that the property had vested in the Custodian. The facts and the documents available before this Court do indicate that the disputed plots had vested in the Custodian. A notice under Section 8(4) of the Act, 1950 only indicates that the property vested in the Custodian and some unauthorized person was in possession of the said property. Under Section 8(4) of the Act, the said person is deemed to be holding the property on behalf of the Custodian and the notice is issued asking him to surrender possession of the property either to the Custodian or to a person duly authorized on his behalf.
However, I am not expressing any final opinion on this issue as the nature of the property i.e., whether the property had vested in the Custodian or not can be assessed only after perusal of the Basic register/Basic records of Evacuee Properties in the District maintained by the Custodian/Collector of the District. The Basic register has not been referred by the consolidation authorities and were not summoned by them for perusal.
Orders of mutation passed by the Tehsildar in a mutation case are not orders deciding the title of the parties and mutation orders are not binding by a Court empowered to decide the title of a party. The mutation order of the Tahsildar was not binding on the consolidation courts in proceedings registered under Section 9(A-2) of the Act, 1953. If the disputed plots had vested in the Custodian, then the petitioners have no share in the disputed plots and their claim was rightly rejected by the consolidation courts. The receipt annexed with the supplementary affidavit of the petitioners showing that the disputed plots were unacquired Evacuee Property only establishes that the disputed plots were Evacuee Property and were not acquired under Section 12 of the Displaced Persons (Compensation And Rehabilitation) Act, 1954. However, if the disputed plots vested in the Custodian then the transfer of the said plot has to be proved in accordance with law by producing admissible and relevant evidence. Merely because the petitioners have no share in the disputed plots does not mean that the contesting respondents shall be deemed to be the Bhumidars/owners of the disputed plots even though the disputed plots had vested in the Custodian only because their name was recorded in the basic year records.
The consolidation courts under Section 11-C of the Act, 1953 were bound to consider as to whether the property belonged to the State Government or to the Gaon Sabha or to any other local body and are enjoined under the Act to safe guard the interest of the aforesaid bodies even if no objection is raised by them. The consolidation authorities had to take into note the failure of the contesting respondents to produce the sale certificate/sale deed or the certified copy of the said documents to prove their case that the Custodian had sold the property to Khaliluddin. Further, the permission of the Custodian General was also required before executing any sale deed by the Custodian under Section 10(2)(o) of the Act, 1950 and the said fact was also required to be investigated by the consolidation courts. No such inquiry has been made by the consolidation courts while holding in favour of the contesting respondents. In light of the findings of the consolidation courts that the disputed plots had vested in the Custodian, the consolidation courts were required to investigate as to whether the Custodian had transferred the disputed plots to the contesting respondents. The basic year records had to be corrected showing the name of the appropriate authority in whom the disputed plots had vested if the contesting respondents failed to prove the transfer of the disputed plots in favour of their predecessor by the Custodian.
The orders passed by the consolidation courts are cryptic and have been passed without considering the aforesaid circumstances and the relevant records necessary to decide the title of the petitioners and the contesting respondents as well as the interest of the State Government, Gaon Sabha or any other local body, or authority in the disputed plots. The consolidation courts have failed as a Tribunal in making a proper inquiry of facts to find out the truth regarding the ownership of the disputed plots.
In view of the aforesaid, the orders dated 22.2.2006 passed by the respondent no.1, i.e., D.D.C and order dated 24.4.2005 and 26.2.2005 passed by respondent nos. 2 & 3 i.e, S.O.C and C.O are liable to be quashed and the matter is to be remanded back to the consolidation courts for a fresh decision on merits. However, as remanding back the matter to the C.O, would unnecessarily delay the resolution of the dispute regarding the title of the disputed plots and under Section 48 of the Act, 1953 the D.D.C. is empowered to examine the findings of fact recorded by subordinate authority and to re-appreciate oral and documentary evidence, only the order dated 22.2.2006 passed by the D.D.C., is hereby quashed. The matter is remanded back to the D.D.C., to pass fresh orders in accordance with law in light of the observations made above and after summoning, from the relevant authority, the materials necessary to decide the dispute. The D.D.C. shall decide the revision remanded back to him through the present order within a period of six months from today after giving an opportunity of hearing to the concerned parties and in order to comply with the time limit prescribed by this Court, the D.D.C., Allahabad shall be at liberty to hold a day to day hearing in the case.
It is also directed that the Collector, Allahabad as the District Deputy Director of Consolidation shall ensure that the time limit prescribed by the present order for deciding the revision is complied with and the interest , if any, of the local bodies or any other authority and the State Government in the disputed plots shall be properly contested by the concerned Government Council and for the said purpose the Collector, Allahabad/Prayagraj shall take all actions permissible in law.
With the aforesaid observations and directions, the writ petition is allowed. The matter is remanded back to the D.D.C, Allahabad for a decision as noted above.
A copy of the present order shall be sent to the Deputy Director of Consolidation, Allahabad/Prayagraj and the Collector, Allahabad/Prayagraj by the Joint Registrar (Compliance) within 72 hours.
Order Date :- 4.4.2022 IB