Allahabad High Court
Omprakash And Another vs Consolidation Officer, Rahra, Amroha ... on 13 December, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 52 Case :- WRIT - B No. - 3528 of 2022 Petitioner :- Omprakash And Another Respondent :- Consolidation Officer, Rahra, Amroha And 2 Others Counsel for Petitioner :- Rakesh Kumar Counsel for Respondent :- C.S.C.,Arun Kumar Pandey Hon'ble Chandra Kumar Rai,J.
1. Heard Sri Rakesh Kumar, learned counsel for the petitioners, learned standing counsel for respondent nos. 1 & 2 and Sri Arun Kumar Pandey, learned counsel for the respondent No.3 Land Management.
2. The Stamp Reporter has reported latches of about 2248 days in filing the aforesaid writ petitions, which have been explained in paragraph no.17 of the writ petitions.
3. With the consent of the learned counsel for the parties, the writ petition is being heard and disposed of without inviting counter affidavit.
4. The brief facts of the case are that Smt. Kashmira (mother of the petitioner) who was land less lady was allotted plot No.392, area 1.8090 hectare for agricultural purpose in the year 1987 and patta was approved also. Smt.Kashmira was recorded accordingly in the revenue records and remained in possession also. After death of Smt. Kashmira, petitioners were recorded and came in possession of disputed plot. During consolidation operation, without service of notice and opportunity of hearing, petitioners' entry has been expunged, hence, this writ petition on the limited ground of non-affording the opportunity of hearing to the petitioners.
5. Counsel for the petitioners submitted that mother of petitioners continued in possession over the allotted lands and due to operation of law, they have been recorded as bhumidhar with transferable rights. He further submitted that after death of mother Smt. Kashmira, petitioners were recorded even in the basic year of consolidation operation. Copy of the revenue records have been annexed with the writ petitions. It is further submitted that the village has been notified under Section 4 of the U.P.C.H.Act and during consolidation operation, the proceedings under Section 9A (2) was initiated and without affording any opportunity of hearing the petitioners, their entries have been expunged. It is also submitted that in view of the Full Bench decision of this Court, reported in 1977 RD page 408, Similesh Kumar vs. Gaon Sabha, Uskar, Ghazipur and Others, the consolidation court has no jurisdiction to examine and cancel the lease granted to the petitioners' vendor father/mother, until the Collector cancel the lease under Section 198(4) of the U.P. Z.A. & L.R. Act. Learned counsel for the petitioners further placed on record the decisions of this Court dated 1.9.2022 in Writ B No.1912 of 2022 (Ramkali -deceased and 4 Others vs. Consolidation Officer and 2 Others), order dated 1.9.2022, passed in Writ B No.1890 of 2022 (Ramesh vs. Consolidation Officer and 2 Others) and order dated 29.11.2022 passed in Writ B No.3018 of 2022 (Naikasi-deceased and 3 Others vs. Consolidation Officer and 2 Others) to contend that in the similar circumstance, this Court entertained the writ petition and exactly in the same situation, the order passed by the Consolidation Officer dated 13.7.2016 has been set aside on the ground of non-affording of opportunity of hearing to the respective petitioners. He also submitted that the date of the impugned order is the same, by which the entries of several tenure holders have been expunged without affording opportunity of hearing, as such, petitioners are also entitled to the same relief.
6. On the other hand, the learned standing counsel submitted that the Consolidation Officer has rightly exercised the jurisdiction under Section 9A(2) of the U.P. C.H. Act as the disputed land comes under public utility land, as such, petitioners' entry was expunged in accordance with law. He further submitted that although the petitioners are not required to afford opportunity, even then notices were issued to the petitioners but they have not appeared in the proceedings. He further placed reliance on the decision of the Apex Court in U.P. State Sugar Corporation Limited vs. Deputy Director of Consolidation and Others, reported in 2000 (91) RD 165 to contend that if the lease is void then the consolidation court can ignore the lease.
7. I have heard the arguments advanced by counsel for the parties and perused the records.
8. There is no dispute about the fact that petitioners are recorded as bhumidhar with transferable rights in the revenue records in the basic year of the consolidation operation, but the Consolidation Officer by passing order in 10 lines, has expunged the petitioners' entries without framing issues in the case.
9. Since the objection under Section 9 A (2) has been decided without framing issue and without giving opportunity to the tenure holders to lead evidence, who were recorded in the revenue records in the basic year of the consolidation operation, which is utter violation of principle of natural justice, as such, the order passed by the Consolidation Officer cannot be maintained on any ground.
10. So far as the judgment of the Apex Court in the case of U.P. State Sugar Corporation Limited (supra) is concerned, wherein it has been held that the consolidation court can ignore the allotment if it is found that the allotment is void. It is material to mention that in the instant matters, the situations are different, the allotment of the allottees are intact, no proceeding for cancellation of the allotment has been initiated before the consolidation operation and petitioners who were recorded in the revenue records as bhumidhar with transferable rights, their entries have been expunged without giving them reasonable opportunity of hearing by the Consolidation Officer, as such, judgment of Hon'ble Apex Court will not help to the State.
11. The framing of issue in deciding the objection under Section 9A (2) of the U.P. C.H. Act as well as opportunity of hearing to the parties are mandatory as provided under Rule 26(2) of the U.P. C.H. Rules, which are as follows:
"26. Section 9-A. (1) .....
(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"
12. The Consolidation Officer by passing 10 line order, expunged the petitioners' entry, without framing issues in the title objection as well as without giving opportunity of hearing to the petitioners, as such, the impugned order dated 13.7.2016 passed by the Consolidation Officer cannot be sustained in the eye of law.
13. This Court in the case of Ramkali (supra) has set aside the order of Consolidation Officer dated 13.7.2016, exactly in the similar situation and remanded the matter before Consolidation Officer for fresh decision, as such, petitioners are also entitled to the same relief. This Court while allowing the writ petition after getting instructions from standing counsel, has found that no opportunity of hearing has been afforded to the tenure holders.
14. Considering the entire facts and circumstances of the case as well as ratio of law laid down by this Court in Ramkali (supra), the impugned order dated 13.7.2016, passed by respondent no.1 Consolidation Officer, Rahra, District-Amroha, in respect to the petitioners, is set aside and the matter is remitted back before the Consolidation Officer to decide the case afresh, expeditiously preferably within a period of six months from the date of production of the certified copy of the order.
15. With the aforesaid observations, writ petition is allowed on the point of opportunity of hearing to the petitioners.
Order Date :- 13.12.2022 PS*