Allahabad High Court
Balu vs D.D.C. And Others on 18 August, 2020
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved At Residence Case :- WRIT - B No. - 1832 of 1982 Petitioner :- Balu Respondent :- D.D.C. And Others Counsel for Petitioner :- Yogesh Kumar Singh,R.C.Maurya Counsel for Respondent :- S.C.,Krishna Kant Singh,V.K.Singh Hon'ble J.J. Munir,J.
This writ petition arises from proceedings under Section 9-A(2) of the U.P. Consolidation of Holdings Act, (for short 'the Act'). The petitioner's objections, regarding the nature of right claimed in the land in dispute, have been rejected by the three Consolidation Authorities, concurrently. The petitioner asks this Court to quash all the three orders, reverse the same and accept the petitioner's objections.
Heard Sri Yogesh Kumar Singh, learned counsel for the petitioner, Sri Krishna Kant Singh, learned counsel appearing on behalf of the Gaon Sabha and Sri B.N. Srivastava, learned State Law Officer appearing on behalf of the State.
The dispute involved in this writ petition relates to a certain plot No.504 (Minjumla) situate in village Subhanpur, Pargana and Tehsil Baghpat, District Meerut. The dispute is about an area of 3 Bighas, 7 Biswas, part of plot No.504, last mentioned, which according to the petitioner, was allotted to him on a sirdari patta by the Land Management Committee of the Gaon Sabha vide resolution dated 09.10.1960. The aforesaid land is hereinafter referred to as the 'land in dispute'.
The petitioner's case is that he was in possession of the land in dispute antedating 01.07.1952. A number of other natives of the village were in possession of one portion or the other of Plot Nos. 504 and 88 of village Subhanpur since before 01.07.1952. It is claimed that in a meeting of the Land Management Committee held on 06.06.1953, a resolution was unanimously passed to the effect that persons who were in possession of Plot No.504 and 88 since before 01.07.1952, should be allowed to continue in possession of the land held and that rent be fixed payable by them, according to the circle rate. The petitioner asserts that he continued in possession over the land in dispute, after the last mentioned resolution of the Land Management Committee. He also paid rent regularly as fixed by the Land Management Committee. Likewise, other natives of the village who were in possession of one or the other part of plot Nos. 504, 88 and 825, also continued in possession of land held by them.
It is pointed out that in two successive meetings of the Land Management Committee held on 29.06.1960 and 09.10.1960, resolutions were passed allotting plot Nos.504, 88 and 825 to various natives of the village, who were continuing in possession over one portion or the other of these plots, since before 01.07.1952. By a resolution dated 09.10.1960, the petitioner was allotted the land in dispute wherefor rent was fixed at Rs.13.56. It was further resolved by the Land Management Committee that a sirdari patta be executed in favour of the petitioner, settling the land in dispute with him. In a still later meeting of the Land Management Committee of the Gaon Sabha, Subhanpur, held on 02.06.1963, a resolution was passed confirming the earlier resolutions dated 22.09.1960 and 09.10.1960. It was further resolved that natives of the village in whose favour sirdari patta had been granted, should get their names mutated.
The petitioner asserts that he continued in possession over the land in dispute as a sirdar and regularly paid the rent due. Sometimes later, the petitioner along with other natives of the village, similarly circumstanced, to wit, Deshraj, Parmal, Laakhi, Ghasi and Ramdas, applied for mutation of their names on the basis of the sirdari patta granted in their favour by the Land Management Committee. The Sub-Divisional Officer, Baghpat by his order dated 01.04.1969 directed recording of the petitioner's name (along with the other applicants) on the basis of the patta executed in his favour. The aforesaid order was a common order, ordering mutation in favour of the different applicants for mutation, relatives to the lands for which each of them had been granted patta by the Land Management Committee.
It appears that village Subhanpur was notified under Section 4(2) of the Act, sometime in the year 1979. The petitioner's name, despite the order of the Sub-Divisional Officer dated 01.04.1969, was not recorded in Class (2). It continued to be recorded in the Khatauni in Class (3). The petitioner, therefore, filed objections under Section 9-A(2) of the Act, before the Assistant Consolidation Officer, Baghpat on ground, inter alia that the land in dispute was continuing in his possession for more than 35 years past. It was averred that when CH Form-5 was distributed, he learnt that his name was recorded in Class (3) instead of Class (2). In support of his case before the Consolidation Officer, the petitioner examined himself as a witness and testified that he was continuing in possession of the land in dispute for over 35 years, last. It was prayed that the petitioner may be recorded as a sirdar.
On behalf of the Gaon Sabha, respondent No.4, Anand Swaroop, the then incumbent Pradhan of Gaon Sabha Subhanpur, was examined as a witness, who testified that the petitioner was in possession over the land in dispute for a very long time and should be recorded as a Bhumidhar. It is specifically averred by the petitioner in paragraph no. 9 of the writ petition that a copy of the order dated 01.04.1969, passed by the Sub-Divisional Officer, Baghpat in Case No.194 of 1969 was filed before the Consolidation Officer.
The Consolidation Officer held that the petitioner was continuing in possession over the land in dispute for a very long time and his name ought, therefore, be continued in Class (3). The Consolidation Officer declined the petitioner's objections to record him in Class (2) as a sirdar, which in due course, would entitle him to enlargement of his rights into a Bhumidhar. The petitioner appealed against the Consolidation Officer's order dated 30.01.1980 to the Settlement Officer of Consolidation, where his appeal was numbered as Appeal No.424. The Settlement Officer of Consolidation, by his common judgment and order dated 06.11.1981, dismissed the petitioner's appeal and affirmed the Consolidation Officer's order. The petitioner carried a Revision to the Deputy Director of Consolidation, Meerut (once again along with similarly circumstanced natives of the village). The petitioner's Revision was numbered as 424/10 on the file of the Deputy Director of Consolidation. The petitioner's Revision was consolidated, heard and decided along with Revisions of others, urging a like claim to other portions of land. The Revision, like others, was dismissed by a common judgment and order dated 06.11.1981, affirming the two authorities below.
Aggrieved by these concurrent orders, this writ petition has been filed.
It must be remarked here that the record of resolutions of the Land Management Committee dated 06.06.1953, 29.09.1960, 09.10.1960 and 02.06.1963, are annexed to Civil Misc. Writ Petition No.1665 of 1981. In the present petition, there is a specific reference in paragraph Nos. 2, 4 and 5 of the writ petition that certified copies of these resolutions are on record of the writ petition, preferred on behalf of Dayaram, filed on 15.02,1982. Likewise, there is also a reference in paragraph No.7 of the writ petition to the effect that a true copy of the order passed by the Sub-Divisional Officer, Baghpat, granting mutation in favour of the petitioner, is annexed to the writ petition of Dayaram, filed on 15.02,1982. It is on account of the aforesaid assertions that at the hearing of this writ petition, the record of Civil Misc. Writ Petition No.1665 of 1982 Dayaram Vs. Deputy Director of Consolidation and others, was summoned vide order dated 07.03.2019 and duly perused.
The Consolidation Officer, framed three issues, to wit, (rendered into English from Hindi vernacular):
(1) Whether Balu, is Bhumidhar of land in Khata No.199 on the basis of possession. (2) Whether Gata No. 504/50, admeasuring 1 Bigha, 7 Biswas, is wrongfully recorded in possession of Ragdha, son of Banwari and others. (3) What is the area of Gata No.504/07 and 504/50, instead of Gata No.504/28, on the spot?
Issue No.2 was decided against Ragdha and others as they could not establish their claim based on possession to Plot No.504/50, to the extent of 1 Bigha, 7 Biswa. This issue had arisen because in CH Form-5, based on padtal, the name of Ragdha son of Banwari and others was recorded over Gata No.504/50 to the extent of 1 Bigha, 7 Biswas. So far as Issue No.3 is concerned, it was held that Plot No.504/28 and Plot No.504/50, according to the spot position, had an area of 2 Bighas and 1 Bigha, 7 Biswa, respectively. The substantial issue regarding the petitioner's title was issue No.1, and in his findings on this issue, the Consolidation Officer held that a photostat copy of the order of the Sub-Divisional Officer dated 01.04.1969 was filed, but the petitioner had not filed a copy of the application, that had led to the said order. This, according to the Consolidation Officer, was necessary to ascertain that the Sub-Divisional Officer, in fact, had passed the mutation order relating to the land in dispute. The Consolidation Officer, therefore, concluded that on the basis of the Sub-Divisional Officer's order dated 01.04.1969, it cannot be concluded that the petitioner is entitled to be recorded as owner (which to all seeming appears to bear reference to a sirdar). It has been further remarked by the Consolidation Officer that the petitioner had not clarified, why a mutation order of 1969 had not been carried out so far in the revenue records. It has also been noticed by the Consolidation Officer that Plot No.504 is quite a large plot and the possibility can, therefore, not be ruled out that on the basis of the Sub-Divisional Officer's mutation order, the petitioner's name had already been mutated over some portion of the said plot. Now, the petitioner again wants his name to be recorded on the basis of that order.
The Consolidation Officer has, therefore, concluded that it is not possible to mutate the petitioner's name over the land in dispute, on the strength of the mutation order. It has then been observed by the Consolidation Officer that the Pradhan had testified that the petitioner is continuing for a very long in possession of the land in dispute. Also, in the padtal, currently done, he had been found in possession. The Consolidation Officer has, therefore, proceeded to hold that considering the long standing possession of the petitioner, it is appropriate that his name may continue to be recorded in Class (3).
The Settlement Officer of Consolidation, while deciding the petitioner's appeal, along with the appeals by similarly circumstanced natives of the village, held that there is no evidence on record to show that the petitioner is in possession of the land in dispute since before the abolition of zamindari. So far as the testimony of the Pradhan is concerned, the Settlement Officer of Consolidation has drawn a highly technical distinction by reason whereof his testimony was not regarded as one, qua the Pradhan of the village. This is so because the Pradhan, while testifying was not authorized by a resolution of the Land Management Committee to do so, or permitted by the Sub-Divisional Officer. It is further held that in case the petitioner was in possession since before the abolition of zamindari, there appears to be no reason why he would take that land on a patta from the Gaon Sabha. The Settlement Officer of Consolidation has remarked that the records show that the petitioner's name was mutated on the basis of the Sub-Divisional Officer's order, passed in Case No.194 of 1969, founded on a patta. In the basic year, the petitioner's name is recorded in Class (3). It has been further remarked that this is logical because the patta granted in favour of the petitioner is referable to rights in Class (3). In other words, the Settlement Officer of Consolidation held that the patta granted to the petitioner was a asami patta but not a sirdari patta. This finding has been made manifest by the further remark that in case a sirdari patta had been granted, the petitioner's name would have been recorded as a sirdar. It has also been, particularly observed that the patta has not been filed by the petitioner to prove that what was granted in his favour was not a asami patta, but a sirdari patta.
In this view of the matter, the Appellate Authority held that record of the petitioners name in Class (3) cannot be faulted. He cannot ask to be recorded as a sirdar or claim enlargement of his rights into that of a Bhumidhar.
The Deputy Director of Consolidation, held that the petitioner has supported his claim on the basis of a copy of the order of the Sub-Divisional Officer dated 01.04.1969, directing mutation in his favour. The order shows that the petitioner was granted a patta and the mutation order directed entering the petitioner's name, founded on that patta. It is remarked that the petitioner (revisionist before the Deputy Director of Consolidation) has not filed any document to show that the patta was a sirdari patta or that the entry in their names on the basis of that order was of a sirdar. The Deputy Director of Consolidation has also observed that Anand Swaroop, the then Pradhan had admitted possession of one Dayaram, another native, similarly circumstanced as the petitioner. He has said that Dayaram's name may continue in Class (3), but regarding others (including the petitioner Balu), he has said that if under law, the others are entitled to Bhumidhari, they may be granted those rights. The Deputy Director of Consolidation has remarked further that a perusal of the Sub-Divisional Officer's order shows that patta was granted in favour of the petitioner. It is remarked that the petitioner's name was mutated in the revenue records on its basis. It is remarked that no evidence has been produced by the petitioner, to show to the contrary. The Deputy Director of Consolidation has concluded that there is no good ground to alter the entry from Class (3) to Class (2). It has been particularly noted by the Deputy Director of Consolidation that the patta has not been produced, from a perusal whereof it could be assessed as to what right it confers. The Deputy Director of Consolidation has also held that the failure of the petitioners to produce the patta, would lead to an adverse inference against him being drawn.
With the aforesaid remarks, the Deputy Director of Consolidation has dismissed the Revision.
In paragraph No. 11 of the writ petition, a case has been pleaded specifically that resolutions of the Land Management Committee of the Gaon Sabha dated 06.05.1953, 22.09.1960, 09.10.1960, could not be filed before the Consolidation Authorities, as these documents were not available, despite best efforts by the petitioner to secure certified copies of the same. It is averred further that the petitioner persisted in his search for these documents, even after the Deputy Director of Consolidation rendered his decision. His efforts yielded result with the relevant files being traced in the revenue record room of the Collectorate, Meerut in the second week of December 1981. It is also asserted that as soon as the files were traced out, the petitioner made an application for the issue of certified copies of the relevant documents on 09.12.1981. These copies were issued to him on 22.12.1981. It is also categorically asserted that these resolutions could not be filed before the Consolidation Authorities as the same could not be traced out, despite every possible effort. It is stated in paragraph-11, last mentioned, that certified copies of the resolutions under reference have been annexed to the writ petition of Dayaram Vs. Deputy Director of Consolidation. It must be remarked that the writ petition of Dayaram, in course of time, came to be numbered as Civil Misc. Writ Petition No.1665 of 1982. It was filed on 15.02.1982, whereas the present petition was filed on 17.02.1982.
This Court has looked into the records of the aforesaid writ petition and gone through the certified copies of the three resolutions dated 06.06.1953, 22.09.1960, 09.10.1960 and 02.06.1963. The resolutions of 22.09.1960 and 09.10.1960 clearly mention the various sirdari patta granted to each of the persons, named in the said resolutions. In the certified copy of the resolution dated 22.09.1960, the petitioner's name finds place at Serial No.2, but there his rights are, according to that reference relate to Plot No.785 Minjumla. However, in the resolution dated 09.10.1960, the petitioner's name figures at Serial No.19 of the list of lessees and there the resolution clearly records the petitioner's rights, with reference to Plot No.504. The antecedent resolution of the Gaon Sabha dated 06.06.1953, by which persons who had been in possession over one portion or the other of plot No.504, or for that matter plot No.88, have been directed to remain in possession, subject to the condition that they would pay rent. The certified copy of that resolution has also been perused. No doubt, it does not mention the petitioner's name or of anyone else who had been in occupation of one part or the other of plot No.504, but it does prima facie support the petitioner's case about the origin of his right and the manner it came to be recognized by the Gaon Sabha, ultimately by granting him a sirdari patta. There is then a certified copy of the resolution dated 02.06.1963 that confirms the earlier resolutions of the Land Management Committee dated 22.09.1960 and 09.10.1960 and further permits each of the named patta holders to secure mutation. In the said resolution, the petitioner's name figures at Serial No.29.
A perusal of the certified copies of these documents show that these were filed before the Sub-Divisional Officer in a mutation case that was decided, vide order dated 01.04.1969, by the Sub-Divisional Officer. The original records appear to have been filed before the Sub-Divisional Officer, who acting on these resolutions passed the mutation order dated 01.04.1969 in favour of those who claimed mutation, including the petitioner.
The typed written copies of these resolutions of which certified copies, the Court has perused from the records of Civil Misc. Writ Petition No.1665 of 1982, have been filed by the petitioner through a supplementary affidavit dated 17.02.2019. The counter affidavit filed on behalf of the Gaon Sabha averres in paragraph No.5 that a certified copy of the Sub-Divisional Officer's order dated 01.04.1969 has not been produced, either before the Courts below or before this Court. With so much said, all other allegations have been denied on an omnibus basis, without specific pleadings. It is true that a certified copy of the order passed by the Sub-Divisional Officer has not been filed before the Consolidation Authorities, but the Deputy Director of Consolidation and the Settlement Officer of Consolidation, have acted on a true copy of that order which has inspired confidence with them. It could be that no objection was taken before the Consolidation Authorities about the genuineness or the non-existence of the order of mutation, dated 01.04.1969, passed by the Sub-Divisional Officer. The Authorities below have, however, inferred from that order that since it does not mention the nature of the patta granted to the petitioner, the conclusion has to be that it was a Asami patta and not a sirdari patta. Also, the petitioner's case has been disbelieved regarding a sirdari patta because no document to show that his rights were in fact, founded on a sirdari patta had been filed. This remark, in the order of the Deputy Director of Consolidation, bears an obvious reference to the resolutions of the Land Management Committee dated 06.06.1953, 22.09.1960 and 09.10.1960 and 02.06.1963, that are the foundation of the petitioner's right.
Learned counsel for the petitioner has impressed upon the Court that the Authorities below have not perused the contents of the mutation order dated 01.04.1969 passed by the Sub-Divisional Officer, Sardhana, Meerut (then District Baghpat), which considers the entire foundation of his rights and its nature. All documents that were filed before the Sub-Divisional Officer have also been referred to in the order. So far as the absence of the certified copies of the resolutions of the Land Management Committee are concerned, it is argued that the same could not be secured, despite best efforts by the petitioner, when the cause was before the Consolidation Authorities. The relevant certified copies have been filed before this Court.
Learned counsel for the Gaon Sabha and the State have perused the certified copies of the resolutions dated 02.06.1963 passed by the Land Management Committee, Subhanpur. Both the learned counsel have not disputed the genuineness of the proceedings. The aforesaid fact has been recorded by this Court in the order dated 20.02.2020.
This Court has carefully considered the submissions advanced on both sides. Normally, this Court does not and cannot looked into the documents that are not filed before the Authorities below, particularly in judicial or quasi judicial proceedings. In the present case, however, it is not that there was no foundation to the petitioner's rights before the Authorities below. A true copy of the mutation order passed by the Sub-Divisional Officer in Case No.194/1969 decided on 01.04.1969 by C.M. Vasudeo, Sub-Divisional Officer has been filed. The Consolidation Authorities, particularly the Settlement Officer of Consolidation and the Deputy Director of Consolidation did not doubt the genuineness of the said order and they accepted in evidence a true copy of that order, without asking for a certified copy.
A perusal of the order of the Sub-Divisional Officer shows that it has referred to lease deeds/patta issued in favour of the petitioner (as also the similarly circumstanced applicants for mutation numbering 7) issued in ZA Form-58. He has also considered the extracts of khatauni for the Fasli year and for the year 1365, 1367, 1368, and 1371. Copies of proceedings of Land Management Committee dated 12.03.1959, 22.05.1960, 30.07.1959, 28.07.1958 and 02.06.1963 were produced before him as extracts from the Gaon Sabha property register, as one's relating to plot No.504. Also, considered is an order dated 03.03.1964 in Case No.59/9 decided by the Sub-Divisional Magistrate on 29.12.1964, under Section 145 Cr.P.C. There is also a finding about possession of Lakhi and Others that appears to include the applicant.
The Sub-Divisional Officer has discarded the objection before him, brought by one Hoshiyar Singh, claiming plot No.504 to be his zamindari and in his possession before abolition. The order is indeed a very detailed one, though it is a mutation order; it considers both the source of title and the factum of possession of the applicants. Those details about the rights of the petitioner have not at all been considered by the Authorities below. Also, there is ample reference in the mutation order to resolutions dated 06.06.1953, 22.09.1960, 09.10.1960 and 02.06.1963 passed by the Land Management Committee of the Gaon Sabha, on the basis of which the petitioner claims title. The mutation order, however, does not clearly spell out the nature of the patta being an asami or a sirdari, but it might appear that the Gaon Sabha never came up with a case that it was a sirdari patta. Therefore, the learned counsel for the petitioner appears to be right that while accepting the patta in favour of the petitioner, but holding it to be an Asami patta, appears to be a third case, that was carved out by the Settlement Officer of Consolidation and the Deputy Director of Consolidation, without being pleaded by either party.
This Court would have no hesitation in accepting the petitioner's case determinatively, but for the fact that the Consolidation Authorities did not have before them the resolutions of the Gaon Sabha, certified copies of which have been brought on record in Civil Misc. Writ Petition No.1655 of 1982. This Court is, therefore, of opinion that the Deputy Director of Consolidation, who is invested with wide powers as the final Court of fact and law, in terms of Explanation-3, appended to Section 48, vide U.P. Act No.3 of 2002, retrospectively w.e.f. 10.11.1980, would be best left to examine and determine the matter finally.
This Court is conscious of the fact that records in the Revenue Record Room are periodically weeded out in a very undesirable fashion, even in matters where title of parties is sub judice. The petitioner would, therefore, produce best evidence of the resolutions dated 06.06.1953, 22.09.1960 and 09.10.1960 and 02.06.1963 passed by the Land Management Committee, Village Subhanpur, Meerut before the Deputy Director of Consolidation, on or before the date of hearing of his Revision afresh by the Deputy Director of Consolidation. The Deputy Director of Consolidation also, shall go by the best evidence of the aforesaid resolutions that is produced before him, pragmatically accepting the position that originals of the resolutions may no longer be available. The Deputy Director of Consolidation, will also carefully act to determine the parties' rights based on the very detailed mutation order dated 01.04.1964, passed by the Sub-Divisional Officer, Subhanpur. Of course, it would be open to the Deputy Director of Consolidation to requisition relevant records, wherever they are available, and satisfy himself about the petitioner's rights, before determining the Revision. Needless to add that the Deputy Director of Consolidation, while deciding the Revision will bear in mind this Court's remarks about the petitioner's rights and will not carve out a third case, or introduce conjecture into his findings.
It must be recorded here that when the impugned orders were passed, village Sudhanpur lay within the local limits of District Meerut. It now lies in the District of Baghpat, that has been subsequently carved out. The Revisional Authority competent to redetermine the Revision or any other proceedings by Authorities subordinate to him, would be the Revisional Authority under the Act, at District Baghpat and not Meerut. The Revision shall be determined by the District Deputy Director of Consolidation, Baghpat himself and will not be assigned to any other Deputy Director of Consolidation.
In the result, the writ petition succeeds and is allowed in part. The impugned order dated 06.11.1981 passed by the Collector/District Deputy Director of Consolidation, Meerut dated 06.11.1981 in Revision No.425/10 Balu Vs. State is hereby quashed. The said Revision shall now stand restored to the file of the Collector/District Deputy Director of Consolidation, Baghpat, who will proceed to decide this Revision afresh in accordance with law, preferably within a period of six months from the date of receipt of a copy of this order, in accordance with law, after hearing all parties concerned and bearing in mind what has been said in this judgment.
The Collector/District Deputy Director of Consolidation, Meerut is ordered to provide all relevant records to the District Deputy Director of Consolidation at Baghpat upon a requisition sent to him for the purpose, unless those records have not already been transferred to the establishment at Baghpat.
Costs easy.
Date: 18.08.2020 NSC