Allahabad High Court
Ram Kinkar Singh vs State Of U.P. And 12 Others on 4 September, 2023
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2023:AHC:175086
Judgment Reserved on 18.8.2023
Delivered on 4.9.2023
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 48
Case :- WRIT - B No. - 15672 of 2015
Ram Kinkar Singh ..... Petitioner
Through: Sri Sachida Nand Tripathi, Arun Kumar Pandey, Advocate.
Vs.
State Of U P And 12 Others ........ Respondents
Through: Sri Jitendra Kumar Srivastava and Sri A.K.Rai, ACSC.
******
CORAM : HON'BLE SAURABH SHYAM SHAMSHERY, J.
1. Heard Sri Sachida Nand Tripathi, Arun Kumar Pandey, learned counsel for petitioner, Sri Jitendra Kumar Srivastava, learned counsel for respondents no.5, 6 and 7 and Sri A.K.Rai, learned Additional Chief Standing Counsel.
2. In present case, proceedings under Section 21 of Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter called the 'Act of 1953') were initiated in pursuance of publication of Provisional Consolidation Scheme under Section 20 of Act of 1953 , wherein the Consolidation Officer has considered objections filed by petitioner as well as respondents. Objections filed by Ram Nath (father of respondent nos.10 and 12) were allowed, whereas objections filed by Raj Bahadur, respondent no.5 and the petitioner (Ram Kiran Singh) were allowed in part. Ram Prasad and Raj Bahadur, (respondents no.4 and 5 herein) have filed Appeals before the Settlement Officer of Consolidation inter-alia on following grounds:
"3- यह कि अपीलकर्तागण के आ०नं0 362 के पूर्वी हिस्से में मत्स्य पालन हेतु नव फीट गहरा तालाब है जो वर्तमान चकबंदी प्रक्रिया के अन्तर्गत चक बाहर कर दिया गया है । जिस तालाब के पश्चिमी हिस्से की जमीन रामकिंकर व विश्वनाथ आदि के चको मे समायोजित कर दी गयी है जिससे सख्त हकतलफी अपीलकर्तागण की है ।
4- यह कि अपीलकर्ता गण के चक सं० 628 के पानी का बहाव पश्चिम से पूरब तरफ है जो अपीलकर्तागण के तालाब के उत्तरी सिरे से होकर निकलता है उपरोक्त हालात मे यदि अपीलकर्तागण तालाब के पश्चिमी हिस्से की जमीन किसी अन्य चकदार को एलाट कर दिये जायेगे तो ऐसी हालत मे अपीलकर्तागण के चक के पानी के बहाव रूक जायेगा तथा अपीलकर्तागण का मकान व फसल डूब जायेगी जिससे अपीलकर्तागण की अपूर्णीय क्षति होगी । जिसे किसी तौर पर पूरा नही किया जा सकता है ।
5- यह कि प्रतिउत्तरदाता रामकिंकर की आ0नं0 363 अपीलकर्तागण के आराजी नं० 362 के उत्तरी व पश्चिमी कोने पर है जिसको उठा कर आराजी नं0 362 के पूर्वी उत्तरी हिस्से मे कायम किया जा रहा है तथा विश्वनाथ आदि की आ0 अपीलकर्तागण की आ०न० 362 से दो फरलांग पश्चिम है जिसे उठाकर अपीलकर्तागण के अ०नं0 362 पर संस्थापित किया जा रहा है जो चकबंदी प्रक्रिया के विपरीत घोर अन्याय है । जिससे सख्तल्फी अपीलकर्तागण की है।"
3. All three appeals were decided by a common order dated 18.4.2013 whereby appeal bearing No.607/2012-13, (Ram Prasad Vs. Inder Pal & Ors) was rejected. However, other two Appeals bearing Nos.609/2012-13, (Ram Prasad & Ors Vs. Ram Kinker and Ors) and 668/2012-2013, (Indra Pal Vs. Raj Bahadur & Ors), were allowed and it was directed that area measuring 0.191 Hectare of Gata No.362 and certain area of Gata No.366 shall be dropped from consolidation proceedings being 'Parti' and 'Abadi' land. Relevant findings thereof are mentioned hereinafter:
"पक्षकारान को सुना गया। ग्राम के अभिलेख एवं चक भूचित्र का अवलोकन किया गया। स्थल निरीक्षण किया गया। स्थल निरीक्षण में यह पाया गया कि गाटा स० (362 मि क्षेत्रफल 0.191 हे0 जो तालाब के सटे हैं तथा जिसमें अपीलकर्ता ने स्वयं भी गाटा सं0 366 के पश्चिम आबादी बना रखी है, को लेते हुए चकबन्दी क्रिया से पृथक किया जाना उचित है। यह भी उल्लेखनीय है कि अपीलकर्ता ने उक्त गाटे में नया नवनिर्माण किया है तथा निर्माण के बाबत कोई अनुमति प्राप्त नहीं की गयी है। यह गाटा अपीलकर्तागण का मूल गाटा है तथा चकदार सं0 632 रामकिंकर पुत्र हरि को उक्त गाटे पर उड़ान चक प्रदिष्ट किया गया है। प्रश्नगत गाटा मौके पर परती है तथा पूरी तरह से अकृषिक एवं सटे तालाब है। तदनुसार अपील स्वीकार किये जाने योग्य है।"
(Emphasis Supplied)
4. Petitioner being aggrieved by the aforesaid order, filed a Revision before the Deputy Director of Consolidation, which was allowed in part vide order dated 30.12.2014, inter-alia on following reasons:
"दोनों पक्षों के सुबुद्ध अधिवक्ता के तर्कों को सुना गया। ग्राम के अभिलेख एवं चक भूचित्र का अवलोकन किया गया। अवलोकन से स्पष्ट हैं कि निगरानीकर्ता की माँग चकमार्ग से सम्बन्धित है। पूर्व में बने चकमार्ग को यथावत कायम व बहाल रखना उचित प्रतीत होता है परन्तु गाटा संख्या 362 व 363 पर पहले से चकमार्ग बना हुआ है तथा गाटा संख्या 371 पर चकमार्ग दिया जाना सम्भव है। इस ग्राम में व्यक्तिगत लाभ के लिए गाटा संख्या 387 आदि पर हाईस्कूल के नाम भूमि सुरक्षित की गयी थी, जिसको खारिज करते हुए बचत के रूप में सुरक्षित किया जाना तथा गाटा संख्या 387 में रकबा 0.56 हे0 सुरक्षित किया गया है, जो डबल प्रदिष्ट है। इसे भी समाप्त किया जाना चाहिए। अतः निगरानी आंशिक रूप से स्वीकार किये जाने योग्य है।"
5. Learned counsel for the petitioner has submitted that no objection was taken in regard to nature of land in dispute during consolidation proceedings under Section 9-A of the 'Act of 1953', therefore in terms of Section 20 (2) of the 'Act of 1953', no fresh objection could be taken in regard to nature of land, being specifically barred by Section 11-A of Act of 1953. Relevant sections i.e. 11-A, 20 and 21 of the 'Act of 1953' are mentioned hereinafter:
" 11A. Bar on objection. - No question in respect of -
(i) claims to land,
(ii) partition of joint holdings, and
(iii) valuation of plots, trees, wells and other improvements, where the question is sought to be raised by a tenure-holder of the plot or the owner of the tree, well or other improvements recorded in the annual register under Section 10, relating to the consolidation area, [which has been raised under Section 9 or which might or ought to have been raised under that section], but has not been so raised, shall be raised or heard at any subsequent stage of the consolidation proceedings.]
20. Publication of the provisional Consolidation Scheme and receipt of objections thereon. - (1) Upon the preparation of the provisional Consolidation Scheme, the Assistant Consolidation Officer shall send, or cause to be sent, to the tenure-holders concerned and persons interested, notices containing relevant extracts therefrom. The provisional Consolidation Scheme shall thereafter be published in the unit.
(2) Subject to the provisions contained in Section 11-A, any person to whom notice has been sent under sub-section (1) and any other person affected by the provisional Consolidation Scheme, disputing the propriety or correctness of the entries in the provisional Consolidation Scheme, or in the extracts furnished therefrom may, within fifteen days of the receipt of the notice, or of the date of the publication of the provisional Consolidation Scheme, as the case may be, file an objection before the Assistant Consolidation Officer or the Consolidation Officer.
(3) Any person affected, or any person having any interest or right, in addition to the right of public highway, in or over any public land, or having other interest or right which is substantially prejudiced by the declaration made under sub-section (2) of Section 19-A, may within fifteen days after the publication of the provisional Consolidation Scheme, file an objection before the Assistant Consolidation Officer or the Consolidation Officer stating the nature of such interest or right.
21. Disposal of objection on the statement. - (1) All objections received by the Assistant Consolidation Officer shall, as soon as may be, after the expiry of the period of limitation prescribed therefor, be submitted by him to the Consolidation Officer, who shall dispose of the same, as also the objections received by him, in the manner hereinafter provided after notice to the parties concerned and the Consolidation Committee.
(2) Any person aggrieved by the order of the Consolidation Officer under sub-section (1) may within [15] days of the date of the order, file an appeal before the Settlement Officer, Consolidation whose decision shall, except as otherwise provided by or under this Act be final."
6. Learned counsel for the petitioner has placed reliance upon judgment of this Court in Smt. Kiran Devi Vs. Deputy Director of Consolidation, Ghaziabad (Allahabad), 2008 (4) ADJ 28, Lali Devi Vs. Deputy Director of Consolidation, Azamgarh and others, 2011:AHC:41696, and of Supreme Court in Gafoora & Anr Vs. Deputy Director of Consolidation, AIR 1975 SC 1716, which has been relied upon in Smt Kiran Devi (supra). Relevant paragraphs of aforesaid judgments are mentioned hereinafter:
Smt. Kiran Devi (supra) "11. Section 11-A of UP. Consolidation of Holdings Act, 1953 thus contains a principle akin to principle of res-judicata. Thus the objection which has been raised under Section 9 or which might or ought to have been raised under Section 9 cannot be allowed to be raised in subsequent proceedings of the consolidation. From the materials brought on the record it is clear that no objection regarding valuation of Plot No. 267, which was original holding of petitioners and the respondents, was raised under Section 9. Section 11-A thus creates a bar of raising an objection with regard to valuation of the land by original tenure holders of the plot.
12. When no objection was raised by respondents No. 3 and 4 or any other tenure holder of Plot No. 267, on an appal filed under Section 21(1) no issue can be raised regarding valuation of Plot No. 267. The valuation of Plot No. 267 was fixed at 80 paisa and the same having not been challenged under Section 9, the principle of constructive res-judicata shall come into play as provided under Section 11-A of the Act.
13. The Apex Court considering the provisions of Section 11-A of the U.P. Consolidation of Holdings Act, 1953 in ; Gafoora and Anr. v. Dy. Director of Consolidation and Ors., made following observations in paragraph 3 of the judgment:
3. The short question that arises for consideration is whether the High Court is correct in not interfering with the order of the Deputy Director (Consolidation) under Article 226 of the Constitution. Jurisdiction under Article 226 is well settled. The High Court will interfere only if some order is passed by an authority in excess of jurisdiction or there is a manifest error of law apparent on the face of the records. The principal question that was canvassed before the Deputy Director (Consolidation) was whether failure to prefer objection within the time-limit prescribed under Section 9(2) of the Act would entitle an aggrieved party to agitate the matter beyond the prescribed period without explaining the cause of delay in preferring the objection and obtaining a proper order of condonation of delay from the appropriate authority. It is clear from the records that no objection was preferred within the prescribed time. The Deputy Director (Consolidation) refused, if we may say so, rightly to accept that the appellants had earlier lodged any objection on November 21, 1966. That being the position, there was no material whatsoever before the Settlement Officer (Consolidation) for exercising his jurisdiction to condone the delay in lodging objection under Section 9(2) of the Act. Section 11A bars all objections in respect of claim to land, partition of joint holdings and valuation of plots, etc. relating to the consolidation area which have been raised under Section 9 or which might or ought to have been raised or heard at any subsequent stage of the consolidation proceedings. That being the position there is not error of law in order of Deputy Director (Consolidation) nor is there any excess of jurisdiction committed by him in disposing of the matter as he did in exercise of his revisional power under Section 48.
14. Section 11-A creates a bar on objection in respect of claim to land, partition of joint holding and valuation of plots etc. relating to the consolidation area, which has been raised under Section 9 or which might or ought to have been raised under that section, but has not been so raised. Thus no question under Section 11-A can be raised or heard at any subsequent stage of the consolidation proceedings. In view of the above position of law, the Settlement Officer of Consolidation committed error in changing the valuation of Plot No. 267 from 80 paisa to 60 paisa, which has effect of reduction of valuation of the petitioners. Although the Settlement Officer of Consolidation has noted in the order that valuation of 80 paisa to 60 paisa be fixed with regard to which there is oral consent of the parties but in the order of Settlement Officer of Consolidation it has not been stated that the present petitioners, who were respondents in appeal, have agreed for reduction of the valuation, which had effect of taking out area from their plots. In any view of the matter when there is a bar under Section 11-A with regard to valuation, the same cannot be done even by any kind of consent by the parties."
Lali Devi (supra) "12. Having heard learned counsel for the parties, the issue relating to the bar of Section 11-A has been settled by a large number of decisions and the said consistent of view has been followed in Smt. Kiran Devi (supra). In view of this the conclusion drawn by the Deputy Director of Consolidation that the Settlement Officer Consolidation had no jurisdiction to declare the land to be outside consolidation operations may be correct on first principles.
13. Nonetheless once the land has been valued and has been made subject of allotment, then the next question arises is, should the land belonging to the petitioner which was her original holding be allotted to someone else. On this score the judgment relied upon by the leaned counsel for the petitioner fully supports her case. The land of Plot No. 1753 is the original holding of the petitioner and therefore she was entitled to half share which has been allotted her. However, while allotting the same the Consolidation Officer instead of giving her the width of road side frontage to which she was entitled, reduced the same. In such circumstances the Settlement Officer Consolidation was fully justified in reversing the order of the Consolidation Officer. The allotment to the original tenure holder has to be protected if it is road side land. "
7. Per contra, learned counsel for respondents and learned Additional Chief Standing Counsel have supported the impugned orders and submitted that land such as Parti or Abadi could not be part of a consolidation proceedings and in facts and circumstances of present case bar if any, in terms of Section 11-A of Act 1953, would have no effect.
8. Heard learned counsel for parties and perused the records.
9. Issue before this Court for consideration is that whether any land recorded or has nature of 'Parti' or 'Abadi' could be kept outside from consolidation proceedings during consideration of objections under Sections 20 and 21 of the Act of 1953 (i.e. disposal of objections to a provisional consolidation scheme), though such objections were not raised earlier during proceedings under Section 9-A of the 'Act of 1953' or whether it would be hit by the bar imposed under Section 11-A of the 'Act of 1953'?
10. Learned counsel for the petitioner has mainly stressed upon provisions of Section 11-A of the 'Act of 1953' that it imposes a bar, that any objection in regard to claim of land, partition of joint holding and valuation thereof, if any, which has been raised under Section 9 or which might or which ought to have been raised but has not been so raised shall not be raised or heard at any subsequent stage of consolidation proceedings.
11. The question still remains as to whether the land which has now been kept outside from the consolidation proceedings at stage of considering provisional objections on basis of its nature being 'Abadi' and 'Parti' are barred under Section 11-A of the Act, of 1953 or not.
12. A careful reading of Section 11-A of the Act, of 1953 as mentioned above, would reveal that it bars any objection to be raised at the later stage in respect of claim of land, partition of joint holding and valuation of plots, trees and well, whereas in the present case, land which has been directed to be kept out of consolidation proceedings was due to its nature being 'Parti' and 'Aabadi'. It was not about valuation of any plot or claim of land or partition of land. It was a case where on basis of nature of land, it was directed to keep it outside the consolidation proceedings. There was no serious dispute that a land having nature of 'Parti' or 'Abadi' could not be included in consolidation proceedings.
13. Facts of the present case could be tested on a hypothetical example that in case a land which would fall under the category of exempted land from Consolidation as provided under Section 132 of the Act, 1950 or any of land mentioned in explanation of sub-section 2 of Section 3 of the Act of 1953, but no objection was taken at stage of Section 9 of the 'Act of 1953', still same could be exempted at a later stage, since its inclusion being absolutely contrary to law and for such cases, Section 11-A of the 'Act of 1953' does not contemplate any bar.
14. In present case, there was no dispute that land in question was 'Parti' and Aabadi' and the Revisional Authority has taken note of presence of play ground, High School and School. It was not a case that valuation of land was differed, therefore, exclusion of land from Consolidation on ground of its nature even at a later stage would not be barred even on ground of Section 11-A of the 'Act of 1953'.
15. In the present case, land which ought not to have been included in consolidation proceedings was wrongly included and, therefore, it was rightly excluded at later stage i.e. while considering objections under Section 20 and 21 of the 'Act of 1953', when it was brought into the notice of authorities. Any objection to nature of land that it could not be a part of Consolidation being a ground which goes to root of the consolidation proceedings could not be barred under provision of Section 11-A of 'Act of 1953'.
16. The facts involved in the judgments relied upon by the counsel for petitioners are distinguishable. The issue referred above is decided accordingly.
17. Writ petition is accordingly dismissed.
Order Date:4.9.2023.
SB