Allahabad High Court
Chhote Lal And 2 Ors. vs State Of U.P. And 3 Ors. on 18 April, 2014
Author: Anjani Kumar Mishra
Bench: Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
RESERVED
[A.F.R.]
Court No. - 18
Case :- WRIT - B No. - 2879 of 2014
Petitioner :- Chhote Lal And 2 Ors.
Respondent :- State Of U.P. And 3 Ors.
Counsel for Petitioner :- Arvind Srivastava
Counsel for Respondent :- C.S.C.,Rama Kant Tiwari
Hon'ble Anjani Kumar Mishra,J.
1.Heard Sri Arvind Srivastava, learned counsel for the petitioners and Sri Rama Kant Tiwari, learned counsel for the caveator-respondent no. 4, as also learned Standing Counsel representing the State-respondents.
2.The petitioner has filed this writ petition seeking a writ of certiorari quashing the judgement dated 30.11.1983 passed by the Dy. Director of Consolidation/Collector, Chitrakoot, a copy whereof has been filed as Annexure -18 to the writ petition.
3.From the perusal of the record, as also the impugned order it emerges that Revision No. 41 of 2012 was filed by the petitioner challenging the remand order dated 31.5.2007 passed by the Settlement Officer of Consolidation (in short, the SOC), whereby the orders of the Consolidation Officer dated 5.12.1997, 22.4.2000 and 15.2.2001 were set aside and the matter was remanded to the Consolidation Officer to pass fresh orders.
4.The revision aforesaid was initially dismissed by an order dated 27.8.2012 holding the same to be not maintainable being directed against an interlocutory order. The order dated 27.8.2012 was subjected to challenge by means of CM Writ Petition No. 5871 of 2013. This Court vide its order dated 2.1.2013 allowed the writ petition, set aside the order dated 27.8.2012 and directed the DDC to pass orders afresh on merits after hearing all concerned.
5.The DDC in compliance of the order of this Court has passed the impugned order and has dismissed the said revision, as a result whereof, the order of remand dated 31.5.2007 passed by the SOC has been affirmed.
6.Learned counsel for the petitioners has assailed the order impugned on the ground that the proceedings of the appeal themselves were an abuse of the process of the Court and had been initiated to prevent the petitioners from availing the fruits of the protracted litigation between the petitioners' father and the father of respondent no. 4. He has further stated that the dispute relates to plot nos. 2649, 2650 and 2651, which were bhumidhari plots of the father of the petitioners.
7.From the perusal of the record and the submission made, it EMERGES that the Consolidation Officer on 16.3.1983 passed an order in Case No. 6200 whereby the name of Kamta Prasad, son of Hanuman Deen was ordered to be recorded over the aforesaid plots. The petitioners' father filed Appeal No. 3162 against the order of the Consolidation Officer which was allowed by the order dated 27.3.1987 and the name of Kamta Prasad was ordered to be expunged. Against this appellate order, Kamta Prasad preferred Revision No. 1422, which was dismissed for default on 9.7.1987. Restoration application was also dismissed in default on 15.2.1991. The second restoration application filed by Kamta Prasad was also dismissed for default on 16.1.1996. The third restoration application came to be dismissed on 11.7.1996.
8.It appears that another restoration application was filed and was allowed and, thereafter, the DDC by his order dated 14.5.1997 dismissed the revision on merits. This order was challenged by means of CM Writ Petition No. 27329 of 1997, which was dismissed by this Court on 28.8.2002. The order expunging the name of Kamta Prasad thus attained finality.
9.Thereafter it is statedCase No. 70 was instituted under Rule 109 of the U.P. Consolidation of Holdings Rules (in short, CH Rules) for incorporating the name of the petitioners over the land in dispute, and a parwana was issued in this regard on 15.12.1997. Despite the issuance of parwana, the proceedings under Rule 109 were not brought to their logical end, forcing the petitioners to file a writ petition, which was disposed of with the direction to the authorities to deliver possession of the land in dispute to the petitioner as early as possible.
10.It is stated that thereafter a contempt application was also filed wherein notices were issued, as a consequence whereof the names of the petitioners were recorded in the revenue records on 16.02.2001 but the actual physical possession was not given to them. An application for reviewing the order of this Court directing delivery of possession to the petitioners was also filed but was rejected on 18.3.2005.
11.Thereafter, two appeals are said to have been filed before the SOC. Appeal No. 266/180 was filed by Kailash Nath, son of Kamta Prasad, while Appeal No. 147/193 was filed by Raja, son of Kailash, respondent no. 4. Both these appeals were directed against the order dated 5.12.1997, whereby parawana was issued, on 22.4.2000, and 15.2.2001, respectively. The orders dated 22.04.2000 and 15.2.2001 are not record. On 16.02.2001 the entries incorporated in the khatauni as per the parwana.
12.These appeals were allowed vide order 31.5.2007 the impugned orders dated 5.12.1997, 22.4.2000 and 15.2.2001 were set aside and the matter was remanded to the Consolidation Officer for fresh decision on merits. It is against this order of remand that the revision was filed by the petitioners, which has been dismissed by the impugned order.
13.On the basis of the aforesaid facts, learned counsel for the petitioners has vehemently urged that the appeals filed by Kailash and his son Raja were nothing but an abuse of the process of the Court, and an attempt to prevented the petitioners from enjoying the fruits of the earlier litigation between them and Kamta Prasad. He submits that the petitioners are entitled to be put in possession over the land in dispute which was wrongly and fraudulently entered in the name of Kamta Prasad and which entries have been set aside by the consolidation authorities, and the orders in that regard affirmed up to this Court. By the order of the SOC the orders passed in proceedings under Rule 109 for implementing orders that had attained finality up to the High Court have been set aside and the matter has been re-opened unnecessarily. He, therefore, prays that the orders impugned, namely the order of remand passed by the SOC and the revisional order affirming the same, deserve to be quashed.
14.I have examined the order of the DDC in the light of the submissions advanced by the learned counsel for the petitioners. It emerges from the perusal of the impugned order that after the close of the consolidation operations in the unit the land of the plots in dispute was allotted in favour of Raja by the Gaon Sabha. This was an agricultural lease granted under the provisions of section 198 of the U.P. Zamindari Abolition and Land Reforms Act. The appeal filed by Raja, respondent no. 4, appears to have been filed on the strength of this allotment in his favour. The courts below having noticed this allotment and in deference to the settled view that the consolidation courts cannot go behind an allotment made by the Gaon Sabha, have set aside the earlier orders and remanded the matter for decision afresh.
15.There is a categorical admission by the petitioners in the writ petition that they have initiated proceedings for cancellation of the lease in favour of respondent no. 4 in terms of the provisions of laws contained in section 198(4) of the U.P. Zamindari Abolition and Land Reforms Act.
16. The DDC in the impugned order has recorded that the petitioners were given the valuation of the plots in dispute in their chaks, which valuation has been adjusted in the plots allotted elsewhere and therefore the plots in dispute were recorded as bachat in the name of the Gaon Sabha and the Gaon Sabha was entitled to make allotment of the same after the close of consolidation operations and such allotment was actually made in favour of respondent no. 4, Raja.. Learned counsel for the petitioners has tried to assail this finding recorded by the DDC in the impugned order, and has in this connection referred to the averments made in paragraphs 13 to 24 of the writ petition. He has vehemently submitted that the valuation of the plots in dispute has not been incorporated in their chaks carved out during consolidation operations.
17.Upon due consideration, I am not prepared to accept the contention raised by the learned counsel for the petitioners for two reasons:
18.First, there is no categorical denial of the statement of fact in the impugned order that the valuation of the plots in dispute has already been included in the chaks allotted to the petitioners.
19.Secondly, the operative portion of the impugned order directs the Consolidation Officer to consider the matter in terms of the order of remand dated 31.5.2007 after hearing the lease-holder, respondent no. 4, and to pass appropriate order under rule 109 of the CH Rules after examining the records. In case the contention of the learned counsel for the petitioners, that valuation of the plots in dispute to which they are entitled, has not been included in their chaks, the same can only be done in proceedings under rule 109. It is these proceedings, initiated by the petitioners themselves, which have been remanded to the Consolidation Officer by the orders under challenge. Under the circumstances, if the contention of the learned counsel for the petitioners is accepted and the order of remand itself is set aside, as prayed, the petitioners will not be given the valuation to which they claim to be entitled, specially when it is their categorical case that despite orders and contempt proceedings the orders of the title proceedings have not been finally implemented.
20.In the said scenario, the petitioners by challenging the impugned order are trying to shut themselves out from the very relief which they are claiming. The petitioners, who appear to be experienced litigants having prosecuted such a protracted litigation, this Court is not prepared to accept that the petitioners would have filed this writ petition and claimed a relief, which would in fact prevent them from getting the fruits of the litigation between the parties. Besides, the averments in paragraph 28 of the writ petition tend to reinforce the view of this Court. Relevant portion of this paragraph is extracted below:
"28. That the plot NO. 2649, 2650, 2651 are located near railway line in a abadi area and are having higher value than the plot allotted to the petitioner during the consolidation operation..."
21.In view of the aforesaid discussion, I see no reason to interfere with the impugned orders which are in any case, orders of remand. The petitioners will have every opportunity of making their submissions and adducing all such evidence they may seek to rely upon, as has already been directed in the impugned order itself. They will also suffer no irreparable loss as the direction is for a fresh decision in the matter within a period of one month.
22.The writ petition is, therefore, dismissed. There will be no order as to costs.
Order Date :- April 18, 2014.
sks-grade iv