Allahabad High Court
Ram Chandra And Others vs Dy. Director Of Consolidation, ... on 29 March, 2012
Author: A.P. Sahi
Bench: A.P. Sahi
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved AFR Civil Misc. Writ Petition No. 7870 of 2012 Ram Chandra and others Vs. Dy. Director of Consolidation, Allahabad and others ***** Hon'ble A.P. Sahi,J.
Heard Sri S.C. Verma, learned counsel for the petitioners and Sri Mohan Yadav for the respondent no. 6 and the learned Standing Counsel and the learned counsel for the Gaon Sabha as well.
The petitioners have come up challenging the order passed by the Settlement Officer Consolidation dated 4.8.2011 and the order of the Deputy Director of Consolidation dated 14.11.2011 whereby the order of the Consolidation Officer dated 16.10.2009 setting apart Plot No. 6 and 16 partly from consolidation operations has been set aside.
The petitioners contend that the order of the Consolidation Officer was justified keeping in view the status of the land which is besides the road and which the petitioners are entitled to retain in terms of the Circular dated 26.5.1981 brought on record as Annexure-4 to the writ petition.
The main thrust of the argument of Sri S.C. Verma is that even if an adjudication has taken place in relation to chak allotments and no objections had been filed, then too it is obligatory on the part of the Consolidation Authorities to restore the land of a tenure holder by allotment if it is situate by the roadside. He contends that the land claimed by the petitioners which they were entitled to retain in their holding was situate by the roadside and as such the petitioners had a remedy of approaching the Consolidation Officer which is not barred by any provision of the U.P. Consolidation of Holdings Act, 1953. In sum and substance the argument is that the rights and duties which flow from the Circular dated 26.5.1981 can be enforced at any stage.
He further contends that the notification under Section 52 has not yet been published and the petitioners came to know of the said defect at the time of delivery of possession in the year 2008, therefore, there was absolutely no delay in filing of the objection nor does this exercise amount to any review of the earlier proceedings undertaken in relation to allotment.
Reliance has been placed on a Full Bench decision of this court in the case of Smt. Mewati Devi Vs. D.D.C. Gorakhpur & others, reported in 1987 RD Pg. 186 to contend that these proceedings can go on simultaneously and there is absolutely no bar which can prevent a tenure holder from raising such a plea at this stage. He therefore submits that the order of the Consolidation Officer dated 16.10.2009 setting apart the disputed holding from consolidation operations does not suffer from any infirmity. The Consolidation Officer also condoned the delay under Section 5 in filing of the objection and he further held that the view taken by him is in consonance with the directions of the Consolidation Commissioner and the Circular dated 26.5.1981 relied on by the petitioners.
Sri Mohan Yadav on the other hand contends that this issue stood foreclosed as the father of the petitioners had already contested this matter relating to allotment of land and the same was finalized way back on 21st August, 1990 under an order passed by the Deputy Director of Consolidation. It is therefore no longer open to the petitioners to raise this issue again after 20 years through an application in 2008. He further submits that the objection under Section 9-A(2) would be barred in view of the provisions of Section 11-A and even otherwise once all chak proceedings have been finalised 20 years hence, the petitioners cannot be permitted to raise this plea at this stage. He therefore contends that the issue has been decided and the petitioners having acquiesced to the said situation without any further challenge to the order dated 21.8.1990, the present challenge by way of an objection under Section 9-A(2) was absolutely misconceived and the Consolidation Officer committed a manifest error by condoning the delay and entertaining the same on merits. It is for this reason that the appeal was allowed and the Settlement Officer Consolidation rightly set aside the same. The Deputy Director of Consolidation has also not committed any error in affirming the said order after recording all the findings as aforesaid.
Having heard learned counsel for the parties and having perused the records the main contention of Sri Verma is the enforceability of the Circular dated 26.5.1981. A perusal of the said Circular indicates that it was an executive instruction issued to ensure that tenure holders are not put to any unnecessary harassment and loss of land of potential value during allotment, and for this, while preparing the statement of principles under Section 8-A of the 1953 Act at the commencement of consolidation, the authorities are under an obligation to set apart such a land from being allotted to someone else. The said Circular has been issued by the Consolidation Commissioner with a direction that if such issues are raised even after delivery of possession then the same should be rectified to the extent of the share in the holding of a particular tenure holder and appropriate action should be taken against the erring officials who have failed to discharge their duties.
Before delving into the aforesaid legal issue as pressed into service the factual scenario is that the disputed holding became subject matter of allotment during consolidation operations. It is undisputed that the petitioners' father had contested the allotment proceedings as the same had been allotted to other tenure holders and the Yuvak Mangal Dal. The order passed by the Deputy Director of Consolidation on 21.8.1990 is reproduced herein under:-
^^;g fuxjkuh] cUnkscLr vf/kdkjh pdcUnh bykgkckn ds vkns'k fnukad 30-3-1990 ds fo:) ;kftr dh xbZ gSA lHkh i{kksa dks lquk x;k vkSj pdHkwfp= rFkk xzke vfHkys[kksa dk Hkh voyksdu fd;k x;kA pdnkj 151 rFkk 84 dk ewy xkVk la0 9 gS vkSj fuxjkuhdrkZ pdnkj 105 dk ewy xkVk la0 16 gSA pdnkj 105 tks fd xkVk la0 9 ij izfn"V gS] dks mruh ekfy;r dk xkVk la0 16 ij nf{k.k dh rjQ iwjc if'pe pd izfn"Vh dk tkrk gSA pdnkj 84 dks mRrj dh vksj pd la0 105 dks 'kkfey djrs gq, mruh ekfy;r dk izfn"Vh fd;k tkrk gS vkSj pd la0 105 ds cjkcj ewy xkVk la0 9 esa ls dkVdj mRrj dh vksj pd la0 151 esa izfn"Vh fd;k tkrk gSA pd la0 105 o 84 ds chp esa tks pdjksM gS mls lekIr dj bldks ;qod eaxy ny gsrq Hkwfe esa 'kkfey fd;k tkrk gSA la'kks/ku rkfydk rnuqlkj izLrqr dh tk;A fuxjkuh rnuqlkj Lohdkj dh tkrh gSA la'kks/ku rkfydk bl vkns'k dk vax jgsxhA xzke vfHkys[kksa esa rnuqlkj veynjken djk fy;k tkosA ckn veynjken i=koyh nkf[ky nQrj gksA ¼losZ'k pUnz feJ½ fnukad 21-8-1990 mi lapkyd pdcUnh&bykgkckn^^ The adjustment chart appended along with the aforesaid order clearly indicates the allocation of Plot No. 6 partly to the extent indicated therein to the Yuvak Mangal Dal and partly to the respondent no. 10 Mewa Lal. This order has become final and was not assailed.
In Para 9 of the writ petition the contention is that the petitioners thought that they have been granted allotment over their original holding over plot no. 6 and 16 and that the delivery of possession did not take place till 2008 as a result whereof they remained throughout in possession. It is only in the year 2008 that they came to know that the respondents second set have been allotted the said land together with the land given to the Yuvak Mangal Dal. The adjustment indicates allotment of land in favour of the respondents second set also. The application giving rise to the present petition for setting aside the land apart from consolidation proceedings was therefore filed in 2008 purporting to be under Section 9-A(2) of the 1953 Act.
The submission is that the land is a roadside land and therefore it should have been retained with the petitioners under the said Circular of the Consolidation Commissioner.
There is yet another dimension of this petition, that the order dated 21.8.1990, 12.3.2007 and 17.6.1995 which are under challenge are in relation to the allotment proceedings have been finalised from stage to stage. The petitioners therefore want a reopening of the entire allotment proceedings on the ground that they were under the impression that they have been allotted their holding besides the roadside and they only came to know about the alteration complained of only in the year 2008 when delivery of physical possession was carried out. This submission of Sri S.C. Verma cannot be accepted as the adjudication had already made on 21.8.1990 in the knowledge of the predecessor in interest of the petitioner. This being the position, the petitioners now cannot be allowed to challenge all the subsequent orders in relation thereto of the year 1995, 2007 and further.
In the aforesaid background what has to be seen is that the Circular dated 26.5.1981 can be pressed into service or not. In the opinion of the Court the adjudicatory forum of allotment of chaks begins with filing of the objections under Section 21. The petitioners have now filed the objection in 2008 under Section 9-A(2) with regard to entitlement of retention of roadside land. In my opinion, once the allotment has been finalized through an adjudication under Section 21 of the Act, then the Circular cannot be pressed into service once the order dated 21.8.1990 passed by the Deputy Director of Consolidation has not been challenged within time.
The petitioners cannot plead absence of knowledge for 20 years. What they contend is that they came to understand that the said order deserves to be challenged as possession was sought to be taken in the year 2008. In my opinion, this is too late in the day to contend that since actual possession was being delivered in 2008, therefore, no objection had been filed earlier. The petitioners were well aware of the allotment proceedings and they ought to have challenged the order of the Deputy Director of Consolidation which was passed after contest by their predecessor in interest. They cannot therefore now be permitted to raise these issues afresh.
The objections under Section 9-A(2) of the Act should have been taken at the stage of objections that were to be filed under the said provision. It is admitted to the petitioners that the notification under Section 4 of the Act was published on 18.2.1982 and for filing objections under Section 9A(2) the publication was made under Section 9 on 30.4.1984. The provisional scheme for allotment came to be published under Section 20 on 20.3.1986. The petitioners' father had contested the objection in relation to Section 21 that came to be finalized under the order dated 21.8.1990. If the petitioners were aggrieved with regard to non-allotment of land besides the road they could have raised the issue at that point of time in these proceedings. They cannot now be permitted to claim title to raise a dispute under Section 9-A(2) which stands barred under Section 11-A of the 1953. The application moved by the petitioners in 2008 for keeping the land out of consolidation operations was misconceived and incompetent after 18 years of consolidation operations.
The plea that the Circular can be pressed into service even after delivery of possession also cannot be countenanced because the Circular does not show that this can be done even if an adjudication has intervened and finalized in relation to allotment after publication of the scheme under Section 20 of the Act. If this is permitted then such an objection can be raised at any point of time before publication of Section 52 which is not the intendement of the legislature. The allotment proceedings having been finalized and the revisions having been decided as noted by the Deputy Director of Consolidation in the impugned order, I see no ground for interference.
The writ petition lacks merit and is accordingly dismissed.
Dt. 29.3.2012 Sahu