Sobhnath v. Deputy Director of Consolidation, Varanasi
1988-10-05
K.P.SINGH
body1988
DigiLaw.ai
ORDER K.P. Singh, J. - By means of this writ petition the petitioner has prayed for quashing the judgment of the revisional Court dated 31-7-1986, contained in Annexure VII attached with the writ petition, which arises out of proceedings under S. 42A of the U. P. Consolidation of Holdings Act (hereinafter referred to as the Act) as is evident from Annexure I attached with the writ petition. 2. Shorn of unnecessary details, the petitioner's application giving rise to the proceedings under S. 42A of the Act, was rejected on 8-10-1984 (see Annexure II). On 9-10-1984 the petitioner applied f for setting aside the order dated 8-10-1984 on the ground that it was passed without hearing the petitioner. The application appears to have been allowed on 30-4-1985 vide Annexure V I attached with the writ petition. Thereafter the contesting opposite party preferred a revision petition against the order dated 30-4-1985 which has been allowed by the revisional Court on 31-7-1986. A certified copy of the judgment has been attached with the writ petition. Aggrieved by the judgment of the revisional Court, the petitioner has approached this Court under Article 226 of the Constitution. 3. A preliminary objection has been raised on behalf of the contesting opposite party that this writ petition is not maintainable. The petitioner is not at all interested in the subject matter of litigation as he himself has prayed for recording the name of Gaon Sabha over the disputed land as is evident from Annexure I attached with the writ petition. 4. The learned counsel for the petitioner has replied that the disputed land is in the nature of Talab (Jalashay) therefore, the petitioner has enough interest in the disputed land and is fully entitled to maintain the writ petition. It has also been suggested that the petitioner was an heir of originally recorded persons and a prayer has been made to record their names, therefore, the petitioner has enough locus standi to maintain the writ petition. 5. The learned counsel for the contesting opposite party has placed reliance upon the ruling reported in 1983 Rev Dec 75 , Gaon Sabha v. Deputy Director of Consolidation Gyanpur, Varanasi wherein a learned single Judge of this Court has emphasised that a person without any authority of Gaon Sabha cannot litigate on behalf of the Gaon Sabha.
5. The learned counsel for the contesting opposite party has placed reliance upon the ruling reported in 1983 Rev Dec 75 , Gaon Sabha v. Deputy Director of Consolidation Gyanpur, Varanasi wherein a learned single Judge of this Court has emphasised that a person without any authority of Gaon Sabha cannot litigate on behalf of the Gaon Sabha. The learned single Judge earlier also in 1982 All LJ 76, Sita Ram v. D.D.C. had indicated that a person without the authority of Gaon Sabha could not initiate legal proceedings on behalf of the Gaon Sabha or for the benefit of Gaon Sabha in view of the provisions of Para 128 of the Gaon Sabha Manual. 6. The learned counsel for the petitioner has emphasised that the petitioner being' resident of the village and the disputed land being Talab, the petitioner had sufficient locus standi to maintain the writ petition. Moreover, it has also been emphasised that the petitioner had prayed for recording the name of the originally recorded tenure holder whose heir the petitioner may be, therefore, the writ petition should not be thrown out on the ground that the petitioner had no right to maintain the writ petition. 7. After weighing the contentions raised on behalf of the parties, I think that the preliminary objection has force in this case. It is evident from the perusal of Annexure I itself that the disputed land was recorded in the name of Gaon Sabha as back as the year 1965. The application giving rise to the present writ petition was moved by the petitioner in the year 1982, therefore, after a lapse of 17 years, the petitioner can have no case for the land being recorded in the name of the originally recorded tenure holder. If the petitioner really had any interest in the disputed land being related to the originally recorded tenure holder, he could have put forward his claim within limitation much before. Therefore, the petitioner's contention in this regard is not sustainable due to the petitioner's claim, if any, being barred by time and having come to an end long long ago. 8. As regards the petitioner's claim for entry of the name of Gaon Sabha over the disputed land, it is sufficient to observe that in view of the above quoted ruling the petitioner cannot plead in the name of the Gaon Sabha.
8. As regards the petitioner's claim for entry of the name of Gaon Sabha over the disputed land, it is sufficient to observe that in view of the above quoted ruling the petitioner cannot plead in the name of the Gaon Sabha. Therefore, the writ petition has no legs to stand. 9. As regards the petitioner's claim that he being one of the residents of the village has got right in the disputed land which is in the nature of tank. I think that if the petitioner has any easementary right in the disputed land, he can seek his remedy by way of regular suit in a competent Court and he cannot Claim any relief under S. 42A of the Act on 'the basis of easementary right in the disputed land. S. 42A of the U. P. Consolidation of Holdings Act only provides for rectification 'of clerical mistake. It does not envisage ,investigation into question of title etc. Therefore, I think that the petitioner cannot maintain the writ petition on the ground that the has some right (easementary) in the ,disputed land. 10. On 8-10-1984 the petitioner's prayer contain in Annexure I was rejected with the observation that the application was not maintainable under S. 42A of the Act. The bare perusal of Annexure 1 indicates that the aforesaid application is not maintainable under S. 42A of the Act. By the impugned judgment of the revisional Court dated 31-7-1986 the aforesaid order dated 8-10-1984 has been restored. Therefore, on merits I think that substantial justice has been done between the parties by the impugned judgment. 11. Even if that order has been passed without hearing the present petitioner, he has not been able to justify that his application under S. 42A was entertainable or was maintainable. Therefore, I think that the petitioner cannot take legitimate exception to the order dated 8-10-1984 which has been maintained by the impugned judgment dated 31-7-1986. The learned counsel for the petitioner has contended that under the provisions of S. 48 of the Act, the revisional court had very wide powers and could grant relief to the petitioner in view of the circumstance that the disputed land was wrongly allotted to opposite parties Nos. 2 and 3, therefore, the allotment of the disputed land after putting valuation on the same to the opposite parties Nos.
2 and 3, therefore, the allotment of the disputed land after putting valuation on the same to the opposite parties Nos. 2 and 3 should have been set aside by the revisional court. In this connection my attention has been drawn to the ruling reported in 1987 Rev Dec 66 : (1987 All U 357), Brij Bir Singh v. Dy. Director of Consolidation, Muzaffarnagar wherein a learned single Judge of this Court has emphasised that no man should be prejudiced by an act of the Court. The well-known maxim 'Actus Curiae Neminem Gravabit' has been quoted. In AIR 1972 Guj 148 , Soni Vrajlal Jethalal v. Soni Jadavji Govindji Hon'ble D. A. Desai, J., as he then was, has emphasised in Para. 8 of the ruling as below : " ....the inherent power has not been conferred upon the Court, it is a power inherent in the Court by virtue of its duty to do justice between the parties before it. One of the first-and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors, and when the expression 'the act of the Court' is used,. it does not mean merely the act of the Primary Court, or of any intermediate Court of appeal, but the act of the court as a whole from the lowest Court which entertains jurisdiction over the matter upto the highest Court which finally disposes of the case. It is the duty of the aggregate of those Tribunals to take care that no act of the Court in the course of the whole of the proceedings does an injury to the suitors in the Court" 12. My attention has been drawn to paras 79 to 83 of AIR 1988 SC 1531 , A.R. Antuley v. R.S. Nayak and it has been stressed that an act of the Court should not prejudice any man. In my opinion, the petitioner is not prejudiced by the act of the Court in any manner in the facts and circumstances of the present case. If the petitioner cannot plead the cause of Gaon Sabha and if the petitioner has not claimed his right within time being heir of originally recorded person, he cannot be permitted to urge that no man should be prejudiced at the hands of the Court. 13.
If the petitioner cannot plead the cause of Gaon Sabha and if the petitioner has not claimed his right within time being heir of originally recorded person, he cannot be permitted to urge that no man should be prejudiced at the hands of the Court. 13. In this connection it has been urged that the allotment of the disputed land to the opposite parties Nos. 2 and 3 was not in consonance with the law. The opposite parties Nos. 2 and 3 have succeeded in getting the disputed land allotted to them by committing forgery and exercising fraud upon the Court, therefore, it was incumbent upon the revisional court to rectify the erroneous allotment to the contesting opposite parties. I think that if the submission based on fraud and forgery has any substance, the Gaon Sabha can take legal proceedings in this regard before a competent Civil Court. Probe into this submission would involve investigation into questions of fact which cannot be done in the exercise of powers under Article 226 of the Constitution. Since the Gaon Sabha has an alternative remedy to challenge the allotment in favour of the contesting opposite parties by way of a competent suit, I do not think that the petitioner can challenge the impugned order of the revisional court on the basis that the allotment of land to the opposite parties Nos. 2 and 3 was the result of fraud and forgery, and the revisional court has failed to exercise jurisdiction vested in it by law in not rectifying the mistake specially when the petitioner has not been authorised to initiate proceedings by the Gaon Sabha concerned. 14. In view of what has been said above, this writ petition has no legs to stand and is accordingly dismissed at the admission stage after hearing the counsel for the parties.