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1997 DIGILAW 646 (ALL)

Bhagwati Prasad v. Dy Director Of Consolidation Varanasi

1997-05-27

R.K.MAHAJAN

body1997
JUDGMENT (1.) R. K. Mahajan, J. This writ petition is in the nature of certiorari quashing the order dated 25-5-92 passed by respondent No. 1. A prayer has also been made for issuance of writ of mandamus directing the Consolidation Officer, Gyanpur not to comply with the impugned order dated 25-5-92 passed by respondent No. 1. (2.) THIS is a very interesting and unusual case. It has long innings. Despite the judgment of this Court to allot land by virtue of sale-deed in favour of the petitioner and the matter has been dismissed in Special Leave Petition by the Hon'ble Supreme Court and the order passed by this Court again to com ply the earlier order of this Court, the petitioner is still groping in the dark and is unable to get justice. He is repeatedly knocking the door of the Court for justice but justice has been elusive to him. The brief facts of this case are as follows. It appears that the petitioner purchased five plots numbers 1295, 1320, 1321, 1350 and 1374 situate in village Hariaon, P. O. Bhadohi District Varanasi from one Rai Bahadur Singh and Smt. Deoki Kumari. The area mentioned in the registered sale-deed and the area found on the spot during consolidation operation at the time of "partal" are as follows: Plot No. Area as mentioned Area as found during in rega. sale deed consolidation operation at the time of Partal. 1295 biswas 8 dhoors biswas 1320 bighas 13 biswas and dhoors dhoors 1321 dhoors bighas 17 biswas and 15 dhoors 1350 bigha 18 dhoors bigha 3 biswas and 5 dhoors 1374 biswas biswas 5 dhoors (3.) IT appears that immediately after purchase of the plots, the subject-matter became controversy by enforcement of U. P. Imposition of Ceiling on Land Holdings Act and the prescribed authority treated the land as surplus. On 27-11-68 prescribed authority accepted the submission of the petitioner and ordered that the disputed plots will not be declared surplus treating it to be the land of Rai Bahadur Singh and held the petitioner to be a tenure-holder of these plots. The Consolidation proceedings started in. the village where the disputed plots were situated some time in the year 1964. The consolidation authorities on the application of the petitioner ordered the name of the petitioner to be recorded over the disputed plots. The Consolidation proceedings started in. the village where the disputed plots were situated some time in the year 1964. The consolidation authorities on the application of the petitioner ordered the name of the petitioner to be recorded over the disputed plots. Thereafter the petitioner filed an application dated 4-1-74 for preparing reference in order to get the valuation of the disputed plots which was rejected by the Deputy Director of Consolidation vide order dated 7-8-1975 and dropped the reference proceedings. The petitioner approached this Court by filing a writ petition being Civil Misc. Writ Petition No. 12861 of 1975 Bhagwati Prasad v. Dy. Director of Consolidation and others, which was allowed vide order dated 9-12-85 by holding that the order of the Prescribed Authority (Ceiling) dated 27-11-68 had be come final in which it was held that the petitioner was the tenure-holder of the disputed plots. The matter went to the Supreme Court and the Special Leave Petition was dismissed on 14-9-87. The petitioner thereafter approached the Consolidation Authorities for giving effect to the order of this Court dated 9-12-85 and it is alleged that the consolidation authorities again started harassing the petitioner by non complying the order dated 9-12- 85. On the application filed by the petitioner this Court directed the Deputy Director of Consolidation, Camp at Gyanpur vide order dated 27-1-92 to comply with the judgment of this court dated 9-12-85 by passing suitable orders regarding the entry of the name of the petitioner over the disputed plots by 30-4-92. The Deputy Director of Consolidation vide his order dated 25-5-92 has remanded the case to the Consolidation Officer to make fresh reference in the light of the observation made in the said order. In the impugned order dated 25-5-92, the Deputy Director of Consolidation held that the petitioner will get decreased area found on the spot and not the area given in the sale deed. He further observed that in respect of plots of which area has been increased on the spot, the petitioner will get the area mentioned in the registered sale-deed. Ag grieved by the said order of the Deputy Director of Consolidation dt 25-5-92, the petitioner has filed the instant writ petition. (4.) LEARNED counsel for the petitioner has submitted that the stand of the Deputy Director of Consolidation is contradictory. Ag grieved by the said order of the Deputy Director of Consolidation dt 25-5-92, the petitioner has filed the instant writ petition. (4.) LEARNED counsel for the petitioner has submitted that the stand of the Deputy Director of Consolidation is contradictory. The tenure-holder is entitled to get the area available on the spot in respect of a particular plot and not the area of increased or decreased as observed by the Deputy Director of Consolidation as such the impugned order is illegal, arbitrary and bad in law. He has further submitted that the respondents have no concern with the disputed plots and that their registered sale deeds are null and void. He has further submitted that since the matter regarding the title of the property has become final upto to the Supreme Court and if any sale or transaction was effected during the pendency of the writ petition, it' has no validity and it is hit by doctrine of lis pendense under Section 52 of the Transfer of Property Act, 1882. In the counter affidavit, the respon dents have denied the claim of the petitioner. (5.) SECTION 52 of the Transfer of Property Act runs as follows : "52. Transfer of property pending suit relating thereto.-During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under the decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. " (6.) AT this stage we cannot go into other factual aspects and is only concerned with the illegality which is apparent on the face of the record of the order of Deputy Director of Consolidation. In writ jurisdiction, the petitioner can always invoke the power if there is an abuse of process of law or if there is failure of extreme justice. In this case, the petitioner is not getting the justice and the consolidation authorities are not under standing import of the Consolidation Act. In writ jurisdiction, the petitioner can always invoke the power if there is an abuse of process of law or if there is failure of extreme justice. In this case, the petitioner is not getting the justice and the consolidation authorities are not under standing import of the Consolidation Act. The idea behind the Consolidation Act is to consolidate the land of the tenure-holders situated at different place in an one compact plot for better cultivation. The consolidation authorities are bound to measure the land on the spot mentioned in the sale-deed. In case the petitioner's plots are having an inferior quality and is given better plots to make his land compact then after comparing the value of the plot, the compact plot is formed. In this case it is inexplicable and it is beyond the principles of the consolidation law since what difficulty the consolidation authorities are facing. The consolidation authorities are directed to comply the order of this Court dated 9-12-85 and to measure the area in the sale-deed and allot the equivalent area according to the valuation under the Consolidation Act and Rules. The order of the Deputy Director of Consolidation that the petitioner is entitled if the area has been decreased on the spot then he will get the decreased area and if the area has been increased on the spot then he will get the decreased area as mentioned in the sale-deed is vague, unsustainable and is quashed. In case the land mentioned in the sale-deed has been allotted to somebody it can chased or the petitioner can be compensated by rules of valuation after locating the land mentioned in the sale-deed. The land mentioned in the sale-deed must be existing and must have been allotted to somebody. There is no difficulty to locate it. In the result, the writ petition succeeds and is allowed. The impugned order dated 25-5-92 (Annexure-5 to the writ petition) passed by the Deputy Director of Consolidation is quashed. The Deputy Director of Consolidation is directed to carve out the plots on the spot according to the sale-deed and allot them according to the Consolidation Act and Rules in the light of observation made above, within four months from the date a certified copy of this order is produced before him, otherwise the Deputy Director of Consolidation will proceed with for defiance of the court's order. The Deputy Director of Consolidation is further directed to ignore the objection of the respondents as the litigation between the petitioner and respondents had become final and carry out the direction of this court contained in this order as well as in the earlier order dated 9-12-85. Writ petition allowed.