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2003 DIGILAW 1768 (ALL)

Mohd. Mustafa v. State of U. P.

2003-08-06

ASHOK BHUSHAN

body2003
JUDGMENT : ASHOK BHUSHAN, J. 1. Heard counsel for the Petitioner. 2. By this writ petition, the Petitioner has prayed for quashing the order dated 16th July, 2003, passed by Deputy Director of Consolidation and the order dated 7th April, 2001, passed by Settlement Officer of Consolidation. 3. Brief facts of the case as stated in the writ petition are: Petitioner was allotted chak in consolidation proceedings held in the village. Petitioner filed a belated objection before the Consolidation Officer praying that he be allotted chak on plot No. 4389 and others plots which were bachat land of Gaon Sabha. The Consolidation Officer allowed the objection of the Petitioner vide order dated 9th August, 1995 by which Petitioner was given chak on bachat land of Gaon Sabha and plot No. 4389. An appeal was filed by Respondent No. 5 against the aforesaid order of Consolidation Officer. In the appeal it was prayed that Appellant be given chak on his original holding. Objection was filed in the appeal by the Petitioner that the appeal filed by the Appellant is not maintainable. It was stated that notification u/s 52 of U.P. Consolidation of Holdings Act (hereinafter referred to as the Act) was already made on 7th March, 1998 and the appeal which was filed after de-notification is not maintainable. It was further sated that Appellant is not aggrieved person and has no right to file an appeal. The Settlement Officer of Consolidation vide order dated 7th April, 2002, condoned the delay in filing the appeal and held the appeal to be maintainable. The Settlement Officer of Consolidation fixed date for hearing of appeal on merits. Against the order dated 7th April, 2001, revision was filed by the Petitioner which has been rejected by the order of Deputy Director of Consolidation dated 16th July, 2003. Present writ petition has been filed challenging the aforesaid orders of Settlement Officer of Consolidation and Deputy Director of Consolidation. 4. The counsel for the Petitioner challenging the aforesaid orders contended that appeal filed by Respondent No. 5 was not maintainable. He placed reliance on judgments of this Court in Bala Prasad v. District Deputy Director of Consolidation, Banda and others, 2003 (94) RD 405 and Smt. Sukhjinder Jeet Kaur and Others Vs. Deputy Director of Consolidation and Others, (2003) 2 AWC 943 . He placed reliance on judgments of this Court in Bala Prasad v. District Deputy Director of Consolidation, Banda and others, 2003 (94) RD 405 and Smt. Sukhjinder Jeet Kaur and Others Vs. Deputy Director of Consolidation and Others, (2003) 2 AWC 943 . It was further contended that village having been notified u/s 52 of the Act appeal was not maintainable. 5. I have considered the submissions and perused the record. 6. The first submission of counsel for the Petitioner is with regard to locus of Respondent No. 5 to file an appeal. U.P. Consolidation of Holdings Act is a Special Act giving right to tenure holders of village at various stages to file objection, appeal and revision. Right of objection is given to a person to whom notice u/s 9 (1) of the Act is given or any other person interested. Section 11 of the Act as amended upto date provides that any party to the proceedings u/s 9A, aggrieved by an order of the Assistant Consolidation Officer or Consolidation Officer, may file an appeal. Sections 9 and 11 of Act are quoted below: 9. Issue of extracts from records and statements and publication of records mentioned in Sections 8 and 8A and the issue of notices for inviting objections.-(1) Upon the preparation of the records and the statements mentioned in Sections 8 and 8A, the Assistant Consolidation Officer shall: (a) ... ... .... (b) publish in the unit the current khasra and the current annual register, the khasra chakbandi, the Statement of Principles prepared u/s 8A, and any other records that may be prescribed to show, inter alia, the particulars referred to in Clause (a). (2) Any person to whom a notice under Sub-section (1) has been sent, or any other person interested may, within 21 days of the receipt of notice, or of the publication under Sub-section (1), as the case may be, file, before the Assistant Consolidation Officer, objection in respect thereof disputing the correctness or nature of the entries in the records or in the extracts furnished therefrom, or in the Statement of Principles, or the need for partition. 11. 11. Appeals.-(1) Any party to the proceedings u/s 9A, aggrieved by an order of the Assistant Consolidation Officer or the Consolidation Officer under that section, may within 21 days of the date of the order, file an appeal before the Settlement Officer, Consolidation who shall after affording opportunity of being heard to the parties concerned, give his decision thereon which, except as otherwise provided by or under this Act, shall be final and not be questioned in any court of law. (2) The Settlement Officer of Consolidation, hearing an appeal under Sub-section (1) shall be deemed to be a court of competent jurisdiction, anything to the contrary contained in any law for the time being in force notwithstanding. 7. Chapter III of the Act provides for preparation of consolidation scheme. Section 20 of Act provides for publication of the provisional Consolidation Scheme and receipt of objections thereon. Section 20 (3) of the Act is quoted as below: 20. Publication of the provisional Consolidation Scheme and receipt of objections thereon.-(1) ... (3) Any person affected, or any person having 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 19A, 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. 8. By Sub-section (3) of Section 20 of the Act ample right of objection has been given to 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 19A. Objection contemplated under Sub-section (3) of Section 20 can also be an objection with regard to any public land. Any tenure holder can also file objection claiming any right pertaining to a public land. By order of Consolidation Officer the Petitioner was given chak on a bachat land which belong to Gaon Sabha and since the Appellant has claimed in his appeal that he is in possession of the aforesaid public land, it cannot be said that he has no locus to file appeal. By order of Consolidation Officer the Petitioner was given chak on a bachat land which belong to Gaon Sabha and since the Appellant has claimed in his appeal that he is in possession of the aforesaid public land, it cannot be said that he has no locus to file appeal. The decision of this Court relied by counsel for the Petitioner in Smt. Sukhjinder Jeet Kaur's case (supra), was a case in which the Court had occasion to consider the right of appeal u/s 11 (1) of the Act. 9. Section 11 (1) provides that any party to the proceedings u/s 9A aggrieved by an order of Assistant Consolidation Officer may file an appeal. Section 21 (2) which provides right of filing an appeal is not hedged by any such condition that person appealing must be party in appeal. In the aforesaid judgment, this Court held in paragraph 13: "13. The aforesaid section clearly provides that no appeal and no application for revision shall lie from the any order passed under the Act except as provided by or under the Act. Thus, all the appeals filed by the State Government, in which the State Government, admittedly, was not a party to the proceedings before the Assistant Consolidation Officer, after six years against the order passed by Assistant Consolidation Officer, the Settlement Officer, Consolidation acted illegally and in excess of his jurisdiction in entering the said appeals." 10. The aforesaid judgment, thus, does not help the Petitioner since that was a case relating to appeal u/s 11 of the Act. Another judgment relied by counsel for the Petitioner in Bala Prasad's case (supra), was also a case which considers appeal u/s 11. Same view was taken by this Court in Bala Prasad's case (supra). The said judgment also does not help the Petitioner since in that case also the Court was considering the scope of Section 11 (2). 11. From the scheme of the Act, it is clear that appeals u/s 21 (2) of the Act can be filed by a person who was not even party before the Consolidation Officer when chak objections were decided. Section 21 (2) only provides that person must be aggrieved by the order. 11. From the scheme of the Act, it is clear that appeals u/s 21 (2) of the Act can be filed by a person who was not even party before the Consolidation Officer when chak objections were decided. Section 21 (2) only provides that person must be aggrieved by the order. Respondent No. 5, in the present case, is claiming to be aggrieved by order of Consolidation Officer since he states that he is in possession of the bachat land which has now been allotted to the Petitioner. Thus, the appeal at the instance of Respondent No. 5 cannot be said to be not maintainable. It may be true that at the time of final hearing the Court may take the view that none of the rights of the Appellant has been affected by allotment made by Consolidation Officer but at this stage, it cannot be said that appeal is not maintainable. Further, the Settlement Officer of Consolidation has condoned the delay in filing the appeal. The discretion has been exercised by Settlement Officer of Consolidation in condoning the delay which need no interference by this Court. The Deputy Director of Consolidation has rightly rejected the revision filed by the Petitioner against the order of Settlement Officer of Consolidation. 12. The submission of counsel for the Petitioner that after denotification appeal was not maintainable cannot be accepted. This Court in several judgments has taken the view that even after de-notification appeal or revision can be filed with the aid of Section 5 of the Limitation Act. After considering earlier judgment this Court in Abdul Karim v. Deputy Director of Consolidation, Basti and others, 2003 (1) AWC 504, has taken the view that appeal can be filed even after de-notification u/s 52 of the Act. 13. The order of Settlement Officer of Consolidation impugned in the writ petition is an order by which delay in filing the appeal has been condoned and appeal has been fixed for hearing on merits. The Deputy Director of Consolidation has taken correct view of the matter and rightly rejected the revision. No grounds have been made out warranting interference by this Court under Article 226 of Constitution of India. 14. The writ petition lacks merit and is summarily rejected.