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2004 DIGILAW 485 (ALL)

Fateh Singh v. Deputy Director of Consolidation

2004-03-04

JANARDAN SAHAI

body2004
JUDGMENT : JANARDAN SAHAI, J. 1. The facts of this case lie in a narrow compass. Plot No. 991 was recorded as banjar land of the Gaon Sabha. Brijendra Singh the Petitioner's father filed an application before the Consolidation Officer alleging that this plot lies in the midst of his plots and therefore after determining its valuation it may be allotted in his chak. The Consolidation Officer accepted his prayer and made the allotment on 16.4.1989. According to the Respondent No. 4 the Gram Sabha and the Respondent No. 5, Badley Singh, the inhabitants of the village had a right of passage over the said plot No. 991 but the Petitioner's father who happened to be the Pradhan of the village and also the Chairman of the Consolidation Committee misused his position and got the valuation of this plot of the Gaon Sabha fixed at 40 paisa only in contrast to the valuation of 100 paisa of the adjoining plots. He then obtained its allotment to himself. This fraud was not noticed by the inhabitants until the Petitioner recently started making constructions over the plot, blocking the passage. The Respondent No. 5 Badley Singh then rushed to the Consolidation Officer and filed objections u/s 20 of the U.P. Consolidation of Holdings Act on 28.2.2001 claiming a right of passage of the inhabitants of the village over the plot. In the circumstances, the objections were delayed. The Consolidation Officer by his order, dated 30.5.2002 condoned the delay. On merits the objections are still pending adjudication before the Consolidation Officer. The appeal before the Settlement Officer, Consolidation by the Petitioner was dismissed on 25.11.2002 and the revision too was dismissed by the Deputy Director of Consolidation on 16.1.2003 giving rise to Writ Petition No. 5083 of 2003. In addition to the objections, the Respondent No. 5 also preferred an appeal before the Settlement Officer of Consolidation directly against the order of the Consolidation Officer dated 16.4.1989. In the appeal too a prayer for condoning the delay was made. The appeals were allowed by the Settlement Officer, Consolidation by his order dated 25.11.2002. Revision by the Petitioner was unsuccessful and was dismissed by the Deputy Director of Consolidation on 16.1.2003. These orders are the subject matter of challenge in Writ Petition No. 5082 of 2003. In the appeal too a prayer for condoning the delay was made. The appeals were allowed by the Settlement Officer, Consolidation by his order dated 25.11.2002. Revision by the Petitioner was unsuccessful and was dismissed by the Deputy Director of Consolidation on 16.1.2003. These orders are the subject matter of challenge in Writ Petition No. 5082 of 2003. Both the writ petitions raise common questions of law and facts and are being decided by a common judgment. 2. I have heard Sri. G.N. Verma, counsel for the Petitioner and Sri. S.N. Singh counsel for the Respondent. 3. A wide range of submissions have been made by Sri. G.N. Verma counsel for the Petitioner. It is contended that the appeal filed by the Respondent No. 5 Badley Singh was not maintainable firstly because an appeal can be filed only by a party and the Respondent No. 5 was not a party before the Consolidation Officer and secondly because he is also not aggrieved because the order of the Consolidation Officer, dated 16.4.1989 brought about a change of the valuation of the plot of the Gaon Sabha with which the Respondent No. 5 has no concern. He relied upon certain authorities. They are: Smt. Sukhjinder Jeet Kaur and Others vs. Deputy Director of Consolidation and Others, (2003) 2 AWC 943 , Radhey Shyam vs. Kamla Shanker and Others, 2003 (94) RD 227 and Bala Prasad vs. Dy. Director of Consolidation, Banda and Others, 2003 (94) RD 405. It has been held in these decision that u/s 11 of the U.P. Consolidation of Holdings Act it is only a party who can prefer an appeal. The decisions cited really have no application to this case. The appeal against the order of the Consolidation Officer dated 16.4.1989 was filed u/s 9B(3) of the Act. That provision does not confine the right of appeal to a party. Rather the remedy is made available to a "person aggrieved.". Section 9B(3) of the Act provides for appeal against the statement of principles. In the appeal the Respondent Badley Singh did not challenge any provision for reservation of land for road or for other public utility nor the position of any existing road nor any other provision in the statement of principles. What was challenged was an allotment order of a land of the Gaon Sabha on the ground that there was a public passage over it. What was challenged was an allotment order of a land of the Gaon Sabha on the ground that there was a public passage over it. Section 9B(3) therefore, has no application. The Petitioner was allotted land of the Gaon Sabha under the provisional consolidation scheme in respect of which objections u/s 20 and appeal u/s 21(2) could be filed. u/s 21(2) of the Act also the right of filing an appeal has been given to a person aggrieved. The appeal of Badley Singh although filed u/s 9B(3) is maintainable not under that provision but u/s 21(2) of the Act. The fact that it is was filed under a wrong provision does not however affect its maintainability. It is in any case not necessary for a person to be a party for the purpose of an appeal either u/s 9B(3) or u/s 21 Sub-section (2) of the Act. The decisions, cited by counsel for the Petitioner have therefore, no application. 4. Coming now to the question whether Respondent No. 5 was a person aggrieved. The right which the Respondent No. 5 claimed over the disputed plot No. 991 was that the inhabitants of the village had a right of passage over it. This right he claimed in common with the other inhabitants of the village. Any person who was using such a passage would be directly aggrieved by the allotment of the land into the chak of a private tenure holder as it would affect his right of passage over the land. The Respondent No. 5 was therefore, a person certainly aggrieved by the allotment of the plot No. 991 into the chak of the Petitioner. The meaning of the expression 'a person aggrieved' can also be gathered from the provisions of Section 20 Sub-section (3) of the U.P. Consolidation of Holdings Act, which provides a right to file objection to any person affected or any person having any interest or right over any public land or a right substantially prejudiced by a declaration u/s 19A(2). As the right which the Respondent No. 5 claimed was a right of passage over public land, he was a person aggrieved. In Major Rameshwar Sahai vs. Deputy Director of Consolidation, 1973 AWR 238, the expression interested person used in Section 9 of the Act was interpreted. As the right which the Respondent No. 5 claimed was a right of passage over public land, he was a person aggrieved. In Major Rameshwar Sahai vs. Deputy Director of Consolidation, 1973 AWR 238, the expression interested person used in Section 9 of the Act was interpreted. It was held that every adult member in the village was entitled to raise objection in respect of Gaon Sabha property especially when it was alleged that the Gaon Sabha had colluded in the allotment of land or in the creation of leases. Usurption of public land can be open or subtle. It is open, such as in the case of a rank trespass but it is in a far more dangerous and subtle form, difficult to perceive when it is made as a settlement or allotment in collusion with persons who under the law are its very custodians. In such cases the act of allotment provides a legal cover to what really is an act of usurption. The definition of a person aggrieved in the context of public land cannot therefore, be narrowed down as the effect of that would be to shield trespassers over public property. The decision in Kanhaiya Lal vs. District Deputy Director of Consolidation, 1974 ALJ 552, that a stranger cannot file objections as he is not an interested person is distinguishable. That was not a case of a pubic land. However, even if two interpretations are possible one of which would safeguard public rights while the other would favour private rights, the interpretation that would safeguard public rights must be adopted. 5. The maintainability of the appeal of Respondent No. 5 was questioned on yet another ground that it was filed after the publication of the notification u/s 52 of the U.P. Consolidation of Holdings Act and therefore, not maintainable. The learned Counsel placed reliance upon the language employed in that section and contended that only pending cases are saved. Section 53B of the Act makes applicable the provisions of Section 5 of the Limitation Act to consolidation proceedings. In Shyam Narain Rai vs. Director of Consolidation, 1981 RD 307, it was held relying on a large number of cases that an application for restoration with an application u/s 5, Limitation Act can be filed after the issuance of a notification u/s 52. In Shyam Narain Rai vs. Director of Consolidation, 1981 RD 307, it was held relying on a large number of cases that an application for restoration with an application u/s 5, Limitation Act can be filed after the issuance of a notification u/s 52. In Hans Raj vs. Deputy Director of Consolidation, 1975 RD 5, which was relied upon in Shyam Narain Rai (supra), it was held that if an appeal or revision is filed after the notification u/s 52 along with an application u/s 5, Limitation Act consolidation authorities would have jurisdiction. 6. Counsel for the Petitioner relied upon a decision of this Court in Ram Niwaz vs. Consolidation Officer 1989 AWC 559 . This decision does not take into notice the provisions of Section 53B of the U.P. Consolidation of Holdings Act. The effect of an order condoning the delay in the filing of an application or appeal after a notification u/s 52 was not under consideration in this case. It is therefore, distinguishable. It has also not considered the case of Shyam Narain Rai and other decisions cited in that case. If the decision in Ram Niwaz is interpreted to mean that no restoration application, appeal or revision can at all be filed after the notification u/s 52, it would be directly in conflict with the ratio of the Division Bench decision in Ram Bahadur vs. Deputy Director of Consolidation and Others, AIR 1973 All 414 . The Division Bench relied upon a previous Division Bench in Dilawar Singh vs. The Gram Samaj and Others, AIR 1973 All 411 , in which it was held that "an appeal does not initiate a fresh proceeding. On the institution of the appeal the proceedings which had become dormant on the decision of the trial court revive and remain pending and that the notification u/s 52(1) does not have the effect of destroying vested rights of the litigants. For instance if a litigant has a right of appeal against a particular order, he can exercise it notwithstanding the publication of the notification u/s 52(1) and the moment an appeal is filed the effect in law is that the original proceedings stand revived". For instance if a litigant has a right of appeal against a particular order, he can exercise it notwithstanding the publication of the notification u/s 52(1) and the moment an appeal is filed the effect in law is that the original proceedings stand revived". In view of the fact that the right of appeal is a vested right and the U.P. Consolidation of Holdings Act makes applicable the provisions of Section 5 of the Limitation Act thereto, I am of the opinion that if an application for condoning the delay is allowed the difference in status between an appeal filed within time and that filed after the expiry of limitation would be obliterated and the appeal would be taken as a pending case on the date of the notification u/s 52(1) although in actual fact it may have been filed after the notification. 7. It was then contended by counsel for the Petitioner that only a very small portion of plot no. 991 has been allotted in the chak of the Petitioner and the proportion of this area to the size of the total chak of the Petitioner is negligible and that after passage of so much time the loss to the Gaon Sabha if any on account of determination of a lower valuation for its land can be compensated in terms of money. The argument is misconceived. The right which is being claimed is a right of passage of the inhabitants of the village and money compensation is not an adequate relief. The view taken by the authorities below is that while the valuation of the adjoining plots was said to be 100 paise, the valuation of the plot of the Gaon Sabha was got fixed at 40 paise by the father of the Petitioner who happened to be the Pradhan-a fact from which an inference has been drawn by the Settlement Officer, Consolidation that the order of allotment passed by the Consolidation Officer on 16.4.1989 appears to be collusive. The question of valuation is not of much importance. It is really the rights of the inhabitants for passage over the land which has to be determined. 8. The question of valuation is not of much importance. It is really the rights of the inhabitants for passage over the land which has to be determined. 8. The next contention of the counsel for the Petitioner is that the land of plot No. 991 has merged with the other plots of his land allotted in his chak and has lost its identity and it is no longer possible to demarcate or locate it. Suffice it to say that this exercise is to be conducted by the authorities when the case goes back to them and it is not necessary to express any opinion upon the point at this stage. 9. Another aspect of the case to which attention was drawn by Mr. Verma is that after the notification u/s 52 or even after confirmation of the consolidation scheme no chak road for any individual tenure holder can be allotted. u/s 52A(1) a chak road for the benefit of the general public can be provided even after denotification on a representation to the Collector by not less than 10% of the total tenure holders in the village. After the confirmation of the consolidation scheme and before denotification a chak road can however be provided u/s 48(3) of the Act for the benefit of the general public but in such a case the guidelines in Section 52A(4)(a) and (b) ought to be followed. Reliance is placed upon Udai Bhan Dubey vs. Sahayak Sanchalak, Chakbandi, 1982 RD 246, in support of this submission. This contention is also misconceived. It is clear from the objections of Badley Singh the Respondent No. 5 before the Consolidation Officer that what was claimed was that there was an existing "aam rasta" (public rasta for the inhabitants of the village) through the Gaon Sabha plot which was allotted to the Petitioner. 10. Apart from providing the chak roads for which legal provision has been made at different stages of the consolidation operation, namely: (1) in the statement of principles u/s 8A of the Act, (2) the decision on the demand of a tenure holder in objections u/s 20 of the Act, (3) u/s 48(3) of the Act, and (4) u/s 52A for the general public after the de-notification the Consolidation of Holdings Act also recognises the customary village pathways existing since before the commencement of consolidation operations in the village. Rule 24A (i), Clauses (ii) and (iii) provide that the map accompanying the statement shall show the existing roads and the additions and alterations proposed. Sub-rule (2) of Rule 24A provides for reservation of land for roads, village and inter village rastas. 11. Land vesting in the Gaon Sabha which is used for a public purpose can no doubt be allotted to a tenure holder u/s 19A of the Act but only subject to compliance of the condition laid down in the proviso of Sub-section (2) thereof of a declaration by the Assistant Consolidation Officer that the rights of the villagers have been transferred to the land earmarked for that purpose in the statement of principles. If Gaon Sabha land is used as a public passage it would be a user for a public purpose. A customary village pathway would be a land used for a public purpose and rights over it can be transferred to another land u/s 19A. The feasibility for such transfer has to be considered on the facts of each case. Thus, if it is found that the village pathway or passage extends far beyond a particular Gaon Sabha plot, the effect of the allotment of a portion of the passage to a tenure holder would have to be considered in the light of inconvenience to be faced by the villagers. There is nothing to show at this stage that compliance of the proviso to Sub-section (2) of Section 19A of the U.P. Consolidation of Holdings Act was made when the Gaon Sabha plot was allotted to the Petitioner. However, it would be open to the Petitioner to put forward his case in this regard before the consolidation authorities after the remand of this case to them. 12. It was submitted by Sri. Verma that the application u/s 5 of the Limitation Act filed by the Gaon Sabha was allowed by the Consolidation Officer on the same day on which it was filed and no opportunity to contest the application was given to the Petitioner. Suffice it to say that the matter has engaged the attention of the Settlement Officer of Consolidation in appeal where the Petitioner was given full opportunity to press his case. Suffice it to say that the matter has engaged the attention of the Settlement Officer of Consolidation in appeal where the Petitioner was given full opportunity to press his case. The Petitioner's father happened to be the Pradhan of the village and according to the Respondent No. 5 the allotment was clandestine and collusive as evident from the low rate at which the plot was valued and allotted to the Petitioner and it was only when the Petitioner started constructing a house over the plot that the rasta came to be actually obstructed whereafter the objections were filed. In the circumstances the view taken by the Settlement Officer, Consolidation and the Deputy Director of Consolidation on the point of condoning the delay appears to be correct and does not call for interference in exercise of equitable jurisdiction under Article 226 of the Constitution of India. 13. The question of limitation can be examined from another angle. The right of passage over a customary village pathway on Gaon Sabha land or for that matter any other right over land of the Gaon Sabha used for any other public purpose would extinguish under the proviso to Sub-section (2) of Section 19A only when these rights are transferred over land earmarked under the statement of principles. In the case of a pathway it would be a transfer of the right of passage to a road provided under the statement of principles. Till such time the rights are transferred they do not extinguish and continue on the land over which they were being originally exercised. In fact the allotment can be made only after the rights are transferred. Till then the allotment even if made remains under jeopardy. The right of the public as well as of individuals over the land used for a public purpose but included in a chak of a tenure holder would cease in view of the consequences which ensue u/s 30(d) of the Act. One interpretation which would be in favour of the allottee tenure holder could be that once the Gaon Sabha land used for a public purpose is allotted to a tenure holder the previously existing public rights would extinguish. Such an interpretation does not appear to be correct because the condition u/s 30(d) is that the allotment must follow the declaration in the proviso to Section 19A(2). Such an interpretation does not appear to be correct because the condition u/s 30(d) is that the allotment must follow the declaration in the proviso to Section 19A(2). If the declaration transferring the rights is not made it follows that the rights would remain on the land on which they were being exercised. In the absence of any proof of transfer of the rights by such a declaration no question of limitation really arises as the right does not cease. This interpretation of Section 19A and Section 30(d) of the Act safeguards the interest of the public and appears to be the correct interpretation and as I have already observed that even where two interpretations are possible in case of conflict, that interpretation is to be adopted which safeguards public rights in preference to private ones. 14. The exercise which the Consolidation Officer will now have to conduct would be to determine whether Respondent No. 5 and the other inhabitants have a right of passage over plot No. 991 and in case it is determined that they do have such a right, whether the proviso to Sub-section (2) of Section 19A has been complied with. If it is found that Respondent No. 5 and the villagers do not have any right of passage over plot No. 991, the order of allotment made in favour of the Petitioner will not be disturbed. On the other hand, if it is found by the Consolidation Officer that Respondent No. 5 and the other inhabitants do have a right of passage over that plot and the proviso of Sub-section (2) of Section 19A of the U.P. Consolidation of Holdings Act has not been complied with, it will be open to the Consolidation Officer to consider whether the public rasta be maintained over the plot and the allotment be cancelled or the right should be transferred to some other land which has been reserved in the statement of principles as provided in the proviso to Sub-section (2) of Section 19A of the U.P. Consolidation of Holdings Act. 15. With these directions, the writ petition is disposed of.