AJAY KUMAR DWIVEDI v. DEPUTY DIRECTOR OF CONSOLIDATION, HARDOI
2010-05-07
YOGENDRA KUMAR SANGAL
body2010
DigiLaw.ai
JUDGMENT Hon’ble Yogendra Kumar Sangal, J.—Heard learned counsel for the petitioner, learned Standing counsel for the respondent No. 1 and perused the record. 2. By means of the instant writ petition, the petitioner has prayed for direction in the nature of Certiorari for quashing the impugned order dated 18.1.1990 passed by the Deputy Director of Consolidation (hereinafter referred to as the ‘D.D.C.’) order dated 2.6.2004 passed by the Tehsildar, Sandila on Mutation Application and also order dated 2.3.2007 passed in Case No. 18 of 2007 Shri Narayan Vs. State of U.P., passed by the Pargana Adhikari, Sandila, Hardoi in Proceedings under Section 143 of the Land Revenue Act. 3. This dispute relates to land of plot No. 101, area 10 Bigha 20 Biswa, new Plot Nos. 722 & 723 situated in village Meeto, Pargana and Tehsil Sandila, district Hardoi. New area of this new plot No. 723 is 9 Bigha 4 Biswa & 10 Biswansi. As per record the land of plot No. 101 was recorded as Pausture land of the village. Petitioner claimed himself a village member and stated that he has right to challenge the impugned judgment in this Court by filing the writ petition, as he came to know that impugned judgments were obtained playing fraud and concealing the material facts by the opposite party No. 3. 4. Learned counsel argued that opposite party No. 2 moved an application on 15.03.1989 before the D.D.C. for making the Reference under Section 48(3) of U.P. Consolidation of Holdings Act regarding plot No. 101 referred above. The said application was endorsed to Settlement Officer Consolidation who forwarded the same to Consolidation Officer for preparing the Reference. Consolidation Officer submitted a report before the S.O.C who forwarded the same to D.D.C. on 6.6.1989. D.D.C. was pleased to reject the Reference on 14.6.1989. It is further argued that later on another application was moved by the respondent No. 2 after seven months before the then D.D.C. concealing the material fact that Reference has already been rejected. On this Reference Application on 18.1.1990 the impugned order allowing the Reference was passed by the D.D.C., although learned D.D.C. was not having power to review its previous order. On the basis of the order on the Reference, opposite party No. 2 deeming right in him has transferred the said plot in question to opposite party No. 3 on high price for illegal gain.
On the basis of the order on the Reference, opposite party No. 2 deeming right in him has transferred the said plot in question to opposite party No. 3 on high price for illegal gain. Opposite party No. 3 was intending to install a Petrol Pump there on the land. He get mutated his name in the Revenue Record and moved application under Section 143 of U.P.Z.A. & L.R. Act to get declared the land of plot as Abadi land. This application was allowed and entries made in the revenue record. To usurp the Gram Sabha land and to install the Petrol Pump on Pasture land, this all was done. Respondent No. 3 applied for license of Petrol Pump before the opposite party No. 8 submitting the forged papers. To challenge all these proceedings, reference and orders, this Writ Petition has been filed. 5. How the petitioner was aggrieved from the impugned orders and what is his locus standi to file the writ petition, it is not clear from the contents of the writ petition. He simply said that he is village member and has right to challenge the impugned orders. From the facts narrated in the writ petition, it is clear that he himself has stated that only to cause irreparable loss to Gram Sabha of village Meeto, all this was done by the respondent Nos. 2 & 3. No opportunity of hearing was provided by the D.D.C. to Gaon Sabha Meeto in the matter and also the Gram Sabha was not impleaded as party in the proceedings of Reference. This shows that the Gram Sabha could be the aggrieved party by the impugned order of D.D.C. but the Gaon Sabha has not filed this writ petition. 6. As the land is recorded Pasture land so mater relates with the Gaon Sabha of the village. Record shows that Umesh Chand, village Pradhan has reported that if the land is allotted to Merazul Hasan/respondent No. 2 he has no objection. He has also filed an Affidavit in support of it. Lalta Prasad, a member of the committee of Consolidation scheme has also supported this version by his affidavit.
Record shows that Umesh Chand, village Pradhan has reported that if the land is allotted to Merazul Hasan/respondent No. 2 he has no objection. He has also filed an Affidavit in support of it. Lalta Prasad, a member of the committee of Consolidation scheme has also supported this version by his affidavit. Up-Pradhan has also not objected this allotment and a resolution was passed by the Gaon Sabha in this regard, where it is specifically mentioned that the land in dispute is now not being used as Pasture land and there is other land in the village in such use. 7. Seeing all these facts, Deputy Director of Consolidation have passed the impugned order dated 18.1.1990. When the Gaon Sabha of the village has no objection in allotment of the land to respondent No. 2, how the petitioner could be taken aggrieved person from the impugned order, it is not clear from the record. In case Kripa Shankar Tripathi v. Deputy Director of Education, (1997) UPLBEC 538, Apex Court held that before invoking the writ jurisdiction under Article 226 of the Constitution of India, the petitioner must satisfy the Court that a legal right exist in his favour which has been invaded or infringed. In absence of existence of a legal and enforceable right in his favour, the petitioner is not entitled to get any writ or direction issued in his favour under Article 226 of the Constitution of India. 8. In the present case also the petitioner does not possess any enforceable legal right in himself hence this Court is not required to futile attempt to judge the correctness or otherwise of the action or order of the authority concerned because such an attempt will be purely academic and of no consequence. In another Full Bench decision of this Court in AIR 1951 All 1 , only those persons whose interests are directly affected by the Statute or an order can apply for redress under Article 226 of the Constitution of India. This shows that it is the interest of the petitioner, must be directly affected by the order impugned.
In another Full Bench decision of this Court in AIR 1951 All 1 , only those persons whose interests are directly affected by the Statute or an order can apply for redress under Article 226 of the Constitution of India. This shows that it is the interest of the petitioner, must be directly affected by the order impugned. It is established Law that the powers in extraordinary jurisdiction envisaged under Article 226 of the Constitution of India should be sparingly used and only in those cases where a right of a person has been seriously infringed and he has no other adequate and specifically remedy available to him. 9. Another important aspect of the case is to be seen that one of the impugned order dated 18.1.1990 was passed by the Deputy Director of Consolidation is about more than 20 years old which is being challenged on behalf of the petitioner in this Court. There is inordinate unexplained delay in presenting this writ petition. It is established law that such writ petition should have been moved within a reasonable period. In State of Madhya Pradesh v. Bhai Lal Bhai, AIR 1964 SC 1006 , Apex Court held that to see what is the reasonable period , maximum period fixed by the legislature as time within which relief by a suit in civil Court must be brought ordinarily be taken to a reasonable standard by which delay in seeking relief under Article 226 of the Constitution of India can be measured. In some cases, the Court may consider in reasonable time even if it is less than the period of Limitation prescribed for a civil action in the remedy but where the delay is more than this period, it will almost always be proper for the Court to hold that it is unreasonable. In another case, State of Madhya Pradesh v. Nand Lal, AIR 1964 SC 1006 : AIR 1987 SC 251 , it was held that when there was considerable delay in filing the writ application and in the intervening period, the respondent who was granted license for manufacturing and the sale of country-liquor, acquired land, constructed distillery building purchased, plan and knowledge towards the setting of Distillery, delay cannot be condoned. 10. In the present case, also from the facts detailed in the writ petition itself, it is clear that respondent Nos.
10. In the present case, also from the facts detailed in the writ petition itself, it is clear that respondent Nos. 2 & 3 had taken certain steps for the use of the land in dispute. They get declared the land as Abadi land under Section 143 of the U.P.Z.A. & L.R. Act. Name of respondent No. 3 has also been mutated in the revenue record. He had taken steps to get installed Petrol Pump in it. Gram Sabha is party in the present case. Copy of the writ petition also given to the counsel for the Gaon Sabha. None appeared on behalf of the Gram Sabha to support the case of the petitioner. As he has no locus-standi to file the writ petition, and also there is inordinate unexplained delay of about twenty years in filing the writ petition for challenging the order of 1990 also, no interference of this Court is required. Almost on the same principle prayer to quash other orders also ,cannot be granted to petitioner. It is also clear from the record that the writ petition has not been filed bonafidely and the petitioner has not approached this Court with clean hands. It is established law that this Court should exercise its jurisdiction under Article 226 of the Constitution of India in granting cases where the subordinate Courts/Officers act wholly without jurisdiction or in excess of it or in-violation of Principle of Natural Justice or refused to exercise its jurisdiction vested in it or there is apparent error resulted in manifest injustice, hence the writ petition is hereby dismissed. ————