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2012 DIGILAW 144 (ALL)

ANIL KUMAR v. STATE OF U. P.

2012-01-16

A.P.SAHI

body2012
JUDGMENT Hon’ble A.P. Sahi, J.—Heard Sri N.C. Rajvanshi, learned Senior Counsel for the petitioners, Sri D.D. Chauhan for the Gaon Sabha and the learned Standing Counsel for the State. 2. The petitioners have prayed for quashing of the order dated 3.11.2011 passed by Deputy Director of Consolidation and the order passed by Consolidation Officer on 30.8.2011 whereby the order passed in favour of the petitioners dated 8.4.2004 has been set aside restoring the entries of Plot No. 1, area 10.43 acre, in favour of respondent - Gaon Sabha as was available in the records at the commencement of the consolidation proceedings. 3. The background, in which the present proceedings have arisen, arose out of an objection filed by Babu Ram, the father of the petitioners on 9.5.1988 under Section 9-A (2) of the U.P. Consolidation of Holdings Act, 1953, claiming tenancy rights over the disputed land on the basis of a lease said to have been executed by the then Zamindar through his deputed official Kalicharan on 20.6.1947. It is alleged that the petitioners’ predecessor in interest came into possession over the said land immediately after the execution of the lease. It is also alleged that a revenue entry came to be made in the year 1952 which corresponds to 1359 Fasli immediately prior to the abolition of Zamindari. 4. It is undisputed that the first round of consolidation operations took place in the village in question in the 1960’s and they came to be finalized with the preparation of final settlement of records. It is admitted to the petitioners that during the first round of consolidation operation, no objections were filed as stated in paragraph No. 7 of the writ petition and the name of the Gaon Sabha describing the status of the land as “Usar” came to be recorded in the revenue records. 5. The second round of consolidation in the village commenced in 1983 where after objections were filed by Babu Ram, which has given rise to the present controversy. The petitioners allege that a report was called for on the said objection and the matter proceeded before the Consolidation Officer before whom Ram Narain appeared as a witness on behalf of Babu Ram. During the pendency of the objection, Babu Ram died on 18.12.2001 and the petitioners came to be substituted therein. The petitioners allege that a report was called for on the said objection and the matter proceeded before the Consolidation Officer before whom Ram Narain appeared as a witness on behalf of Babu Ram. During the pendency of the objection, Babu Ram died on 18.12.2001 and the petitioners came to be substituted therein. The Consolidation Officer vide order dated 8.4.2004 decided the said objection ordering that the name of the petitioners be recorded and the name of Gaon Sabha be expunged. 6. The mutation of the said order was not carried out and, as such, a writ petition was filed before this Court by the petitioners for endorsing the said order on which the following directions were issued on 30.5.2011 : “The petitioner has made a prayer for his mutation over Plot No. 1 Area 10.43 acres on the basis of an alleged order of the Consolidation Officer dated 8.4.2004. A certified copy of the order has also been placed before the Court which is taken on record. The petitioner shall now file an application before the Deputy Director of Consolidation, who shall enquire in to matter keeping in view the provisions of Sub-section (3) of Section 48 of the U.P. Consolidation of Holdings Act, 1953 and pass an appropriate order after giving opportunity of hearing to the parties within 8 weeks in accordance with law. With the aforesaid observations, the writ petition is disposed of.” 7. The petitioners appear to have approached the Collector, who directed the concerned authority to proceed in the matter. The District Government Counsel (Revenue) appears to have filed a revision assailing the order dated 8.4.2004 on behalf of the State contending that the order was erroneous and ex-parte and, therefore, the order of the Consolidation Officer should not be implemented and it should be set aside. 8. The Deputy Director of Consolidation passed an order on 30.8.2011 setting aside the order dated 8.4.2004 and directed the parties to appear before him. The Consolidation Officer also passed an order on 13.9.2011 that the parties should appear before the Deputy Director of Consolidation. 9. Sri Rajvanshi submits that once the order dated 8.4.2004 had been set aside on 30.8.2011, there remained nothing for the Deputy Director of Consolidation to proceed again and pass a fresh order on 3.11.2011. The Consolidation Officer also passed an order on 13.9.2011 that the parties should appear before the Deputy Director of Consolidation. 9. Sri Rajvanshi submits that once the order dated 8.4.2004 had been set aside on 30.8.2011, there remained nothing for the Deputy Director of Consolidation to proceed again and pass a fresh order on 3.11.2011. On merits, Sri Rajvanshi submits that the petitioners had filed additional evidence before the Deputy Director of Consolidation to demonstrate the bona-fides of the claim of the petitioners and had filed two Affidavits of those persons, who had allegedly witnessed the lease-deed said to have been executed by the Zamindar in favour of the petitioners. 10. Sri Rajvanshi also submits that these documents could have been filed before the Consolidation Officer if the matter would have been disposed of in terms of the directions issued by the Court on 30.5.2011 and 18.7.2011 in Writ Petition No. 32005 of 2011 and 38490 of 2011 respectively. 11. He further invites that attention of the Court to the entries contained in the revenue records to urge that the order of the Consolidation Officer dated 8.4.2004 is in conformity with law and the procedure adopted for setting aside the same is erroneous. Non-consideration of relevant evidence and the Affidavits that were filed at the stage of the Deputy Director of Consolidation has also vitiated the impugned order dated 3.11.2011. 12. Sri D.D. Chauhan vehemently opposed the petition and submits that the petitioners had played fraud by procuring the order dated 8.4.2004 from the Consolidation Officer without there being any right, title or interest in their favour. He further contends that the bar of Section 49 of the 1953 Act was clearly attracted and the objection filed by Babu Ram was not maintainable. He contends that the Gaon Sabha’s property was sought to be usurped with the collusion of the Consolidation Officer which has now been set right under the impugned order. The Deputy Director of Consolidation under the order of the High Court dated 30.5.2011 in Writ Petition No. 32008 of 2011 has rightly proceeded to exercise his powers under Section 48 of the U.P. Consolidation of Holdings Act, 1953, to decide the dispute which does not require any interference inasmuch as if the same is interfered with, the same would amount to restoring an incorrect position of the revenue entries. The petitioners cannot claim any title over the land as they are estopped from raising any such objection as submitted herein above. 13. Having heard learned counsel for the parties and after perusing the documents brought on record of the writ petition as well as the supplementary-affidavit, it appears that Babu Ram, father of the petitioners, had filed an objection under Section 9-A (2) praying for recording of his name and expunging the entries in favour of the Gaon Sabha over the land in dispute. The claim of Babu Ram was based on an alleged lease said to have been executed by the former Zamindar in the year 1947. The Consolidation Officer, on the basis of the said lease-deed and the statement of Ram Narain, who is alleged to have verified the signature of the Zamindar coupled with the statement of Rajesh Kumar, a Member of the Consolidation Committee, believed the claim of Babu Ram and also recorded a finding of possession in his favour. The said order was not being complied with when the petitioners appear to have filed Writ Petition No. 32008 of 2011 where a direction was issued to the Deputy Director of Consolidation to inquire into the matter and pass an order after hearing the parties concerned. Two other persons filed two separate writ petitions, being Writ Petition No. 32005 of 2011 where the petitioner is one Ram Prakash and the following order dated 30.5.2011 came to be passed by another Bench of this Court : “Heard learned counsel for the petitioner and learned Standing Counsel for the State. With the consent of the learned counsel for the parties and without expressing any opinion on the merits of the case, this writ petition is finally disposed of with liberty to the petitioner to file a representation before the respondent No. 2 Consolidation Officer, District Auraiya ventilating his grievance alongwith a certified copy of this order, in case any such representation is filed by the petitioner before him the same shall be considered and decided by the respondent No. 2 in accordance with law after affording opportunity of hearing to the Gaon Sabha within a period of six weeks from the date of production of certified copy of this order. “ 14, Later on, one Krishna Murari, petitioner in Writ Petition No. 38490 of 2011, also made the same prayer and it was disposed of on 18.7.2011 by the following order: “By means of the present petition, the petitioner has sought a writ, order or direction in the nature of mandamus commanding the respondent No. 2 to carry out the necessary correction in the Revenue record in the light of order passed in case No. 306 under Section 9A (2) of the U.P.Z.A. & L.R. Act. The contention is that the said order has attained finality. The writ petition is disposed of by providing that the Consolidation Officer, Auraiya will take an appropriate decision on the application filed by the petitioner to give effect to the order dated 8th of April, 2004, in accordance with law. It is made clear that if the said order dated 8th of April, 2004 has been in any manner varied, modified or set aside, the Consolidation Officer shall be free to pass an appropriate order accordingly.” 15. By these two orders, the Consolidation Officer proceeded to examine the claims of these two persons. 16. It, however, appears that the judgment dated 30.5.2011 in Writ Petition No. 32008 of 2011 filed by the petitioners was not brought to the notice of either of these two Courts. By virtue of this order, the direction issued was to the Deputy Director of Consolidation to exercise his powers under Section 48 of The Uttar Pradesh Consolidation of Holdings Act, 1953. It is in the aforesaid background that the District Government Counsel (Revenue) also filed a revision, which was registered and the Deputy Director of Consolidation proceeded in the matter in terms of the order dated dated 30.5.2011. The Deputy Director of Consolidation, therefore, accordingly assumed jurisdiction coupled with the directions of the High Court on the writ petition filed by the petitioners themselves. In this view of the matter, the contention raised by Sri Rajvanshi that the matter should have been decided by the Consolidation Officer in view of the earlier direction issued, cannot be sustained inasmuch as it is the petitioners themselves who had filed the Writ Petition No. 32008 of 2011 where directions were issued to the Deputy Director of Consolidation to decide the matter. 17. The first issue, which has to be taken notice of is the maintainability of the objection by Babu Ram. 17. The first issue, which has to be taken notice of is the maintainability of the objection by Babu Ram. Section 49 of the 1953 Act bars the proceedings of any title or claim with regard to tenancy rights over agricultural land, except in the matters of succession and co-tenancy, after the consolidation operations are over. In the present case, a clear finding has been recorded by the Deputy Director of Consolidation that the first round of consolidation had already taken place previously and the land came to be recorded as “Usar” in the Khata of the Gaon Sabha. This came to be maintained admittedly as per the claim of the petitioners till the commencement of second round of consolidation proceedings. The petitioners have admitted in paragraph No. 7 that their father Babu Ram was not permanently residing in the village and that he had allowed his cousin brother to cultivate the said land. No objection had been filed by Babu Ram during the first round of consolidation operations. In view of this admitted position, the petitioners or their predecessor in interest namely Babu Ram could not have filed any objection claiming title or possession over the land as against the Gaon Sabha in the second round of consolidation. The bar of Section 49 clearly operated against them. The Consolidation Officer, therefore, committed a manifest error by passing the order dated 8.4.2004 and the Deputy Director of Consolidation has not committed any error in setting aside the same on the aforesaid ground. 18. The submission of Sri Rajvanshi on merits that the Affidavits have not been considered may not be reflected in the impugned order but the fact that the statement of one Ram Narain has been recorded has been noticed by the Deputy Director of Consolidation and the finding recorded is that in view of the disclosure of his age at the time of his statement being recorded, the said witness was either not born or might have been an infant of 6 - 7 years of age in 1947 when the alleged lease-deed had been procured by the predecessor in interest by the petitioners. In such a situation, Ram Narain cannot be said to have any knowledge about the signature of the Zamindar and, therefore, his statement verifying the signature was an absolutely irrelevant and inadmissible evidence. In such a situation, Ram Narain cannot be said to have any knowledge about the signature of the Zamindar and, therefore, his statement verifying the signature was an absolutely irrelevant and inadmissible evidence. Accordingly, the Deputy Director of Consolidation, in my opinion also has rightly held that the order of the Consolidation Officer on the basis of such evidence is perverse. 19. The filing of additional evidence before the Deputy Director of Consolidation during the pendency of the revision also appears to be a clear after thought inasmuch as if the said persons had witnessed the lease-deed then it is not understood as to why they had not been produced as witnesses before the Consolidation Officer. The notary Affidavits of Harishanker and Mahadev Prasad, therefore, even otherwise turn out to be a patch up exercise for the purpose of the creating evidence to pursue litigation. 20. Thirdly, the land recorded is that of the Gaon Sabha. Under Section 11-C of the 1953 Act, it is the duty of every consolidation authority to protect the property of the State and of the Gaon Sabha and in such a situation, the Deputy Director of Consolidation was well within his jurisdiction to have restored the correct entries in favour of the Gaon Sabha. 21. For the reasons enumerated herein above and in view of the background of the case, there is absolutely no reason to interfere with the impugned order which is perfectly justified, in accordance with law and has been passed after considering the material evidence on record. 22. The writ petition lacks merits and is, accordingly, dismissed. ——————