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2013 DIGILAW 2671 (ALL)

Paras v. Dy. Director of Consolidation

2013-10-28

RAM SURAT RAM (MAURYA)

body2013
JUDGMENT Ram Surat Ram (Maurya), J. Heard Sri R.C. Singh, counsel for the petitioners and Standing Counsel for State of U.P. and Sri Taiq Maqbool Khan, Standing Counsel for Gaon Sabha and Sri. K.N. Srivastav, holding brief of Sri Sri Prakash Srivastav, for the respondents. 2. The writ petition has been filed against the orders of Settlement Officer Consolidation (respondent-2) dated 18.08.2012 and Deputy Director of Consolidation (respondent-1) dated 06.08.2013, allowing the appeal of Gaon Sabha and remanding the case for fresh trial to Consolidation Officer and dismissing the revision of the petitioners from the aforesaid order, in title proceedings, under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 3. The dispute relates to the land of basic consolidation year khata 10, of village Singapatti, pargana Sidhuwa Jobna, district Kushinagar, which was recorded in the name of Gaon Sabha. The petitioners filed an objection (registered as Case 923 to 926) under Section 9-A of the Act. It has been stated by the petitioners that the land in dispute was their ancestral property from the time of common ancestor Molahu, who was inherited by his sons Baishakha and Babu Lal. Babu Lal left the house in his childhood due to some quarrel as such after death of Molahu, the name of Baishakha alone was recorded in the records and after his death it was recorded in the name of Smt. Mulki, his widow. Baishakha and Smt. Mulki died issueless and was inherited by Lakshmi son of Babu Lal. After death of Smt. Mulki, it was wrongly recorded in the name of Gaon Sabha. Other objections were filed by Kolai and Chhatthu who claimed themselves to be the allottees of Gaon Sabha, of the land in dispute. Other objections were filed by Birjhan and Patru, who claimed their adverse possession over some plots of the khata in dispute. One Vishwanath filed an objection claiming himself to be daughter's son of Baishakha. Now Birjhan, Patru and Vishwanath are not contesting the matter. All the objections were consolidated and heard by Additional Consolidation Officer, Padrauna, who by his order dated 11.08.1980 held that the petitioners had inheritted the property in dispute after death of Smt. Mulki, being brother's son of Baishakha, her husband. Other objections were dismissed. The names of the petitioners were directed to be mutated over the land in dispute, deleting the name of Gaon Sabha. 4. Other objections were dismissed. The names of the petitioners were directed to be mutated over the land in dispute, deleting the name of Gaon Sabha. 4. Gaon Sabha filed an appeal (registered as Appeal No. 1083/2173/2698) and Chhatthu filed an appeal (registered as Appeal No.1084/2174/2699). Both these appeals were consolidated. Later on, an application has been filed by Up-Pradhan of Gaon Sabha stating that Gaon Sabha had not filed the appeal and the appeal filed in the name of Gaon Sabha be dismissed. The appeals were heard by Assistant Settlement Officer Consolidation, who by order dated 12.03.1981 dismissed the appeal of Gaon Sabha, in pursuance of the application filed by Up-Pradhan and held that pattas of Chhatthu had already been canceled and he had no right. On these findings, both the appeals were dismissed. Chhatthu filed a revision (registered as Revision No. 1089) from the aforesaid order, which was dismissed by Deputy Director of Consolidation, by the order dated 17.04.1982. 5. Birjhan filed an appeal (registered as Appeal No. 820/851/15/2741), Shiv Prasad, Pradhan of Gaon Sabha filed a time barred appeal (registered as Appeal No. 821/852/76/1790), Kolai filed a time barred appeal (registered as Appeal No. 827/2376) and Patru filed a time barred appeal (registered as Appeal No. 77/1791). These appeals were consolidated and heard by Assistant Settlement Officer Consolidation, who by order dated 06.10.1990 dismissed the appeals in default. Later on, the order dated 06.10.1990 was recalled on 09.03.1994 and the delay condonation applications were heard and by order dated 30.04.2003, delay in filing the appeals were condoned. The petitioners filed a revision (registered as Revision No. 746/42/664/713/03) from the aforesaid order, which was dismissed by order dated 13.04.2010. The petitioners filed Writ-B No. 25765 of 2010 from the aforesaid orders, which was dismissed by this Court by order dated 07.05.2010. Thereafter the appeals were heard on merits by Settlement Officer Consolidation (respondent-2), who by order dated 18.08.2012 dismissed the appeals of Birjhan and Patru as abated, for not substituting the heirs and dismissed the appeal of Kolai, as not maintainable and the appeal of Gaon Sabha was allowed and the matter was remanded to the Consolidation Officer for fresh trail on merit after giving opportunity of hearing to the parties and for fresh decision . 6. The petitioners filed a revision (registered as Revision No. 658/716) from the aforesaid order. 6. The petitioners filed a revision (registered as Revision No. 658/716) from the aforesaid order. The revision was heard by Deputy Director of Consolidation, who by order dated 06.08.2013 dismissed the revision. Hence this writ petition has been filed. The writ petition was argued as fresh case on 17.09.2013. On that day, the counsel for the petitioner was permitted to file the documentary evidence to show that Baishakha was the son of Molahu. On the several adjournments being granted, the petitioners filed a Supplementary Affidavit on 11.10.2013, stating therein that certified copy of the Pariwar Register of the year 1967 filed by them before Consolidation Officer has been removed from the record. In this Pariwar Register, Smt. Mulki widow of Baishakha was shown in the family of Lakshmi. Admittedly, Baishakha and Babu Lal died long before date of vesting as such this document was not relevant to prove that Baishakha was the son of Molahu. No other document was filed to prove that Baishakha was son of Molahu. Then the arguments were heard. 7. The counsel for the petitioners argued that Gaon Sabha filed Appeal No.1083/2173/ 2698, which was dismissed by order dated 12.03.1981. This order was confirmed by Deputy Director of Consolidation by order dated 17.04.1982, passed in Revision No. 1089. Subsequent appeal filed by Gaon Sabha was not maintainable. Since Gaon Sabha was contesting the matter, although the order of Consolidation Officer was in the knowledge of the Pradhan as such there was no cause for condoning the delay in filing the appeal. In-ordinate delay in filing the appeal has been illegally condoned. Land Management Committee is the Executive Body of Gaon Sabha, which has been authorized to protect the properties of Gaon Sabha and contest the litigation in the Courts under the law. In view of paragraph-128 of Gaon Sabha Manual and Rule 110-A of U.P. Zamindari Abolition and Land Reforms Rules, 1952, all the litigation has to be conducted by Land Management Committee, on the basis of resolution passed by it. The appeal filed by Pradhan of the village was not maintainable as held by this Court in Sita Ram Vs. DDC and others, 1982 ALJ 76. 8. I have considered the arguments of the counsel for the petitioners and examined the record. The appeal filed by Pradhan of the village was not maintainable as held by this Court in Sita Ram Vs. DDC and others, 1982 ALJ 76. 8. I have considered the arguments of the counsel for the petitioners and examined the record. So far as, the order condoning the delay in filing the appeal is concerned, that order has already been upheld by this Court by order dated 07.05.2010 in Writ-B No. 25765 of 2010 filed by the petitioners. As such, it is not open to the petitioners to raise this point again. 9. So far as the maintainability of the appeal filed by Pradhan on behalf of Gaon Sabha is concerned, Up-Pradhan filed an application in Appeal No.1083/2173/2698, for dismissing it, stating therein that the appeal was not filed by Gaon Sabha and on his application the appeal was dismissed by order dated 12.03.1981. Before the Courts below, it has been argued on behalf of Gaon Sabha that the previous appeal as well as application filed in it, were manuouring of the petitioners. Gaon Sabha had neither filed the aforesaid appeal nor the application. In the circumstances of the case, filing of previous appeal by Gaon Sabha was denied, Settlement Officer Consolidation invoked his powers under Section 11-C of the Act as in basic consolidation year the land in dispute was recorded in the name of Gaon Sabha and Gaon Sabha was not given any opportunity to contest the matter before Consolidation Officer. If the Gaon Sabha had not filed the earlier appeal, then Gaon Sabha cannot be debarred from filing an appeal from the order of Consolidation Officer which was ex parte against it. 10. So far as the submission of the counsel for the petitioner that the appeal filed by Pradhan of the village was not maintainable, is concerned, under Section 122-A of U.P. Act No. 1 of 1951, general superintendence, management, preservation and control on all the lands of Gaon Sabha, has been vested in Land Management Committee. Section 122-A (3) provides that the Chairman or any other officer bearer or member of Land Management Committee shall for and on behalf of Land Management Committee sign the document. Under Rule-110-A, it was obligatory for other members to be authorized by the resolution of Land Management Committee to sign a document in the absence of Chairman. Section 122-A (3) provides that the Chairman or any other officer bearer or member of Land Management Committee shall for and on behalf of Land Management Committee sign the document. Under Rule-110-A, it was obligatory for other members to be authorized by the resolution of Land Management Committee to sign a document in the absence of Chairman. Rule-110-A does not restrict the powers of Chairman as given under Section 122-A (3) of U.P. Act No. 1 of 1951. It restrict the power of other members of Land Management Committee. Thus neither of paragraph-128 of Gaon Sabha Manual nor Rule 110-A of U.P. Zamindari Abolition and Land Reforms Rules, 1952, restrict the power of Pradhan, who is Chairman of the Land Management Committee to file an appeal on behalf of Gaon Sabha. 11. Land Management Committee is constituted under Section 28-C of U.P. Panchayat Raj Act, 1947. Rule 47 of U.P. Panchayat Raj Rules, 1947 provides the duties of the Pradhan. Rule 47 (g) provides that it shall be duty of Pradhan to file civil case and launch prosecution on behalf of Gram Sabha. Thus by virtue of Rule 47 of U.P. Panchayat Raj Rules, 1947 read with Section 122-A (3) of U.P. Act No. 1 of 1951, the Pradhan was competent to filed the appeal. Section 122-A (1) does not restrict the power of Pradhan. Similar controversy has come for consideration before Division Bench of this Court in Rama Shankar Vs. State of U.P. and others, 2012 (117) RD 331 (DB), in which also similar point was raised that as Land Management Committee has not submitted any report of illegal occupation under Section 122-B of U.P. Act No. 1 of 1951, as such, Deputy Collector has no jurisdiction to initiate suo motu proceedings, this arguments has been rejected and it has been held that in this case, other authorities are also authorized under the Act, then it is immaterial that Land Management Committee, who has power of superintendence, has not taken any action. In any case, in this case Settlement Officer Consolidation invoked his powers under Section 11-C of the Act as such no illegality has been committed by him. Admittedly, in basic consolidation records Gaon Sabha was recorded over the land in dispute as such before deleting entries, opportunity of hearing is required to be given to the Gaon Sabha. The impugned orders does not suffer from any illegality. Admittedly, in basic consolidation records Gaon Sabha was recorded over the land in dispute as such before deleting entries, opportunity of hearing is required to be given to the Gaon Sabha. The impugned orders does not suffer from any illegality. The writ petition has no merit and is dismissed.