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2014 DIGILAW 1076 (ALL)

Roshan Lal v. D. D. C.

2014-04-02

RAM SURAT RAM (MAURYA)

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JUDGMENT Ram Surat Ram (Maurya),J. By the order dated 27.03.2014, Writ- B No.- 17413 of 2014 was directed to be put up along with Writ B No. 59004 of 2009, in which parties as well as counsels are same as such both the writ petitions are heard and are being decided finally. 2. Heard Sri Sanjeev Kumar Pandey for the petitioner and Standing Counsel for the respondents. 3. Writ- B No.- 17413 of 2014 has been filed for quashing the order of Consolidation Officer dated 03.02.2014, refusing to pass any order in the application of the petitioner, under Rule 109- A of UP Consolidation of Holdings Rules, 1954 for giving effect to the order of Consolidation Officer dated 07.08.2008 on the ground that the recall application has been filed for recalling the order dated 07.08.2008. 4. Writ B No. 59004 of 2009 has been filed for quashing the entire proceedings of the restoration application filed in Case No. 76/85 Mahabir Singh Vs. Gram Sabha, pending before the Consolidation Officer Jasrana/Shikohabad, Firozabad. 5. The petitioner and his brother allegedly filed an objection (registered as Case No. 76/85) under Section 9-A of UP Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act) for recording their names over plots 622/2 (area 1.00 acre), 641/6 (area 1.20 acre), 700/2 (area 1.00 acre) and 865/4 (area 1.00 acre) of village Jarauli, tahsil Jasrana, district Firozabad, on the basis of patta dated 15.10.1968, allegedly executed in their favour. It has been stated that Land Management Committed has granted patta in their favour and on the basis of the patta they were in possession over the land in dispute. Since they were in possession over the land in dispute on 30th June 1975, as such, they have become bhumidhar of the land in dispute under the Govt. Orders. In support of their case, they filed an affidavit of Phool Devi, Pradhan of the village. The Consolidation Officer, by order dated 07.08.2008 held that as Gaon Sabha had not contested the case and Pradhan had admitted possession of the petitioner and his brother over the land in dispute as such he allowed the objection and directed for recording the names of the petitioner and his brother over the land in dispute and deleting the name of Gaon Sabha from it. 6. 6. It appears that subsequently an application was filed by Satyabhan Singh and five other persons of the village, alleging themselves to be the members of Land Management Committee, for recall of the aforesaid order, on 19.06.2009. In the application it has been stated that the petitioner and his brother have secured order by committing fraud upon the court of Consolidation Officer. Neither any patta was granted to them nor they were in possession over the land in dispute. By committing fraud, signature of Pradhan was obtained on the false affidavit. The case was decided without hearing the arguments of District Government Counsel (Revenue). 7. Earlier, Mahavir, brother of the petitioner, filed Writ-B No. 31626 of 2009 for quashing the restoration application filed by Satyabhan Singh and others on the ground that restoration application was not filed by Land Management Committee and was not maintainable. However, this Court by order dated 29.06.2009 declined to interfere in the matter and directed the petitioner to raise an objection before the Consolidation Officer in this respect, who would decide the objection. Thereafter concealing the fact relating to filing of the aforesaid writ petition, the petitioner filed Writ Petition No. 59004 of 2009 before this Court, in which an interim order dated 06.11.2009 has been granted, staying the further proceeding in restoration/recall application. A stay vacation application along with Counter Affidavit has been filed by the members of Land Management Committee on 18.08.2010, serving a copy of this application on the counsel for the petitioner but no Rejoinder Affidavit has been filed till today. 8. Thereafter, the petitioner filed Writ-B No. 40390 of 2013 for mandamus directing the Consolidation Officer to give effect to the order dated 07.08.2008 passed in title proceedings in the record. This writ petition was disposed of by order dated 30.07.2013, directing the petitioner to file a proper application before Consolidation Officer, who was directed to decide it, in accordance with law within three months. Then the petitioner moved an application before the Consolidation Officer under Rule 109-A of the Rules for giving effect to the order of Consolidation Officer dated 07.08.2008 in the records. By the impugned order dated 03.02.2014, the Consolidation Officer has declined to give effect of the order on the ground that Satyabhan and others have filed an application for recall of the order, on 19.06.2009. By the impugned order dated 03.02.2014, the Consolidation Officer has declined to give effect of the order on the ground that Satyabhan and others have filed an application for recall of the order, on 19.06.2009. Further proceedings of the recall application has been stayed in Writ-B No. 59004 of 2009 by order dated 06.11.2009. Thereafter, District Government Counsel filed an application on 08.03.2010 for recall of the order dated 07.08.2008, which was rejected by Consolidation Officer by order dated 19.05.2010 and an Appeal No. 254 of 2009-10 was filed against the aforesaid order. Further proceedings in the appeal has also been stayed in compliance of the order dated 06.11.2009. The order dated 07.08.2008 has not become final and is still sub-judice and as such the order cannot be given effect to. Hence Writ-B No. 17413 of 2014 has been filed. 9. The counsel for the petitioner submits that by virtue of Section 41 of the Act, Chapter IX and X of UP Land Revenue Act, 1901 are applicable to the proceeding before the consolidation authorities. In exercise of powers under Section 217 of UP Land Revenue Act, 1901, no interim order has been granted by the appellate authority. As the order of Consolidation Officer dated 07.08.2008 has not been stayed by appellate authority or any other authority, as such, the Consolidation Officer is bound to give effect to this order. Mere pendency of the appeal or recall application against it, is no ground to not giving effect to the order dated 07.08.2008. He submits that recall application filed by strangers was not maintainable. The recall application filed by District Government Counsel has already been rejected by order dated 19.05.2010. In such circumstances, the order dated 03.02.2014 is liable to be set aside and Consolidation Officer be directed to give effect to the order dated 07.08.2008. 10. I have considered the arguments of the counsel for the petitioner and examined the record. A perusal of the Counter Affidavit filed by Mahavir in Writ Petition No. 59004 of 2009 shows that a copy of the order of this Court dated 29.06.2009 has been attached to it as Annexure-CA1, which shows that Mahavir, brother of the petitioner filed Writ Petition No. 31626 of 2009 raising same questions that the recall application filed by Satyabhan Singh and others, who were strangers, was not maintainable and prayed for quashing the restoration application dated 12.06.2009. But this Court has declined to interfere in the matter and directed the petitioner to raise his objection before the Consolidation Officer regarding the maintainability of the restoration application, who was directed to consider the objection of the petitioner in accordance with law and decide it. Concealing the filing of the aforesaid writ petition, the petitioner filed Writ Petition No. 59004 of 2009 and secured ex-parte order dated 06.11.2009, staying the further proceeding in recall application. In spite of the fact that the Counter Affidavit and stay vacation application was served upon the counsel for the petitioner Sri S.K. Pandey, who is appearing in that writ petition also, on 17.08.2010, no Rejoinder Affidavit has been filed till today. As such, in view of provisions of Article 226 (3) of Constitution of India, the interim order shall deemed to be vacated. The writ petition has been filed, concealing the material fact about the filing of writ petition by Mahavir. The petitioner and Mahavir have common interest and derived their title on same patta as well as same order of the Consolidation Officer dated 07.08.2008. As this Court by order dated 29.06.2009, declined to interfere in the matter and directed the petitioner to raise his objection before the Consolidation Officer regarding the maintainability of the restoration application, as such Writ B No. 59004 of 2009, which has been filed by other brother having common interest and title is not maintainable. It is also liable to be dismissed for concealment of material facts. 11. So far as Writ B No. 17413 of 2014, is concerned, in the application filed for recall of the order, it has been mentioned that the petitioner by committing fraud obtained signatures of Pradhan on the affidavit and secured order dated 07.08.2008. Although neither any patta was granted to the petitioner and his brother nor they were in possession over the disputed land but in the affidavit of Pradhan their patta and possession have been falsely admitted. The fact that although the patta was granted to the petitioner and his brother on 15.10.1968 but they never applied for mutation of their names in the revenue record for about 40 years, create a serious doubt about the patta and possession of the petitioner and his brother. The fact that although the patta was granted to the petitioner and his brother on 15.10.1968 but they never applied for mutation of their names in the revenue record for about 40 years, create a serious doubt about the patta and possession of the petitioner and his brother. The recall application filed by District Government Counsel has been rejected by Consolidation Officer due to terror of the contempt petition filed by the petitioner against him. Although in the order dated 07.08.2008 it has been mentioned that Gaon Sabha has not contested the matter but in the order dated 19.05.2010, a contrary finding has been recorded that Gaon Sabha had contested the matter. These are serious circumstances regarding the manner of obtaining the order from the court of Consolidation Officer. The petitioner, on the one hand got stayed the further proceedings of the recall application and the appeal and at the same time he is making serious effort to get their names mutated in the record. In such circumstance the Consolidation Officer has not committed any illegality in declining to give effect to the order dated 07.08.2008 in the record on the ground that order dated 07.08.2008 was still sub-judice in recall application and in appeal. Writ B No. 17413 of 2014 has also no merit and it was also liable to be dismissed. 12. In view of the aforesaid discussions, both the writ petitions are dismissed. The Consolidation Officer and Settlement Officer Consolidation shall proceed to decide the recall application and the appeal respectively.