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2014 DIGILAW 1294 (ALL)

Ram Narain v. Dy. Director of Consolidation

2014-04-22

RAM SURAT RAM (MAURYA)

body2014
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri A.K. Singh and Sri M.P. Singh, for the petitioners and Standing Counsel and Sri S.C. Verma, for the respondents. The writ petition has been filed for quashing the orders of Consolidation Officer dated 23.12.2005, Settlement Officer Consolidation dated 23.2.2006 and Deputy Director of Consolidation dated 30.5.2006, arising out of title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the 'Act'). 2. The dispute relates to properties of khata 229 (consisting of 687 (area 0-19-0 bigha) and 688 (area 2-9-0 bigha) of village Ghorawal, pargana Barhar district Sonbhadra. In basic consolidation records, the land in dispute was recorded as 'banjar' land. Ram Narain and others (the petitioners) filed an objection (registered as Case No. 1/1/2005-06) under section 9-A(2) of the Act, for recording their names over it, claiming that the land in dispute was in their possession since before date of vesting. Land Management Committee of Gaon Sabha Ghorawal granted a patta dated 5.1.1969, conferring sirdari right over it. Subsequently they have become its bhumidhar. The objection was contested by Town Area Committee Ghorawal, Sonbhadra on the ground that the land in dispute was included within the limits of Town Area Ghorawal, through Notification of State of U.P. dated 11.8.1954 and as such it was vested in Town Area Committee Ghorawal Land Management Committee of Gaon Sabha Ghorawal had no right to grant patta of the land in dispute on 5.1.1969. The case was heard by Consolidation Officer, who by order dated 23.12.2005 held that possession of the petitioners before date of vesting over the land in dispute was not proved. The petitioners cannot get any right on the basis of possession over 'banjar' land, in view of section 210 of U.P. Act No. 1 of 1951. By notification dated 11.8.1954, the land in dispute was included within the limits of Town Area Committee Ghorawal as such Land Management Committee of Gaon Sabha Ghorawal had no right to grant patta dated 5.1.1969 to the petitioners and the petitioners cannot get any right on its basis. On these findings objection of the petitioners was dismissed by order dated 23.12.2005. 3. The petitioners filed an appeal (registered as Appeal No. 263) from the aforesaid order. On these findings objection of the petitioners was dismissed by order dated 23.12.2005. 3. The petitioners filed an appeal (registered as Appeal No. 263) from the aforesaid order. The appeal was heard by Settlement Officer Consolidation, who by order dated 23.2.2006, held that the petitioners could not prove execution of patta in their favour. On the basis of possession no right could accrue over 'banjar' land. On these findings the appeal was dismissed. The petitioners filed a revision (registered as Revision No. 212) from the aforesaid order. The revision was heard by Deputy Director of Consolidation, who by order dated 30.5.2006 held that the petitioners could not prove execution of patta in their favour. The land in dispute was included in Town Area Committee Ghorawal by Notification dated 11.8.1954 as such Gaon Sabha had no right to grant patta of the land in dispute in favour of the petitioners on 5.1.1969. On these findings revision was dismissed. Hence this writ petition has been filed. 4. By the order dated 10.2.2014, Standing Counsel was asked to produce the Gazette Notification by which land in dispute was included with the limits of Town Area Committee Ghorawal. In compliance of the aforesaid order, Standing Counsel produced Gazette Notification and the map on 24.3.2014, showing that the land in dispute was included with the limits of Town Area Committee Ghorawal. The fact in this respect has also been verified by the Counsel for the petitioners. Thereafter, the arguments were heard. 5. The Counsel for the petitioners submitted that by virtue of section 117 of U.P. Act No. 1 of 1951 read with section 34 of U.P. Panchayat Raj Act, 1947, the land in dispute was vested in Gaon Sabha Ghorawal. So long as State of U.P., by a notification under section 117(6) of the Act does not requisition the property from the Gaon Sabha, right of Gaon Sabha will continue over it. By the notification dated 11.8.1954, although the land in dispute was included in the limits of Town Area Committee Ghorawal but right of Goan Sabha Ghorawal was never divested and it continued to exercise its powers. Patta dated 5.1.1969 granted by Land Management Committee of Gaon Sabha Ghorawal was valid. The consolidation authorities have illegally ignored this patta. The petitioners have become bhumidhar of the land in dispute on its basis. Patta dated 5.1.1969 granted by Land Management Committee of Gaon Sabha Ghorawal was valid. The consolidation authorities have illegally ignored this patta. The petitioners have become bhumidhar of the land in dispute on its basis. The petitioners relied upon the judgment of Division Bench of this Court in Mohammad Shafi v. Gram Sabha Bisauli, 1970 RD 450 (DB), in which it has been held that in the absence of notification under section 117(6) of U.P. Act No. 1 of 1951, the property vested in Gaon Sabha continues to remain with it. 6. I have considered the arguments of the Counsel for the parties and examined the record. The petitioners filed copy of the notification dated 11.8.1954 as Annexure-2 to the writ petition. The notification is under section 117-A of the Act. It reads as follows: In exercise of powers conferred by section 117-A of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act No. 1 of 1951) The Governor of Uttar Pradesh is pleased to declare that as from the date of this notification-- (i) all land whether cultivable or otherwise, except land for the time being comprised in any holding or grove, (ii) all forest within the village boundaries, (iii) all trees (other that the trees in holding or on the boundary thereof or in a grove, or abadi), (iv) fisheries, (v) hats, bazars and melas, except hats bazars and melas held on land to which provisions of clauses (a) to (c) of sub-section (1) of section 18 of the aforesaid Act apply, (vi) tanks, ponds, private fisheries, water channels, pathways and abadi sites, things specified in clauses (i), (ii), (iii), (v), (vi) and (vii) of section 117 of the aforesaid Act, which had, in respect of the areas situated in the villages mentioned in column 4 of the schedule appended hereto, vested in the State under the said Act, shall vest in local authorities established for such villages as indicated in column 5 of the schedule against each notwithstanding anything contained in the notification issued under section 117 of the Act. 7. Section 117 and section 117-A of the Act, as it was 11.8.1954, which are relevant to appreciate of the controversy involved in the writ petition are quoted below: - Section 117. 7. Section 117 and section 117-A of the Act, as it was 11.8.1954, which are relevant to appreciate of the controversy involved in the writ petition are quoted below: - Section 117. Vesting of certain lands, etc, in Gaon Samaj-At any time after the publication of the notification mentioned in section 4, the State Government may, by notification in the Gazette, declare that, as from the date to be specified (hereinafter in this Chapter called the specified date) (i) all the land whether cultivable or otherwise, except land for the time being comprised in any holding or grove, (ii) all the forests within the village boundaries, (iii) all trees (other than trees in a holding or on the boundary thereof or in a grove, or abadi), (iv) public wells; (v) fisheries, (vi) hats, bazars and melas, except hats, bazars and melas held on land to which provisions of Clause (a) to (c) of sub-section (1) section 18 apply, (vii) tanks, ponds, private ferries, water channels, pathways and abadi of sites, situated in a circle, which had vested in the State under this Act, shall vest in the Gaon Samaj established for the circle: Provided that if the uncultivated area situate in any village is, in the opinion of the State Government more than the ordinary requirements of the Gaon Samaj, it may exclude any portion of the uncultivated area from vesting in the Gaon Samaj under this section and may make such incidental and consequential orders as may be necessary. Provided further that if any land or things aforesaid are acquired by the State Government at any time, the Gaon Samaj shall not be entitled to receive or be paid any compensation on account of such acquisition except for the development, if any, effected in or over the land. Provided also that it shall be lawful for the State Government to make the declaration aforesaid either in respect of all or any of the things mentioned in Clauses (i) to (vii) and in so doing, make such exceptions or impose such conditions as it may specify in the notification. Provided also that it shall be lawful for the State Government to make the declaration aforesaid either in respect of all or any of the things mentioned in Clauses (i) to (vii) and in so doing, make such exceptions or impose such conditions as it may specify in the notification. [A third proviso was also added to the section (at first temporarily) by para 5(c) of the U.P. Land Tenures Legal Proceedings (Removal of Difficulties) Order, 1952, but by means of section 21 of the Amending Act XVI of 1953, the addition gained permanency.] [The original second proviso quoted above, was substituted by section 13 of the UP Amending Act XX 1954 w.e.f. 11.5.1954.] The substituted second proviso read as below-- Provided further that the State Government may at any time likewise amend or cancel the notification made under this sub-section in respect of any land or thing aforesaid whether generally or in the case of any Gaon Sabha and resume such land or thing and whenever the State Government so resumes the land or thing the Goan Sabha shall be entitled to receive and be paid compensation on account of the development alone, if any, effected by it in or over the land or thing. Section 117AVesting of certain land in local authorities.--(1) Notwithstanding anything contained in section 117 the State Government may, by notification in the Official Gazette declare that as from the date to be specified, all or any of the things specified in Clauses (i) to (vii) of the said section which had, in respect of any area situate in any village vested in the State under this Act shall vest in any other local authority established for such village. (2) Where any land has been so vested in any other local authority, such other local authority shall, in respect of such area perform or exercise functions, powers and duties assigned, conferred or imposed by or under this Act on a Goan Samaj or the Land Management Committee subject to exceptions or modifications or the Land Management Committee subject to exceptions or modifications as the State Government may, by notification in the Official Gazette, specify in that behalf. (3) The local authority aforesaid shall in the performance of or exercise of its functions, powers and duties under this section shall follow such procedure as may be prescribed. (3) The local authority aforesaid shall in the performance of or exercise of its functions, powers and duties under this section shall follow such procedure as may be prescribed. (4) The provisions of sections 126 and 127 shall subject to such exceptions and modifications as the State Government may specify, apply mutatis mutandis to the local authority referred to in sub-section (2). (5) The provisions of the first and second provisos to sections 117 shall mutatis mutandis apply to resumption of land and other things vested in a local authority under sub-section (1). 8. Bare reading of the aforesaid sections makes it clear that section 117-A had an overriding effect. Under section 117-A State Government was authorized, by notification in the official Gazette declare that as from the date to be specified, all or any of the things specified in Clauses (i) to (vii) of the said section which had, in respect of any area situate in any village vested in the State under this Act shall vest in any other local authority established for such village. State of U.P. by notification dated 11.8.1954, vested all the things specified in Clauses (i), (ii), (iii), (v), (vi) and (vii) of section 117 of the aforesaid Act, which had, in respect of the areas situated in the village Ghorawal mentioned in column 4 of the schedule appended hereto, vested in the State under the said Act, in Ghorawal Town Area, established for such villages as indicated in column 5 of the schedule against each notwithstanding anything contained in the notification issued under section117 of the Act. Thus from 11.8.1954, all the properties of Gaon Sabha was vested in Town Area, Ghorawal. Gaon Sabha Ghorawal had no jurisdiction to grant patta dated 5.1.1969 to the petitioners. Notification dated 11.8.1954, as it was in respect of villages Loni etc. which were vested in Nagar Palika Ghaziabad came for consideration before this Court in Narendra Kumar and another v. Board of Revenue and others , 1999 (90) RD 715 . This Court held that section 117-A, which was added by U.P. Act No. 16 of 1953, does not contemplate two notifications, one for resumption of the property from Gaon Sabha and other for vesting it in local authority. This Court held that section 117-A, which was added by U.P. Act No. 16 of 1953, does not contemplate two notifications, one for resumption of the property from Gaon Sabha and other for vesting it in local authority. If the State Government has issued a notification under section 117-A, it will be deemed that it has resumed such things which were vested in the Gaon Sabha and entrusted to local authority. 9. The arguments that so long as State of U.P., by a notification under section 117(6) of the Act does not requisition of the property, right of Gaon Sabha will continue over it, is misconceived. As at that time section 117 did not contain sub-section (6). Division Bench in Mohammad Shafi's case (supra), which has interpreted provisions of section 117(6) has no application in this case. In that case during pendency of the appeal arising out of the suit filed by Gaon Sabha, the area of Gaon Sabha was included in Town Area. The respondents raised an objection that Gaon Sabha had no right to continue the appeal. The question referred for consideration of Division Bench was "On the facts of the present case and the law applicable thereto, can the Gaon Sabha continue the appeal pending in the Court below?" and Division Bench held that in view of provision of Order XXII, Rule 10 C.P.C., Gaon Sabha had right to continue the appeal. As stated above due to use of non-obstinate clause, section 117-A had an overriding effect, which authorized State Government to vest any property of Gaon Sabha in local authority. 10. There is other provisions also under U.P. Panchayat Raj Act, 1947. Under section 34 of U.P. Panchayat Raj Act, 1947, all public property situated within the jurisdiction of a Gaon Sabha vests in the Gaon Sabha. Section 8 U.P. Panchayat Raj Act, 1947 provides that if the whole of the area of Gaon Sabha is included in a city, municipality, cantonment, notified area or Nagar Panchayat, the Gaon Sabha shall cease and its assets and liabilities shall be disposed of in the manner prescribed. If a part of such area so included, its jurisdiction shall be reduced by that part. If a part of such area so included, its jurisdiction shall be reduced by that part. Rule 3-AAA(1) of U.P. Panchayat Raj Rules, 1947, provides that if the whole of the area of a Gram Sabha is included in a municipality, cantonment, notified area or town area, the Gram Sabha shall cease and its assets and liabilities shall be transferred to the local body in which such area is included. Thus by the notification dated 11.8.1954, the property was transferred to Town Area Ghorawal. In the year 1969 Gaon Sabha had no right to grant patta to the petitioners. The orders of consolidation authorities do no suffer from any illegality. In view of the aforesaid discussion, the writ petition has no merit and is dismissed.