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2014 DIGILAW 2414 (ALL)

Ram Awadh v. District D. D. C. /Collector, Mau

2014-08-08

ANJANI KUMAR MISHRA

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JUDGMENT Anjani Kumar Mishra, J Heard Sri Janardan Singh, learned Counsel for the petitioners, Sri Triveni Shankar, who appears for respondent No. 9 and the learned Standing Counsel for the State-respondents. 2. This writ petition, arising out of an objection under section 9-B of the U.P. Consolidation of Holdings Act (for short, the Act), has been filed praying for a writ of certiorari quashing the orders dated 8.2.2002, 2.6.1999 and 10.3.1997 as also the order dated 22.6.1994. 3. The dispute in this writ petition relates to plot No. 61, which, admit¬tedly, on the start of the consolidation operation, was recorded in the name of the petitioners as their bhumidhari land. 4. A time-barred objection under section 9-B was filed on 7.2.1994 by the contesting respondent No. 9, praying that the said plot No. 61 be reserved for panchayat bhawan and playground was allowed by the Consolidation Officer. The consequential appeal and the revision filed by the petitioners were dismissed by the orders dated 19.3.1997 and 2.6.1999, respectively. The petitioners filed a restoration application against the revisional order on the ground that it had been passed ex parte against them. This restoration application was also dismissed by the order dated 8.2.2002, hence the present writ petition. 5. Learned Counsel for the petitioners has submitted that the objection under section 9-B of the Act filed by respondent No. 9, Satya Narain Dubey, had been filed out of enmity with a view to harass the petitioners. He, being a private individual, had no right to maintain the objection. Moreover, land is to be reserved for public purposes in consultation with the Consolidation Committee, as provided under section 8-A of the Act. In the instant case, there was no such consultation, which vitiates the order impugned. Plot No. 61 has been allotted in the chak of the petitioners during previous consolidation operation as it was adjacent to his abadi. Contrary to the objection, the Gaon Sabha had passed a resolution that plot No. 68 be reserved for the panchayat bhawan and playground. It was submitted further that there was total non-compliance of Rule 24-A of the Rules under the Act. Lastly, it was submitted another plot had been reserved for the purpose in the statement of the principles prepared. All these issues were pleaded before the District Dy. It was submitted further that there was total non-compliance of Rule 24-A of the Rules under the Act. Lastly, it was submitted another plot had been reserved for the purpose in the statement of the principles prepared. All these issues were pleaded before the District Dy. Director of Consolidation (for short, the District DDC) and were also taken as specific grounds in the memo of revision. Though the District DDC has noticed these arguments in the impugned order, he has failed to consider the same and has failed to record any findings in that regard. 6. Triveni Shankar, learned Counsel for respondent No. 7, in rebuttal, submitted that the impugned order is a reasoned order, which categorically records that plot No. 61 is the most appropriate land for being reserved for panchayat bhawan and playground, and it was so reserved after due and complete enquiry in this regard. He, therefore, submits that the impugned order deserves to be affirmed. He has also referred to paragraph 30 of the court for affidavit filed by his client to submit that, in fact, the panchayat bhawan has already been constructed over the land in question, namely, plot No. 61. An expenditure of about 1,50,000 was incurred in such constructions. The petitioner has already been awarded valuation in lieu of plot No. 61 elsewhere and he is in possession thereof. 7. I have considered the aforesaid submissions made by the learned Counsel for the parties and have perused the record, and I consider it fit to first deal with the submissions made by Sri Triveni Shankar that the panchayat bhawan has already been constructed over plot No. 61. 8. It would be relevant to refer to paragraph 30 of the said counter-affidavit in this regard. In this paragraph, it has been stated that the interim order dated 16.5.2002 was obtained by suppressing material facts and by making false allegations that the land is vacant. It has further been stated that the Gram Panchayat has resolved to construct the panchayat bhawan and the "papers has already been consolidated spending more than 1.5 lacs provided by the State Government. It has further been stated that the Gram Panchayat has resolved to construct the panchayat bhawan and the "papers has already been consolidated spending more than 1.5 lacs provided by the State Government. A true copy of the resolution of Gram Panchayat regarding the constitution of Panchayat Bhawan in plot No. 61 and a true copy of the letter dated 14.8.2001 of District Panchayat Raj Officer, regarding order of sanction for the construction of Panchayat Bhawan in plot No. 61 and the photo of the construction in the plot No. 67 are ... and ...". It is thus clear that paragraph 30 of the counter affidavit, which is on record, is incomplete. Although two photographs showing constructions are filed as Annexure-CA2, there is no reference to this annexure in the affidavit itself. Annexure -- CA1 is the true copy of an order dated 3.12.2001, passed by Civil Judge (Junior Division), Mau, in O.S. No. 1443 of 2001: Ram Awadh v. Vinod. There is no mention of this document in paragraph 30 of the counter-affidavit. The resolution of the Gram Panchayat, regarding constructions of panchayat bhawan or the letter of District Panchayat Raj Officer dated 14.8.2001 sanctioning the constructions, though referred to in paragraph 30 as having been annexed, have not been filed. 9. The allegations contained paragraph 30 have been denied, in rejoinder affidavit. In view of the biguous nature of the pleadings in paragraph 30 of the counter-affidavit, it 1 not established beyond doubt that panchayat bhawan, in fact, has already been constructed over plot No. 61,j which is in dispute. 10. Moreover, there is another aspect of this issue. At the time of initial hearing of this writ petition, an interim; order was granted on 16.5.2002, which provides that the nature of the land; should not be changed till the next listing. Thereafter, on 20.2.2003, this time bound interim order was modified and j it was directed that status quo be maintained till final disposal of the writ petition itself. It is, thus, clear that there was j an interim order operating, and constructions, if any, over plot No. 61, have been raised, in defiance of the interim order. 11. As regards various submissions made by the learned Counsel for the petitioners, which has already been noticed hereinabove, it is clear that the legal and factual issues were raised before the District DDC in the revision itself. 11. As regards various submissions made by the learned Counsel for the petitioners, which has already been noticed hereinabove, it is clear that the legal and factual issues were raised before the District DDC in the revision itself. The District DDC has failed to address any of the said issues while dismissing the revision. This, in my considered opinion, was not permissible. Issues that were argued before the District DDC, and which have been noticed in the order, were necessarily required to be considered and decided. It was not open for the District DDC to decide the revision on some other grounds. Under the circumstances, the impugned order passed by the District DDC, which fails to consider the submissions made by the revi-sionist (the petitioner before this Court) cannot be sustained and deserves to be set aside. 12. Moreover, there is no dispute that the statement of the principles is to be prepared in consultation with the Consolidation Committee. Since plot No. 61 was reserved for panchayat bhawan and playground on the objections filed by the contesting respondents, relying upon the report of the Consolidator alone, it is quite? clear that there was no consultation with the Consolidation. Committee, as provided by section 8-A of the Act. Even the fact that the objection was filed by a private individual and that there was a resolution of the Gaon Sabha that plot No. 68 be reserved for panchayat bhawan and playground, were the facts which necessarily had to be considered by the District DDC while deciding the revision filed by the petitioner. 13. Accordingly, I deem it fit and proper to allow the writ petition and remand the matter back to the District Dy. Director of Consolidation/Collector, Mau, to pass a fresh order in accordance with law after hearing the parties and keeping in mind the observations made in this judgment. The District DDC shall also examine as to whether or not the panchayat bhawan has already been constructed over plot No. 61 in question and shall also give due weightage of this fact. Director of Consolidation/Collector, Mau, to pass a fresh order in accordance with law after hearing the parties and keeping in mind the observations made in this judgment. The District DDC shall also examine as to whether or not the panchayat bhawan has already been constructed over plot No. 61 in question and shall also give due weightage of this fact. In case the constructions have al¬ready been raised, after incurring considerable expenditure, and since the constructions have not been admitted by the petitioner, it would be a case of the petitioner not having approached this Court with clean hands and it may be a good ground for refusing to grant any relief to the petitioner in the revision. 14. Accordingly, and subject to the observations/directions aforesaid, the writ petition is allowed. There will be no orders as to costs. Petition Allowed.