JUDGMENT Hon’ble Bala Krishna Narayana, J.—Heard Sri N. C. Rajvanshi, Senior Advocate assisted by Sri V.C. Shukla, learned counsel for the petitioner, Sri Manoj Kumar Yadav, learned counsel for the Gaon Sabha and Sri Ajay Shankar, learned counsel for the respondent No. 5 and Sri Sanjay Goswami, learned Additional Chief Standing counsel for respondent Nos. 1, 2 and 3. 2. The dispute involved in the present writ petition relates to Plot Nos. 101/1 area 1.69 acres and plot No. 102, area 1.23 acres situated in village-Barsara, pargana-Katehar, district-Varanasi (hereinafter referred to as ‘the disputed plots’). 3. In the basic year khatauni the disputed plot No. 101/1 was recorded in the names of the petitioners in Zaman 4 (occupant without title) and plot No. 102 was recorded as Talab in Zaman 6. Upon commencement of consolidation operations in the village where the disputed plots are situate, the petitioners filed two objections before the Consolidation Officer under Section-9 (A) (2) of the U.P. Consolidation of Holdings Act (hereinafter referred to as the ‘C.H. Act’) in respect of the disputed plots. With regard to the disputed plot No. 101/1 the petitioners’ claim before the Consolidation Officer was that out of the total area of 1.69 acres of the aforesaid plot, 10 decimal area was being used by them as Abadi. They prayed that after demarcating 10 decimal area from plot No. 101/1, petitioners be declared as bhumidhars of the remaining area of the aforesaid plot. Vis-a-vis plot No. 102, which was admittedly recorded as talab, they alleged that they were owners thereof on the strength of a sale-deed dated 18.1.1960 executed in their favour by its erstwhile zamindars Vishwanath, Nand Lal and Purushottam. Respondent Nos. 5 and 6 also filed objections before the Consolidation Officer with the prayer that the names of the petitioners recorded in the basic year khatauni in Zaman 4 be expunged and disputed plots which were in the nature of bhita and talab, be recorded as property of Gaon Sabha. All the objections were considered and decided by the Consolidation Officer by his common judgement and order dated 21.8.1978 (Annexure 5 to the writ petition). All the objections were considered and decided by the Consolidation Officer by his common judgement and order dated 21.8.1978 (Annexure 5 to the writ petition). The Consolidation Officer after taking into consideration the entire evidence adduced by the parties before him held that no bhumidhari rights could accrue in favour of the petitioners in the disputed plot No. 101/1 which was in the nature of bhita and talab and directed for expunging the entry of occupier of the disputed plot existing in favour of the petitioners in the basic year khatauni for recording the same as property of Gaon Sabha. The consolidation Officer maintained the basic year entry in respect to plot No. 102. The Consolidation Officer however, found that the petitioner were the owners of the old trees existing on the disputed plots. 4. Against the order dated 21.8.1978 the petitioners filed an appeal under Section 11 (1) of the C.H. Act which was numbered as Appeal No. 3084 before the Assistant Settlement Officer of Consolidation-respondent No. 2 and allowed by him by his order dated 28.8.1981 (Annexure 7 to the writ petition). The Assistant Settlement Officer of Consolidation held that once the Consolidation Officer had come to the conclusion that the disputed plots were in the nature of bhita and talab, he should have refrained from passing any order for correction of record of rights pertaining thereto as the area comprised in the disputed plots did not come within the circumscribed limit over which the Consolidation Courts had jurisdiction to adjudicate. The respondent No. 2 by his order, after setting aside the order of the Assistant Settlement Officer of Consolidation, restored the basic year entries, with liberty to the parties to get their rights in respect of the disputed plots declared by a competent Court. The order dated 28.8.1981 was assailed by the respondent Nos. 5 and 6 by filing a revision under Section 48 (1) of the C.H. Act before the respondent No. 1 which was numbered as Revision No. 3110 and allowed by him by his order dated 6.4.1983 (Annexure 9 to the writ petition). The respondent No. 1 while allowing the revision No. 3110 set aside the order of the Assistant Settlement Officer of Consolidation and restored that of the Consolidation Officer. 5. The respondent No. 1 while allowing the revision No. 3110 set aside the order of the Assistant Settlement Officer of Consolidation and restored that of the Consolidation Officer. 5. The petitioners by means of this writ petition have prayed for issuing a writ, order or direction in the nature of certiorari quashing the order dated 6.4.1983 passed by the Deputy Director of Consolidation, Varanasi (Annexure 9 to the writ petition). 6. Sri N.C. Rajvanshi, learned counsel appearing for the petitioners submitted that the Revision No. 3110 preferred by the respondent Nos. 5 and 6 in their capacity as members of the Gaon Sabha claiming themselves to be the members of Ramleela committee of the village, which itself was an un-registered body, without any authority of Land Management Committee as contemplated under Rule 110 A of U.P. Z. A. & L. R. Rules, 1952 and para 128 of Gaon Sabha Manual was not maintainable and wholly incompetent. They had no locus standi to challenge the order of the Assistant Settlement Officer of Consolidation and hence the impugned order passed by the respondent No. 1 allowing the revision of the respondent Nos. 5 and 6 is totally without jurisdiction. 7. He next submitted that the Assistant Settlement Officer of Consolidation had rightly allowed the appeal preferred by the petitioners against the order of the Consolidation Officer rejecting their claim to be recorded as bhumidhars of the disputed plots for the reason that the disputed plots were in the nature of bhita and talab in which no bhumidhari rights could accrue on the ground that the Consolidation Officer had no jurisdiction to make an order for expunging the entry of occupier of the disputed plot No. 101/1 existing in petitioners’ favour in the basic year khatauni and for correction of record of rights, relating to land unconnected with agriculture. He next submitted that the respondent No. 2 while allowing the petitioners’ appeal had rightly restored the basic year entries with liberty to the parties to get their rights in respect of disputed plots declared by a competent Court, the revisional Court clearly exceeded its jurisdiction in interfering with the order of the Assistant Settlement Officer of Consolidation and restoring that of the Consolidation Officer by the impugned order passed by him in a totally incompetent revision preferred by respondent Nos. 5 and 6 against the order of the Assistant Settlement Officer of Consolidation. 5 and 6 against the order of the Assistant Settlement Officer of Consolidation. In support of his aforesaid contention, learned counsel for the petitioners has relied upon a Division Bench of this Court in Triloki Nath v. Ram Gopal and others, 1982 All LJ 1113. 8. Per contra, Sri Ajay Shankar, learned counsel appearing for the respondent No. 5 submitted that the respondent Nos. 5 and 6 were fully competent to file Revision No. 3110 against the order of the Assistant Settlement Officer Consolidation in their capacity as the members of the Gaon Sabha and the submissions to the contrary made by learned counsel for the petitioners are totally misconceived. 9. He further submitted that even if it is assumed, though without admitting, that the revision preferred before the Deputy Director of Consolidation-respondent No. 1 was not maintainable at the behest of respondent Nos. 5 and 6, the same was not liable to be dismissed on the aforesaid ground in view of the settled law on the issue as propounded by a Full Bench of this Court in the case of Amir Hussain v. D.D.C., Moradabad and others, 1977 AWC 1 FB, that the Consolidation Authorities can validly direct the name of Gaon Sabha or State Government to be recorded when they find that there is no valid title holder and that under the law the land had vested in the State Government and then in the Gaon Sabha even though Government or Gaon Sabha has not filed any objection. Advancing his arguments further, Sri Ajay Shankar submitted that since the disputed plots were concurrently found by the respondent Nos. 3, 2 and 1 to be in the nature of bhita and talab and the petitioners had failed to establish that they were entitled to be recorded as bhumidhars of the disputed plots, neither the Consolidation Officer nor the Deputy Director of Consolidation can be said to have committed any error in holding that the names of the petitioners recorded in Zaman 4 in the basic year khatauni, were liable to be expunged and the disputed plots were liable to be recorded as navin parti and talab in zaman 6 respectively. The impugned order which is based upon relevant considerations and supported by cogent reasons requires no interference by this Court. 10. The impugned order which is based upon relevant considerations and supported by cogent reasons requires no interference by this Court. 10. I have very carefully considered the submissions made by learned counsel for the parties and perused the material brought on record and the law reports cited on behalf of learned counsel for the parties in support of their respective contentions. 11. There is no dispute about the fact that in the basic year khatauni both the plots were recorded in Zaman 6 which has been defined in para A-124, sub-para (6) of U.P. Land Records Manual as barren land (i) covered with water; (ii) sites, roads, railways, buildings and other lands put to non-agricultural uses; (iii) grave-yards and cremation grounds other than those included in land held by tenure-holders or in the abadi area; (iv) otherwise barren including the land which cannot be brought under cultivation without incurring high cost. Barren land also includes the land held by the Union of India, State Government, Gaon Sabha or any other local authority entered under Class (5) or class (6) shall be recorded in the name of respective departments of the Union of India or of the State Government, or the Gaon Sabha or local authority as the case may be, to denote the administrative control and management. Upon coming into force of U.P. Z. A. & L. R. Act the land vested in the State and thereafter in the Gaon Sabha. 12. In my opinion, without going into the issue whether the respondent Nos. 5 and 6 had any locus to file a revision against the order of the Assistant Settlement Officer of Consolidation by which he had allowed the appeal preferred by the petitioners against the order of the Consolidation Officer, this writ petition is liable to be allowed on the second ground on which the petitioners have challenged the impugned order passed by the respondent No. 1. 13. There is no dispute that in the basic year petitioners were recorded as occupiers of plot No. 101/1 in Zaman 4 while plot No. 102 was recorded in Zaman 6 as talab. 14. 13. There is no dispute that in the basic year petitioners were recorded as occupiers of plot No. 101/1 in Zaman 4 while plot No. 102 was recorded in Zaman 6 as talab. 14. The Division Bench of this Court in the case of Triloki Nath (supra) had an occasion of dealing with the question of jurisdiction of consolidation authorities and Courts to decide the question of title between the parties relating to land or a holding used for the purposes unconnected with agricultural and to adjudicate upon the claims for correction of the record of rights relating to areas not coming within the circumscribed limit over which the consolidation Courts have been given jurisdiction to adjudicate. 15. The Division Bench in paras 9 and 13 of aforesaid judgement has held as hereunder: “9. From the perusal of the aforesaid definitions there can be no doubt that the provisions of Consolidation of Holdings Act can be made applicable only to that area which is covered by the definition of the word ‘land’ and with respect to which a Notification may subsequently be issued under Section 5 of the Consolidation of Holdings Act. The land as defined above is narrow in its application and refers to that area alone which is used for agricultural purposes etc. If any area is used for purposes other than agriculture, horticulture etc. it would not be covered by the definition of the word ‘land’ and as such the provisions of the Consolidation of Holdings Act cannot apply to that area. Section 5 (1) of the Consolidation of Holdings Act speaks of the consequences which would ensure on publication of Notification under Section 4 (2) of the Act. Under Sub-section (C) (i) of Section 5 (1) of the Consolidation of Holdings Act, a tenure holder is forbidden from using his holding or any part thereof for purposes not connected with agriculture, horticulture or animal husbandry including pisciculture and poultry farming. If the tenure-holder desires to use it for non-agriculture purposes, he can only do so with the permission of the Settlement Officer (Consolidation), that is to say that so long as the holding is utilised by a tenure holder for agricultural purposes etc. If the tenure-holder desires to use it for non-agriculture purposes, he can only do so with the permission of the Settlement Officer (Consolidation), that is to say that so long as the holding is utilised by a tenure holder for agricultural purposes etc. the provisions of the Consolidation of Holdings Act would apply, but once the tenure holder decides otherwise he has got to apply to Settlement Officer (Consolidation) for obtaining permission for the user of his holding in the manner permitted under the provisions of this Act. Once the Settlement Officer grants that permission, that area will cease to be holding within the definition of that term as laid down above. As soon as it ceases to be holding by virtue of its use for the purpose other than contemplated under this Act, the Settlement Officer will have no further jurisdiction to deal with that specified area which would thereafter be emanable to his jurisdiction of the Revenue or the Civil Courts as the case may be. That area in our opinion, would thence forward be excluded from consolidation operations. Counsel for the applicant in support of his submission referred to above relied upon a Single Judge decision of this Court in Alauddin alias Makki v. Hamid Khan (1) In that case, the learned Single Judge was considering the provisions of Section 143 of the Z. A. Act when a Bhumidhar uses holding for the purpose not connected with agriculture, horticulture etc. He has to make an application to the Assistant Collector who after making an enquiry makes a declaration to that effect. After making of the declaration, that area is demarcated. On the making of the declaration as aforesaid, the provisions of Ch. 8 of the Z. A. Act ceases to apply the Bhumidhar and under sub-section (2) of Section 143 devolution of such land of the Bhumidhar which has been demarcated is governed by the personal law to which he is subject. The learned Single Judge has taken the view that unless the declaration has been granted by the Assistant Collector, the holding of Bhumidhar would continue to remain his holding even though a part of it is used for non-agricultural purposes. The learned Single Judge has taken the view that unless the declaration has been granted by the Assistant Collector, the holding of Bhumidhar would continue to remain his holding even though a part of it is used for non-agricultural purposes. The result in effect of this decision is that even though a part of the holding of a Bhumidhar is used for non-agricultural purposes, its devolution would be governed by the provisions of the Z. A. Act. It is only when the declaration has been granted, as mentioned above, and demarcated, that the course of the devolution is changed and the devolution of land not used for agricultural purpose is governed by the personal law to which the Bhumidhar may be subject. The ruling relied upon by the acceptable so far as provisions of Z. A. Act are concerned but it cannot apply to the provisions contained in the Consolidation of Holdings Act. As mentioned above the Consolidation of Holdings Act merely permits the use of a holding by tenure holder for purposes unconnected with agriculture etc. subject to permission being granted by the Settlement Officer. It may also be noted that the proviso to Section 5 also lays down that a tenure holder may continue to use his holding or any part thereof for any purpose for which it was in use prior to the date prescribed in the Notification under the said Act. Thus from a reading of this proviso also it is clear that this Act contemplates user of the holding or part thereof for purposes not connected with agriculture provided it was under such case before the notification issued under Consolidation of Holdings Act or was permitted such use under the provisions of the Act. In our opinion the use of the holding for purposes unconnected with agriculture whether permitted under the Act or whether commenced before the enforcement of this Act, in either case that area which is put to a different use other than agriculture etc. would not be covered by the definition of the word ‘land’ and therefore, the provisions of this Act would not apply. In our opinion, therefore, land not covered by the provisions of the Consolidation of Holdings Act cannot be the subject-matter of a dispute before the Consolidation Courts and the said Courts will have no jurisdiction to decide the question of title between the parties thereto. In our opinion, therefore, land not covered by the provisions of the Consolidation of Holdings Act cannot be the subject-matter of a dispute before the Consolidation Courts and the said Courts will have no jurisdiction to decide the question of title between the parties thereto. In the case before use the facts clearly demonstrate that both parties were claiming title to the disputed plots on the basis of different deeds of transfer. One party Ramgopal claimed title on the basis of deeds executed between the years 1951 and 1956 while Triloki Nath claimed title on the basis of a transfer deeds of 1963 after the publication of the Notification under Section 4 (2) of the Consolidation Act with respect to the Area. In the circumstances such a dispute was not justifiable by the consolidation Courts.” 10. ................. 11. ................. 12. ................. 13. It cannot be doubted that the provisions of Section 9 to Section 11 of the Consolidation of Holdings Act refer to the correction of records of rights. In our opinion, the procedure prescribed thereunder can only apply provided the area which is the subject-matter of dispute fulfills the requirements of the definition of the word ‘land’ as envisaged in the Act. We do not find anything in these sections which would empower the consolidation Courts to correct their records of rights even with respect to those areas which do not come within the purview of the definition of land as contemplated by the Consolidation of Holdings Act. Needless to repeat that, the object of the Act is re-arrangement of the holdings which in terms means the arrangement of land, that is an area used for purpose of agriculture, horticulture, pisciculture etc. If the area does not come within the circumscribed limit over which the consolidation Courts have been given jurisdiction to adjudicate, in our view they will have no power to adjudicate upon such claims for correction of their records. Such a correction can only be effected by consolidation Courts or by District Deputy Director of Consolidation as mentioned in Section 5 (a) after the rights of the parties have been decided by a competent Court. Such a correction can only be effected by consolidation Courts or by District Deputy Director of Consolidation as mentioned in Section 5 (a) after the rights of the parties have been decided by a competent Court. In this view of the matter, we are not inclined to agree with the submission made by counsel for the appellant that because a duty is cast upon the Deputy Director of Consolidation to maintain the records of rights, he should be presumed to have jurisdiction to decide disputes and questions of title with respect to those areas which are not covered by the provisions of this Act.” 16. Thus the Division Bench of this Court in Triloki Nath (supra) after examining the relevant provisions of U.P. C.H. Act and the law on the issue has clearly held that area which is put to a different use other than agriculture would not be covered by the definition of the word ‘land’ and therefore, the provisions of U.P. C.H. Act would not apply and the land not covered by the provisions of U.P. C.H. Act cannot be the subject-matter of a dispute before the Consolidation Courts and such Courts will have no jurisdiction to decide the question of title between the parties thereto. The Division Bench further held that the consolidation Courts will have no power to adjudicate upon any claim for correction of record of rights pertaining to an area not coming within the circumscribed limit over which the consolidation Courts have been given jurisdiction to adjudicate upon. 17. Sri Ajay Shankar, learned counsel for the respondent No. 5 relying upon the Full Bench decision of this Court rendered in the case of Amir Hussain (supra) has tried to submit that the consolidation authorities can validly direct the name of gaon sabha or State Government to be recorded when they find that there is no valid title holder and that under the law the land had vested in the State Government and then in the Gaon Sabha even though Government or Gaon Sabha has not filed any objection. 18. Learned counsel for the respondent Nos. 18. Learned counsel for the respondent Nos. 5 and 6 has tried to impress upon the Court that since the disputed plots were in the nature of talab and bhita, the Consolidation Officer had rightly expunged the entry of occupant recorded in favour of the petitioners in the basic year and directed the disputed land to be recorded as talab and bhita and the Assistant Settlement Officer of Consolidation had clearly exceeded his jurisdiction in allowing the appeal of the petitioners preferred by them against the order of the Consolidation officer and in restoring the basic year entries and the revisional Court rightly corrected the mistake committed by the Assistant Settlement Officer Consolidation by his order by which he had allowed the revision of the respondent Nos. 4 and 5 filed by them against the appellate order. 19. The Full Bench decision of this Court rendered in the case of Amir Hussain (supra), in my opinion, cannot be said to be an authority on the issue, for the simple reason that the question referred to the Full Bench was whether the consolidation authorities can validity direct the name of the gaon sabha or the State Government to be recorded when they find that there is no valid title holder and under the law the land had vested in the State Government and then in the Gaon Sabha even though the Government or the Gaon Sabha has not filed any objection. The other question referred to the Full Bench is not relevant for our purposes. The Full Bench was not dealing with the issue regarding the jurisdiction of the consolidation authorities to decide a dispute between the parties relating to a land which was not being used for any non-agricultural purpose. 20. The other decision relied upon by Sri Ajay Shankar in Ram Murat v. DDC and others, 2000 (91) RD 531 (SC); is also of no help to the answering respondents for the simple reason that in the case of Ram Murat (supra) the objection filed by Ram Murat under Section 9A (2) of U.P. C.H. Act claiming sirdari rights over the land which was recorded as talab and pasture land, was allowed by the Consolidation Officer. Although the order of the Consolidation Officer had attained finality but when the aforesaid fact was brought to the notice of the Deputy Director of Consolidation on the application of the members of the land management committee, he directed for expunging the name of Ram Murat and restored the basic year entries. The order of the Deputy Director of Consolidation was confirmed by the High Court. On appeal, the Apex Court held that the consolidation authorities have a duty to protect the interest of gaon sabha. In the aforesaid case the issue of jurisdiction of consolidation authorities to decide title dispute in respect of land not covered by the ambit of the definition of land given in the U.P. C.H. Act, was not being examined by the Apex Court. 21. The third case relied upon by learned counsel for the respondent No. 4 is Hinch Lal Tiwari v. Kamla Devi, 2001 (92) RD 689, is also of help no to the answering respondents. The issue before the Apex Court in the case of Hinch Lal Tiwari (supra) was whether the cancellation of allotment of land made for the purpose of use of building which formed part of pond by the Additional Collector by his order dated 25.2.1999 which was set aside in appeal by the Divisional Commissioner but maintained in part by this Court in writ petition preferred by the aggrieved allottees, could be sustained. The Apex Court allowed the appeal of the State Government holding that no part of pond could be allotted to anybody for construction of house and confirmed the order of the Divisional Commissioner and directed the respondents-allottes to vacate the land within six months and a further direction was given to the State Government to restore the pond and develop and maintain the same. 22. Learned counsel for the respondent No. 4 also placed reliance upon Dheeraj v. D. D. C. and others, 2009 (107) RD 695 as well as Mohan and another v. D. M./Collector and others, 2009(10) ADJ 9 (NOC). 23. None of the aforesaid decisions have dealt with the issue involved in this writ petition. 24. For the aforesaid reasons and in view the settled law on the issue as propounded by the Division Bench of this Court in the case of Triloki Nath (supra) the impugned order dated 6.4.1983 cannot be sustained and is liable to be quashed. 23. None of the aforesaid decisions have dealt with the issue involved in this writ petition. 24. For the aforesaid reasons and in view the settled law on the issue as propounded by the Division Bench of this Court in the case of Triloki Nath (supra) the impugned order dated 6.4.1983 cannot be sustained and is liable to be quashed. The respondent No. 1 exercised his jurisdiction with material irregularity in interfering with the order passed by the Assistant Settlement Officer of Consolidation dated 28.8.1981 which is based upon the sound principles of law and supported by cogent reasons and in restoring the absolutely illegal order passed by the Consolidation Officer. 25. Accordingly, this writ petition succeeds and is allowed. The impugned order dated 6.4.1983 passed by the Deputy Director of Consolidation in Revision No. 3110 (Annexure 9 to the writ petition) is quashed and the order dated 28.8.1981 passed by the Assistant Settlement Officer of Consolidation is restored. ——————