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2014 DIGILAW 97 (ALL)

Sakhi Gopal v. Ziladhikari/D. D. C

2014-01-09

ANJANI KUMAR MISHRA

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JUDGMENT Anjani Kumar Mishra, J. 1. This writ petition has been filed for a writ of certiorari quashing the order dated 11.7.2013 passed by the Deputy Director of Consolidation whereby the revision of the petitioner has been dismissed and the order dated 18.12.2009 passed by the Settlement Officer, Consolidation, an order of remand, has been affirmed. The dispute in the writ petition pertains to Plot No. 587 area 1 acre over which two persons, namely, Halkuwa and Kunji sons of Bharosa were recorded under Class 9. The respondent No. 4, Gore Lal filed a suit under section 229B of the U.P. Zamindari Abolition and Land Reforms Act, against the persons recorded under class 9. The Sub-Divisional Officer by his judgment and decree dated 27.1.1986 ordered that the names of the plaintiff and also the defendants be expunged from the revenue records and the land to be recorded in the name of the Land Management Committee/Gaon Sabha, Bairwara. 2. The plaintiff-respondent No. 4 preferred an Appeal No. 129/109 under section 331(3) of the U.P. Zamindari Abolition & Land Reforms Act wherein an interim order was passed on 8.1.1987 staying the judgment and decree of the Trial Court, The aforesaid appeal and the suit itself were subsequently ordered to abate on 22.4.1989 under section 5 of the U.P. Consolidation of Holdings Act (hereinafter referred to as the Act) on the start of consolidation operations. It appears from the record that on 15.5.1990 the land in dispute was allotted in favour of the petitioner by the Gaon Sabha which allotment was approved by the Sub Divisional Officer, Mahrauni and in pursuance thereof the name of the petitioner was recorded over this land in dispute. 3. After the abatement of his suit, the respondent No. 4 preferred an objection under section 9A(2) of the Act which was dismissed by the Consolidation Officer vide order dated 11.3.2003 on the ground that the consolidation Courts have no right to go behind the allotment made by the Gaon Sabha in favour of the petitioner and that the remedy available to the respondent was under section 198(4) of the U.P. Zamindari Abolition & Land Reforms Act. 4. The consequent appeal under section 11(2) of the Act was allowed on 11.3.2003 by the Settlement Officer Consolidation, the order of the Consolidation Officer and set aside and the matter was remanded for decision afresh on merits. 4. The consequent appeal under section 11(2) of the Act was allowed on 11.3.2003 by the Settlement Officer Consolidation, the order of the Consolidation Officer and set aside and the matter was remanded for decision afresh on merits. This order of remand was challenged before the opposite party No. 1 which revision has been dismissed by the order impugned. 5. I have heard Shri D.N. Gupta, learned Counsel for the petitioner and Shri Anand Yadav, appearing for the Gaon Sabha. 6. Learned Counsel for the petitioner has submitted that the orders impugned are liable to be quashed in view of the settled legal position that the Consolidation Authorities cannot adjudicate upon or go behind a patta granted by the Gaon Sabha; such allotment can only be cancelled in proceedings under section 198(4) of the U.P. Zamindari Abolition & Land Reforms Act; the objection filed by the respondent No. 1 was incompetent because the Gaon Sabha which had allotted the land in dispute in favour of the petitioner was not made a party in proceedings under Section 9A(2) of the said Act. On the strength of the above submissions he has urged that the order of remand is an exercise in futility as no effective relief can be granted to the respondents by the Consolidation Courts and therefore the order impugned should be set aside. The learned Counsel for the Gaon Sabha has also supported the case of the petitioner. 7. I have, considered the submissions made on behalf of the petitioner and have perused the record. The Settlement Officer, Consolidation as also the Deputy Director of Consolidation have observed that the suit filed by the contesting respondent having been ordered to abate on the start of consolidation operations, the objection under section 9A(2) of the Consolidation of Holdings Act was preferred by him has been dismissed on technical grounds without affording any opportunity of hearing on merits. It is on this reasoning that the order of remand has been passed and the same has also been affirmed by the Revisional Court. 8. From the facts on record this Court finds that the reasoning of the Court below for passing and affirming the order of remand is sound. Accepting the contention of the learned Counsel for the petitioner would tantamount to rendering the contesting respondent remedyless. 8. From the facts on record this Court finds that the reasoning of the Court below for passing and affirming the order of remand is sound. Accepting the contention of the learned Counsel for the petitioner would tantamount to rendering the contesting respondent remedyless. He can no doubt challenge the allotment made in favour of the petitioner in proceedings under section 198(4) of the U.P. Zamindari Abolition & Land Reforms Act but in those proceedings his title over the land in dispute cannot be declared. In pursuance of the decree of the suit under section 229B, first the Gaon Sabha and thereafter the petitioner lessee have been recorded over the land in dispute. At the most in those proceedings the allotment made in favour of the petitioner will be cancelled. 9. In view of facts and circum-stances of the case, I am of the considered opinion the order of remand requires no interference. 10. As regards the second submission of the learned Counsel for the petitioner that the Gaon Sabha was a necessary party and such necessary party not having been impleaded, the objection under section 9A(2) was defective, it would suffice to state that the Gaon Sabha has been impleaded by the petitioner himself in this writ petition and for all practical purposes, the initial defect, if any, in filing of the objection stands cured. Even otherwise the consolidation Courts have jurisdiction to implead any such person as a party to the proceedings, who in the opinion of the Court is a necessary parties and is liable to be heard in order to do complete justice to the parties. Moreover, since the matter has been remanded, there is no bar under law which would prevent the respondent from impleading the Gaon Sabha also as a party in the proceedings before the Consolidation Officer. In any case, these objections being raised before this Court can be raised before Consolidation Officer also and if raised/the Consolidation Officer will be obliged to consider and decide the same in accordance with law. 11. In view of the above discussion, the impugned orders of remand call for no interference. The writ petition lacks merits and is liable to be dismissed also because the issues being raised by means of this writ petition can still be raised in the proceedings before the Consolidation Officer consequent to the remand order. The writ petition is accordingly dismissed.