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2015 DIGILAW 1209 (ALL)

Anil Kumar Gera v. State of U. P.

2015-05-13

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya), J. Heard Sri Anil Sharma, for the petitioner. Standing Counsel, for respondent-1 and Sri Amresh Singh, Standing Counsel for Gram Panchayat. Sri R.K. Pandey and Sri Pawan Kumar Shukla, for respondent-8 and Sri Vikas Budhawar, for respondent-10. With the consent of the parties, writ petition is decided finally. 2. The writ petition has been filed against the order of Deputy Director of Consolidation dated 20.03.2015 allowing the revision of respondent-8 and setting aside the orders of Consolidation Officer dated 28.08.1989 and 30.10.2013 and Settlement Officer Consolidation dated 08.05.2014 and remanding the case to Consolidation Officer for deciding the dispute, after spot inspection and giving opportunity of hearing to the parties, arising out of proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 3. The dispute relates to sub-division of old plot 306. In basic consolidation year, plot 306 (area 1.132 hectare) was recorded in khata 152 of village Ranet Gobindpur, pargana Bisauli, district Badaun, in the names of Sohan Pal son of Roshan Lal and Mohar Singh son of Girand. During partal, share of the parties were noted as 1/2 each. In revised map area of plot 306/1 was noted as 0.367 hectare, plot 306/2 as 0.423 hectare and 306/3 as 0.342 hectare. Entire area of plot 306 was chak out and all the sub-plots of plot 306 was recorded in CH Form-23 in the name of Sohan Pal son of Roshan Lal and Mohar Singh son of Girand in chak 346. 4. It appears that another report was submitted by Consolidator, on the basis of which Consolidation Officer, by exparte order dated 28.08.1989, directed for recording plot 306/2 (area 1-13-10 bigha) as road as undivided with land i.e. "sarak shamil Jot" and 306/3 (area 1-7-0 bigha) as banjar undivided with land i.e. "banjar shamil Jot". Entire area of plot 306 was chak out. There is nothing on record to show that any partition between the co-sharers was taken place under Section 9-C of the Act. It is alleged that the co-sharers remained in possession according to their previous partition and they used to sell it also to different persons. 5. Admittedly, by notification dated 05.07.1977, under Section 4 of Land Acquisition Act, 1895, an area of 1.05 acre of plot 306 was acquired by PWD Department U.P. for construction of road, on which road been constructed through plot 306. 5. Admittedly, by notification dated 05.07.1977, under Section 4 of Land Acquisition Act, 1895, an area of 1.05 acre of plot 306 was acquired by PWD Department U.P. for construction of road, on which road been constructed through plot 306. Anil Kumar Gera (the petitioner) purchased an area of 0.184 hectare of plot 306/1 from Mohar Singh through sale deed dated 08.03.1995, over which, he had installed a Petrol Pump. M/S Krishak Sugar Works also purchased some area of plot 306. Smt. Kanti Devi (respondent-8) purchased 1/2 share from Mohar Singh of plot 405-Ka (area 0.423 hectare) through sale deed dated 01.01.2011. Then dispute arose between Smt. Kanti Devi and Anil Kumar Gera, as both of them began to claim, land abutting to road. Litigation between the parties was initiated before Civil Court also, which is not relevant for this case. 6. Smt. Kanti Devi filed an application in the year 2013 before Consolidation Officer for recall of order dated 28.08.1989, along with delay condonation application. Consolidation Officer by order dated 30.10.2013 rejected the recall application of the ground that there was inordinate delay of about 24 year in filing the recall application and original tenure holders did not challenge the order dated 28.08.1989. Smt. Kanti Devi filed an appeal (registered as Appeal No. 136) from the order dated 28.08.1989 and 30.10.2013. Settlement Officer Consolidation, by order dated 08.05.2014 also held that there was no ground for condoning inordinate delay. Sub-Division of plot 306 was done according to spot inspection report and original tenure holders did not file any objection against it. Smt. Kanti Devi filed a revision (registered as Revision No. 250 of 2014-15). The petitioner filed an application for his impleadment in the revision as opposite party. Deputy Director of Consolidation, by impugned dated 20.03.2015 allowed the impleadment application of the petitioner. He further found that order of Consolidation Officer dated 28.08.1989 was an exparte order and passed without giving proper opportunity of hearing to the parties. Arguments of the revisionist that sub-division plot 306 was not done according spot position is also verified from report of Assistant Consolidation Officer dated 20.02.2015. He further found that order of Consolidation Officer dated 28.08.1989 was an exparte order and passed without giving proper opportunity of hearing to the parties. Arguments of the revisionist that sub-division plot 306 was not done according spot position is also verified from report of Assistant Consolidation Officer dated 20.02.2015. On these findings, he allowed the revision and set aside the orders of Consolidation Officer dated 28.08.1989 and 30.10.2013 and Settlement Officer Consolidation dated 08.05.2014, and remanded the case to Consolidation Officer for deciding the dispute after spot inspection and giving opportunity of hearing to the parties. Hence this writ petition has been filed. 7. The counsel for the petitioner submits that the original tenure holders never challenged the order of Consolidation Officer dated 28.08.1989. Smt. Kanti Devi purchased a part of the land in dispute through sale deed dated 01.01.2011. She was not entitled to file any application for recall of the order. In any case there was no ground for condoning inordinate delay. Supreme Court in State of Gujrat Vs. Syed Mohammad, AIR 1981 SC 1921 , Ram Kali Devi Vs. Manager Punjab Nation Bank, 1998 (8) JT 589 (SC) and Full Bench of Gujrat High Court in Municipla Corporation Vs. Voltas Ltd., AIR 1995 Guj. 29 (FB), held that delay cannot be condoned for the reason that the case was very good on merit. Consolidation Officer and Settlement Officer Consolidation concurrently held that there was no ground for condoning delay. But Deputy Director of Consolidation illegally allowed the revision on the ground that order of Consolidation Officer was exparte. Supreme Court in Ram Dular Vs. DDC and other, 1994 (3) JT 341 (SC), held that Deputy Director of Consolidation was required to examine legality and propriety of the order of sub-ordinate authorities. At the most, Deputy Director of Consolidation could have condoned the delay and ought to have remanded the case for deciding recall application on merit but he has illegally allowed the recall application. 8. I have considered the arguments of the counsel for the parties and examined the record. A Full Bench of this Court in Ramakant Singh Vs. DDC and others, AIR 1975 All 126 (FB) held that Deputy Director of Consolidation can exercise suo moto revisional jurisdiction under Section 48 of the Act, for which no limitation has been provided. 8. I have considered the arguments of the counsel for the parties and examined the record. A Full Bench of this Court in Ramakant Singh Vs. DDC and others, AIR 1975 All 126 (FB) held that Deputy Director of Consolidation can exercise suo moto revisional jurisdiction under Section 48 of the Act, for which no limitation has been provided. Once record of sub-ordinate authority has been summoned then in spite of fact that delay was not liable to be condoned, suo moto revisional jurisdiction can be invoked. Same view has been taken by in Preetam Singh Vs. DDC and others, AIR 1996 SC 2881 . Case laws relied upon by the counsel for the petitioner have no application in the present case, where under special Act, suo moto revisional jurisdiction can be exercised. Deputy Director of Consolidation found that order of Consolidation Officer dated 28.08.1989 was an exparte order and passed without giving proper opportunity of hearing to the parties. Sub-division plot 306 was not done according spot position as is verified from report of Assistant Consolidation Officer dated 20.02.2015. Thus Deputy Director of Consolidation has not committed any illegality in allowing the revision on merit. 9. However, the counsel for both the parties agree before this Court that as the matter is quite old, as such instead of remanding the case to Consolidation Officer, Deputy Director of Consolidation should have decided the case on merit after taking spot inspection report from sub-ordinate authorities and giving opportunity of hearing to the parties. A perusal of CH Form 23 (filed on page-60) to the writ petition shows that all the sub-division of plot 306 with its entire area was recorded in the names of Sohan Pal and Mohar Singh. No partition between co-sharer is found in it. It is admitted that an area of 1.05 acre of plot 306 was acquired in 1977 for construction of road, on which road was constructed and both the co-sharers took compensation of it. Dispute between the parties are (i) as to in which sub-division of plot 306, road is existing, (ii) as to whether there was any partition between the co-sharers on the spot and (iii) Plot 306/3 has been wrongly noted as banjar land. Due to various sale deeds executed by co-sharers in favour of the petitioner and private respondents, dispute arose between transferees about their physical possession on the spot. Due to various sale deeds executed by co-sharers in favour of the petitioner and private respondents, dispute arose between transferees about their physical possession on the spot. Since the matter is very old as such, in case it is decided by Deputy Director of Consolidation then time and money of the parties will be saved. 10. In view of the aforesaid agreement, the writ petition is partly allowed. The order of Deputy Director of Consolidation dated 20.03.2015 is modified. Consolidation Officer may conduct a fresh survey on spot of old plot 306, giving notice to all the co-sharers (original and transferees, including PWD Department) in pursuance of order of Deputy Director of Consolidation dated 20.03.2015. Thereafter he will invite their objections on the survey report and on merit in respect of their title and possession. After recording evidence of the parties, he shall remit the entire record along with his findings to Deputy Director of Consolidation, who shall decide the case finally after hearing the parties. The matter may be expedited and entire exercise be completed expeditiously preferably within a period of six months. No unnecessary adjournment shall be granted to either of the parties.