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2015 DIGILAW 3459 (ALL)

Vindeshwari v. Deputy Director of Consolidation

2015-11-03

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya), J. Heard Sri J.K. Sinha, for the petitioner. Although the case is taken up in revised call of the list but counsel for the respondents is not present. 2. This writ petition has been filed against the orders of Assistant Settlement Officer Consolidation dated 11.10.1984 and Assistant Director of Consolidation dated 28.12.1988, passed in title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 3. The dispute between the parties relates to plot 358/1 (area 0.700 hectare) of village Sarikalan, pargana and district Baharaich, which was recorded in basic consolidation year khata 110/104, along with other plots, in the name of Vindeshwari (the petitioner). Jita (respondent-3) filed an objection under Section 9 of the Act for recording his name over the land in dispute. It has been stated by Jita that he was agricultural labourer and belonged to Schedule Caste. He had been in possession over the land in dispute since before 30.06.1975 and acquired right of sirdar (bhumidhar with non-transferable right) under Section 122-B (4-F) of U.P. Act No. 1 of 1951. The objection was contested by the petitioner, who had stated that he also belonged to Schedule Caste and land in dispute along with other plots were allotted to him by Land Management Committee since before 1970. On the basis of patta, his name was recorded over the land in dispute and he was continuously in possession over it. Jita was never in possession of the land in dispute. 4. The case was tried by Consolidation Officer, who by order dated 31.12.1980, allowed the objection of Jita. The petitioner filed an appeal from the aforesaid order, which was allowed by appellate court by order dated 30.11.1981 and the matter was remanded to Consolidation Officer for fresh decision after giving opportunity of evidence to the parties. After remand, Consolidation Officer, by order dated 17.08.1982, found that Jita could not prove that patta of the land in dispute of Vindeshwari was canceled nor on the basis of alleged order dated 27.10.1970, the name of Vindeshwari was deleted from revenue record. Jita could not file any documentary evidence to prove his possession over the land in dispute. After remand, Consolidation Officer, by order dated 17.08.1982, found that Jita could not prove that patta of the land in dispute of Vindeshwari was canceled nor on the basis of alleged order dated 27.10.1970, the name of Vindeshwari was deleted from revenue record. Jita could not file any documentary evidence to prove his possession over the land in dispute. The land in dispute was through out recorded in the name of the petitioner as such no right under Section 122-B (4-F) of U.P. Act No. 1 of 1951 could be given to Jita over it. On these findings, he dismissed the objection of Jita. 5. Jita (respondent-3) filed an appeal (registered as Appeal No. 1632) from the aforesaid order. The appeal was heard by Assistant Settlement Officer Consolidation, who by order dated 11.10.1984, held that Vindeshwari was granted patta of six acre land. His patta in respect of two acre land was canceled by order of Sub-Divisional Officer dated 27.10.1970. Consolidation Officer has illegally varied his order dated 31.12.1980, without any basis. On these findings, he allowed the appeal of Jita and set aside the order of Consolidation Officer and directed for recording the name of Jita, over the land in dispute. The petitioner filed a revision (registered as Revision No. 614/451) from the aforesaid order. The revision was heard by Assistant Director of Consolidation, who by order dated 28.12.1988 held that from the order of Sub-Divisional Officer dated 27.10.1970, it was proved that patta of Vindeshwari was canceled in respect of an area of two acres land. The arguments that Sub-Divisional Officer had no jurisdiction to cancel patta under Section 198 (2) of U.P. Act No. 1 of 1951 are irrelevant as consolidation court has no jurisdiction to go in to the issue relating to validity of patta as held by Full Bench of High Court in Similesh Kumar Vs Gaon Sabha, AIR 1977 All 360 (FB). Possession of Jita was approved by Pradhan of the village and also found during partal made by consolidation authorities. As the village was under consolidation operation for a long time as such no documentary evidence relating to possession could be filed. The petitioner was having four acre land with him as such no right could be given to him under under Section 122-B (4-F) of U.P. Act No. 1 of 1951. On these finding, he dismissed the revision of the petitioner. The petitioner was having four acre land with him as such no right could be given to him under under Section 122-B (4-F) of U.P. Act No. 1 of 1951. On these finding, he dismissed the revision of the petitioner. Hence this writ petition has been filed. 6. The counsel for the petitioner submitted that admittedly the petitioner was granted patta of the land in dispute by Land Management Committee and given possession over it. On its basis his name was recorded over it, which continued up to basis consolidation year. The case was respondents was that patta of the petitioner, in respect of two acre land out total six acre land of patta was canceled. Respondent-4 has filed a photostat copy of the alleged order of Sub-Divisional Officer dated 27.10.1970, which was not admissible in evidence as held by this Court in Shrikant Vs. State of U.P., 1998 (89) RD 520 . The Consolidation Officer has rightly ignored it. Assistant Settlement Officer Consolidation and Assistant Director of Consolidation have illegally relied upon it. Sub-Divisional Officer has no jurisdiction to cancel patta under Section 198 (2) of U.P. Act No. 1 of 1951 as held by Board of Revenue U.P. in Ram Dulare Vs. State of U.P., 1981 RD 130. The alleged order of Sub-Divisional Officer was without jurisdiction and null and void. Admittedly patta was granted to the petitioner and he was given possession over the land in dispute. On the basis of order of Sub-Divisional Officer, the petitioner was no dispossessed from it by State of U.P. and Gaon Sabha. Statement of Pradhan relating to possession of respondent-3 is merely a collusive statement and no reliance can be placed on it. Finding relating to possession of respondent-3 is based upon conjecture and surmises. Orders of respondents-1 and 2 are illegal and liable to be set aside. 7. I have considered the arguments of the counsel for the petitioner and examined the record. A perusal of the impugned orders shows that Assistant Director of Consolidation relying upon Full Bench decision of this Court in Similesh Kumar Vs Gaon Sabha, AIR 1977 All 360 (FB), held that the arguments that Sub-Divisional Officer had no jurisdiction to cancel patta under Section 198 (2) of U.P. Act No. 1 of 1951 are irrelevant as consolidation court has no jurisdiction to go in to the issue relating to validity of patta. In this case, law laid down by Full Bench decision of this Court in Similesh Kumar Vs Gaon Sabha, AIR 1977 All 360 (FB) has no application, in as much as Full Bench has held that consolidation authorities have no jurisdiction to cancel the patta. In the present case, the issue was as to whether, the patta of the petitioner was actually canceled or not and Sub-Divisional Officer was competent to cancel the patta. Supreme Court in U.P. State Sugar Corporation Ltd. Vs. DDC and others, AIR 2000 SC 878 held that consolidation authorities are competent to decide the title of the land. If title is based upon patta then it is competent to examine the validity of patta. 8. Further it is very vague to draw an inference that as out of six acre land, patta of two acre land was canceled therefore this cancellation related to land in dispute. On the other hand a categorical findings was required to be recorded that patta of the petitioner relating to land in dispute was canceled by the competent authority. Admittedly patta was granted to the petitioner and he was given possession over the land in dispute. Thus it is further a finding is required to be recorded that on the basis of order of Sub-Divisional Officer, the petitioner was dispossessed from the land in dispute by State of U.P. and Gaon Sabha. In the absence of any such finding there could be no basis to hold that respondent-3 was in possession over the land in dispute since before 30.06.1975. 9. In view of the aforesaid discussions, the writ petition succeeds and is allowed. The orders of Assistant Settlement Officer Consolidation dated 11.10.1984 and Assistant Director of Consolidation dated 28.12.1988, are set aside. The matter is remanded to Deputy Director of Consolidation to decide the revision of the petitioner afresh, in accordance with law, after hearing the parties, expeditiously, preferably within four months from the date of producing certified copy of this order before him.