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2015 DIGILAW 486 (ALL)

Ram Brichh v. Additional District Magistrate/D. D. C.

2015-03-13

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri Jai Prakash Singh, for the petitioners, and Sri C.K. Rai, alongwith Sri Santosh Kumar Singh, for respon-dents-8 to 9. The writ petition has been filed against order of Deputy Director of Consolidation dated 10.12.2014, allowing the revisions of respondents-4 to 10 and setting aside the order of Settlement Officer Consolidation dated 11.2.2011 and reinstating orders of Consolidation Officer, in title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the 'Act') and conferring/recognizing "bhumidhar with non-transferable right" to respondents-4 to 10 under section 122-B (4-F) of U.P. Act No. 1 of 1951, over disputed land. 2. The dispute relates to plot 588 (area 3-0-0 bigha), which was recorded as 'tal' and plots 252/27 (area 0-5-3 bigha), 336 (area 3-0-0 bigha), 352/4 (area 0-5-14 bigha), 374 (area 0-7-13 bigha), 411 (area 0-4-9 bigha), 481/2 (area 0-9-18 bigha), 509 (area 0-6-8 bigha), 707/3 (area 0-8-0 bigha), 759/1 (area 1-10-0 bigha), 759/3 (area 0-10-0 bigha), 841 (area 0-4-18 bigha), 884 (area 0-11-5 bigha) and 904/1 (area 1-1-5 bigha) of village Muriyari, tahsil Saidur, district Ghazipur, which were recorded as banjar land, in basic consolidation year. It is alleged that Mahendra (respondent-4) filed an objection (registered as Case No. 2489) under section 9-A of the Act, claiming his right on plot 588 (area 3-0-0 bigha) on the basis of his possession over it, since before relevant date, under section 122-B (4-F) of U.P. Act No. 1 of 1951. Consolidation Officer by order dated 30.11.1994 allowed his objection and directed for recording his name as "bhumidhar with nontransferable right". Doman and Ram Krit (respondents-5 and 6) filed an objection (registered as Case No. 2490) under section 9-A of the Act, claiming their right on plot 588 (area 3-0-0 bigha) on the basis of their possession over it, since before relevant date, under section 122-B (4-F) of U.P. Act No. 1 of 1951. Consolidation Officer by order dated 30.11.1994 allowed their objection and directed for recording their names as "bhumidhar with non-transferable right". Ram Brichh (respondent-10) filed an objection (registered as Case No. 2495) under section 9-A of the Act, claiming his right on plot 588 (area 1-19-15 bigha) on the basis of his possession over it, since before relevant date, under section 122-B (4-F) of U.P. Act No. 1 of 1951. Ram Brichh (respondent-10) filed an objection (registered as Case No. 2495) under section 9-A of the Act, claiming his right on plot 588 (area 1-19-15 bigha) on the basis of his possession over it, since before relevant date, under section 122-B (4-F) of U.P. Act No. 1 of 1951. Consolidation Officer by order dated 05.12.1994 allowed his objection and directed for recording his name as "bhumidhar with non-transferable right". Radhika (respondent-7) filed an objection (registered as Case No. 329) under section 9-A of the Act, claiming her right on plots 759/1 (area 1-10-0 bigha) and 759/3 (area 0-10-0 bigha) on the basis of her possession over it, since before relevant date, under section 122-B (4-F) of U.P. Act No. 1 of 1951. Consolidation Officer by order dated 26.12.2003 allowed her objection and directed for recording her name as "bhumidhar with non-transferable right". Kaushilya (respondent-8) filed an objection (registered as Case No. 500) under section 9-A of the Act, claiming her right on plots 374 (area 0-7-13 bigha), 411 (area 0-4-9 bigha), 481/2 (area 0-9-18 bigha), 509 (area 0-6-8 bigha), 707/3 (area 0-8-0 bigha), 759/1 (area 1-10-0 bigha), 759/3 (area 0-10-0 bigha), 841 (area 0-4-18 bigha), 884 (area 0-11-5 bigha) and 904/1 (area 1-1-5 bigha) (Total area 3-5-16 bigha) on the basis of her possession over it, since before relevant date, under section 122-B (4-F) of U.P. Act No. 1 of 1951. Consolidation Officer by order dated 5.4.2005 allowed her objection and directed for recording her name as "bhumidhar with non-transferable right". Mahendra (respondent-4) filed an objection (registered as Case No. 498) under section 9-A of the Act, claiming his right on plots 252/27 (area 0-5-3 bigha), 336 (area 0-5-4 bigha), 352/4 (area 0-5-14 bigha), 707/3 (area 0-8-0 bigha), total area 1-3-19 bigha) on the basis of his possession over it, since before relevant date, under section 122-B (4-F) of U.P. Act No. 1 of 1951. Consolidation Officer by order dated 5.4.2005 allowed his objection and directed for recording his name as "bhumidhar with non-transferable right". 3. State of U.P. filed separate appeals (registered as Appeal Nos. 1861, 1862, 1863, 1865, 1867 and 1869) from the aforesaid orders. Settlement Officer Consolidation, by separate orders dated 10.2.2011 held that Consolidation Officer had no jurisdiction to confer title under section 122-B (4-F) of U.P. Act No. 1 of 1951. 3. State of U.P. filed separate appeals (registered as Appeal Nos. 1861, 1862, 1863, 1865, 1867 and 1869) from the aforesaid orders. Settlement Officer Consolidation, by separate orders dated 10.2.2011 held that Consolidation Officer had no jurisdiction to confer title under section 122-B (4-F) of U.P. Act No. 1 of 1951. On this finding, the appeals were allowed and orders of Consolidation Officer, were set aside. Respon-dents-4 to 10 filed their separate revisions (registered as Revision Nos. 954, 955, 956, 957, 958 and 959 of 2014-15) against the aforesaid order. Deputy Director of Consolidation, by order dated 10.12.2014 held that Supreme Court in Manorey v. Board of Revenue, U.P. 2003 (94) RD 538 (SC), has held section 122-B (4-F) not merely provides a shield to protect possession but it also confers a positive right under section 131 (b) of U.P. Act No. 1 of 1951 as such consolidation authorities are also competent to grant such declaration. The orders of Consolidation Officer did not suffer from inherent lack of jurisdiction and were not liable to be set aside. On these findings he allowed the revisions and set aside orders of Settlement Officer Consolidation dated 11.2.2011 and reinstated the orders of Consolidation Officer. Hence this writ petition has been filed. 4. The Counsel for the respondents raised preliminary objection regarding maintainability of the writ petition. He submitted that the impugned order has not affected right of the petitioners and they are not aggrieved persons, writ petition filed by them is not maintainable. The land in dispute was tal/banjar land, vested in State of U.P. In view of sections 117 and 117-A, it was under the management and control of Gram Panchayat. Land Management Committee of the concerned Gram Panchayat has been assigned with right of superintendence, management and control of such land. As such State of U.P. through the Collector or Land Management Committee of the village alone has right to challenge to order of Deputy Director of Consolidation and file writ petition. Every resident of Gram Panchayat has no right to file writ petition. The writ petition is liable to be dismissed on the ground of locus standi of the petitioners. He relied upon the judgment of this Court in Babu Ram Verma v. Sub-Divisional Officer and others 1996 (Suppl.) RD 10 and Jagdish Pandey v. Additional Collector (City) Gorakhpur 2011 (114) RD 106 . 5. The writ petition is liable to be dismissed on the ground of locus standi of the petitioners. He relied upon the judgment of this Court in Babu Ram Verma v. Sub-Divisional Officer and others 1996 (Suppl.) RD 10 and Jagdish Pandey v. Additional Collector (City) Gorakhpur 2011 (114) RD 106 . 5. In reply to preliminary objection, the Counsel for the petitioners submitted that tal/banjar land, vested in State of U.P. and Gram Panchayat. So long as it is not allotted according to provisions of sections 195 and 197 of U.P. Act No. 1 of 1951, it is collectively used by all the residents of Gram Panchayat. Land in dispute falls within the category of land mentioned under section 132 of U.P. Act No. 1 of 1951, over which no right under section122-B (4-F) can accrue to any one. Right under section 122-B (4-F) of U.P. Act No. 1 of 1951 can be claimed within four corner of this provision. The respondents do not satisfy the ingredients of section 122-B (4-F) of U.P. Act No. 1 of 1951 as such no right can be granted to them. Deputy Director has illegally failed to examine that land in dispute is of the category of land mentioned under section 132 of U.P. Act No. 1 of 1951, over which, no right under section 122-B (4-F) can accrue to any one. Further no findings has been recorded that the respondents were "agricultural labourers belonging to Schedule Castes and Schedule Tribe". Order of respondent-1 is illegal and is an abuse of process of Court and amounts to grabbing of public land in collusion of consolidation authorities. In such circumstances, the writ petition filed by the petitioners, who have right to use the land in dispute collectively, till its allotment, is maintainable. He relied upon the judgment of this Court in Munnu Lal v. Additional Commissioner 2005 (99) RD 141, in which it has been held that application for setting aside the order under section 122-B (4-F) by a member of Gaon Sabha was maintainable. Ram Jeet Upadhyaya v. Deputy Director of Consolidation 2012 (116) RD 674 , wherein it has been held that in view of section 11-C of the Act, the order passed by Deputy Director of Consolidation in the revision filed by a member of Gaon Sabha for protection of Gaon Sabha land, cannot be said to be without jurisdiction. 6. Ram Jeet Upadhyaya v. Deputy Director of Consolidation 2012 (116) RD 674 , wherein it has been held that in view of section 11-C of the Act, the order passed by Deputy Director of Consolidation in the revision filed by a member of Gaon Sabha for protection of Gaon Sabha land, cannot be said to be without jurisdiction. 6. I have considered the arguments of the Counsel for the parties and examined the record. Admittedly the land in dispute was tal/banjar land, vested in State of U.P. and Gram Panchayat. By virtue of section 122-A of U.P. Act No. 1 of 1951, superintendence, management and control over such land has been conferred upon Land Management Committee. Section 122-A(2)(b) assign duty of Land Management 'Committee to conduct and prosecute the suit and proceedings by or against Gaon Sabha. Under the provisions of section 126 of U.P. Act No. 1 of 1951, State of U.P. used to issue Government Orders prescribing the procedure for discharging duties by Land Management Committee including conducting cases, commonly known as Gaon Sabha Manual. Paragraphs-128 to 131 of Gaon Sabha Manual prescribed the procedure for conducting the cases by and on behalf of Gaon Sabha through Panel Lawyers appointed under section 127-B, by State of U.P., who are required to act on the instructions of Land Management Committee or Assistant Collector In-charge. Power to eject unauthorized occupants from such land has been conferred upon Assistant Collector under section 122-B. Land Management Committee is constituted under section 28-A of U.P. Panchayat Raj Act, 1947. Section 28-B(1)(g) of this Act also assign duty on Land Management Committee to conduct and prosecute the suits and proceedings by or against Gaon Sabha. With previous permission of Assistant Collector In-charge, Land Management Committee can engage a private Advocate for conducting its cases. Thus under U.P. Act No. 1 of 1951, Land Management Committee and Assistant Collector In-charge are the authorities to take proceedings for ejectment of unauthorized occupants over State/Gaon Sabha and for conducting cases, the procedure has been prescribed under Paragraphs-128 to 131 of Gaon Sabha Manual. 7. Issue as to whether, any resident/member of Gram Panchayat can prosecute a case on behalf of Gaon Sabha in order to protect the Gaon Sabha property has time to time came for consideration before this Court. 7. Issue as to whether, any resident/member of Gram Panchayat can prosecute a case on behalf of Gaon Sabha in order to protect the Gaon Sabha property has time to time came for consideration before this Court. This issue has been considered by Division Bench of this Court in Babu Ram Verma v. Sub-Divisional Officer and others 1996 (Suppl.) RD 10, in which after noticing contradictory views, it has been held that writ petition filed by a member of Gaon Sabha was not maintainable. The case relating to Gaon Sabha/State land has to be conducted, according to the procedure, prescribed under Paragraphs-128 to 131 of Gaon Sabha Manual, which are mandatory. If law has prescribed a procedure, then act has to be discharged according to that procedure alone and not at all. Same view has been followed by Hon'ble Single Judge in Jagdish Pandey v. Additional Collector (City) Gorakhpur 2011 (114) RD 106 . So tax as the cases relied upon the Counsel for the petitioners are concern, they are distinguishable as these cases are based upon the principles of section 11-C of the Act, in which the application filed by a private person can be treated as notice/information for exercising powers under section 11-C of the Act. In any case, Division Bench judgment is a binding precedent. In view of the aforesaid discussions, writ petition is dismissed on the ground of maintainability. It shall be open for State of U.P. and Land Management Committee of Gram Panchayat to challenge impugned order.