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2015 DIGILAW 698 (ALL)

Jawahar Mali v. Dy. Director of Consolidation

2015-04-03

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri Yogendra Pati Tripathi, for the petitioner and Sri D.S.P. Singh, for the contesting respondents. The writ petition has been filed against the orders of Consolidation Officer dated 28.1.2013, Settlement Officer Consolidation dated 5.7.2013 and Deputy Director of Consolidation dated 22.9.2014 passed in title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 2. The dispute relates to plot 517/2 (total area 0.15 acre) of village Sikhadi, pargana Kasawar Raja, district Varanasi. In basic consolidation records, plots 517/1 (area 0.04 acre) and 517/2 (area 0.15 acre) was recorded in the names of Beni Madhav, Akshaiber and Amar Nath (now respondent-4 to 6) and 517/3 (area 0.36 acre) was recorded as abadi, class VI. During consolidation, valuation of plots 517/1 (area 0.04 acre) and 517/2 (area 0.15 acre) were determined at the rate of 14 anna. While making Statement of Principles plot 517/1 (area 0.04 acre) was left as "general abadi". Beni Madhav, Akshaiber and Amar Nath filed an application before Settlement Officer Consolidation on 9.3.1981 for granting permission to raise their house over an area of 0.05 acre of plot 517/2, which was granted by Settlement Officer Consolidation by order dated 17.3.1981. Thereafter they constructed their house over it and remaining area of 0.10 acre of plot 517/2 was used by them as sahan land over which several trees were planted. 3. It appears that subsequently, remaining area of 0.10 acre of plot 517/2 was also recorded as "general abadi" in consolidation records. On coming to know about this mistake, the respondents filed an application under section 42-A of the Act, for deleting valuation of plot 517/2 (area 0.15 acre) and leaving it as a chak. The Consolidation Officer called for a report from Consolidator, who in his report dated 8.10.2012 submitted that the respondents had raised construction over an area of 0.05 acre and remaining area of 0.10 acre was being used by them as their sahan land on the spot. Consolidation Officer, by order dated 20.10.2012, allowed the application and deleted valuation of plot 517/2 (area 0.15 acre) and left it as a chak. The petitioner filed an application for recall of the order dated 20.10.2012. The Consolidation Officer by order dated 28.1.2013, allowed the application and set aside the order dated 20.10.2012. 4. Consolidation Officer, by order dated 20.10.2012, allowed the application and deleted valuation of plot 517/2 (area 0.15 acre) and left it as a chak. The petitioner filed an application for recall of the order dated 20.10.2012. The Consolidation Officer by order dated 28.1.2013, allowed the application and set aside the order dated 20.10.2012. 4. In the meantime, the respondents also filed an objection under section 9-A of the Act, for deleting valuation of plot 517/2 (area 0.15 acre) on 1.11.2012, along with delay condonation application. On the basis of report of Lekhpal, Consolidation Officer, by order dated 2.11.2012, condoned the delay and thereafter by order dated 26.11.2012 allowed the objection and deleted valuation of plot 517/2 (area 0.15 acre) and left it as achak. The petitioner filed an appeal (registered as Appeal No. 1394) from the aforesaid order dated 26.11.2012, on the ground his house situates in eastern side of the land in dispute, in which he was having main door in western side and he has been using the disputed land since before date of vesting as his appurtenant land. It has been wrongly reserved as "general abadi". Thereafter by ex-parte order dated 26.11.2012 its valuation was deleted and it was left as a chak. The order was passed ex-parte without hearing him. The appeal was heard by Settlement Officer Consolidation, who by order dated 5.7.2013, dismissed the appeal. The petitioners filed a revision (registered as Revision No. 1441) from the aforesaid order. The revision was heard by Deputy Director of Consolidation, who again called for a fresh spot inspection report. In compliance of the order, Assistant Consolidation Officer submitted spot inspect report dated 10.9.2014. Thereafter, revision was heard by Deputy Director of Consolidation, who by order dated 22.9.2014 dismissed the revision. Hence this writ petition has been filed. 5. The Counsel for the petitioner submitted that the land in dispute is abutted to the main door of the house of the petitioner, in western side which is proved from spot inspection report of Assistant Consolidation Officer dated 10.9.2014. It had been used as appurtenant land by the petitioner, since before date of vesting as such it was vested in the petitioner under section 9 of U.P. Act No. 1 of 1951. It had been used as appurtenant land by the petitioner, since before date of vesting as such it was vested in the petitioner under section 9 of U.P. Act No. 1 of 1951. The consolidation authorities have no jurisdiction in respect of abadi or appurtenant land as held by this Court in Ram Deo v. DDC and others 2007 (102) RD 761. The Consolidation Officer by an ex-parte order dated 26.11.2012 left the disputed land as achak. Valuation of plot 517/2 (area 0.15 acre) was determined from the initial stage of consolidation and it was left as "general abadi" at the time of preparation of Statement of Principles as such there was no hindrance in possession of the petitioner over it. The respondents, if aggrieved, were required to file an objection under section 9-B of the Act but no such objection was filed within time. It is only after close of consolidation operation, they moved an application under section42-A of the Act and secured an order on it on 20.12.2012, which was set aside on the application of the petitioner by Consolidation Officer by order dated 28.1.2013. However, in the meantime, they surreptitiously obtained another order dated 26.11.2012, in the alleged objection under section 9-A of the Act. The objection under section 9-A of the Act, was not maintainable as held by this Court in Jai Raj Singh v. Addl. Collector and others 2003 (95) RD 450 . The objection under section 9-A of the Act, was highly time barred and there was no ground for condonation of delay but Consolidation Officer has illegally condoned the delay. The appeal and revision of the petitioner have been illegally dismissed. 6. I have considered the arguments of the Counsel for the petitioner and examined the record. A perusal of report of Assistant Consolidation Officer dated 10.9.2014 shows that house of the petitioner is in eastern side and the place, where door of the house of the petitioner is situate, there is pakka house of the respondents. Thereafter, in west and south of it, part of plot 517/2 is situated over which various trees were planted and nad charan etc. were also shown and thereafter in west of it pakka house of respondent-4 exists. The place, where the petitioner claims to be his sahan land has now been occupied by construction. 7. Thereafter, in west and south of it, part of plot 517/2 is situated over which various trees were planted and nad charan etc. were also shown and thereafter in west of it pakka house of respondent-4 exists. The place, where the petitioner claims to be his sahan land has now been occupied by construction. 7. There is no dispute that plot 517/2 (area 0.15 acre) was recorded in the names of the respondents. If the petitioner is claiming his right over the land in dispute, on the ground that it was appurtenant land of his house, he was required to file an objection under section 9 of the Act, but no such objection was filed as such right of the petitioner, if any, has been barred under section 11-A of the Act. The petitioner could not adduce any evidence to show that he was in possession of it since before date of vesting. The arguments that the land in dispute was appurtenant to abadi land as such consolidation authorities had no jurisdiction over it is not liable to be accepted as admittedly in basic consolidation record it was recorded as bhumidhari land of the respondents and from very beginning, its valuation was determined. 8. The case of the respondents was that during consolidation, valuation of plots 517/1 (area 0.04 acre) and 517/2 (area 0.15 acre) were determined at the rate of 14 anna. While making Statement of Principles, plot 517/1 (area 0.04 acre) was left as "general abadi" and remaining area was remained in the names of the respondents. Beni Madhav, Akshaiber and Amar Nath filed an application before Settlement Officer Consolidation on 9.3.1981 for granting permission to construct their house over an area of 0.05 acre of plot 517/2, which was granted by Settlement Officer Consolidation by order dated 17.3.1981. Thereafter they constructed their house over it and remaining area of 0.10 acre of plot 517/2 was used by them as sahan land over which several trees were planted. It is due to mistake committed by consolidation authorities, remaining area of 0.10 acre of plot 517/2 was also recorded as general abadi in consolidation record, of which they had earlier no knowledge. The Consolidation Officer was satisfied with the case of the respondents and condoned the delay and allowed their objection. It is due to mistake committed by consolidation authorities, remaining area of 0.10 acre of plot 517/2 was also recorded as general abadi in consolidation record, of which they had earlier no knowledge. The Consolidation Officer was satisfied with the case of the respondents and condoned the delay and allowed their objection. At the most, this order could have been challenged by Gaon Sabha and not by the petitioner, as his right, if any, has become barred under section 11-A of the Act. His appeal and revision has been rightly dismissed. In view of the aforesaid discussions, the writ petition has no merit and is dismissed.