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2016 DIGILAW 2405 (ALL)

Mahaveer Singh v. D. D. C.

2016-07-12

ANJANI KUMAR MISHRA

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JUDGMENT Anjani Kumar Mishra, J. – These three writ petitions contain common facts and therefore with the consent of the parties they have been heard and are being decided together. 2. I have heard Sri Pramod Kumar Pandey for the petitioner in all three writ petitions and Sri Sachidanand Tripathi for the respondent No.3 in writ petition no.49783 of 2012 and learned Standing Counsel for the State-respondents in all the writ petitions. 3. The facts relevant in these writ petitions briefly stated are that one J.N. Sahai is alleged to have been granted a lease of plot No.53 area 3 acres and plot no.5324 area 0.17 acre in the year 1973. 4. It appears that proceedings for cancellation of the lease were initiated and the Additional District Magistrate vide order dated 10.09.1981 cancelled the lease on the ground that the claims of eligible persons have been over looked. 5. Against this order, a revision was filed before the Commissioner. The Commissioner referred the matter to the Board of Revenue. The Board of Revenue vide order dated 16.05.1989 set aside the order dated 10.09.1981 and remanded the matter back for a fresh decision. 6. While the matter was pending. Consequent to the order of remand passed by the Board of Revenue, the son of the lessee, Moon Axmus Sahai, who had been mutated on the death of his father, sold the land in question to the petitioner. The petitioner is alleged to have been mutated on the basis of the sale deed in his favour executed sometime in the year 2005. 7. The Additional District Magistrate vide order dated 29.06.2006 affirmed the allotment in favour of J.N. Sahai. 8. Against this order, a revision was filed by Balister Singh, respondent no.4, in writ petition no.49783 of 2004 and respondent no.6 in writ petition no.35470 of 2011. This revision was allowed. The order dated 29.06.2006 passed by the Additional District Magistrate and the matter remanded back for fresh consideration. The revision was allowed primarily on the ground that the land which has been leased out to J.N. Sahai and earlier been leased to the father of the Balister Singh, and therefore, was not vacant land. 9. It appears that in the meantime, the consolidation operations started. In consolidation operations, a chak No.1804 appears to have been carved out in the name of Mahavir Singh, the petitioner in these writ petitions. 10. 9. It appears that in the meantime, the consolidation operations started. In consolidation operations, a chak No.1804 appears to have been carved out in the name of Mahavir Singh, the petitioner in these writ petitions. 10. It appears that during the consolidation operations, some fraudulent orders were prepared whereby certain land recorded as forest was allotted in the chak of the various parties in the year 2010. A large number of orders passed were set aside on the ground that the entries had been made in the revenue records on the basis of fraudulent orders whereby the holding of the tenure holders, increased by more than 50%. The orders were therefore set aside holding them to be fraudulent in 2010. 11. Thereafter a complaint was made by Mahaveer Singh as also by a Corporator. 12. In so far as, the application of the petitioner is concerned, it was alleged that on account of the fraudulent entries, the petitioner chak holder No.1804 was entitled to land which was not available on the spot. A prayer was therefore made that he be compensated for this short fall by allotment of plot no.5105/6 in his chak. An order in this effect came to be passed on 13.04.2011. Writ petition No. 35470 of 2011 have been filed seeking a writ of mandamus for compliance of this order dated 13.04.2011 passed by the Deputy Director of Consolidation, Farrukhabad, under Section 48 (3) of the Consolidation of Holdings Act. 13. It appears that by the order dated 13.04.2011, the chak of the Blister Singh was also effected. He therefore, filed restoration application against this order as also a writ petition. The restoration application was allowed vide order dated 26.05.2012 and the order dated 13.04.2011 was set aside. It is this order dated 26.05.2012 which is impugned in the writ petition No.49783 of 2012. 14. It also appears that on the restoration application was filed by Blister Singh, an interim order was granted on 23.04.2011. Staying the effect and operation of the order dated 13.04.2011. This order dated 23.04.2011 is also impugned in writ petition 35470 of 2011 whereby a mandamus has also been sought for implementation of the order dated 13.04.2011. 15. From the facts noticed herein-above, it emerges that the writ petition No.35470 of 2011 have been filed by Mahaveer challenging the interim order whereby the operation of the order dated 13.04.2011 was stayed. 15. From the facts noticed herein-above, it emerges that the writ petition No.35470 of 2011 have been filed by Mahaveer challenging the interim order whereby the operation of the order dated 13.04.2011 was stayed. Writ Petition No.49783 of 2012 has been filed challenging the order dated 26.05.2012 whereby the restoration application filed by Blister Singh was finally allowed. 16. In this connection, as already noticed herein above, it is relevant to reiterate that against the order dated 13.04.2011, Blister Singh preferred a writ petition before this Court. This writ petition being writ petition no.25572 of 2011, Blister Singh and others v. State of U.P. and others was dismissed by this Court vide order dated 04.05.2011 and the order impugned therein, namely the order dated 13.04.2011, was affirmed. 17. It therefore stands established on record that the restoration application filed by Blister Singh against the order dated 13.04.2011 has been allowed, even though the order had been affirmed by the writ Court vide order dated 04.05.2011. This order dated 26.05.2012 allowing the restoration application under challenge in writ petition No.49783 of 2012 is therefore unsustainable. 18. In my considered opinion, once the order dated 13.04.2011 had been affirmed by the writ Court on merits, the same could not have been recalled by the Deputy Director of Consolidation vide order dated 26.05.2011 and this order has clearly been obtained by the respondent no.4, Blister Singh by concealing material facts. The order dated 26.05.2012 is therefore liable to be set aside and writ petition 49783 of 2012 is liable to be allowed. 19. In so far as the writ petition No.35470 of 2011 is concerned that the same is directed against the order dated 23.04.2011, whereby an interim order was granted staying the operation of the order dated 13.04.2011. This interim order has worked itself out once the restoration application, whereupon this interim order has been granted has itself been decided on 26.05.2012. This interim order dated 23.04.2011 cannot survive once the restoration application whereupon the same had been passed itself stands decided. Writ petition No.35470 of 2011 has therefore, being rendered infructuous and is therefore liable to be dismissed as such. 20. In view of the above, it is only writ petition No.54933 of 2015 which survives for consideration. This interim order dated 23.04.2011 cannot survive once the restoration application whereupon the same had been passed itself stands decided. Writ petition No.35470 of 2011 has therefore, being rendered infructuous and is therefore liable to be dismissed as such. 20. In view of the above, it is only writ petition No.54933 of 2015 which survives for consideration. In this writ petition, a mandamus has been sought, directing the consolidation authorities to deliver possession to the petitioner over plot no.5105/6 as directed by the order dated 13.04.2011 which stands affirmed once the writ petition No.25572 of 2011 challenging this order came to be dismissed on 04.05.2011. 21. In my considered opinion, this mandamus cannot be granted. The order is primafacie illegal, inasmuch as it directs inclusion of a plot recorded as forest land in the chak of the petitioner. Any land which is forest land cannot be the subject matter of consolidation operations and therefore a plot recorded as forest land cannot be allotted in the chak of the petitioner. For this reason alone, the mandamus that has been brought for by the petitioner is not liable to be granted. 22. There is yet another aspect of the matter. Certain land is to be included in the chak of the petitioner in lieu of land purchased from Moon Axmus Sahai whose father was a lessee of the land, during the proceedings for cancellation of the said lease. The petitioner be therefore entitled the land only once the allotment made in favour of J.N. Sahai, the father of the petitioners' vendor, Moon Axmus Sahai is upheld. It appears that this question is still pending consideration before the competent Court and has not been decided finally. 23. In such view of the matter, the mandamus prayed for by means of writ petition no.54933 of 2015 is not liable to be granted. This writ petition is however disposed of with the observation that the consolidation authorities may examine the case of the petitioner and may allot land equivalent to the valuation to which he is entitled, in case, the lease in favour of J.N. Sahai is upheld, because the petitioner claims to be a vendee of the land which have been allotted to J.N. Sahai and the proceedings for cancellation of this allotment have not attained finality till date. The authorities must also bear in mind that land which is recorded as forest land cannot be subject matter of chak allotment proceedings and any such land cannot be allotted in chak of the petitioner. 24. Although the order dated 13.04.2011 is under challenge, yet the order is, primafacie, illegal, inasmuch as it allots forest land in the chak of the petitioner. 25. The order dated 13.04.2011 is, in the interest of justice, modified and the consolidation authorities are directed to reconsider the claim of the petitioner in the light of the observations made herein-above. 26. Accordingly and in view of the above discussions, writ petition No.35470 of 2011 is dismissed as infructuous. Writ petition No.49783 of 2012 is allowed and the order dated 26.05.2012 impugned therein is hereby quashed. Writ petition No.54933 of 2015 however stands disposed of in terms of the directions/observations contained herein-above. Ordered Accordingly.