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2016 DIGILAW 3452 (ALL)

Neshat Afroz v. Collector/Distt. D. D. C. Jaunpur

2016-10-17

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya),J. 1. Heard Sri Kailash Nath Singh, for the petitioner in Writ B No. 37238 of 2016 and Sri Suresh Chandra Tripathi, for the petitioners in Writ B No. 39762 of 2016. 2. Writ B No. 37238 of 2016 has been filed for issue of mandamus, directing the Collector/District Deputy Director of Consolidation Jaunpur, to take appropriate decision in the application dated 03.08.2016, which was filed for directing Settlement Officer Consolidation/Consolidation Officer Badlapur to demarcate chak-1096 (plots 994/1 (area 0.28 acre), 994 (area 0.51 acre), 1025 (area 0.035 acre) and 1026 (area 0.045 acre) of village Manikalan, pargana Anguli, district Jaunpur, within stipulated period. Writ B No. 39762 of 2016 has been filed for issue of mandamus, commanding consolidation authorities, to reconstruct chak map Pustikrit in respect of chaks carved out on plots 993, 994, 995, 1025 and 1026 and CH Form-2-A in respect of plots 993, 994 and 995, situated in village Manikalan, pargana Anguli, district Jaunpur and consolidation authorities be also commanded not to make any demarcation/measurement whatever unless and until chaks are not modified by any consolidation authorities on the basis of CH Form-23 and chak map Pustikrit and for quashing the order dated 30.05.2016, passed by Settlement Officer Consolidation Jaunpur, under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 3. During consolidation operation one Smt. Saraswati Devi wife of Ram Adhar was allotted chak-1096. Her second chak was on plots 994/1 (area 0.51 acre), 1025 (area 0.035 acre) and 1026 (area 0.045 acre). She was inherited by her son Rajendra Prasad. Rajendra Prasad executed a sale deed dated 12.09.2001, in respect of his second chak in favour of Krishna Chandra and Saurabh Chandra, who executed a sale deed dated 10.03.2016 in favour of Smt. Neshat Afroz and her minor daughter Jeenab Imtiyaz of that chak. Admittedly, provisional consolidation scheme of the village was confirmed by Settlement Officer Consolidation in 1990 and demarcation of confirmed chaks and delivery of possession was made up to 21.08.1990. 4. Smt. Raijadi wife of Shabbir was allotted chak-86 on plots 1025 (area 0.04 acre) and 1026 (area 0.185 acre). Ejaj Ahmad son of Siddique was allotted chak-203 on plot 1025 (area 0.095 acre). Dr. Wakeel Nazir Educational Welfare Society, Manikalan, Jaunpur purchased aforesaid chaks through sale deeds dated 09.04.2009 and 20.08.2009. Dr. 4. Smt. Raijadi wife of Shabbir was allotted chak-86 on plots 1025 (area 0.04 acre) and 1026 (area 0.185 acre). Ejaj Ahmad son of Siddique was allotted chak-203 on plot 1025 (area 0.095 acre). Dr. Wakeel Nazir Educational Welfare Society, Manikalan, Jaunpur purchased aforesaid chaks through sale deeds dated 09.04.2009 and 20.08.2009. Dr. Wakeel Nazir Educational Welfare Society, Manikalan, Jaunpur constructed a school building in it, in which school of Intermediate level is being run. 5. Smt. Neshat Afroz moved an application dated 30.05.2016, before Settlement Officer Consolidation, Jaunpur (although it was addressed to Consolidation Officer Badlapur) that adjoining land holders of the land purchased by her are illegally dismantling demarcation line (med) and encroaching upon her land as such with the help of police force demarcation be made and demarcation lines be re-fixed. On this application, Settlement Officer Consolidation directed Consolidation Officer/Assistant Consolidation Officer for demarcation with the help of police. In pursuance of the aforesaid order, Consolidator made survey on the spot on 09.06.2016 and submitted his report dated 09.06.2016, stating therein that Dr. Wakeel Nazir Educational Welfare Society, Manikalan, Jaunpur had constructed boundary wall of the school, encroaching upon 2 decimal land of Smt. Neshat Afroz, 2 decimal of chak road and one decimal of chak nali. 6. Dr. Wakeel Ahmad (the manager of Dr. Wakeel Nazir Educational Welfare Society, Manikalan, Jaunpur) filed an objection dated 02.07.2016 before Settlement Officer Consolidation, stating therein that Neshat Afroz was illegally encroaching upon the land of chak road and chak nali on plots 1025 and 1026. Assistant Consolidation Officer submitted incorrect report that school boundary was constructed encroaching land of Neshat Afroz and chak road and chak nali. CH Form-2-A of plots 1025 and 1026 were torn. Confirmed chak map on plots 994, 1025 and 1026 was torn. As such it was not possible to demarcate land of Neshat Afroz, chak road, chak nali and his land, correctly. Demarcation of confirmed chaks and delivery of possession over it was already made in 1989-90. The consolidator is illegally creating dispute on the basis of his incorrect report. He prayed that confirmed chak map be corrected and thereafter on the basis of three fixed points survey of plots 1025 and 1026 be made. Till then, Smt. Neshat Afroz be restrained from raising any construction over chak road and chak nali. 7. On the application of Dr. He prayed that confirmed chak map be corrected and thereafter on the basis of three fixed points survey of plots 1025 and 1026 be made. Till then, Smt. Neshat Afroz be restrained from raising any construction over chak road and chak nali. 7. On the application of Dr. Wakeel Ahmad, Settlement Officer Consolidation, by order dated 02.07.2016, directed Consolidation Officer Badlapur to demarcate the plots correctly, himself. Consolidation Officer Badlapur constituted a team of 5 officials (two Assistant Consolidation Officer, one Consolidator and two Lekhpals) by order dated 06.07.2016 and fixed 14.07.2016 for survey and demarcation of disputed plots. But demarcation was not done by the team till today. Neshat Afroz moved an application dated 03.08.2016 before District Deputy Director of Consolidation Jaunpur for directing Settlement Officer Consolidation/ Consolidation Officer Badlapur to demarcate chak-1096 (plots 994/1 (area 0.28 acre), 994 (area 0.51 acre), 1025 (area 0.035 acre) and 1026 (area 0.045 acre) of village Manikalan, pargana Anguli, district Jaunpur. Dr. Wakeel Ahmad moved another application dated 06.08.2016 before District Deputy Director of Consolidation Jaunpur to annul the report of Consolidator dated 09.06.2016 and stop proceeding relating to demarcation of the chaks. He also prayed for reconstruction of confirmed chak map in respect of chaks carved out on plots 993, 994, 995, 1025 and 1026 and CH Form-2-A in respect of plots 993, 994 and 995, situated in village Manikalan, pargana Anguli, district Jaunpur and take action against the persons responsible for tearing of these papers. Hence these writ petitions have been filed. 8. Sri S.C. Tripathi, the counsel for the petitioner in Writ B No. 39762 of 2016 submitted that Provisional Consolidation Scheme of the village was confirmed in 1990 under Section 23 of the Act. Thereafter, demarcation of confirmed chaks and delivery of possession over it, in the village was done upto 20.08.1990. A combined reading of Section 24 and 28 of the Act, makes it clear that any chak holder, if not given possession over his confirmed chak, can move an application in this respect before Assistant Consolidation Officer within six months from the confirmation of the chak. Smt. Saraswati Devi, the original chak holder never made any application for demarcation of chak and delivery of possession. Smt. Neshat Afroz is a third transferree through sale deed dated 10.03.2016. She was given possession over the land transferred to her. Smt. Saraswati Devi, the original chak holder never made any application for demarcation of chak and delivery of possession. Smt. Neshat Afroz is a third transferree through sale deed dated 10.03.2016. She was given possession over the land transferred to her. Her application for demarcation of chak and delivery of possession was not maintainable as held by this Court in Smt. Rajjo Devi Vs. State of U.P. and others, 2016 (131) RD 489 . Smt. Neshat Afroz is herself encroaching upon the land of chak road and chak nali on plots 1025 and 1026. Consolidator submitted incorrect report that school boundary was constructed encroaching upon land of Neshat Afroz and chak road and chak nali in collusion of Smt. Neshat Afroz. CH Form-2-A of plots 1025 and 1026 and confirmed chak map on plots 994, 1025 and 1026 were torn. As such it was not possible to demarcate land of Smt. Neshat Afroz, chak road, chak nali and his land, correctly. The consolidator is illegally creating dispute on the basis of his incorrect report. In the circumstances of the case, the consolidation authorities be directed to prepare correct confirmed chak map and thereafter on the basis of three fixed points, conduct survey of plots 1025 and 1026. Till then, Smt. Neshat Afroz be restrained from raising any construction over chak road and chak nali. In district Jaunpur, Sri R.S. Singh was posted as Settlement Officer Consolidation (Administration) while Sri Shashi Kant Shukla was posted as Settlement Officer Consolidation (Judicial). He had no jurisdiction to pass order for demarcation of chak and delivery of possession. 9. I have considered the arguments of the counsel for the parties and examined record. So far as judgment of this Court in Smt. Rajjo Devi Vs. State of U.P. and others, 2016 (131) RD 489 , is concerned, in that case the application for demarcation of chak was made after notification of village under Section 52 of the Act. In the present case, notification under Section 52 of the Act was not issued in the village. State of U.P. and others, 2016 (131) RD 489 , is concerned, in that case the application for demarcation of chak was made after notification of village under Section 52 of the Act. In the present case, notification under Section 52 of the Act was not issued in the village. After notification of the village under Section 4 of the Act, duty of maintaining record of right, preparing village map, field book and annual register has to be performed by consolidation authorities under Section 5 (1) (a) and under Section 5 (2) (a) of the Act, every proceeding for the correction of the records and every suit and proceeding in respect of declaration of rights or interest in any land lying in the area or for declaration and adjudication of any other right in regard to which proceeding can or ought to be taken under this Act, has to be abated. Even after notification of the village under Section 52 of the Act, if re-carvation of the chak and delivery of possession over it is required to be made in pursuance of the order passed subsequent to the notification, it can be done in view of Section 52 (2) of the Act read with Rule 109-A of the Rules, 1954. Demarcation and possession over confirmed chak is also a proceeding for adjudication of the right of the tenure holders. If after demarcation and possession over confirmed chak, any encroachment is being made either upon chak of any chak holder or upon chak road and chak nali, then it is well within jurisdiction of the consolidation authorities to re-demarcate the chaks and allocate boundary marks of the chaks otherwise purpose of conferring wide jurisdiction to consolidation authorities would be frustrated. If encroachment is being made either upon chak of any chak holder or upon chak road and chak nali after demarcation of chak and delivery of possession over it, it is not the intention of Act that the aggrieved person should wait notification under Section 52 of the Act and then take remedy before revenue court. A Division Bench of this Court in Vishwanath Chaturvedi v. Union of India, (2011) 2 All LJ 370 held that there is no wrong without remedy. Same view has been taken in Pradeep Kumar Dixit v. Urban Co-operative Bank Ltd., (2002) 2 AWC 1051 . A Division Bench of this Court in Vishwanath Chaturvedi v. Union of India, (2011) 2 All LJ 370 held that there is no wrong without remedy. Same view has been taken in Pradeep Kumar Dixit v. Urban Co-operative Bank Ltd., (2002) 2 AWC 1051 . As such the arguments that application of Smt. Neshat Afroz for demarcation of her chak and fixation of its boundary marks was not maintainable, is not liable to be accepted. 10. Smt Neshat Afroz being a transferee of the land in dispute, the ownership of the chak was vested in her and she has every right to prevent encroachment upon it. Allegations were made in her application that adjoining chak holders had dismantled the boundary marks. On these allegations her application for demarcation and refixation of boundary mark was maintainable. Settlement Officer Consolidation has rightly passed the order for demarcation of chak of Smt. Neshat Afroz. 11. So far as jurisdiction of Sri Shashi Kant Shukla, Settlement Officer Consolidation (Judicial), Jaunpur to pass order for demarcation of chak and delivery of possession, is concerned, notification relating to his jurisdiction has not been filed before this Court. As such this Court is unable to hold that Sri Shashi Kant Shukla, Settlement Officer Consolidation (Judicial), Jaunpur had no jurisdiction to pass order for demarcation of chak and delivery of possession. 12. Dr. Wakeel Ahmad, himself in his application dated 02.07.2016 filed before Settlement Officer Consolidation, had stated that Smt. Neshat Afroz was illegally encroaching upon the land of chak road and chak nali on plots 1025 and 1026. Such a dispute can only be resolved by fresh demarcation of the chaks on the spot. So far as allegation that confirmed chak map is torn, is concerned, it is for the consolidation authorities to decide as to whether they have sufficient documents to proceed with fresh demarcation of the chaks or not. It is premature for this Court to give any finding on insufficient materials. If demarcation of the chaks is not made on the basis of valid papers, it is always open for the petitioners in both the writ petitions to challenge it. 13. In view of aforesaid discussion, Writ B No. 37238 of 2016 is allowed. It is premature for this Court to give any finding on insufficient materials. If demarcation of the chaks is not made on the basis of valid papers, it is always open for the petitioners in both the writ petitions to challenge it. 13. In view of aforesaid discussion, Writ B No. 37238 of 2016 is allowed. The Collector/District Deputy Director of Consolidation Jaunpur, is directed to ensure proper demarcation of chak-1096 (plots 994/1 (area 0.28 acre), 994 (area 0.51 acre), 1025 (area 0.035 acre) and 1026 (area 0.045 acre) of village Manikalan, pargana Anguli, district Jaunpur, within stipulated period of two months from the date of filing certified copy of this order before him. Writ B No. 39762 of 2016 is dismissed.