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2016 DIGILAW 3730 (ALL)

RAM KRISHNA MISRA v. STATE OF U. P.

2016-11-17

ANIL KUMAR

body2016
JUDGMENT Hon’ble Anil Kumar, J.—Heard Shri Subhash Vidyarthi, learned counsel for the petitioner, Shri M. E. Khan, learned Additional Chief Standing Counsel and perused the record as well as original record which has been produced before this Court today by the District Magistrate, Lucknow and SD.M., Bakshi Ka Talab, Lucknow. By means of the present writ petition, the petitioner has challenged the order dated 27.8.2012 passed by Up-Ziladhikari/Assistant Collector-First Class-Bakshi Ka Talab, Lucknow in a proceeding under Section 33/39 of the Land Revenue Act, 1901 (hereinafter referred to as Act) and 7.1.2013 passed by opposite party No. 3. 2. Facts in brief as submitted by learned counsel for the petitioner are that the controversy involved in the present case relates to plot No. 1272 (new No. 833) area 6 Bighas 4 Biswa and 5 Biswansi situated in Village-Mandiyaon, Pargana-Mahona, Tehsil-Bakshi Ka Talab, Lucknow (herein after referred to land in dispute). 3. Learned counsel for the petitioner further submits that land in dispute has been recorded in the name of the petitioner through his predecessors Pt. Debi Prasad, Pt. Ayodhya Prasad and Pt. Govind Prasad, sons of Pt. Mansa Deen Shukla, r/o Yahiya Ganj, Lucknow, the then Zamindars of Mandiyaon village, since before 1333 Fasli i.e. 1926 A.D. On the said land, there were 38 trees of Neem, Guavava, Mango, Jamun, Mahua etc. In a consolidation proceedings under Section 9 of the U. P. Consolidation of Holdings Act, Case No. 103 registered before the consolidation officer, Malihabad, who passed an order dated 21.10.1963 that in pursuance to the same, land in dispute was recorded in the name of Ram Krishan Mishra. Although, the said order was passed in a proceeding under Section 9-A(2) of U. P. C. H. Act but due to clerical mistake, it has been mentioned that the same is passed under Section 10 of the C. H. Act, but due to said fact, no benefit can be derive by the respondent. In this regard, reliance has been placed on the supplementary-affidavit filed by the petitioner, wherein it has been stated that he has applied for the certified copy of the order of Case No. 103, but the same was not available to him on the ground that on 18.8.1994, the record of the case was weeded out. In this regard, reliance has been placed on the supplementary-affidavit filed by the petitioner, wherein it has been stated that he has applied for the certified copy of the order of Case No. 103, but the same was not available to him on the ground that on 18.8.1994, the record of the case was weeded out. However, in respect to weeding out of case No. 103 filed before the Consolidation Officer, the said facts were not denied by the respondent in their supplementary counter-affidavit. 4. Lastly, it has been submitted on behalf of the petitioner that later on, land in question comes within the purview of Nagar Nigam, Lucknow. In this regard, reliance has been placed on the notification dated 3.2.1987 as contained in Annexure No. 7 to the writ petition. 5. Learned counsel for the petitioner further submits that unsigned application titled as Public Interest Litigation dated 13.9.2007 was moved before the opposite party No. 2/Assistant Collector, Bakshi Ka Talab, Lucknow, on the basis of the same, a proceeding under Section 33/39 was initiated in which a report was submitted by Regional Lekhpal. 6. Thereafter, without providing any opportunity to the petitioner, opposite party No. 2 had passed an order dated 5.3.2008 holding therein that land in question indicates that name of the petitioner be expunged from the revenue record and it shall be recorded as pond. When the said facts came to the knowledge of the petitioner, he moved an application for recall of the said order on 6.5.2009 but no heed paid by the opposite party No. 2. So, for redressal of his grievances, approached this Court by filing Writ Petition No. 6230 (MS) of 2011, disposed of by order dated 18.10.2011, relevant portion is quoted herein below : “In this view of the matter, with the consent of parties’ counsel, the writ petition is disposed of finally with the direction that the pending application dated 6.5.2009 moved by the petitioner for recall of the order dated 5.3.2008 passed in Case No. 30/08 under Section 33/39 U.P. Land Revenue Act shall be considered and decided in accordance with law, expeditiously, say within a period of three months from the date a certified copy of this order is produced before the opposite party No. 2. With the aforesaid direction, the writ petition is disposed of.” 7. With the aforesaid direction, the writ petition is disposed of.” 7. Accordingly, petitioner approached opposite party No. 2 to press his recall application and on 16.11.2011, the said authority passed an order thereby recalling the order dated 5.3.2008. Later on, opposite party No. 2, by order impugned dated 27.8.2012 by which he restored the earlier order dated 5.3.2008, challenged by the petitioner by filing a revision, dismissed by order dated 7.1.2013 passed by opposite No. 3/Additional Commissioner (Judicial), Lucknow Division, Lucknow. 8. Learned counsel for the petitioner while challenging the impugned orders dated 27.8.2012 and 7.1.2013 passed by opposite party Nos. 2 and 3 respectively submits that in a proceeding under Section 33/39 of Land Revenue Act, long standing entries recorded in the name of predecessor/petitioner in respect of land in dispute, affirmed by the Consolidation Officer in a proceeding under the Consolidation Act cannot be set aside and for the said purpose, reliance has been placed on the judgment given in the case of M/s. Mahalakshmi Land and Finance Co. (Private) Ltd. v. Board of Revenue, U.P. Lucknow and others, 1997 (15) LCD 273, Durga Devi Rural and Educational Development Society, Kaushambi v. State of U.P. and others, 2015(7) ADJ 666 and Ram Padarth and others v. Second Additional D.J., Sultanpur, 1989 (15) HCLB (FB) 19. 9. Next argument advanced by learned counsel for the petitioner is that an order dated 27.8.2012 restoring the earlier order dated 5.3.2008 is a non-speaking order, so the impugned order dated 27.8.2012 passed by opposite party No. 2 as well as order dated 7.1.2013 passed by the opposite party No. 3 are liable to be set aside. 10. Shri M. E. Khan, learned Additional Chief Standing Counsel while defending the impugned orders submits that in the present case, petitioner has failed to establish that the long standing entries were recorded in the name of predecessors of the petitioner, rather from the document on record, the position which emerges out is that no long standing entries recorded in the revenue record in favour of the predecessor of the petitioner prior to enforcement of U. P. Z. A. & L. R. Act. 11. 11. He further submits that as a mater of fact on record, there is no order of consolidation Officer in a proceeding under Section 9A(2) of the Act, which is evident from the perusal of the document as contained in Annexure No. C indicating that the order in question is passed under Section 10 of the Act, which reads as under : “The annual register shall be revised on the basis of the orders passed under sub-section (1) and sub-section 92) of Section 9-A. It shall thereafter be prepared in the form prescribed and published in the unit. Where any entry in the annual register, published under sub-section (1), is modified in pursuance of an order passed under this Act or under any other law, a reference to the order alongwith an extract of its operative portion shall be noted against the said entry.” 12. So on the basis of the said fact, petitioner cannot claim any benefit in the instant matter in respect to his title over the land in dispute. Next argument advanced by Shri M. E. Khan, learned Additional Chief Standing Counsel is that the land in question vests with the Gaon Sabha as per provisions of Section 132 of U. P. Z. A. & L. R. Act, so there is no illegality or infirmity has been done by the opposite party No. 2 thereby expunging the name of the petitioner in a proceeding under Section 33/39 of Land Revenue Act and the present writ petition is liable to be dismissed. I have heard learned counsel for the parties and gone through the records. 13. In the present case, from the material on record, the position which emerges out is that land in question has been recorded in the name of the petitioner/his predecessor in a case No. 103 as per order dated 21.10.1963 passed by Consolidation Officer, Malihabad, which is evident from the perusal of the document as contained in Annexure No. 6 to the writ petition but it is mentioned that the same is passed under Section 10 of the Act, however, due to said fact, no benefit can be derive by the respondent as in the supplementary-affidavit, petitioner has categorically stated that the record of the Case No. 103 has been weeded out. Further, State has not denied the said fact as well as the fact that there is no case registered as Case No. 103. 14. Accordingly, in view of the above said facts, once the competent consolidation Court has passed an order in favour of the petitioner in a proceeding under U. P. C. H. Act, then in that circumstances, in a summary proceedings, under Section 33/39 of the Land Revenue Act, the name of the petitioner cannot be expunged from the revenue record as per law laid down by a Full Bench of this Court in the case of Ram Padarth and others (Supra) wherein it has been held as under : “The jurisdiction of the consolidation authorities is wider than civil and revenue Court. Section 5 (2) of U. P. Consolidation of Holdings Act provides that any suit pending in the trial Court or in appeal before any appellate Court in which right, title and interest over land is involved will stand abated. In view of the said provision of any appeal, may it be a special appeal, pending before Hon’ble Supreme Court would abate. Adjudication of right, title and interest over ‘land’ by the consolidation authorities is final. Section 8 of U. P. Consolidation of Holdings Act provides for revision of the village map after provisional consolidation Scheme for unit is prepared.” And in the case of M/s. Mahalakshmi Land and Finance Co. (Private) Ltd. (Supra) wherein para 14, this Court held as under : “The learned Member of Board of Revenue instead of accepting the reference has held it to be misconceived. No reasons have been assigned for holding the reference as misconceived. The learned Member has even held the previous order dated 6.9.75 of Board of Revenue on a suit under Section 209 of the Act as without jurisdiction. It is clearly an act of judicial impropriety. If the same Court would start holding its previous judgments and orders as non est or without jurisdiction then it would clearly lead to judicial anarchy. The learned Member should have shown the same respect to previous order passed by his predecessor, which it is expected, his successor in office would show to his judgment and orders. If the same Court would start holding its previous judgments and orders as non est or without jurisdiction then it would clearly lead to judicial anarchy. The learned Member should have shown the same respect to previous order passed by his predecessor, which it is expected, his successor in office would show to his judgment and orders. Then the learned Member should have remembered that the reference before him, was from an order passed in proceeding on a motion of summary nature under Section 33/39 Land Revenue Act where all orders passed on regular side of dispute will have overriding effect. Thus the learned Member has clearly overstepped his jurisdiction in holding the order dated 6.9.75 passed by his equal in office as without jurisdiction.” 15. Further, this Court in the case of Durga Devi Rurla and Educational Development Society, Kaushambi, wherein paras 11 to 20, it has been held as under - “The short controversy which has been raised in this petition is whether in respect of the allotment of chak in favour of the petitioner which became final during the consolidation proceedings, any proceedings under Section 33/39 of the U.P. Land Revenue Act, 1901 could have been drawn after the close of the consolidation proceedings and whether the Banzar land of the Gaon Sabha could be included in the chak allotted to the petitioner. The object of the Act is to consolidate agricultural holdings to facilitate the agricultural activities. In preparation of consolidation scheme the consolidation authorities are authorized to allot even the land belonging to the State Government or vested in the Gaon Sabha or any local authority to any tenure holder. Section 19-A of the Act in this regard is relevant. It reads as under: “19-A. Preparation of provisional Consolidation Scheme by the Assistant Consolidation Officer.—(1) The Assistant Consolidation Officer shall in consultation with the Consolidation Committee, prepare in the form prescribed a provisional Consolidation Scheme for the unit. Section 19-A of the Act in this regard is relevant. It reads as under: “19-A. Preparation of provisional Consolidation Scheme by the Assistant Consolidation Officer.—(1) The Assistant Consolidation Officer shall in consultation with the Consolidation Committee, prepare in the form prescribed a provisional Consolidation Scheme for the unit. (2) Notwithstanding anything contained in this Act, the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, or any other law for the time being in force, it shall be lawful for the Assistant Consolidation Officer, wherein in his opinion it is necessary or expedient so to do, to allot to a tenure-holder, after determining its valuation, any land belonging to the State Government, or any land vested in the Gaon Sabha, or any other local authority, as a result of notification issued under Section 117 or 117-A of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950: Provided that where any such land is used for a public purpose, it shall be allotted only after the Assistant Consolidation Officer has declared in writing that it is proposed to transfer the rights of the public as well as of all individuals in or over that land to any other land specified in the declaration and earmarked for that purpose in the provisional Consolidation Scheme.” A plain reading of sub-section (2) of Section 19-A of the Act reveals that it is lawful for the Assistant Consolidation Officer to allot even land belonging to State Government or any land vested in the Gaon Sabha or any other local authority in favour of a tenure holder, if he is of the opinion that it is so necessary or expedient in the interest of justice. In this regard a reference to Section 30 of the Act is also important. It provides for the consequences which shall ensue on exchange of possession. It provides, on the allotment of a chak to a tenure-holder including the portion of the land vested in the Gaon Sabha or any local authority it shall be deemed that such land has been resumed under Section 117/117-A of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 and settled in favour of the tenure-holder. It provides, on the allotment of a chak to a tenure-holder including the portion of the land vested in the Gaon Sabha or any local authority it shall be deemed that such land has been resumed under Section 117/117-A of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 and settled in favour of the tenure-holder. This means that the land vested in the Gaon Sabha if allotted as part of a chak in favour of a tenure-holder, it would imply that it had been resumed by the State Government and has been settled in favour of the allottee of the chak. In view of the aforesaid provisions it can be said with certainty that during consolidation proceedings the authorities are competent to include and allot the land vested in the Gaon Sabha also to a tenure holder. Therefore, any land recorded as Banzar land of the Gaon Sabha in the basic year 1359 F or before the consolidation proceedings is open for allotment to a tenure-holder in the consolidation proceedings on due determination of its valuation and its allotment and inclusion in the chak of the petitioner is not in any way illegal or without jurisdiction. Now coming to the main aspect of the matter, it would be relevant to refer to Section 49 of the Act which provides for a bar to the jurisdiction of the civil or revenue Courts. It reads as under: “49. Now coming to the main aspect of the matter, it would be relevant to refer to Section 49 of the Act which provides for a bar to the jurisdiction of the civil or revenue Courts. It reads as under: “49. Bar to Civil Courts jurisdiction.—Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of right of tenure-holder in respect of land lying in an area, for which a notification has been issued under sub-section (2) of Section 4 or adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding would or ought to have been taken under this Act, shall be done in accordance with the provisions of this Act and no Civil or Revenue Court shall entertain any suit or proceeding with respect to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under this Act: Provided that nothing in this section shall preclude the Assistant Collector from initiating proceedings under Section 122-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 in respect of any land, possession over which has been delivered or deemed to be delivered to a Gaon Sabha under or in accordance with the provisions of this Act. It provides that after a notification under Section 4 of the Act is issued or, in other words, the village is brought under Consolidation, all rights of the parties with regard to the holdings therein would be determined or adjudicated in accordance with the provisions of the Act and that no civil or revenue Court shall entertain any suit or proceedings with respect to the rights in such land or with respect to any other matter with regard to which proceedings could or ought to have been taken under this Act. The disputes with regard to rights of the parties or any other matter in respect of any land under consolidation is barred before a civil or revenue Court to avoid multiplicity of proceedings and conflicting decisions and to bring all disputes in that regard before one single Court. The disputes with regard to rights of the parties or any other matter in respect of any land under consolidation is barred before a civil or revenue Court to avoid multiplicity of proceedings and conflicting decisions and to bring all disputes in that regard before one single Court. The Supreme Court in the case of Zafar Khan and others v. Board of Revenue, U.P. and others, 1984 (supp) SCC 505, while dealing with Sections 49 and 52 of the Act in a matter where allotment of the chak was questioned in civil/revenue Court held that once the village has been de-notified under Section 52 of the Act all allotments of chaks become final and the suit questioning such allotment would be barred by Section 49 of the Act. The same principle applies with great rigor to proceedings under Sections 33/39 of the Act, 1901 in view of a plain reading of Section 49 of the Act inasmuch as the proceedings under Section 33/39 of the U.P. Land Revenue Act are of summary nature and in a way does not even result in adjudication of any substantive rights of the parties. The provisions of Section 33/39 of the U.P. Land Revenue Act do not empower the Collector to decide a dispute involving any question of title over the land. It is limited to make changes due to succession & transfers and for making corrections on account of errors. The Up Zila Adhikari acting as a delegate of the Collector has not ordered for the above change in favour of Gaon Sabha on account of any succession or transfer of land or for making any correction. The exemption to the name of the petitioner was directed as the Gaon Sabha land could not have been included in the chak of the petitioner in consolidation proceedings and that some fraud was played. It is not the ground covered by either Section 33 or 39 of the U.P. Land Revenue Act and, as such, the impugned order has been passed without any authority of law.” 16. Accordingly, in view of the above said settled legal proposition, it is clearly established that if an order has been passed in a proceeding under the Consolidation Act, the same cannot be overlooked or set aside in a proceeding under Section 33/39 of U. P. Land Revenue Act, which are summary in nature. Accordingly, in view of the above said settled legal proposition, it is clearly established that if an order has been passed in a proceeding under the Consolidation Act, the same cannot be overlooked or set aside in a proceeding under Section 33/39 of U. P. Land Revenue Act, which are summary in nature. Further, in the present case, after passing of the order dated 5.3.2008 passed by opposite party No. 2 in a proceeding under Section 33/39 of Land Revenue Act, petitioner has moved a recall application and as per direction given by this Court recall application of the petitioner has been allowed and the matter has been restored. Thereafter, opposite party No. 2, by means of the impugned order dated 27.8.2012, has restored the earlier order dated 5.3.2008 without assigning any reason whatsoever, rather on the point in issue, the impugned order is non-speaking order. In Breen v. Amalgamated Engg. Union, 1971(1) AIIER 1148, it was held that the giving of reasons is one of the fundamentals of good administration. In Alexander Machinery (Dudley) Ltd. v. Crabtress, 1974(4) IRC 120 (NIRC), it was observed that “failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at”. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the ‘inscrutable face of the sphinx’, it can be its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the later before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made. In other worlds, a speaking out. The inscrutable face of the sphinx’ is ordinarily incongruous with a judicial or quasi-judicial performance.” 17. In view of the above said facts, writ petition deserves to be allowed. For the foregoing reasons, the writ petition is allowed and the impugned orders dated 27.8.2012 as well as 7.1.2013 passed by the opposite party Nos. 2 and 3 are set aside.