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2017 DIGILAW 2856 (ALL)

RAGHU NATH SINGH v. D. D. C.

2017-12-07

RAJIV JOSHI

body2017
JUDGMENT Hon’ble Rajiv Joshi, J.—Heard learned counsel for the petitioners and the learned Standing Counsel. Nobody is present on behalf of the respondent Nos. 2 to 4 even in the revised call of the cause list. 2. This writ petition under Article 226 of the Constitution of India has been filed by the petitioner for quashing the order dated 25.10.1979 passed by the Joint Director of Consolidation, Kanpur in Revision No. 170 filed under Section 48 of U.P. Consolidation of Holding Act, 1953, whereby the revision filed by the respondent Nos. 2 to 4 was allowed and the matter was remanded to the Consolidation Officer for deciding the claim of the parties afresh in accordance with law. 3. The facts as reflected from the record are that the disputed land of Chak Nos. 310 and 248 situated at village Atiya Rampur Pargana Derapur, District Kanpur was recorded in the name of Maiku Singh son of Dhokal Singh in the basic year. It is alleged by the petitioner that Maiku Singh died issueless on 31.10.1978 and they are his nephews (sons of Babu Ram, the brother of Maiku Singh). Subsequently, the petitioners applied for mutation before the Assistant Consolidation Officer for mutating their names over the land in question. The proclamation was issued by the Assistant Consolidation Officer on 13.11.1978 and it was published in the village concerned by beat of drum by posting it near the land in question. The said publication of proclamation was made on the same day i.e. on 13.11.1978. Subsequently, the statement of Pradhan, member of the Gram Panchayat and the petitioner No. 1 were recorded on 15.12.1978 and nobody came forward to object the mutation. 4. The Assistant Officer Consolidation vide order dated 15.12.1978 deleted the name of the Maiku Singh son of Dhokal Singh from the revenue record and in his place, the name of the petitioners, were recorded. The said order dated 15.12.1978 passed by the Assistant Officer Consolidation was challenged by the respondent Nos. 2 to 4 by way of revision under Section 48 of the U.P Consolidation of Holding Act, 1953 registered as Revision No. 170 before the Joint Director of Consolidation, Kanpur. The respondent Nos. 2 to 4 claimed themselves to be the daughter of the deceased Maiku Singh. 5. According to the respondent Nos. 2 to 4 by way of revision under Section 48 of the U.P Consolidation of Holding Act, 1953 registered as Revision No. 170 before the Joint Director of Consolidation, Kanpur. The respondent Nos. 2 to 4 claimed themselves to be the daughter of the deceased Maiku Singh. 5. According to the respondent Nos. 2 to 4, the Maiku Singh died on 14.11.1978 and not on 31.10.1978 as alleged by the petitioners and they have got no knowledge about the said proceeding including the order dated 15.12.1978 passed by the Assistant Officer Consolidation. It is further stated by respondent Nos. 2 to 4 before the Joint Director of Consolidation, Kanpur that being daughters of the deceased Maiku Singh, the respondent Nos. 2 to 4 are entitled to get their names recorded in the revenue record. The petitioner have no right to file any mutation application. It is further stated that the entire proceedings are null and void as proclamation has not been issued and published in accordance with law and even the Assistant Consolidation Officer had no right to pass the order mutating the name of the petitioner in place of deceased Maiku Singh. 6. The Joint Director of Consolidation vide order dated 25.10.1979 allowed the revision filed by the respondent Nos. 2 to 4 and remanded the matter for deciding the claim of the parties afresh after affording due opportunity to them with the finding that the entire proceeding appears to be forged and collusive and has to be decided after hearing the respondent Nos. 2 to 4. The petitioners challenged the order dated 25.10.1979 passed by the Joint Director of Consolidation, Kanpur by this petition. 7. Learned counsel for the petitioners contended that the Joint Director of Consolidation has committed an error apparent on the face of record in remanding the case before the Consolidation Officer as there is no illegality or infirmity in the order of the Assistant Consolidation Officer in mutating the name of the petitioners. 8. It is further submitted by the counsel for the petitioner that the case has wrongly been remanded to the Consolidation Officer for deciding the matter afresh, although, the proper proclamation has been issued, which has been published in the concerned village by beat of drum and the order impugned is liable to be quashed. 9. 8. It is further submitted by the counsel for the petitioner that the case has wrongly been remanded to the Consolidation Officer for deciding the matter afresh, although, the proper proclamation has been issued, which has been published in the concerned village by beat of drum and the order impugned is liable to be quashed. 9. On the other hand, learned Standing Counsel supported the impugned judgment and submitted that the revision has rightly been allowed and the matter was remanded for deciding the claim between the petitioners and the respondent Nos. 2 to 4 afresh in accordance with law and there is no illegality and the order impugned records the reasons while dealing so. 10. I have considered the rival submission of the parties and perused the record. 11. It is disputed between the petitioners and the respondent Nos. 2 to 4 with regard to the date of death of Maiku Singh. According to the petitioners, Maiku Singh died on 31.10.1978, while as per the respondent Nos. 2 to 4, he died on 14.11.1978. The issue regarding to the date of death of Maiku Singh, is the disputed question and can only be decided by the Consolidation Officer after giving opportunity for adducing the evidence to the parties, even if, it is accepted as alleged by the petitioners that Maiku Singh died on 31.10.1978, the proclamation is said to be issued on 13.11.1978 i.e. within 13 days from the date of death of Maiku Singh and the same was published in the village on the same day i.e. on 13.11.1978 by beat of drum 12. In the counter-affidavit, it is specifically mentioned that the Tehsil headquarter issued the proclamation and the village, where the property is situated, is away about more than 60 kms and there is no possibility to publish the proclamation on the same day i.e. date on issue of proclamation. 13. The mode of issuing proclamation has been enumerated in Section 197 of U.P. Land Revenue Act, 1901. 13. The mode of issuing proclamation has been enumerated in Section 197 of U.P. Land Revenue Act, 1901. Section 197 of the said Act is quoted as under: “Whenever a proclamation is issued under this Act copies thereof shall be posted in the Court-house of the officer issuing it, at the headquarters of the tahsil within which the land to which it refers is situated, and at some place of public resort on or adjacent to the Land to which it refers; and if the officer issuing it so directs, the proclamation shall be further published by beat of drum on or near the land to which it refers.” 14. From the aforesaid provision, it is apparent that copies of proclamation shall be posted in the Court house of the officer issuing the same, at the headquarter of the Tehsil within which the land is situated and at some place of public resort on or adjacent to the land and the same shall further be published by beat of drum on or near the land in question. 15. Here in the present case, the proclamation was issued on 13.11.1978 and on the same day, the same has been published in the village concerned by beat of drum. The mode of issuing proclamation and the manner in which it was published, has not been followed as prescribed under Section 197 of the U.P. Land Revenue Act, 1901. The said proclamation was never posted in the Court house of the officer issuing the same, or at the headquarter of the Tehsil and at some place of public resort on or adjacent to the land in question. 16. The provisions of Section 197 are mandatory in nature and has to be examined on the basis of the substantial compliance and in violation of the compliance of the said section, the entire proceeding is rendered void. 17. The revisional authority has rightly recorded the finding that the proclamation has not been issued as per provisions of Section 197 of the U.P. Land Revenue Act, 1901 and rightly remanded the matter to the Consolidation Officer for deciding the claim of the parties afresh after affording proper opportunity to the respondent Nos. 2 to 4. 18. I do not find that revisional Court has committed any illegality or infirmity while passing the impugned order. 19. Petition lacks merit and is, accordingly, dismissed. 20. 2 to 4. 18. I do not find that revisional Court has committed any illegality or infirmity while passing the impugned order. 19. Petition lacks merit and is, accordingly, dismissed. 20. Since, the matter is old one and therefore, concerned Consolidation Officer is directed to decide the matter expeditiously preferably within a period of six months from the date of production of certified copy of this order.