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2017 DIGILAW 2893 (ALL)

Ram Ratan Bind v. D. D. C.

2017-12-11

MANOJ MISRA

body2017
JUDGMENT : Manoj Misra, J. Heard learned counsel for the petitioners; Sri Kamlesh Kumar Yadav for the respondents 3 and 10; the learned Standing Counsel for the respondent No. 1; and have perused the record. The name of Sri Mahesh Narain Singh and Sri R.S. Kushwaha are also shown in the cause list as counsel for other respondents but they have not appeared despite revised call. As the matter has been listed for hearing, and the parties have exchanged their affidavits, the matter is being decided finally. The dispute in the present petition relates to correction of entry in respect of plot nos. 14 and 43. 2. It is not in dispute that by order of the Consolidation Officer, the plots were directed to be recorded in class 6 (1) ('Pokhari') i.e. land submerged in water. However, while preparing the final records, the same was shown as 'Naveen Parti'. 3. Taking advantage of the entry as Naveen Parti, allotments were made under the provisions of the U.P. Zamindari Abolition and Land Reforms Act. 4. To correct the entry in the final consolidation records, instead of moving an application under Section 42-A of the U.P. Consolidation of Holdings Act, an appeal was preferred before the Settlement Officer of Consolidation by the petitioners, who are resident of the village concerned, on the ground that the land which was declared 'Pokhari' cannot be subjected to allotment as it falls within the categories of land mentioned in section 132 of the U.P. Zamindari Abolition and Land Reforms Act over which no bhumidhari rights can be conferred. 5. The Settlement Officer of Consolidation, after examining the record, found that the land was 'Pokhari'. He, accordingly, issued direction to record the plot nos. 14 and 43 as class 6 (1) land. 6. The allottee's of the said land, being aggrieved by correction of the entries, filed revision before the Deputy Director of Consolidation. 7. 5. The Settlement Officer of Consolidation, after examining the record, found that the land was 'Pokhari'. He, accordingly, issued direction to record the plot nos. 14 and 43 as class 6 (1) land. 6. The allottee's of the said land, being aggrieved by correction of the entries, filed revision before the Deputy Director of Consolidation. 7. The Deputy Director of Consolidation, by the impugned order dated 28.06.2011, proceeded to allow the revision preferred by the allottee's on the ground that now the land is not submerged in water and as allotment proceedings were duly carried out and, thereafter, an application, under Section 198(4) of the U.P.Z.A. & L.R. Act, seeking cancellation of allotment was also rejected, there was no justification to correct the entry in final records by taking recourse to the provisions of section 42-A of the U.P.C.H. Act particularly when the closure notification under Section 52 had been made. 8. The learned counsel for the petitioners has submitted that the Deputy Director of Consolidation has not set aside the finding returned by the Consolidation Officer as well as the Settlement Officer of Consolidation that the land was earlier recorded as class 6 (1) land i.e land submerged in water (Pokhari) and, therefore, the entry made in CH Form 45, changing the nature of the land, thereby subjecting it to allotment proceeding, was not legally justified and is in the teeth of the decision of the Apex Court in Hinch Lal Tiwari v. Kamala Devi : (2001) 6 SCC 496 where it has been held by the apex court that it is the duty of the revenue officials to restore Pokhari to its original condition. He has thus submitted that the order passed by the Deputy Director of Consolidation is against the law laid down by the apex court and is, therefore, liable to be set aside. 9. The learned counsel for the respondents has not been able to demonstrate that the land was earlier not recorded as class 6(1) land i.e. as 'Pokhari' (land submerged in water). 10. The Deputy Director of Consolidation has also not set aside the finding of the subordinate consolidation authorities that the land was earlier recorded as class 6(1) land though he has considered the current position of the land. 11. 10. The Deputy Director of Consolidation has also not set aside the finding of the subordinate consolidation authorities that the land was earlier recorded as class 6(1) land though he has considered the current position of the land. 11. Once it is not in dispute that the land was earlier recorded as land submerged in water, that is class 6 (1) land, and the said entry was confirmed by the consolidation authorities earlier, though, while preparing the final forms, the same was not reflected, the Deputy Director of Consolidation ought to have refrained from entertaining the revision preferred by the allottee's, inasmuch as, in Hinch Lal Tiwari's case (supra), the apex court had directed the revenue officials to ensure that Ponds, Lakes and other water bodies are preserved and, even if they have dried up, they should not be allotted for use not commensurate with their original nature. 12. In view of the above, this Court finds it appropriate to set aside the order dated 28.06.2001 passed by the Deputy Director of Consolidation and restore the order passed by the Settlement Officer of Consolidation. 13. The petition stands allowed to the extent indicated above.