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2017 DIGILAW 878 (ALL)

KISAN SHIKSHA NIKETAN v. COMMISSIONER, AZAMGARH

2017-03-29

SANGEETA CHANDRA

body2017
JUDGMENT Hon’ble Mrs. Sangeeta Chandra, J.—This writ petition has been filed by the petitioner challenging the order dated 29.1.2002 passed by the Commissioner, Azamgarh (Annexure 5 to the writ petition) and the order dated 12.12.2001 passed by the Collector, Azamgarh (Annexure 4 to the writ petition). 2. It has been argued that initially the petitioner institution through its Manager, had filed objections under Section 9-A(2) of the U.P. Consolidation of Holdings Act before the Assistant Consolidation Officer which was referred to the Consolidation Officer by an order dated 5.9.1985. After hearing the then Pradhan of the Gaon Sabha concerned, a detailed order was passed by the Consolidation Officer to the effect that old Plot No. 899 ad measuring 3.200 kari and old Plot No. 110 ad measuring 2.00 kari recorded in the name of Gaon Sabha as Banjar land, was now to be recorded in the name of Kisan Shiksha Niketan, Ahirauli, District Azamgarh through its Manager. 3. Against the order dated 5.9.1985, passed by the Consolidation Officer, a Revision was filed after ten years by a private person under Section 48 (3) of the U.P. Consolidation of Holdings Act before the DDC, in which it was alleged that Ram Narain the Manager of Kisan Shiksha Niketan Junior High School, Azamgarh in collusion with the then Pradhan of the Gaon Sabha concerned in a sham proceedings under Section 9-A(2) of the U.P. Consolidation of Holdings Act has got transferred Banjar land belonging to the Gaon Sabha in the name of private institution. This fraudulent transfer of Gaon Sabha land to the petitioner institution should be set aside. 4. This revision remained pending and a collateral proceeding was initiated under Section 33/39 of the Land Revenue Act in case No. 115 of 2001 filed by Gaon Sabha Barehta, District Azamgarj against the Manager of the institution before the Collector, and the name of the petitioner institution has been struck off and the land has been directed to be recorded again in the name of the Gaon Sabha by an order dated 12.12.2001. 5. 5. Against the order of the Collector dated 12.12.2001, the petitioner institution filed a Revision No. 234-A of 2002 under Section 219 of the U.P. Land Revenue Act wherein the Commissioner after recording a finding that Revision under Section 48(3) was pending before the DDC regarding the order of the Consolidation Officer dated 8.9.1985, and also recording the finding that during the consolidation proceedings, the order passed under Section 33/39 of the U.P. Land Revenue Act was without jurisdiction and without notice, had thereafter remanded the matter back to the Collector only on the ground that the Collector was also the District Deputy Director of Consolidation and being the same authority, who was deciding the Revision under Section 48(3) of the U.P. Consolidation of Holdings Act, he could also issue notice to the petitioner institution in the proceedings under Section 33/39, which were earlier finalised, without notice to the petitioner, and hear the matter and also pass orders thereafter in accordance with law. 6. The case set up by the counsel for the petitioner, Sri Udyan Nandan holding brief of Sri Deo Dayal is that after declaration is issued under Section 4 of the U.P. Consolidation of Holdings Act and an area or village comes under Consolidation Operation, these Consolidation Operations shall continue till final notification under Section 52 of the Act is issued by the Government. During the Consolidation Operations, as per Section 5, the proceedings which were pending before the Civil or Revenue Courts should also ideally stand abated. 7. Shri Udayan Nandan has also placed reliance upon Section 49 of the Consolidation of Holdings Act which is quoted as under: “49. During the Consolidation Operations, as per Section 5, the proceedings which were pending before the Civil or Revenue Courts should also ideally stand abated. 7. Shri Udayan Nandan has also placed reliance upon Section 49 of the Consolidation of Holdings Act which is quoted as under: “49. Bar to Civil Court jurisdiction—Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of rights of tenure-holders in respect of land by the 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 could 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 that 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].” 8. The sum and substance of the argument of the counsel for the petitioner is to the effect that after Consolidation Operations are started in a village all rights, title and interest of persons are to be decided by Consolidation Courts alone and no proceedings under the Land Revenue Act can be entertained by the Revenue Courts. 9. In this case, the original order passed by the Consolidation Officer dated 5.9.1985 was already under challenge in Revision under Section 48(3) before the Deputy Director of Consolidation, which Revision was allegedly pending. Although this Revision was filed by a private person (one Sri Rajiv Kumar), the order under challenge was that of the Consolidation Officer dated 5.9.1985. Nothing prevented the Gaon Sabha from filing a separate Revision under Section 48(3) of the U.P. Consolidation of Holdings Act before the Deputy Director of Consolidation and getting the same connected with the Revision already pending with regard to same plot of land, and where the same order was under challenge. Nothing prevented the Gaon Sabha from filing a separate Revision under Section 48(3) of the U.P. Consolidation of Holdings Act before the Deputy Director of Consolidation and getting the same connected with the Revision already pending with regard to same plot of land, and where the same order was under challenge. The proceedings initiated collaterally under Section 33/39 of the U.P. Land Revenue Act were without jurisdiction and the order passed therein was without notice to the petitioner institution. All these facts were brought before the Commissioner in Revision under Section 219 of the U.P. Land Revenue Act filed by the petitioner and having held the proceedings under Section 33/39 to be without jurisdiction and without issuing notice, the Divisional Commissioner ought not to have remanded the matter back to the Court of the Collector as has been done in the order impugned dated 29.1.2002. 10. Per contra, Sri Anjani Kumar holding brief of Sri S.P. Singh counsel for the contesting respondents has said that the initial order passed by the Consolidation Officer, allegedly in proceedings initiated out of objection filed under Section 9-A(2) of the U.P. Consolidation of Holdings Act by the petitioner institution were themselves without jurisdiction. Banjar land belonging to the Gaon Sabha could not have been transferred to the petitioner institution. It was also argued that no allotment in favour of the institution by the Gaon Sabha had ever been done and the objections filed on the basis of alleged allotment by the petitioner institution was only an exercise in misrepresentation. The order dated 5.9.1985 was not only without jurisdiction, but was also obtained by practicing fraud. 11. It has also been argued by the counsel for the contesting respondents that in the report submitted by the office of the SDM, Azamgarh to the Commissioner on 23 June 1998, it had been submitted Gaon Sabha land of Plot No. 67-A ad measuring 2 acres and Plot No. 275 ad measuring 3.20 acres were wrongly recorded in the name of the petitioner institution through its Manager, Ram Narain. In the enquiry conducted by the Revenue authorities, it was found that for village Mudheri new Plot No. 67-A and Plot No. 275 are both carved out of Khata No. 336 marked as Banjar land belonging to the Gaon Sabha. In the enquiry conducted by the Revenue authorities, it was found that for village Mudheri new Plot No. 67-A and Plot No. 275 are both carved out of Khata No. 336 marked as Banjar land belonging to the Gaon Sabha. The order passed by the Consolidation Officer dated 5.9.1985 under Section 9 of the U.P. Consolidation of Holdings Act, of which Amaldramad had also been done in the record of rights in favour of the petitioner institution was fraudulently made and without any reference to any rules. The statement made by the Manager of the petitioner institution that the building of the school, as well as the playground had been constructed after due allotment by the Gaon Sabha was a misrepresentation of fact. 12. This Court after considering the orders impugned and also the report submitted by the SDM, Azamgarh dated 23.61998, to which not only the counsel for the petitioner, but the counsel for the respondents have referred to during the course of argument, finds that even if the order dated 5.9.1985 had been passed fraudulently on the basis of collusion of the petitioner institution with the then Gram Pradhan, the remedy available for the Gaon Sabha was to file a Revision under Section 48(3) of the U.P. Consolidation of Holdings Act and not to initiate collateral challenge to the same under Section 33/39 of the U.P. Land Revenue Act. The Commissioner having held so in his order dated 29.1.2002 could not thereafter have remanded the matter to the Collector to decide the Revision under Section 48(3) of the U.P. Consolidation of Holdings Act and mutation proceedings under Section 33/39 of the U.P. Land Revenue Act together simultaneously only because he happend to be the same person who was acting in two different capacities under two different Acts. 13. The Collector although he acts as District Deputy Director of Consolidation under the U.P. Consolidation of Holdings Act exercises a different jurisdiction alltogether under the said Act. The mutation proceedings under Section 33/39 of the U.P. Land Revenue Act was initiated by the Gaon Sabha and decided by the Collector without jurisdiction, when the area in question was under Consolidation Operations and this fact could not have been taken into account by the Commissioner at all. 14. The mutation proceedings under Section 33/39 of the U.P. Land Revenue Act was initiated by the Gaon Sabha and decided by the Collector without jurisdiction, when the area in question was under Consolidation Operations and this fact could not have been taken into account by the Commissioner at all. 14. Consequently, this Court sets aside the order dated 29.1.2002 of the Commissioner, Azamgarh Division, Azamgarh as also the order dated 12.12.2001 passed by the Collector, Azamgarh. The Revision under Section 48(3) of the U.P. Consolidation of Holdings Act pending before the Deputy Director of Consolidation (Rajiv Kumar v. Ram Narain, Kisan Shiksha Niketan, Junior High School, Azamgarh) if not decided in the meantime, shall be decided in accordance with law. 15. The writ petition is allowed to this extent. No order as to costs. 16. It shall be open to the Gaon Sabha concerned to initiate separate Revision proceedings under Section 48(3) of the U.P. Consolidation of Holdings Act after filing an appropriate application for condonation of delay in initiating the same before the Deputy Director of Consolidation and get its case connected to the already pending Revision.