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2018 DIGILAW 1143 (ALL)

Dudhnath Singh v. A. D. M. (F&R), Jaunpur

2018-05-07

SALIL KUMAR RAI

body2018
JUDGMENT AND ORDER : 1. Heard Sri Aditya Narain, counsel for the petitioner and the Standing Counsel representing respondent nos. 1, 2 and 6. 2. It appears that in the basic year khatauni, Plot No. 143/2 (area 0.36) was recorded as Banjar and therefore vested in the Gaon Sabha i.e. respondent no. 3. The petitioner filed objections under Section 9A-(2) of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as, Act, 1953) before the concerned Consolidation Officer regarding the entries in the basic year khatauni relating to the disputed plot along with an application under Section 5 of the Indian Limitation Act, 1963 (hereinafter referred to as, Act, 1963) praying to condone the delay in filing the said objections. Initially, the said application filed under Section 5 of the Act, 1963 was dismissed by the concerned Consolidation Officer but the appeal filed against the said order of the Consolidation Officer was allowed and the matter was remanded back to the Consolidation Officer to decide the same on merits. Subsequently, the Consolidation Officer vide his order dated 28.9.1981 decided the objections of the petitioner holding that the petitioner was co-tenure holder of the disputed plot along with certain other persons and therefore directed that the revenue records may be appropriately corrected. Against the order dated 28.9.1981 passed by the Consolidation Officer, the petitioner filed appeal under Section 11(1) of the Act, 1953 numbered as Appeal No. 291/339 alleging that he was the sole tenure holder of the disputed plot. The said appeal was allowed vide order dated 6.4.1998 passed by the Settlement Officer of Consolidation, District Jaunpur on the basis of some compromise dated 24.2.1998 signed by all the co-tenure holders. Consequently, reference proceedings under Section 109 of the Uttar Pradesh Consolidation of Holdings Rules, 1954 were instituted. The Consolidation Officer also passed an order dated 15.9.2000 issuing process for mutation in the revenue records incorporating the abovementioned orders passed by consolidation authorities. During the aforesaid proceedings, the concerned Tehsildar submitted a report dated 22.12.2000 to the Additional District Magistrate (Finance and Revenue), District Jaunpur bringing to his notice that the disputed plot was recorded as Banjar in the revenue records relating to the basic year and sought guidance from the concerned officer for appropriate mutation in the revenue records in light of the orders passed by the Consolidation Officer and the Settlement Officer of Consolidation. The Additional District Magistrate (Finance and Revenue), District Jaunpur after considering the records of the case, vide his order dated 26.12.2000 directed the District Government Counsel to file appropriate appeals/revisions against the orders dated 28.9.1981 passed by the Consolidation officer and 6.4.1998 passed by the Settlement Officer of Consolidation or to take other appropriate steps to get the said order cancelled or recalled. Consequently, the State Government and Gaon Sabha i.e. respondent no. 3 filed joint appeals before the Settlement Officer of Consolidation against the order dated 28.9.1981 passed by the Consolidation Officer and joint revisions under Section 48 of the Act, 1953 against the order dated 15.9.2000 passed by the Consolidation Officer directing the implementation of the order dated 6.4.1998 passed by the Settlement Officer of Consolidation and also a recall application before the Settlement Officer of Consolidation praying for recalling the order dated 6.4.1998. A perusal of the memorandum of recall application as well as memorandum of appeals show that the said cases have been filed by the State Government and the Gaon Sabha jointly inter-alia alleging that the order dated 28.9.1981 had been passed without setting-aside the order dated 4.6.1968 passed by the Consolidation Officer in Case Nos. 6461 and 6462 directing that the disputed plots be recorded in the name of Gaon Sabha. The present writ petition has been filed with a prayer to quash the proceedings in the aforesaid appeals and recall applications as well as the order dated 26.12.2000 passed by the Additional District Magistrate (Finance and Revenue), District Jaunpur directing the District Government Counsel to take steps against the orders dated 28.9.1981 and 6.4.1998 as well as 15.9.2000 passed by the Settlement Officer of Consolidation and the Consolidation Officer. 3. It has been argued by counsel for the petitioner that the proceedings instituted by the State Government along with the Gaon Sabha and challenged in the present writ petition are malicious and frivolous in nature and have been instituted only to harass the petitioner and are, therefore, liable to be quashed by this Court in exercise of its power under Article 226 of the Constitution of India. In support of his argument, counsel for the petitioner has relied upon the judgments of this Court reported in Mohd. In support of his argument, counsel for the petitioner has relied upon the judgments of this Court reported in Mohd. Shahid and Another vs. State of U.P. and Others, (2003) 2 ARC 321 as well as Gulab Chand vs. Munsif West, Allahabad and Others, (1988) 1 ARC 335. 4. I have considered the submissions of counsel for the petitioner. 5. It is pertinent to note that no orders passed in the abovementioned proceedings instituted by the Gaon Sabha and the State Government against the orders dated 28.9.1981, 6.4.1998 and 15.9.2000 have been challenged in the present writ petition. 6. The appeals and recall applications filed by the Gaon Sabha as well as the State Government against the orders dated 28.9.1981 and 6.4.1998 are statutory appeals and applications and therefore maintainable. The bona fide in filing the said appeals are not relevant to decide maintainability of the appeal and the recall application. However, bona fide of the appellant may be relevant while considering the application, if any, filed by the concerned appellant under Section 5 of the Limitation Act, 1963 praying to condone the delay in filing the said appeal or the recall application. 7. The judgments of this Court reported in Mohd. Shahid and Gulab Chand are not applicable in the facts of the present case. In Mohd. Shahid, there was a decree of eviction passed by the appropriate court against the District Election Officer and the Regional Employment Officer under Section 21(1)(b) of U.P. Act No. 13 of 1972 which was upheld by the appellate court as well as this Court in a writ petition filed under Article 226 of the Constitution of India by the concerned officers. However, subsequently the District Election Officer and the other State Officers filed a civil suit against the concerned landlord alleging that the suit property was a nazul land and the lease granted in favour of the concerned landlord had been cancelled. The opinion of this Court recorded in Mohd. Shahid that the proceedings instituted by the Election Officer and other State Officers was malicious and frivolous in nature was in the circumstance, that the orders passed by the concerned prescribed authority under Section 21(1)(b) of U.P. Act No. 13 of 1972 was upheld in a statutory appeal as well as by this Court in proceedings under Article 226 of the Constitution of India. In Gulab Chand, the Court held that the proceedings instituted by respondent no. 2 in the aforesaid case were malicious and frivolous in nature as in the aforesaid case, respondent no. 2, in order to frustrate the decree of eviction passed in favour of the petitioner had filed civil suits even though, according to the opinion of the Court recorded in the aforesaid judgment, she had no right qua the disputed property and was in collusion with the erstwhile tenants of the suit property. The proceedings instituted by the State Government and the Gaon Sabha, in the present case, are statutory in nature and a perusal of the memorandum instituting the appeals as well as the recall applications would show that the said proceedings have been instituted on the ground that the orders dated 28.9.1981 and 6.4.1998 passed by the Consolidation Officer and the Settlement Officer of Consolidation were contrary to the orders dated 4.6.1968 passed by the concerned Consolidation Officer in Case Nos. 6461 and 6462 and were passed without the aforesaid orders having been set-aside. Through the order dated 4.6.1968, the Consolidation Officer had directed that the disputed plot be recorded in the name of Gaon Sabha. Evidently, the interest of Gaon Sabha is adversely affected by orders dated 28.9.1981 and 6.4.1998 passed by the Consolidation Officer and the Settlement Officer and they are entitled to take appropriate steps for setting aside the aforesaid orders. In the circumstances, the judgments referred by counsel for the petitioner are not applicable in the present case. 8. The writ petition lacks merit and is hereby dismissed.