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Allahabad High Court · body

2018 DIGILAW 1229 (ALL)

Usha Devi v. D. D. C.

2018-05-16

SALIL KUMAR RAI

body2018
JUDGMENT : SALIL KUMAR RAI, J. (Civil Misc. Restoration Application No. 405837 of 2017) 1. Heard Shri A.N. Srivastav, learned counsel representing the petitioner, counsel for respondent No. 3, and learned Standing Counsel representing respondent Nos. 1 and 2. 2. In pursuance to the order dated 9.4.2018 passed by this Court, the learned Standing Counsel has produced the photocopy of the Notification dated 21.2.2003 issued by Consolidation Commissioner, Uttar Pradesh, Lucknow under Section 52(1) of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act, 1953') regarding closing of consolidation proceedings in Village Panditpur, Post-Jagatpur, District-Varanasi. The aforesaid notification is taken on record. 3. A perusal of the record shows that a resolution dated 10.3.2005 was passed by the Gaon Sabha resolving that 36 aires in plot Nos. 9, 10 and 11 which form part of new plot No. 49 be allotted to the minorities for use by them as graveyard. 4. Against the aforesaid resolution passed by the Gaon Sabha, objections were filed before respondent No. 1-Deputy Director of Consolidation, Varanasi (hereinafter referred to as, 'D.D.C.') stating that the land was already reserved for construction of Panchayat Bhawan and as there is sufficient land for use as graveyard, the resolution passed by the Gaon Sabha may not be approved. The said objections were dismissed by the D.D.C. vide his order dated 26.4.2005 and through the same order, the D.D.C. directed the concerned Consolidation Officer to prepare a Reference in accordance with the resolution passed by the Gaon Sabha. 5. In pursuance to the order dated 26.4.2005 passed by the D.D.C., the concerned Consolidation Officer prepared a reference on 24.5.2005 in accordance with the resolution passed by the Gaon Sabha and sent it to the D.D.C. on 30.5.2005. The D.D.C. vide his order dated 30.5.2005, approved the said resolution passed by the Gaon Sabha. The order dated 30.5.2005 passed by the D.D.C. has been challenged in the present writ petition. 6. It is evident that the resolution of the Gaon Sabha recommending allotment of land for purpose of graveyard was passed after the Notification was issued by the State Government under Section 52(1) of the Act, 1953 and the said resolution was also approved by the D.D.C. after the consolidation operations were closed in the Village in pursuance to the notification issued under Section 52(1) of the Act, 1953. After the notification issued under Section 52(1) of the Act, 1953 closing the consolidation operations in the Village, the D.D.C. or any other consolidation authority had no jurisdiction to either change the nature of land or purpose of the land or exercise their powers prescribed under the Act. 7. Further, In view of Section 29-C of the Act, 1953, a land vesting in the Gaon Sabha can be utilized only for the purpose for which it was earmarked in the final consolidation scheme and only on failure of the said purpose, it can be utilized for other prescribed purposes. There is no recital in the reference or the order dated 30.5.2005 that the purpose for which the land had been earmarked in the final consolidation scheme had failed. Therefore, the purpose of the land could not have been changed by the D.D.C. 8. The aforesaid view is supported by judgment of this Court reported in Baragaon Shahjahanpur Vs. State of U.P. and others, 2006 (100) R.D. 324, Lalji and another Vs. Board of Revenue, U.P., 1947 R.D. 123 and Sanjay Gandhi Smriti Junior High School Vs. Additional Commissioner (J) and others, 2016 (133) RD 625 . Evidently, the order dated 30.5.2005 passed by the D.D.C. is without jurisdiction and is thus liable to be set aside. 9. For the aforesaid reasons, the order dated 30.5.2005 passed by the respondent No. 1-D.D.C. is contrary to law and is hereby set aside. The writ petition is allowed.