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2018 DIGILAW 1898 (ALL)

BANS RAJ v. RAM DEO

2018-08-31

ANIL KUMAR

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JUDGMENT Hon’ble Anil Kumar, J.—Heard Dr. R. S. Pandey, learned counsel for the petitioner, Shri S. P. Tiwari, learned counsel for the respondent and perused the record. 2. Facts in brief of the present case are that the dispute in the present case relates to plot Nos. 61 area 9 Biswa, 425/2 Area 11 Biswa and 429 area 1 Bigha with total area of 2 Bigha situated in Village Raipur Belwa Dandi Pargana Bidhar Tehsil-Tanda, District-Ambedkar Nagar. 3. In the basic year, entry of the said plot was recorded in the name of Bansraj s/o Kalpu as Sirdar. On 6.6.1912, Shri Avadh Behari s/o Jagdev Singh, grand father of the opposite party No. 1 had executed a registered mortgage deed of the land in question in favour of the Saheb, grand father of the petitioner and it was also mentioned that the land was already mortgaged with possession on 19.8.1908 through unregistered deed. 4. On 10.7.1919, Shri Avadh Behari again executed registered mortgage deed for the same plots recognizing the earlier deed dated 6.6.1912. 5. After abolition of Zamindari, the petitioner moved an application for depositing five times of rent for declaring him as Sirdar under Section 14 (2) (b) of the Act and he deposited the same through receipt No. 25. 6. By order dated 29.12.1954 passed by Sub Divisional Officer, the name of the petitioner was recorded as Sirdar and the same was not challenged by any proceedings. In the year 1973, the village in question was notified for consolidation operation under Section 4 of the Consolidation of Holdings Act. 7. On 7.4.1975, during consolidation operation, Ram Shakal and Ram Deo, opposite party Nos. 1 and 2 (now deceased) filed their objections under Section 9-A of U. P. C. H. Act, claiming Bhumidhari right on the allegations that land was mortgaged about 55 years ago by their grand father Awadh Behari. The said plots were Sir and Khudkashta at the time of Zamindari and after abolition of zamindari, they became Bhumidhari under Section 14 (2) (a) read with Section 18 of the Z. A. & L. R. Act. 8. Thereafter, the petitioner (now deceased) had filed his objection stating therein that the said plots were not Sir and Khudkashta of the objector as he has deposited five times of the rent and also on 29.12.1954, SDO has ordered for recording his name as Sirdar. 9. 8. Thereafter, the petitioner (now deceased) had filed his objection stating therein that the said plots were not Sir and Khudkashta of the objector as he has deposited five times of the rent and also on 29.12.1954, SDO has ordered for recording his name as Sirdar. 9. By order dated 2.2.1976, the Consolidation Officer recorded the name of the petitioner as Asami in Class 7 and opposite party as Bhumidhar. 10. Aggrieved by the order dated 2.2.1976, petitioner filed an Appeal No. 10212 before Assistant Settlement Officer of Consolidation, Faizabad. 11. In addition to the said appeal, another appeal bearing No. 10223 was filed by the opposite parties before the Assistant Settlement Officer of Consolidation, Faizabad. 12. Both appeals were clubbed together and decided by a common judgment dated 10.11.1976, the appeal filed by the petitioner was allowed and another appeal filed by the opposite parties was dismissed. 13. The order dated 10.11.1976 was challenged by the opposite party Nos. 1 and 2 before the Deputy Director of Consolidation by filing Revision No. 462/523, which was allowed by order dated 9.1.1981 by which the name of the petitioner was expunged. 14. In view of the above said factual background, the present writ petition has been filed by the petitioner before this Court challenging the order dated 9.1.1981 passed by the D.D.C., Faizabad. 15. During the pendency of the present writ petition, the petitioner has died and his legal heirs have been substituted as well as opposite party Nos. 1 and 2 have also died and their legal heirs have also been substituted. 16. Learned counsel for the petitioner while challenging the impugned order submits that the land in dispute was neither Sir nor Khudkashta of the opposite party Nos. 1 and 2 as he has deposited five times rent, hence, they could not be held to be Bhumidhar tenants of the land in dispute under Section 18 of the Z. A. & L. R. Act. 17. Assistant Settlement Officer of Consolidation had held that the Khatauni of 1314 Fasli is forged one but DDC reversed the finding without dealing with the reasons assigned by S.O.C. It was also held that the land in dispute was not Sir and Khudkashta of the mortgagor on the date of mortgage. 18. 17. Assistant Settlement Officer of Consolidation had held that the Khatauni of 1314 Fasli is forged one but DDC reversed the finding without dealing with the reasons assigned by S.O.C. It was also held that the land in dispute was not Sir and Khudkashta of the mortgagor on the date of mortgage. 18. From the entries in Khatauni 1337 Fasli as well as 1359 Fasli, it is clearly established that the land in dispute was recorded as in Kastha of the mortgagee and it was not recorded as Khudkashta of the mortgagor. 19. In support of his argument, he has placed reliance on the judgment given by this Court in the case of Gauri Shankar v. Dy. Director of Consolidation, U.P., Lucknow, 1971 RD 505, wherein it has been held as under : “The mortgagee was entitled to remain in possession unless he was ejected by the Gaon Sabha by means of a suit for ejectment brought under Section 209 of the Zamindari Abolition Act. It is true that under the proviso to clause (b) of Section 14 (2), the land is deemed to be vacant land if the mortgagee fails to pay the amount of rent within the time allowed. It may be noticed that there is no finding in the present case whether the mortgagees paid five times rent within the time allowed or not. It cannot be said with certainty that the land will be deemed to be vacant land. In any event, it did not vest in the Gaon Sabha because of the death of Murlidhar. Under the circumstances, it could not be directed to be recorded in the name of the Gaon Sabha. The mortgagees were entitled to remain in possession and to be recorded as persons entitled to remain in possession till they were ejected by the Gaon Sabha by a suit under Section 209, Zamindari Abolition Act. It may, however, be urged that in the holding the dispute vested in the Gaon Sabha under Section 117, Zamindari Abolition Act, on the finding that it will be deemed to be vacant land under the proviso to clause (b) of Section 14 (2). There are several difficulties in the way of accepting this submission. There has yet not been any enquiry or finding that the mortgagee failed to pay five times the rent to the Government within the time allowed. There are several difficulties in the way of accepting this submission. There has yet not been any enquiry or finding that the mortgagee failed to pay five times the rent to the Government within the time allowed. Secondly, the Gaon Sabha did not make any claim for being recorded over this land within the prescribed period of time and so the consolidation authorities, had no jurisdiction to direct that the land in dispute be entered in the name of the Gaon Sabha. (See Subba v. Deputy Director of Consolidation and others, 1969 RD 30).” 20. So, the impugned judgment dated 9.1.1981 passed by Deputy Director of Consolidation in Revision No. 462/523 is liable to be set aside. 21. Learned counsel for the respondent while rebutting the said contention submits that the petitioner is not entitled to get the benefit as provided under Section 14 (2) (b) of the Z. A. & L. R. Act as he has not filfilled the condition mentioned therein and taking into consideration the said fact, S.O.C. had allowed the appeal vide order dated 10.11.1976. So, the present writ petition is liable to be dismissed. 22. I have heard learned counsel for the parties and gone through the records. 23. In order to decide the controversy involved in the present case, it will be appropriate to go through the provisions of Section 14 of U.P. Zamindari Abolition and Land Reforms Act, 1960, which reads as under : “(1) Subject to the provisions of sub-section, (2) a mortgagee in possession of an estate or share therein shall, with effect from the date of vesting, cease to have any right to hold or possess as such any land in such estate. (2) Where any such land was in the personal cultivation of the mortgagee on the date immediately preceding the date of vesting - (a) if it was sir or khudkasht of the mortgagor on the date of the mortgage, the same shall, for purposes of Section 18, be deemed to be the sir or khudkasht of the mortgagor or his legal representative ; (b) if it was not sir or khudkasht of the mortgagor on the date of the mortgage, the mortgagee shall, subject to his paying to the State Government, within six months from the date of vesting, an amount equal to five times the rent calculated at hereditary rates applicable on the date immediately preceding the date of vesting, be deemed, for purposes of Section 19, to have held such land on the date aforesaid as a hereditary tenant thereof at the said rate of rent.” 24. In the present case, from the material on record, the position which emerges out is that while allowing the appeal filed by the petitioner, Assistant Settlement Officer of Consolidation, Faizabad has given a categorical finding that petitioner has not fulfilled the condition as mentioned in Section 14 (2) (b) of the Z. A. & L. R. 25. However, Deputy Director of Consolidation did not give any finding while allowing the revision that under what circumstances, the said finding given by A.S.O.C. is incorrect or wrong, rather on the point in issue, the order is non-speaking order as no reasons whatsoever have been assigned by the said authority while passing the same. 26. It is well-settled law that an order passed by an authority should be a reasoned one and the objection taken by a person should be dealt with because reasons are like a live wire which connects the mind of the decision making authority and the decision given by him and if this wire/link is broken i.e. to say no reasons are given in the impugned order then it will not be possible to know as what was going in the mind of the decision making authority on the basis of which he has come to the conclusion and passed the impugned order. 27. Reasons substitute subjectivity by objectivity. 27. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the ‘inscrutable face of the sphinx’, it can be its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the later before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made. In other worlds, a speaking out. The inscrutable face of the sphinx’ is ordinarily incongruous with a judicial or quasi-judicial performance. 28. For the foregoing reasons, writ petition is allowed and the impugned order dated 9.1.1981 passed by Deputy Director of Consolidation, Faizabad is set aside. The matter is remanded back to the said authority to decide a fresh in view of the observations made herein above. The said exercise shall be done within a period of four months from the date of receiving a certified copy of this order. 29. Till the decision is taken by D.D.C., Faizabad, parties are directed to maintain status quo as exits today in respect of the property in dispute.