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Uttarakhand High Court · body

2019 DIGILAW 18 (UTT)

Shaukat Ali v. Deputy Director of Consolidation

2019-01-03

MANOJ K.TIWARI

body2019
JUDGMENT : 1. By means of this petition, under Article 227 of the Constitution of India, petitioner has challenged the orders dated 14.01.1997 & 14.02.1997 passed by Settlement Officer Consolidation, Haridwar and also the order passed by Deputy Director of Consolidation, Haridwar on 28.12.2005. 2. According to the petitioner, Land Management Committee Bijholi allotted a Patta of land in his favour comprised in Khasra No. 121 admeasuring 2 bigah 2 biswa situate at Village Bijholi, Tehsil Roorkee, District Saharanpur on 14.08.1974 and he is in possession over the said land ever since then. He further submits that upon commencement of consolidation proceedings, the said land was recorded as Zohar (Pond) and petitioner filed an objection under Section 9A(2) of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as “Act”) contending that the aforesaid land was allotted by Land Management Committee Bijholi to him, therefore, his name be mutated as Bhumidhar. The Consolidation Officer allowed the objection filed by the petitioner and passed an order dated 20.02.1996 for recording the name of the petitioner as Bhumidhar under Section 122-B (4F) of Uttar Pradesh Zamidari Abolition and Land Reforms Act, 1950 (in short “UPZA&LR Act”). 3. The Gram Sabha Bijholi challenged the order passed by Consolidation Officer, Roorkee by filing an appeal on 25.05.1996 under Section 11(1) of the Act. A delay condonation application was also filed seeking condonation of delay in filing the appeal. Petitioner filed objection against the delay condonation application and learned appellate court (Settlement Officer Consolidation) allowed the delay condonation application, vide order dated 14.01.1997. 4. Petitioner challenged the order dated 14.01.1997 passed on the delay condonation application by filing revision No. 278 of 2005-06, under Section 48 of the Act, before Deputy Director of Consolidation, Haridwar. While the aforesaid revision petition was pending, learned Settlement Officer Consolidation allowed the appeal and set aside the order passed by Consolidation Officer, vide judgment and order dated 14.02.1997 on the ground that petitioner does not belong to Scheduled Caste or Scheduled Tribes, therefore, he cannot be given benefit of Section 122-B(4F) of UPZA&LR Act and further that there is no material on record to show that the land in question was validly allotted in favour of the petitioner. Learned Settlement Officer Consolidation further held that land in question is a pond which belongs to Gram Sabha, therefore, it would be unjust to give any right in respect of pond land to a private individual. 5. Thus feeling aggrieved by the order passed by Settlement Officer Consolidation on 14.02.1997, petitioner filed revision No. 279 of 2005-06, which was dismissed by learned Deputy Director of Consolidation along with Revision Petition No. 278 of 2005-06 filed by the petitioner, vide judgment and order dated 28.12.2015. Learned Deputy Director of Consolidation held that the land in question is recorded as Zohar (Pond) in revenue record, therefore, Bhumidhari rights cannot accrue over the same in view of provision contained in Section 132(A) of UPZA&LR Act. It was further held that petitioner is not entitled to benefit of Section 122-B(4F) of the UPZA&LR Act, as he does not belong to Scheduled Caste or Scheduled Tribes. 6. Heard Mr. M.S. Tyagi, learned counsel for the petitioner, Mr. P.S. Bisht, learned Standing Counsel for the State and perused the record. 7. Mr. M.S. Tyagi, learned counsel for the petitioner submits that the certificate of allotment in Z.A. Form 58 was brought on record and the same was marked as Exhibit A1 and the Settlement Officer Consolidation and Deputy Director Consolidation erred in overlooking the same. 8. Per contra, Mr. P.S. Bisht, learned Standing Counsel for the State submits that the allotment of Patta to the petitioner was done unilaterally by the Gram Pradhan for extraneous reasons, without there being any order of Assistant Collector as required under Rule 176-A of Uttar Pradesh Zamidari Abolition and Land Reforms Rues (in short “UPZA&LR Rules”). He further submits that no resolution was passed by the Land Management Committee for grant of Patta to the petitioner, as contemplated under Rule 176(3)(a) of the aforesaid Rule. 9. Be that as it may, the fact remains that land in question is recorded as Zohar (Pond), therefore, Bhumidhari rights cannot accrue over such land in view of provision contained in Section 132(a) of the UPZA&LR Act. Even otherwise also, land recorded as pond cannot be allotted to an individual in view of law declared in Jagpal Singh & others Vs State of Punjab & others reported in (2011) 11 SCC 396 . Para 17 to 20 of the said judgment are extracted below:- “17. Even otherwise also, land recorded as pond cannot be allotted to an individual in view of law declared in Jagpal Singh & others Vs State of Punjab & others reported in (2011) 11 SCC 396 . Para 17 to 20 of the said judgment are extracted below:- “17. In many states Government orders have been issued by the State Government permitting allotment of Gram Sabha land to private persons and commercial enterprises on payment of some money. In our opinion all such Government orders are illegal, and should be ignored. 18. The present is a case of land recorded as a village pond. This Court in Hinch Lal Tiwari v. Kamala Devi (followed by the Madras High Court in L. Krishnan vs. State of Tamil Nadu) held that land recorded as a pond must not be allowed to be allotted to anybody for construction of a house or any allied purpose. The Court ordered the respondents to vacate the land they had illegally occupied, after taking away the material of the house. We pass a similar order in this case. 19. In this connection we wish to say that our ancestors were not fools. They knew that in certain years there may be droughts or water shortages for some other reason, and water was also required for cattle to drink and bathe in etc. Hence they built a pond attached to every village, a tank attached to every temple, etc. These were their traditional rain water harvesting methods, which served them for thousands of years. 20. Over the last few decades, however, most of these ponds in our country have been filled with earth and built upon by greedy people, thus destroying their original character. This has contributed to the water shortages in the country. Also, many ponds are auctioned off at throw away prices to businessmen for fisheries in collusion with authorities/Gram Panchayat officials, and even this money collected from these so called auctions are not used for the common benefit of the villagers but misappropriated by certain individuals. The time has come when these malpractices must stop.” 10. Even otherwise also, petitioner cannot be given benefit of Section 122-B(4F) of the UPZA&LR Act, as he does not belong to Scheduled Caste or Scheduled Tribes, therefore, the order passed by Consolidation Officer was unsustainable and was rightly set aside by Settlement Officer (Consolidation). 11. The time has come when these malpractices must stop.” 10. Even otherwise also, petitioner cannot be given benefit of Section 122-B(4F) of the UPZA&LR Act, as he does not belong to Scheduled Caste or Scheduled Tribes, therefore, the order passed by Consolidation Officer was unsustainable and was rightly set aside by Settlement Officer (Consolidation). 11. I have gone through the judgments and orders passed by Settlement Officer Consolidation and Deputy Director of Consolidation and I find no infirmity or perversity in the same. Thus, there is no reason to interfere with the impugned judgments. This writ petition is without any force. Accordingly, the same is hereby dismissed. 12. No order as to costs.