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2019 DIGILAW 1896 (ALL)

Siya Ram v. Commissioner, Kanpur Division

2019-08-05

YASHWANT VARMA

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JUDGMENT : Yashwant Varma, J. 1. Heard - Sri B.B. Paul, learned Counsel for the petitioner, Sri Shiv Sagar Singh, who has appeared for the contesting private respondents and the learned Standing Counsel for the State-respondents. This petition calls in question the order dated 3 April, 2001 passed by the Collector in purported exercise of powers conferred by section 27(3) of the U.P. Consolidation of Holding Act, 1953 (1953 Act). The aforesaid order has been affirmed in revision in terms of the order of 21 February, 2005 passed by the Commissioner. The challenge to these orders are laid by the petitioner who is stated to have purchased Plot No. 464 from one Jagat Narain in terms of a sale deed dated 27 December, 1986. According to the petitioner pursuant to the sale deed being so executed, his name was also duly recorded in the revenue record. The private respondents are stated to have made an application purporting to be under section 27(3) of the 1953 Act seeking a direction for correction of a village map that depicted the position of Plot No. 456. The respondents are also stated to have preferred an appeal against a declaration made in favour of the petitioner on 10 January 1995 under section 143 of the U.P.Z.A. & L.R. Act, 1950, 1950 Act). By the impugned order, the order of 10 January, 1995 by which that declaration was made has been set aside and consequential directions issued to the authorities to proceed in the matter. The respondents have principally taken the position that during the pendency of the application for correction, no declaration under section 143 of the 1950 Act could have been made. 2. It appears and as is disclosed on the record, consolidation proceedings commenced in the area and ultimately resulted in a final notification under section 52 being promulgated on 10 November, 1973. In the course of the consolidation proceedings, CH Form 45 was drawn in which the name of the vendor of the petitioner is shown against Plot No. 464 while that of Smt. Vimla Devi (mother of the private respondents) was shown against Plot No. 465. Vimla Devi, thereafter is stated to have moved an application seeking the relocation of that plot and for the boundaries thereof being redrawn; This application was disposed of on 20 April, 1968. Vimla Devi, thereafter is stated to have moved an application seeking the relocation of that plot and for the boundaries thereof being redrawn; This application was disposed of on 20 April, 1968. The amendments which were thereafter required to be made were also duly noted by the Consolidation Authorities. These documents have been brought on the record by way of a Supplementary Affidavit dated 13 April, 2005. 3. Admittedly the name of the petitioner was mutated in the revenue records on 26 March, 2000. Suffice it to note that no proceedings in respect of the recording of name as made in terms of that order were ever drawn by the respondents No. 4 and 5. They, however, chose to institute what is described to be an application under section 27(3) of the 1953 Act asserting that the boundaries of Plot No. 465 had not been correctly depicted on the map. It is in these proceedings that the impugned orders have come to be passed. 4. The first question which consequently falls for consideration is the nature of the power which stands conferred upon the Collector under section 27(3) of the 1953 Act. Section 27 of the 1953 Act reads thus: "27. New revenue records.--[(1) As soon as may be, after the final Consolidation Scheme has come into force, the District Deputy Director of Consolidation shall cause to be prepared for each village, a new map, field-book and record of rights in respect of the consolidation area, on the basis of the entries in the map, as corrected under section 7, the Khasra chakbandi, the annual register prepared under section 10 and the allotment orders as finally made and issued in accordance with the provisions of this Act. The provisions of the Uttar Pradesh Land Revenue Act, 1901, shall, subject to such modifications and alterations as may be prescribed, be followed in the preparation of the said map and records.] [(2) All entries in the record of rights prepared in accordance with the provisions of sub-section (1) shall be presumed to be true until the contrary is proved. The provisions of the Uttar Pradesh Land Revenue Act, 1901, shall, subject to such modifications and alterations as may be prescribed, be followed in the preparation of the said map and records.] [(2) All entries in the record of rights prepared in accordance with the provisions of sub-section (1) shall be presumed to be true until the contrary is proved. (3) After the issue of notification under section 52, the Collector shall, instead of the map, field-book and record-of-rights previously maintained by him, maintain the map, field-book and record of rights prepared in accordance with the provisions of sub-section (1)] [and the provisions of the U.P. Land Revenue Act, 1901, relating to the maintenance and correction of such map, field-book and record-of-rights shall mutatis mutandis apply]." 5. As is evident from a reading of sub-section (1), after a final consolidation scheme has come into force, the District Deputy Director of Consolidation is required to prepare for each village a new map, field-book and record-of-rights in respect of the consolidation area on the basis of the entries as corrected under section 7 and the annual register prepared under section 10. The provision further prescribes that the procedure as set forth in the U.P. Land Revenue Code, 1901, shall, subject to such modifications and alterations that may be prescribed, be followed in the preparation of the said records. In terms of sub-section (3), the Collector after the issuance of the final notification under section 52 is enjoined to place the records/maps and field-books as prepared in terms of sub-section (1) and which are statutorily mandated to be recognised as the authentic record. The provisions of sub-section (3) are essentially to give effect to the mandate of sub-section (2) of section 27, which provides that all entries as prepared in accordance with sub-section (1) shall be presumed to be true until the contrary is proved. 6. As this Court reads the powers as vested in section 27(3) of the 1953 Act, it is more than evident that it cannot be recognized to be an Appellate Forum for the purposes of testing the validity of orders passed under section 143 of the U.P.Z.A. & L.R. Act, 1950. 7. Suffice it to note that proceedings contemplated under section 143 of the 1950 Act are neither adjudicatory nor adversarial in the sense of deciding a lis inter partes. 7. Suffice it to note that proceedings contemplated under section 143 of the 1950 Act are neither adjudicatory nor adversarial in the sense of deciding a lis inter partes. That provision principally contemplates the entering of a declaration with respect to land that is no longer being put to agricultural use. It is in this sense only a recordal of a fact that exists and is found to be truly depictive of the change in the nature of the land. It is clearly not contemplative of an adjudication of competing claims between two landholders. It is essentially a matter between the State and the landholder who claims that the land in question is no longer being put to agricultural use. That, in essence, is the true scope of section 143. In any case and on a more fundamental plane the forum as created under section 27(3) of the 1953 Act cannot possibly be recognized as being one in which the validity of an order under section 143 of the 1950 Act may be considered or tried. To this extent, the Court notes that even the learned Standing Counsel has fairly conceded to the statutory position as propounded above. In any case, the respondents do not rely upon any statutory bar or restraint in terms of which a declaration under section 143 of the 1950 Act could not have been made till such time as an application under section 27(3) remained pending. The content, scope and character of both proceedings are clearly distinct and in any case not interlinked. This more so since the respondents were concerned with the boundaries of Plot No. 465 whereas the declaration had been made in respect of Plot No. 464 and forming part of the sale deed executed in favour of the petitioner. 8. Sri Singh, learned Counsel appearing for the contesting respondents then referred to the pleadings taken in paragraph-8 of the counter-affidavit to state that the statutory appeal which the respondents had preferred against the order made under section 143 was also decided by the impugned order and therefore even if it were found that the Collector had no jurisdiction under section 27(3) of the 1953 Act to entertain a challenge to such an order, in light of the appeal having been preferred and placed before the District Magistrate for his consideration, the order does not merit interference. 9. 9. The Court finds itself unable to sustain this submission since the principal question which would arise would be Whether an appeal at the behest of the respondents was liable to be entertained or instituted under the provisions of the 1950 Act. Section 143 of the Act referred to above, reads as under: "143. Use of holding for industrial or residential purposes.-[(1) Where [bhumidhar with transferable rights] uses his holding or part thereof for a purpose not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming, the Assistant Collector-in-charge of the sub-division may, suo motu or on an application, after making such enquiry as may be prescribed; make a declaration to that effect. (1A) Where a declaration under sub-section (1) has to be made in respect of a part of the holding the Assistant Collector-in-charge of the Sub-Divisions may in the manner prescribed demarcate such part for the purposes of such declaration.] (2) Upon the grant of the declaration mentioned in sub-section (1) the provisions of this Chapter (other than this section) shall cease to apply to the [bhumidhar with transferable rights], with respect to such land and he shall thereupon be governed in the matter of devolution of the land by personal law to which he is subject. [(3) Where a bhumidhar with transferable rights has been granted, before or after the commencement of the Uttar Pradesh Land Laws (Amendment) Act, 1978, any loan by the Uttar Pradesh Financial Corporation or by any other Corporation owned or controlled by the State Government, on the security of any land held by such bhumidhar, the provisions of this Chapter other than this section shall cease to apply to such bhumidhar with respect to such land and he shall thereupon be governed in the matter of devolution of the land by personal law to which he is subject.]" 10. As is evident from the substantive provisions made therein and as has been held by this Court earlier it merely contemplates a declaration being entered and is not really in nature of a forum to decide a lis inter partes. The provision only contemplates the making of a declaration to the effect that the land comprised therein is no longer being used for agricultural purposes. The provision only contemplates the making of a declaration to the effect that the land comprised therein is no longer being used for agricultural purposes. Although, the provision itself does not make any provision for an appeal, Sri Singh, learned Counsel has referred to the provisions made in Schedule II of the 1950 Act and more particularly Entry 11 appearing therein to submit that an order under section 143 is appealable. The submission is clearly misconceived for the following reasons. 11. The appeal, as is provided for in Schedule-II refers to an "application for declaration". It then prescribes the forum before which such an application is liable to be made. While it does provide for a first and second appeal being filed thereafter, this Court is of the firm view that the appeal as contemplated in Schedule-II is only, referable to those situations where an application under section 143 is not granted or refused. It cannot, in any case, be recognised as providing for an appeal at the behest of a party who has no concern in the plot in respect of which a declaration is sought. Since section 143 has already been recognised as not being a forum for settlement of inter se disputes or for the adjudication of competing claims and rights, the Court finds itself unable to recognise a right inhering in the respondents here to prefer an appeal. 12. The position becomes further clear when one takes into consideration the provisions made in the first Proviso to section 331 of the 1950 Act which is in the following terms:-- "Provided that where a declaration has been made under section 143 in respect of any holding or part thereof, the provisions of Schedule II insofar as they relate to suits, applications or proceedings under Chapter VIII shall not apply to such holdings or part thereof." 13. The Proviso thus excludes the applicability of Schedule II in case of land in respect of which a declaration under section 143 has come to be made. In light of that declaration, the land or part thereof is exercised from the ambit and cover of the 1950 Act. The provisions of Schedule II, as is manifest from a reading of the proviso, cease to apply to a holding or part thereof insofar as it comes to be included in a declaration under section 143. In light of that declaration, the land or part thereof is exercised from the ambit and cover of the 1950 Act. The provisions of Schedule II, as is manifest from a reading of the proviso, cease to apply to a holding or part thereof insofar as it comes to be included in a declaration under section 143. Consequently no right of appeal can be recognised to have existed in the respondents. In that view of the matter, this Court finds itself unable to uphold or sustain the orders impugned. 14. The writ petition is accordingly allowed. The impugned orders dated 3 April, 2001 and 21 February, 2005, are hereby quashed and set aside.