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Allahabad High Court · body

2021 DIGILAW 737 (ALL)

Shankar Lal v. State Of U. P.

2021-07-27

DINESH PATHAK

body2021
JUDGMENT : 1. Heard Shri Pramod Kumar Dwivedi, learned counsel for the petitioner, Shri Ashish Kumar Mishra, learned Advocate, holding brief of Shri Krishna Mishra, learned counsel for the impleadment applicants, learned Standing Counsel representing the respondent nos. 1 to 3 and perused the record. 2. In view of the peculiar facts and circumstances of the present case and the order proposed to be passed hereunder, this Court proceeded to finally decide this matter at the admission stage with the consent of the learned counsels for the parties, without calling for their respective affidavits, with liberty to the respondents to move recall application, in case, the details of the facts as given in the present writ petition are found incorrect. Order on Civil Misc. Impleadment Application No.3 of 2021 1. The instant impleadment application has been moved by three applicants namely Rajendra Prasad, Ram Raja & Rajesh sons of Jawahar Lal, claiming their right and title over the property in question i.e. Plot No. 4875/1 area 0.69 hectare on the basis of succession that originally plot No. 4875 area 4-5-0 was recorded in the name of Gaya Prasad, who was grand-father of the present applicants. During Consolidation proceeding, by manipulation, some portion of original plot has incorrectly been recorded as Plot No. 4875/1 area 0.69 hectare. Applicants are in the possession over the entire area i.e. 4-5-0 of Plot No. 4875 and they are paying revenue rent. Accordingly, they wants to be impleaded in the array of the parties in the present writ petition and desired to be heard in opposition and claims that their presence before this Court is necessary in order to enable the Court effectively and completely to adjudicate upon and settle all the questions involved in the present matter. 2. Per contra, learned counsel for the petitioner submits that the name of Gaya Prasad (predecessor in the interest of the applicants) was already ordered to be deleted from the revenue record vide order dated 14.11.1977 passed by Consolidation Officer and in his place names of Dwarika Prasad and three others were ordered to be recorded over Plot No. 4875/1 area 0.69 hectare. At subsequent stage, Dwarika Prasad and his brothers had executed a registered sale deed dated 22.08.1983 in favour of Smt. Battu Devi, who had also got her name mutated in the revenue record and, being recorded as tenure holder, she had executed a registered sale deed dated 22.02.2005 in favour of Shankarlal (petitioner herein) who has also got the mutation order dated 07.04.2005 passed by Assistant Consolidation Officer in a proceeding under Section 12 of U.P. Consolidation of Holdings Act, 1953(in brevity "U.P.C.H. Act"). 3. In this view of the matter, since 14.11.1977, name of the predecessor in the interest of the present applicants was deleted by the judicial order. At this juncture, right and title of the present applicants cannot be recognized by this Hon'ble Court, directly, without it's adjudication by the competent Courts. Present applicants, in case, have any grievance with respect to the entries and judicial orders passed in favour of the petitioner and predecessors in his interest, they can file an appropriate application/suit before the competent Courts to get their right and title declared by way of taking suitable steps under the law as advised. 4. In this conspectus as above, I do not find any force in the impleadment application moved by the applicants. Their presence before this Court cannot be said to be necessary in order to enable the Court effectively and completely to adjudicate upon and settle the question involved in present writ petition. As such, they cannot be said to be vitally interested person in the present matter, and have got no right to be heard in opposition. Accordingly, instant impleadment application is rejected in limine. Order on Writ Petition 1. By means of this writ petition, petitioner has invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India beseeching the mandamus commanding District Magistrate/ District Consolidation Officer, Banda, (respondent No.3) to record his name in the revenue record over the Plot No. 4875/01 in pursuance of the order dated 07.04.2005 passed by Consolidation Officer, Banda, in case No. 347 & 359 under Section 12 of U.P.C.H., Act. 2. Grievance of the petitioner is that Revenue Authorities are illegally averting their official duty to implement the order dated 07.04.2005 passed by Assistant Consolidation Officer, Banda, in proceeding under Section 12 of U.P.C.H. Act. 3. 2. Grievance of the petitioner is that Revenue Authorities are illegally averting their official duty to implement the order dated 07.04.2005 passed by Assistant Consolidation Officer, Banda, in proceeding under Section 12 of U.P.C.H. Act. 3. Factual matrix, as shown in writ petition, is that property in question i.e. Plot No. 4875/01 situated in village Oran, Tehsil-Atarra, District-Banda, was recorded in the name of Gaya Prasad. In the year 1972 village was notified under Section 4 of U.P.C.H. Act. During the consolidation proceeding name of Gaya Prasad was ordered to be deleted, vide order dated 14.11.1979 passed by the Consolidation Officer in Case No.10683, and in his place names of Dwarika Prasad, Chhotelal, Baldeo Prasad & Awadhesh sons of Bhagwat Prasad were ordered to be recorded. In compliance of the aforesaid order, names of Dwarika Prasad and others were mutated in the consolidation record. At subsequent stage, aforesaid recorded persons namely Dwarika Prasad and others had executed a registered sale deed dated 22.08.1983 in favour of Smt. Battu Devi w/o Mahaveer qua property in question who had also got her name recorded in the consolidation record, in proceeding under Section 12 of U.P.C.H. Act, vide order dated 06.12.1983 passed by Consolidation Officer in Case No. 441. Smt. Battu Devi had also executed a registered sale deed dated 22.02.2005 in favour of present petitioner namely Shanker lal with respect to the 1/10rd of her share of Plot No. 4875/01 measuring area 0.069 Hectare. On the basis of the aforesaid sale deed dated 22.02.2005, Assistant Consolidation Officer has passed an order dated 07.04.2005 under Section 12 of U.P.C.H. Act in case No. 346 & 359 for recording the name of the present petitioner in place of Smt. Battu Devi. 4. Submission made by learned counsel for the petitioner is that order dated 07.04.2005 passed under Section 12 of U.P.C.H. Act has attained finality between the parties, inasmuch as same has never been challenged before any competent Court by any aggrieved person, therefore, revenue records should be corrected in implementation of order dated 07.04.2005 passed by Assistant Consolidation Officer in favour of present petitioner. It is further submitted that earlier notification under Section 4 of U.P.C.H. Act was cancelled by the subsequent notification dated 07.06.2016 u/s 6(1) of U.P.C.H. Act with respect to the village-Oran, where property in question situates. It is further submitted that earlier notification under Section 4 of U.P.C.H. Act was cancelled by the subsequent notification dated 07.06.2016 u/s 6(1) of U.P.C.H. Act with respect to the village-Oran, where property in question situates. He has emphasised the consequential effect of cancellation of notification as enshrined u/s 6(2) of U.P.C.H. Act and submits that after cancellation of notification with respect to any area/unit, such area shall, subject to final orders relating to the correction of land records, if any, passed on or before the date of such cancellation, cease to be under consolidation operations, with effect from the date of such cancellation. 5. In the light of the submission made by learned counsel for the petitioner, it would be appropriate to discuss the scope of Section 6 to explore the possibility of the implementation of order passed by the Consolidation Officer. Provisions of Section 6 of U.P.C.H. Act is reproduced as under:- "(1) It shall be lawful for the State Government at any time to cancel the [notification] made under Section 4 in respect of the whole or any part of the area specified therein. "(2) Where a [notification] has been cancelled in respect of any unit under sub-section (1), such area shall, subject to the final orders relating to the correction of land records, if any, passed on or before the date of such cancellation, cease to be under consolidation operations with effect from the date of the cancellation." 6. Section 6(1) of U.P.C.H. Act empowers the State Government to cancel the notification issued under Section 4 of U.P.C.H. Act by which particular area or unit brought under the consolidation operation. The consequential effect of the cancellation of notification is enunciated under sub-Section 2 of Section 6 of U.P.C.H. Act which denots that, from the date of cancellation of the notification area/unit shall ceased to be under consolidation operation subject to final orders passed with regard to correction of records. 7. To avert any complications due to the cancellation of the notification promulgated under Section 4 of U.P.C.H. Act, Legislation has made the proviso under Section 6(2) of U.P.C.H. Act. Phrase “subject to the final orders relating to the correction of land records” as used u/s 6(2) of U.P.C.H. Act explicity connotes wider effect of notification u/s 6(1) of U.P.C.H. Act. To avert any complications due to the cancellation of the notification promulgated under Section 4 of U.P.C.H. Act, Legislation has made the proviso under Section 6(2) of U.P.C.H. Act. Phrase “subject to the final orders relating to the correction of land records” as used u/s 6(2) of U.P.C.H. Act explicity connotes wider effect of notification u/s 6(1) of U.P.C.H. Act. After cancellation of notification, land records, including basic year entries should be corrected in accordance with the orders, passed during the consolidation proceedings, which have attained the finality. 8. Provisions u/s 6(2) of U.P.C.H. Act, left no room for doubt that final orders, if any, passed during the consolidation proceeding, on or before the cancellation of notification as provided u/s 6(1) of U.P.C.H. Act, shall be given effect to the revenue records and, accordingly, final revenue records shall be maintained after cessation of the area to be under consolidation operations. 9. Dealing with the effect of cancellation of notification, the provisions as embodied under proviso 2 of Section 5 of U.P.C.H. Act is also required to be considered, which run as below:- “Provided further that on the issue of a notification under sub-section (1) of Section 6 in respect of the said area or part thereof, every such order in relation to the land lying in such area or part as the case may be, shall stand vacated; 10. Bare reading of the second proviso to Section 5(2) of U.P.C.H. Act denots the consequential effect in those matters where final orders have not been passed on or before the cancellation of the notification. It provides that where the lis is pending and final order could not be passed relating to the correction of land record before cessation of unit to be under consolidation operation due to notification u/s 6(1) of U.P.C.H. Act, in that condition, proceeding of pending suits/cases, in which the order of abatment had been passed due to enforcement of notification under Section 4 of U.P.C.H. Act, shall stands revived. Therefore, all the pending proceedings which are abated under Section 5(2)(a) of U.P.C.H. Act shall be revived and abatement order shall be vacated after notification under Section 6(1) of U.P.C.H. Act, in case, no final order could be passed for the correction of land record during the consolidation proceedings. Legislation is never intended to prolong the litigation or to promote the multiplicity of the proceeding. Legislation is never intended to prolong the litigation or to promote the multiplicity of the proceeding. It has also never intended to leave the right and title of the parties undecided. 11. Learned counsel for the petitioner, in support of his case, has placed reliance on order passed by coordinate Bench of this Court in Civil Misc. Writ Petition No. 2980 of 1994 (Madan Shah and others Vs. Deputy Director of Consolidation, Aligarh, Camp Mathura and others), 2007 (102) RD 809. Relevant portion of the aforesaid order is quoted below:- "4. While sub-section (1) of Section 6 deals with the power of the State Government to cancel the notification under Section 4 at any time sub section (2) to section 6 deals with the effect a notification under Section 6(1) would have upon the consolidation proceedings. It provides that the area shall cease to be under consolidation operations with effect from the date of the cancellation but this is subject to any final orders relating to correction of land records. The question which arises is whether the order passed by the Dy. Director of Consolidation in a revision arising out of an objection under Section 9 is a final order relating to correction of land records. The words " orders relating to correction of land records " as used in Section 6(2) are wide and would also cover orders passed in title disputes under Section 9A because these orders can direct change of basic year entries. It is therefore necessary to examine the relevant provisions of the Consolidation of Holdings Act which confer finality upon orders passed in the consolidations proceedings. An order passed under Section 9A deciding objection relating to title is appelable under Section 11. Sub-section (1) of Section 11 provides that the order of the Settlement Officer Consolidation except as otherwise provided shall be final A revision lies against the order of the Settlement Officer Consolidation to the Dy. Director of Consolidation under Section 48 of the Act. It is thus clear that unless a revision is filed the order of the Settlement Officer Consolidation passed under sub-section (1) of Section 11 shall be final. If a revision is filed the order of the Dy. Director of Consolidation shall be final. Director of Consolidation under Section 48 of the Act. It is thus clear that unless a revision is filed the order of the Settlement Officer Consolidation passed under sub-section (1) of Section 11 shall be final. If a revision is filed the order of the Dy. Director of Consolidation shall be final. The effect of the notification under sub-section (1) of Section 6 envisaged in sub-section (2) is that the consolidation operations shall cease in the village subject to the decision of the appeal or where a revision has been preferred to the order in the revision. If the legislature intended that all orders passed before issuance of the notification under Section 6 be set at naught it would not have specified in sub-section (2) that the consolidation operations shall cease in the area from the date of cancellation nor made the ceasure subject to final orders relating to correction of records passed before the date of the notification. When a notification under Section 4(2) is published proceedings for correction of records and a suit or proceeding in respect of declaration of rights or interest in any land shall on an order being passed by the court where it is pending stand abated. The effect of the 2nd proviso of sub-section 2 of Section 5 is that on the issuance of notification under sub-section (1) of Section 6 an order of abatement shall stand vacated and the proceedings will revive. Reading this proviso with Section 6 (2) it appears that the revival of the proceedings contemplated is in cases where final orders have not been passed. In cases where final orders have been passed sub-section (2) of Section 6 itself provides that the ceasure of the consolidation operations will be subject to such final orders. Sub-sections (1) and (2) of Section 6 and the Second proviso of sub-section (2) of Section 5 have to be read together to determine this effect. Thus read it is clear that it is only where final orders relating to correction of land records have not been passed that the proceedings of pending suit in which the order of abatement had been passed shall stand revived. Thus read it is clear that it is only where final orders relating to correction of land records have not been passed that the proceedings of pending suit in which the order of abatement had been passed shall stand revived. In cases where a final order relating to correction of land records has been passed the final order would be affected by notification under Section 6(1) and provisions of Section 49 of the Consolidation of Holdings Act would become applicable." 12. Learned counsel for the petitioner has drawn the attention of this Court towards the order dated 13.07.2016 passed by another co-ordinate Bench of this Court in Writ B 3121/2016(Annexure No.6) wherein identical matter has been considered by the Court and issued a direction to the Revenue Court/Tehsildar to give effect to the orders passed by consolidation authority. Relevant portion of order dated 13.07.2016 is quoted below:- "Before this court, the petitioner has pressed relief no.2. Section 6(2) of U.P. Consolidation of Holdings act, 1953 (hereinafter referred to as the 'Act') provides that where a notification has been cancelled in respect of any unit under Sub Section 1, such area shall, subject to final orders relating to correction of land records, if any, passed on or before the date of such cancellation, cease to be under consolidation operation, w.e.f. the date of cancellation. Thus, under Section 6(2), final orders relating to corrections of land records, if any, passed on or before the date of such cancellation, cease to be under consolidation operation, w.e.f. the date of cancellation. Thus, under Section 6(2), final orders relating to correction of land records were saved, even after cancellation of the consolidation proceeding. In such circumstances, the revenue authorities may give effect to the orders relating to correction of land records, which have become final before the consolidation authorities. The petitioner is disposed of directing the Revenue Court/Tahsildar to give effect to the orders of consolidation authorities, which have become final in respect of correction of land records, according to the provisions of Section 6(2) of the Act." 13. The petitioner is disposed of directing the Revenue Court/Tahsildar to give effect to the orders of consolidation authorities, which have become final in respect of correction of land records, according to the provisions of Section 6(2) of the Act." 13. Learned counsel for the petitioner has also drawn attention of this Court towards Government Order dated 12.12.2014 with respect to implementation of judicial orders passed during consolidation proceeding, before notification under Section 6(1) of the U.P.C.H. Act, which is quoted as under:- isz"kd] pdcanh vk;qDr mŸkj izns'k] y[kuÅA lsok esa] leLr ftykf/kdkjh@ftyk mi lapkyd pdcanh mŸkj izns'kA i=kad & 5049@th&419@2013&13 fnukad 12 fnlEcj 2014 fo"k; & mŸkj izns'k tksr pdcanh vf/kfu;e dh /kkjk 6¼1½ ds vraxZr iz[;kiu ds i'Pkkr pdcanh izfØ;k ds varxZr ikfjr U;kf;d vkns'kks ds izHkko ds laEca/k esaA egksn;] izk;% ns[kus es vkrk gS fd mŸkj izns'k tks pdcanh vf/kfu;e 1953 dh /kkjk 6¼1½ ds varxZr iz[;kiu ds i'pkr pdcanh izfØ;k ds varxZr ikfjr vkns'kks ds izHkko ds lEca/k es Hkze dh fLFkfr jgrh gSA tcfd bl laca/k esa funs'kky; Lrj ls iwoZ es ifji= la[;k 2101@th&415@2012&13 fnukad 09-04-2013 tkjh dj vko';d funsZ'k tkjh fd;s tk pqds gSA ekŒ jktLo ifj"kn ds i= la[;k bZ&2633@4&fofo/k@2011 fnukad 01-11-2012 ds ek/;e ls mDr ds lEca/k es ;g fn'kk funsZ'k fn;s x;s gS fd fdlh xzke es mŸkj izns'k tksr pdcanh vf/kfu;e dh /kkjk 6¼1½ ds iz[;kiu dh fLFkfr es tc mDr xzke es pdcanh izfØ;k izkjEHk gqbZ o ftl frfFk dks /kkjk 6¼1½ ykxw gqbZ] ml chp dh vof/k esa ikfjr 6¼1½ ykxw gqbZ] ml chp dh vof/k es ikfjr U;kf;d vkns'kks ds vuqikyu gsrq rglhy dfEkZ;ksa dks vf/kfu;e dh /kkjk 6¼2½ es fo|eku fof/k ds varxZr funsZf'kr fd;k tkuk pkfg,A mŸkj izns'k tksr pdcanh vf/kfu;e dh /kkjk 6¼2½ es O;oLFkk gS fd tc mi/kkjk ¼1½ ds v/khu fdlh dVd ds lEca/k esa foKfIr jnn dj nh tk;s rks og {ks= mDr jnn djus ds fnukad ij ;k mlls igys Hkwfe vfHkys[kks esa la'kks/ku ls lEca/k ;fn dksbZ vafre vkKk gks rks mlds v/khu j[krs gq, jnn ds fnukad ls pdcanh fØ;kvks ds v/khu u jg tk;sxk vFkkZr /kkjk 6¼1½ ds iz[;kiu ds fnuakd dks pdcanh izfØ;k ds varxZr Hkwfe vfHkys[kks ls lEca/k izkf/kdkfj;ksa }kjk ikfjr os lHkh vkns'k ftuds fo:) dksbZ vihy@fuxjkuh l{ke U;k;ky; es fopkjk/khu u gks rFkk os vkns'k vafre gks x;s] izHkkoh jgsaxsA vRk% mijksDr ifjis{; esa vuqjks/k gS fd mŸkj izns'k pdcanh vf/kfu;e 1953 dh /kkjk 6¼2½ es nh xbZ] O;oLFkk ,oa bl lEca/k es HkkŒ jktLo ifj"kn ds i= fnukad 01-11-2012 es fn;s x;s funsZ'k ds vuqlkj vko';d dk;Zokgh djkus dk d”V djsA Hkonh; gŒvŒ pdcanh vk;qDr mŸkj izns'k 14. In this view of matter, Consolidation authorities are under legal obligation to correct the revenue record after the cancellation of the notification under Section 4 of U.P.C.H. Act in accordance with the final orders which were passed and attained finality on or before the cancellation of notification as mentioned under Section 6(1) of U.P.C.H. Act. Present matter relates to the consequential effect of the cancellation of the notification wherein final order had already been passed to correct the revenue record. Therefore, petitioner has legal right to get his name recorded under the provisions of Section 6(2) of U.P.C.H. Act. 15. In the present matter, petitioner has given succinct description of facts that vide order dated 14.11.1977, name of the recorded tenure holder was deleted and in his place names of Dwarika Prasad and three others were recorded over the plot in question. Subsequently, Dwarika Prasad and others have executed a registered sale deed in favour of Smt. Battu Devi, vendor of the present petitioner, who had also got her name mutated in record, in a proceeding under Section 12 of U.P.C.H. Act and at later stage, she had executed a registered sale deed dated 22.02.2005 to the extent of 9/10rd of her share in the property in question i.e. Gata No. 4871/01 area 0.069 Hectare in favour of present petitioner. On the basis of the aforesaid sale deed dated 22.02.2005, Assistant Consolidation Officer has passed an order dated 07.04.2005 under Section 12 of U.P.C.H. Act for recording the name of the present petitioner in place of his vendor. All the three orders passed by the consolidation Courts since 14.11.1977 have attained finality inasmuch as no one has challenged the aforesaid orders before the competent Court. 16. In this conspectus as above, claim of the petitioner to get his name recorded in the revenue record, in pursuance of final order dated 07.04.2005 passed by Assistant Consolidation Officer, after notification under Section 6(1) of the U.P.C.H. Act, is justified in the eyes of the law and authorities concerned, are under legal obligation to implement said order passed by the competent Court, which became final between the parties. 17. 17. As such, the instant writ petition is allowed with a direction to District Magistrate(respondent No.3) to ensure the implementation of order dated 07.04.2005, in the revenue record, passed by Assistant Consolidation Officer, Banda, in Case No. 347 & 359 under Section 12 of U.P.C.H. Act, in the light of the provisions as contained under Section 6(2) of U.P.C.H. Act and direction issued under the Government order dated 12.12.2014 expeditiously, preferably within a period of two months from the day of production of computerized copy of this order along with a fresh representation which shall be moved by the petitioner within a period of three weeks' from today and, accordingly, issue extract of fresh khatauni qua Gata No. 4875/1 situated in Village Oran, Tehsil-Atarra, Distrcit-Banda. 18. The petitioner shall file computer generated copy of this order downloaded from the official website of High Court Allahabad supported by an affidavit, which shall be verified by the concerned authority from the website of the High Court. 19. With the aforesaid observations, the instant writ petition is disposed of.