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2023 DIGILAW 1087 (ALL)

Mahmood Ahmad v. State Of U. P.

2023-04-20

CHANDRA KUMAR RAI

body2023
JUDGMENT : Chandra Kumar Rai, J. Heard Mr. Ramesh Pundir, Counsel for the petitioners, learned Standing Counsel for State-respondents and Mr.Arun Kumar Pandey, counsel for respondent No.5 Gaon Sabha. 2. With the consent of the parties, the writ petition is being heard and disposed of finally without calling the counter affidavit. 3. Brief facts of the case are that khata No.186 Plot Nos.152/1 M area 0.205 hectare; 152/2 M area 0.039 hectare and 152/3 M area 0.009 hectare total area 0.253 hectare situated in Village Sabalgarh, Pargana and Tehsil-Najibabad, District-Bijnor, was recorded in the name of Tasleem Ahmad son of Mohd. Haneef and Smt. Khatija wife of Mohd. Haneef as bhumidhar with transferable rights. Copy of the revenue record has been annexed as annexure No.1 to the writ petition in order to demonstrate that aforementioned plots were recorded as bhumidhari plot of Tasleem Ahmad and Smt. Khatija. Mohd. Haneef. Mr. Tasleem Ahmad son of Mohd. Haneef sold out his 1/2 share to Mahmood Ahmad son of Shafiq Ahmad, who is petitioner No.1 in the instant petition through registered sale deed dated 03.05.2011. On the basis of sale deed executed on 03.05.2011, the name of petitioners were accordingly recorded in the revenue record. Copy of the sale deed as well as revenue record containing name of the petitioners have been annexed as Annexure Nos.2 & 3 to the writ petition. Petitioners are stated to be in actual physical and cultivatory possession over the purchased plot No.152 M area 0.253 hectare. During consolidation operation on the basis of report of Lekhpal, proceeding under Section 9-A(2) of U.P.C.H. Act has been initiated by the State respondents and without giving notice or opportunity of hearing to the petitioners, the petitioners' entry has been expunged vide order dated 26.08.2016. Against the order dated 26.08.2016 passed by Consolidation Officer, Appeal under Section 11 (1) of U.P.C.H. Act has been filed, which was dismissed vide order dated 31.05.2018. Against the appellate order dated 31.05.2018, petitioners filed Revision under Section 48 of U.P.C.H. Act, which has been dismissed by the Revisional Court vide order dated 27.01.2023, hence this writ petition. 4. Counsel for the petitioners are submitted that petitioners are recorded tenure holders of the plot in dispute and in the proceeding under Section 9-A(2) of U.P.C.H. Act, the name of the petitioners has been expunged without affording opportunity of hearing to the petitioners. 4. Counsel for the petitioners are submitted that petitioners are recorded tenure holders of the plot in dispute and in the proceeding under Section 9-A(2) of U.P.C.H. Act, the name of the petitioners has been expunged without affording opportunity of hearing to the petitioners. He further submitted that title objection has been decided in arbitrarily manner without following mandatory provisions as contained under Rule 25-A and Rule 26(2) of U.P.C.H. Rules. He next submitted that against the order of Consolidation Officer, Appeal under Section 11 (1) of U.P.C.H. Act was filed but the same was also dismissed only on the ground that plot in dispute is pond. He next submitted that against the appellate order revision filed by the petitioners has also been dismissed in arbitrary manner. 5. Counsel for the petitioners placed reliance upon the judgment of this Court reported in 1993 RD 32 Raja Ram vs. D.D.C. Basti and others in which this court has held that provisions contained under Rule 26(2) of U.P.C.H. Rules is mandatory in nature and order passed without following the provisions contained under Rule 26(2) of U.P.C.H. Rules is illegal. 6. On the other hand, learned Standing Counsel and Counsel for the Gaon Sabha submitted that land in dispute was recorded as pond as such no right will accrue to the petitioners or petitioners' vendor. He further submitted that Consolidation Authorities have rightly decided the matter and the petitioners' entry has been rightly expunged, as such, no interference is required against the impugned orders. 7. I have considered the arguments advanced by the Counsel for the parties and perused the record. There is no dispute about the fact that petitioners were recorded tenure holder of the plot in dispute at the time of initiation of the proceeding under Section 9-A(2) of U.P.C.H. Act. There is also no dispute about the fact that Consolidation Officer has expunged the petitioners' entry without framing issues in the title objection as well as without giving notice or opportunity to the petitioners to lead the evidence. There is also no dispute about the fact that Appeal and Revision filed by the petitioners have also been dismissed. 8. In order to appreciate the controversy involved in the matter, provisions contained under Rules 25-A and 26 (2) of U.P.C.H. Rules are relevant, which are as under: "[25A. There is also no dispute about the fact that Appeal and Revision filed by the petitioners have also been dismissed. 8. In order to appreciate the controversy involved in the matter, provisions contained under Rules 25-A and 26 (2) of U.P.C.H. Rules are relevant, which are as under: "[25A. Sections 9-A, 9-B and 9-C. - (1) The Assistant Consolidation Officer shall, as far as possible, deal with all the objections filed by a tenure holder with regard to matters referred to in clause (i) of sub-section (1) of Section 9-A and sub-section (1) of Section 9-B in village itself. In deciding disputes on the basis of conciliation in terms of sub-section (1) of Section 9-A, he shall record the terms of conciliation in the presence of at least two members of the Consolidation Committee of the village. These terms shall then be read over to the parties concerned and their signatures or thumb impressions obtained. The members of the Consolidation Committee present shall also sign the terms of conciliation. The Assistant Consolidation Officer shall then pass orders deciding the dispute in terms of conciliation specifying the precise entries to be made in the records. Details of the operative part of the orders passed by the Assistant Consolidation Officer shall be noted in the Misilband register. No ex-parte order or orders in default shall be passed by the Assistant Consolidation Officer. (2) In all cases in which the Assistant Consolidation Officer sends a report, under the provisions of sub-section (2) of Section 9-A, or subsection (1) of Section 9-B to the Consolidation Officer for disposal, he may fix a date and place for the disposal of the cases by the Consolidation Officer and communicate the same to the parties present before him and issue notices in C.H. Form 6-A to the parties not so present. The report of the Assistant Consolidation Officer in such cases clearly brings out the points in dispute between the parties and the efforts made by him to reconcile them.] [26. The report of the Assistant Consolidation Officer in such cases clearly brings out the points in dispute between the parties and the efforts made by him to reconcile them.] [26. Section 9-A. -....................(2) On the date fixed under sub-rule (2) of Rule 25-A, or on any subsequent date fixed for the purpose, the Consolidation Officer shall hear the parties, frame issues on the points in dispute, take evidence, both oral and documentary, and decide the objections." The perusal of the provisions contained under Rules 25-A and 26 (2) of U.P.C.H. Rules reveals that provisions contained under Rules 25-A and 26 (2) are mandatory in nature, which have not been followed while deciding the title objection by the Consolidation Officer in expunging the petitioners' entry. The case law cited by Counsel for the petitioners in the Raja Ram (Supra) will be applicable in the present matter. Para 7 of the judgment is relevant which is as under: "7.Even apart from Rule 26 (2) of the Rules, the Settlement officer, Consolidation and the Deputy Director of Consolidation were expected to pass an appropriate order according to rules or reasons and justice, and not on the basis of their private opinion. they must have exercised judicial discretion as the concept of rule of law is equality before law. As the petitioner was filed objection against the basic year entries, he must have been permitted to lead evidence and without that just on the basis of compromise, which was even though set aside by the Settlement Officer, Consolidation, the basic year entry could not have been maintained. But that was obviously done under the misconception of the provisions of Rule 26 (2) and the concept of justice, particularly when the consolidation authorities were deciding rights and title of the parties in State imposed litigation. It would not be out of place to refer to an old Latin Maximum "ACTUS LEGITIA MI NON RECEPIUNT MOUM" which obviously connotes that when doing of anything in a particular manner is sanctioned by law, then the thing cannot be done in a different way. It would not be out of place to refer to an old Latin Maximum "ACTUS LEGITIA MI NON RECEPIUNT MOUM" which obviously connotes that when doing of anything in a particular manner is sanctioned by law, then the thing cannot be done in a different way. In Tayior V. Tayior (1) observed as follows: "When a statutory power is conferred for the first time upon a court and the mode of exercising it is pointed out, it means that no other mode is to be adopted." As by Rule 26 (2) of the rules the mode of deciding dispute between the parties on merits has been pointed out, it was not open to Settlement officer Consolidation to maintain the basic year entry without framing issues on the points involved and without permitting the parties to lead evidence, both oral and documentary. That order was confirmed by the Deputy Director of Consolidation also in revision." 9. This Court in another case reported in 2015 (127) RD 163 Bansraj and others vs. Deputy Director of Consolidation, Basti and others has again held that provisions contained under Rule 26 (2) of U.P.C.H. Rule is mandatory in nature and order passed without following the provisions contained under Rule 26 (2) of U.P.C.H. Rule will be illegal. 10. Considering the facts and circumstances of the case as well as in view of the ratio law laid down in Raja Ram (Supra), Bansraj (Supra), provisions contained under Rule 26 (2) of U.P. C.H. Rules, the impugned order dated 27.01.2023 passed by respondent No.2, order dated 31.05.2018 passed by respondent No.3, order dated 26.08.2016 passed by respondent No.4 are liable to be set aside and same are hereby set aside. The writ petition is allowed and matter is remanded back to the Consolidation Officer-respondent No.4 to decide the title objection in accordance with law after following the provisions contained under Rule 25-A & Rule 26 (2) of U.P.C.H. Rules as well as after affording proper opportunity of hearing to the petitioner to lead evidence in accordance with law. The Consolidation Officer shall decide the dispute expeditiously preferably within a period of six months from the date of production of certified copy of this order before him.