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2023 DIGILAW 201 (ALL)

Ajeet v. State of U. P.

2023-01-19

CHANDRA KUMAR RAI

body2023
JUDGMENT Chandra Kumar Rai, J. Sri Santosh Kumar Dubey, counsel for the petitioners, Sri Surendra Kumar Tiwari, assisted by Sri Vishal Khandelwal / Sri Sushil Dubey for contesting respondent no.8 and the learned standing counsel for the state respondents. 2. The instant writ petition has been filed against the impugned order dated 15.3.2022, passed by Board of Revenue in Revision No.17/2008 (Computerized Case No.C2008110017) (Jai Ram and Others v. Ram Das and Others), under Section 333 of the U.P. Z.A. & L.R. Act, 1950, by which the matter has been remanded back to the trial court to decide the case Under Section 176 of the U.P. Z.A. & L.R. Act on merits, after opportunity of hearing to the parties to the dispute. 3. Brief facts of the case are that one Phool Singh was the original tenure holder of the plots of khata No.8 and khata No. 10 situated in VillageChitahara, Pargana & Tehsil-Dadri, District Gautambudh Nagar. Phool Singh had three sons namely Goverdhan, Har Narayan and Devi Singh. Petitioners and contesting respondents are heirs & legal representatives of the three branches namely Goverdhan, Har Narayan and Devi Singh. Consolidation operation started in the village in question by way of notification issued on 10.07.1980 under Section 4 of U.P. Consolidation of Holdings Act and the dispute regarding the share between the parties was decided by Consolidation Officer vide order dated 29.03.1986 under Section 9-A(2) of U.P.C.H. Act, the shares of the parties were accordingly disclosed in C.H. Form II. The village in question was notified vide notification dated 30.11.2000 under Section 6 of U.P. Consolidation of Holdings Act. Respondent Nos. 4 to 18 filed a suit under Section 176 of the U.P. Z.A. & L.R. Act, claiming share on the basis of order dated 29.03.1986 passed by Consolidation Officer as the order of Consolidation Officer had attained finality before notification of the village under Section 6 of U.P. Consolidation of Holdings Act. Petitioners filed their written statement in the partition suit filed by respondent Nos. 4 to 18, taking ground that suit is barred by Section 49 of U.P. Consolidation of Holdings Act. Trial Court vide order dated 16.07.2008 dismissed the partition suit filed by respondent Nos. 4 to 18 as barred by Section 49 of U.P. Consolidation of Holdings Act and Section -11 of Civil Procedure Code. Respondent Nos. 4 to 18, taking ground that suit is barred by Section 49 of U.P. Consolidation of Holdings Act. Trial Court vide order dated 16.07.2008 dismissed the partition suit filed by respondent Nos. 4 to 18 as barred by Section 49 of U.P. Consolidation of Holdings Act and Section -11 of Civil Procedure Code. Respondent Nos. 4 to 18 challenged the order through revision before Board of Revenue under Section 333 of U.P. Z.A. and L.R. Act which has been allowed vide order dated 15.03.2022, setting aside the order dated 16.07.2008 and remanded the case before Trial Court to decide the partition suit on merit after hearing both parties by preparing preliminary decree in the light of final order dated 29.03.1986 passed by Consolidation Officer. Hence this writ petition. 4. Counsel for the petitioners submitted that the case under Section 176 of the U.P. Z.A & L.R. Act, filed by the contesting respondent, has been dismissed by the trial court with the finding that the proceeding is barred by Section 49 of the U.P. C.H. Act. He further submitted that due to notification issued under Section 6 of U.P.C.H. Act, petitioners cannot claim benefit of the order passed by Consolidation Officer dated 29.03.1986. He further submitted that Board of Revenue has exceeded his revisional jurisdiction. It is further submitted that by the impugned order, the revisional court has illegally interfered with the order passed by the trial court, as such, the impugned revisional order be set aside and the order of the trial court be maintained. 5. On the other hand, counsel for the contesting respondent submitted that during consolidation proceeding, objection under Section 9 of the U.P. C.H. Act was filed by the contesting respondent along with the petitioner was decided on 29.3.1986 and the share was determined by the consolidation court. He further submitted that the order determining the share, has attained finality and after that village has been notified under Section 6 of the U.P. C.H. Act on 30.11.2000. He also submitted that the suit under Section 176 of the U.P. Z.A. & L.R. Act was rightly filed but the trial court by passing a cryptic order has dismissed the suit holding that the same is barred by Section 49 of the U.P. C.H. Act as well as Section-II of Civil Procedure Code. He also submitted that the suit under Section 176 of the U.P. Z.A. & L.R. Act was rightly filed but the trial court by passing a cryptic order has dismissed the suit holding that the same is barred by Section 49 of the U.P. C.H. Act as well as Section-II of Civil Procedure Code. He also submitted that the contesting respondent filed a revision against the order of the trial court and the revisional court has rightly passed an order, remanding the matter back to decide the suit under Section 176 of the U.P. Z.A. & L.R. Act afresh on merit in pursuance of the order dated 29.03.1986 passed by Consolidation Officer. He further submitted that no interference is required against the remand order passed by the revisional court and the writ petition is liable to be rejected. 6. I have considered the arguments advanced by learned counsel for the parties and perused the records. 7. There is no dispute about the fact that the suit under Section 176 of the U.P. Z.A. & L.R. Act was filed by the contesting respondent which was dismissed by the trial court but in revision the matter has been remanded back to the trial court to decide the suit afresh in accordance with law. 8. Since the suit under Section 176 of the U.P. Z.A. & L.R. Act has been decided arbitrarily, as such, the revisional court rightly set aside the order of the trial court and remanded the matter back before to the trial court to proceed with the matter in pursuance of the order dated 29.3.1986 by preparing preliminary decree in accordance with law. 9. So far as proceeding of consolidation Court as well as order dated 29.03.1986 passed under Section 9 of U.P.C.H. Act due to notification of the village under Section 6 of U.P.C.H. Act on 30.11.2000 are concerned, the perusal of Section 6 of U.P.C.H. Act will be necessary which is as follows:- "6. Cancellation of notification under Section 4. - (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. Cancellation of notification under Section 4. - (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." 10. This Court has considered the scope of Section 6 of U.P.C.H. Act in the cases reported in 2007 (102) RD 809 Madan Shah & others v. Deputy Director of Dixit & others, 2018 (139) RD 322 Rajendra Prasad Dixit & others v. State of U.P. & others. Paragraph No. 8 of the judgement rendered in Rajendra Prasad Dixit (Supra) is relevant which is as follows:- "8. It is not in doubt that the State Government retains the power under Section 6(1) to cancel the notification issued by it earlier under Section 4. However, the effect of such cancellation has been laid down by the legislature in sub-section (2) of Section 6. Where the notification has been cancelled in respect of any unit in 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, ceases to be under consolidation operation with effect from the date of the cancellation. Thus, the cancellation shall not be effective so far as the final orders relating to the correction of land records passed on or before the date of such cancellation, i.e. during the consolidation proceedings. The term 'final orders' relating to the correction of land records would include the orders passed by the Consolidation Officer under Section 9-A(2), by virtue thereof, ultimately the records would be corrected as regards the basic year entries as has also been observed by this Court in the aforesaid judgment in Madan Shah's case (supra) and the said words are of wide import. It is not in dispute that the order of the Consolidation Officer dated 17.3.2004 was not challenged in appeal under Section 11(1) nor by way of a revision under Section 48. There is no material on record to show otherwise. It is not in dispute that the order of the Consolidation Officer dated 17.3.2004 was not challenged in appeal under Section 11(1) nor by way of a revision under Section 48. There is no material on record to show otherwise. As per the scheme of the Act 1953 against a decision under Section 9-A(2) taken by Consolidation Officer an appeal lies under Section 11(1). Needless to say that this appeal would be a continuation of the proceedings before the Consolidation Officer which is in the nature of a trial wherein the rights and title of the parties are declared. Section 11(1) categorically provides that the order of the Settlement Officer Consolidation passed in appeal as otherwise provided by or under this Act shall be final and not be questioned in any Court of law under the scheme of the Act, 1953. Against the aforesaid orders passed under Section 9- A(2) and Section 11(1), a revision is maintainable before the Deputy Director of Consolidation under Section 48 thereof. Thus, in a given situation where against an order passed under Section 9-A(2) or similar provisions of the Act, 1953 where appeals or revisions are prescribed if such appeal or revision has been preferred and is pending on the date of notification under Section 6(1) of the Act, 1953, then, it cannot be said that the initial orders passed by the Consolidation Officer had attained finality, therefore, on account of pendency of such appeals or revisions, the orders passed by such authorities would not be protected under Section 6(2), however, in cases, such as the present one, where no appeal or revision was filed or it was filed but decided, such orders would be protected in terms of the appellate or revisional orders passed therein." 11. In view of the provisions contained under Section 6(2) of U.P.C.H. Act as well as Madan Shah (Supra) & Rajendra Prasad Dixit (Supra) the argument advanced by learned Counsel for the petitioner that due to notification dated 30.11.2000 issued under Section 6 of U.P.C.H. Act the order passed by Consolidation Officer dated 29.03.1986, cannot be relied upon is misconceived, as such, the same is rejected. 12. The order passed by the revisional court is in accordance with law. No interference is required against the impugned revisional order passed by the Board of Revenue. 13. The writ petition is dismissed. 12. The order passed by the revisional court is in accordance with law. No interference is required against the impugned revisional order passed by the Board of Revenue. 13. The writ petition is dismissed. However, the trial court is directed to decide the suit in pursuance of the revisional order dated 15.3.2022, expeditiously, preferably within a period of 4 months from the date of production of the certified copy of the order.