Indra Raj Mahila Mahavidyalay Odwara Basti v. Deputy Director of Consolidation Basti
2023-09-05
SAURABH SHYAM SHAMSHERY
body2023
DigiLaw.ai
JUDGMENT Saurabh Shyam Shamshery, J. The issue raised in this writ petition has been partially dealt with in a judgment passed by this Court on 29.08.2023 in a bunch of cases, leading being Writ B No. 947 of 2023 (Basdev v. State of U.P. and 5 others)(Neutral Citation No. 2023:AHC:173700) that Section 11-A of U.P. Consolidation of Holdings Act, 1953 would not have any bar in reopening a case, if the revenue entries in regard to nature of land was such that it not be a part of consolidation and relevant part thereof are mentioned hereinafter -: "29. The argument that Deputy Director of Consolidation has taken cognizance of application at very belated stage i.e. after more than 2 decades, may be relevant but since there is per se presence of element of 'fraud on statute' and that Assistant Consolidation Officer has allotted a public land to petitioners without any 'necessity' or 'expediency' and without any alternative land being earmarked for said public purpose ('pasture land'), therefore, as it is well settled that a 'fraud' which also includes a 'fraud on statute', if detected, can be considered even at any later stage. Legal principle that 'fraud vitiates every solemn act' which also amounts to an abuse of the process, and the court or concerned Authority has inherent power to set aside, an order obtained by fraud practised upon it or a statute also and for that few paragraphs of a judgment passed by Supreme Court in Smriti Madan Kansagra v. Perry Kansagra, 2021 SCC Online SC 909, would be relevant and being quoted below -: "49. xxxx 23. Since fraud affects the solemnity, regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of court, the courts have been held to have inherent power to set aside an order obtained by fraud practised upon that court. Similarly, where the court is misled by a party or the court itself commits a mistake which prejudices a party, the court has the inherent power to recall its order. xxxx 50. In United India Insurance Co. Ltd. v. Rajendra Singh, (2000) 3 SCC 581 , this Court observed:- "16. Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly-discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation.
xxxx 50. In United India Insurance Co. Ltd. v. Rajendra Singh, (2000) 3 SCC 581 , this Court observed:- "16. Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly-discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim." 2. Facts of present case on basis of record available are that during consolidation proceedings, a Consolidation Officer by an order dated 23.01.1962, vendor of land in dispute was entered as a bhoomidhar. It is not on record whether this order was challenged further and on basis of such order, different forms were prepared. 3. At later stage, it was revealed that land in dispute was recorded as 'bhita' in old revenue records which was either not brought before the Consolidation Officer or if brought, was not considered and, therefore, on instructions of officials of department, an appeal was preferred before Appellate Court, which was decided on merit and it was held that -: ^^bl izdkj eq[; jktLo vf/kdkjh egksn;k }kjk ftykf/kdkjh egksn;k dks izsf"kr fjiksVZ fnukad 28-12-2022 ls Li"V gS fd fookfnr [kkrk esa vafdr xkVk la[;k 350 dk iqjkuk uacj 854 HkhVk ds uke vafdr Fkk tks tehankjh fouk'k vf/kfu;e dh /kkjk&132 rFkk jktLo lafgrk dh /kkjk 77 dh Hkwfe Fkh mDr vkjkth dks pdcanh vf/kdkjh ds vkns'k fnukad 23-01-1962 }kjk [kkrsnkjksa ds uke oxZ&1 vafdr dj fn;k x;k gS tks {ks=kf/kdkj ls ijs gS] tks fujLr fd;s tkus ;ksX; gSA tcfd ekuuh; mPp U;k;ky; flfoy vihy la[;k 4787@2001 fgapyky frokjh cuke deyk nsoh ekuuh; mPp U;k;ky; }kjk ikfjr vkns'k fnukad 25-07-2001 esa ;g Li"V :i ls tehankjh fouk'k vf/kfu;e dh /kkjk&132 jktLo lafgrk dh /kkjk 77 dh Hkwfe dh uoS;r ugha cnyh tk ldrh gS] ijarq pdcanh vf/kdkjh }kjk vkns'k ikfjr djrs gq, HkhVk dh Hkwfe uoS;r cnyrs gq, [kkrsnkjksa ds uke lade.kh; Hkwfe/kj vafdr dj fn;k x;k gS] tks mfpr ugha gSA bl izdkj vihy Lohdkj djrs gq, fookfnr Hkwfe ds ckcr voS/kkfud :i ls ikfjr vkns'k dks fujLr djrs gq, fookfnr xkVk dks iwoZ dh Hkkafr HkhVk vkfn ds en esa jdck vafdr fd;k tkuk mfpr izrhr gksrk gSA** 4.
Aforesaid order was challenged by petitioners before Revisional Court. The Revisional Authority after considering the material on record including various reports, rejected the revision petition by an impugned order dated 26.07.2023 and relevant part thereof is mentioned hereinafter-: ^^i=koyh ds voyksdu ls ;g Hkh fofnr gS fd f'kdk;rdrkZ fjtoku cgen iq= fofLeYykg vkfn fuoklh xzke&vksMokjk }kjk izLrqr f'kdk;rh izkFkZuk i= ij eq[; jktLo vf/kdkjh }kjk ftykf/kdkjh egksn;k cLrh dks fnukad 28-12-2022 dks vk[;k izsf"kr fd;k x;k FkkA dk;kZy; eq[; jktLo vf/kdkjh] cLrh ds i=kad 254 ¼2½ vk'kqfyfid fnukad 18 tuojh 2023 }kjk izsf"kr vk[;k lanfHkZr fd;k x;k FkkA mDr vk[;k ij ftykf/kdkjh egksn;k }kjk l{ke U;k;ky; esa vihy ;ksftr djds pdcanh vf/kdkjh ds vkns'k o izfof"V;ksa dks fujLr djkus gsrq ftyk 'kkldh; vf/koDrk jktLo] cLrh dks funZsf'kr fd;k FkkA mDr funsZ'k ds dze esa ftyk 'kkldh; vf/koDrk jktLo cLrh }kjk canksoLr vf/kdkjh pdcanh ds U;k;jy; esa vihy ;ksftr dh x;hA mDr vihy ij mHk; i{kksa dks lqudj foLr`r foospuk djrs gq, cankscLr vf/kdkjh pdcanh us fnukad 28-06-2023 dks vihy dk fuLrkj.k xq.k nks"k ds vk/kkj djrs gq, mYys[k fd;k gS fd ekuuh; mPp U;k;ky; flfoy vihy la[;k 4787@2001 fgapyky frokjh cuke deyk nsoh esa ekuuh; mPp U;k;ky; }kjk ikfjr vkns'k fnukad 25-07-2001 esa ;g Li"V :i ls tehankjh fouk'k vf/kfu;e dh /kkjk&132 jktLo lafgrk dh /kkjk 77 dh Hkwfe dh uoS;r ugha cnyh tk ldrh gS] ijarq pdcanh vf/kdkjh }kjk vkns'k ikfjr djrs gq;s HkhVk dh Hkwfe dh uoS;r cnyrs gq, [kkrsnkjksa ds uke ladze.kh; Hkwfe/kj vafdr dj fn;k x;k gS] tks mfpr ugha gSA bl izdkj vihy Lohdkj dks Lohdkj djrs gq, fookfnr Hkwfe ds ckor voS/kkfud :i ls ikfjr vkns'k dks fujLr djrs gq, fookfnr xkVk dks iwoZ dh Hkkafr HkhVk vkfn ds en esa jdok vafdr fd;k x;k gS] tks mfpr ,oa U;k;laxr gSA esjs }kjk canksoLr vf/kdkjh pdcanh ds vkns'k esa fdlh izdkj ds gLr{ksi dh vko';drk ugha ikbZ tkrh gSA fuxjkuh cyghu gksus ds dkj.k fujLr fd, tkus ;ksX; gSA** 5. Sri Ved Prakash Shukla, learned counsel for petitioners has tried to dispute the revenue records wherein the land in dispute was referred as 'bhita', however, he has miserably failed to prove in absence of any material document.
Sri Ved Prakash Shukla, learned counsel for petitioners has tried to dispute the revenue records wherein the land in dispute was referred as 'bhita', however, he has miserably failed to prove in absence of any material document. It appears that relevant revenue records were not placed before Consolidation Officer and as referred above, an appeal or a revision could be considered even at belated stage in case the land which was barred to be included in consolidation proceedings was included. In absence of cognizance of revenue records wherein land in dispute was entered to be 'bhita' land. 6. As referred above that in such cases, due to existence of element of 'fraud' as well as taking note of legal principle that fraud vitiates all solemn act, therefore, no illegality was committed by taking cognizance of appeal and allowed the same and since no illegality or irregularity was placed before Revisional Authority. 7. With above observations, this writ petition being sans merit is dismissed.