Research › Search › Judgment

Allahabad High Court · body

2024 DIGILAW 1009 (ALL)

Ravi v. State Of UP

2024-04-08

CHANDRA KUMAR RAI

body2024
JUDGMENT : Chandra Kumar Rai, J. 1. Heard Sri Awadh Behari Singh, learned counsel for the petitioners and Sri B.N. Pathak, learned standing counsel for the state-respondents. 2. With the consent of learned counsel for the petitioners and learned standing counsel, the instant writ petition is being heard & disposed of finally without inviting counter affidavit. 3. Brief facts of the case are that one Shyamraji widow of Kumar executed a registered sale deed on 14.10.1985 with regard to the house situated in village -Hengapur and another sale deed was executed by Shyamraji on 30.11.1991 in respect to plot no-411/0.142 kari, 5M/0.145 kari, 6M/0.028 kari, 7M/0.004 kari situated in village-Hengapur, Tehasil-Sadar, Pergana -Nizamabad, District -Azamgarh. The Assistant Consolidation Officer vide order dated 16.1.1992 ordered to record the name of petitioners in place of Shyamraji under Section -12 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as "U.P.C.H. Act"). After death of Shyamraji, the name of predecessor of respondent nos-4 to 6 were ordered to be recorded in case under Section -12 of U.P.C.H. Act, vide order dated 20.5.1992 as successor of Shyamraji over the land belonging to Shyamraji including the disputed plots which was transferred by her in favour of predecessor of petitioners, accordingly, petitioner's father filed a revision under Section-48 of U.P.C.H. Act against the order dated 21.5.1992 passed by Assistant Consolidation Officer which was decided on the basis of compromise vide order dated 28.2.2002. The village in question was notified under Section 6 (1) of U.P.C.H. Act on 22.11.2010. Petitioners filed an application on 22.9.2022 before respondent no-2/Settlement Officer of Consolidation for implementation of the order dated 16.1.1992 passed by Assistant Consolidation Officer under Section-12 of U.P.C.H. Act. The parwana was issued on 24.9.2022. An application was filed at the instance of respondent nos. 4 to 6 for withdrawal of Parwana dated 24.9.2022 and prayer has been made to issue fresh parwana on the basis of order dated 28.2.2002 passed by Deputy Director Consolidation in revision. A report dated 25.9.2023 was submitted by the Consolidation Officer that there is double entry of the plot in dispute in view of the order dated 28.2.2016 passed in Case No-435/1860. A report dated 25.9.2023 was submitted by the Consolidation Officer that there is double entry of the plot in dispute in view of the order dated 28.2.2016 passed in Case No-435/1860. On the basis of the report dated 25.9.2023, Settlement Officer of Consolidation passed an order on 3.11.2023, directing the Sub Divisional Magistrate to implement the order dated 28.2.2002, passed by Deputy Director of Consolidation as well as to expunge the double entry made vide order dated 26.2.2016. Another order dated 3.11.2023 was also forwarded to the Sub Divisional Magistrate to cancel the orders dated 25.11.1983 and 16.1.1992. Petitioners filed an application on 8.12.2023 before Settlement Officer of Consolidation for staying the implementation of the subsequent order dated 3.11.2023 issued through letter no-1442, accordingly, implementation of the same was stayed by the settlement Officer of Consolidation vide order dated 8.12.2023 & fixed 12.12.2023 for further order. On 9.1.2024, Settlement Officer of Consolidation has passed the impugned order dated 9.1.2024 to the effect that order dated 26.2.2016 passed by Naib Tahasildar be recalled till 30.1.2024 otherwise entry made in pursuance of the sale deed dated 30.11.1991 will be deemed to be cancelled. Petitioners filed on application to recall the order dated 26.2.2016 passed by Naib Tahasildar in Case No-435/1860. Petitioners also filed an application on 19.1.2024 before Settlement Officer of Consolidation for staying the implementation of the orders dated 9.1.2024/30.1.2024 but no order was passed by Settlement Officer of Consolidation, hence this writ petition for following relief:- i) Issue writ, order or direction in the nature of certiorari quashing the impugned order dated 9.1.2024 passed by respondent no.2 (Settlement Officer of Consolidation, Tahsil -Sadar, District Azamgarh) (Annexure No.1 to the writ petition). ii) Issue writ, order or direction in the nature of mandamus, commanding the Nayab Tahsildar (City), Azamgarh to pass an appropriate order for recalling of the order dated 26.2.2016 in Case No.435/1860, passed under Section 34/35 of the U.P. Revenue Code, 2006 by which a double entry of an area 0.180 kari out of plot nos.6/0-153 Hect. and 5/0.187 hect. has been made within a fixed period. iii) Issue writ, order or direction in the nature of mandamus, commanding the Nayab Tahsildar (City), Azamgarh to pass an order on the recall application filed by the petitioners dated 10.1.2024 within a fixed period." 4. and 5/0.187 hect. has been made within a fixed period. iii) Issue writ, order or direction in the nature of mandamus, commanding the Nayab Tahsildar (City), Azamgarh to pass an order on the recall application filed by the petitioners dated 10.1.2024 within a fixed period." 4. This Court vide order dated 28.3.2024 directed the learned standing counsel to obtain instruction in the matter. 5. Learned standing counsel has placed the instruction dated 5.4.2024 before the Court which is taken on record. 6. Counsel for the petitioners states that in the proceeding under Section 12 of the U.P. C.H. Act, an order dated 16.1.1992 was passed by the Assistant Consolidation Officer which has attained finality. He further submitted that the petitioners have purchased the property in dispute by way of registered sale deed dated 30.11.1991. He further submitted that the impugned order dated 9.1.2024 has been passed in illegal and arbitrary manner. He submitted that the impugned order has been passed without following due process of law, as such, the same cannot be sustained in the eye of law. He submitted that on the same date, the petitioners have filed a restoration application before the Naib Tehsildar along with the prayer for condonation of delay, praying that orders dated 26.2.2016 be set aside and the restoration application be allowed. He also submitted that the village has been notified under Section 6(1) of the U.P. Consolidation of Holdings Act on 22.11.2010 but the order dated 16.1.1992 was passed before the issuance of notification under Section 6(1) of the U.P. C.H. Act, as such, petitioners are entitled to be recorded in view of provisions contained under Section 6(2) of U.P.C.H. Act. He submitted that the impugned order dated 9.1.2024 be set aside and the authorities be directed to record the name of petitioners on the basis of orders dated 16.1.1992/28.2.2002. 7. On the other hand, Sri B.N. Pathak, learned standing counsel, on the basis of the instruction, submitted that the impugned order has been passed, in view of double entry of the plot in question He also submitted that there is no illegality in the order dated 9.1.2024, as such, the instant writ petition is liable to be set aside. 8. I have considered the arguments advanced by learned counsel for the parties and perused the records. 9. 8. I have considered the arguments advanced by learned counsel for the parties and perused the records. 9. There is no dispute about the fact that an order under Section 12 of the U.P. C.H. Act was passed on 16.1.1992 for recording the name of predecessor of petitioners and the village has been notified under Section 6(1) of the U.P. C.H. Act on 22.11.2010. There is also no dispute about the fact that under the impugned order, Settlement Officer of Consolidation has passed the order for expunging the petitioners' entry with certain condition. 10. In order to appreciate the controversy involved in the matter, perusal of Section-6 of U.P.C.H.Act will be relevant which is as under : "Section-6 of U.P.C.H.Act :-Cancellation of notification under Section 4 (1) It shall be lawful for the State Government at any time to cancel the [notification] under Section 4 in respect of the whole or any part of the area specified therein. (2) Where [notification] has been cancelled in respect of any unit under sub-section (1), such area shall, subject to the final order relating to the correction of land records, if any, passed on or before the date of such cancellation, cease to be under consolidation operation with effect from the date of the cancellation." 11. In the instant matter, the order dated 16.1.1992 passed under Section -12 of U.P.C.H.Act, has attained finality vide disposal of revision by Deputy Director of Consolidation vide order dated 28.2.2002 on the basis of compromise and village has been notified under Section-6 (1) of U.P.C.H. Act on 22.11.2010, as such, petitioners are entitled to be recorded in the revenue record on the basis of final order passed on 16.1.1992/28.2.2002 in view of the provision contained under Section -6 (2) of U.P.C.H. Act. 12. So far as case of double entry is concerned, petitioners have already filed an application dated 9.1.2024 before Naib Tahasildar, Sadar, Azamgarh in Case No-435/1860 for recalling the orders dated 26.2.2016 & 23.9.2019 alongwith prayer for condonation of delay which is pending, as such, unless the application dated 9.1.2024 is decided in accordance with law, impugned order dated 9.1.2024 cannot be passed. 13. Considering the entire facts and circumstances of the case, the impugned order dated 9.1.2024 passed by respondent no. 2 is liable to be set aside & the same is hereby set aside. 14. 13. Considering the entire facts and circumstances of the case, the impugned order dated 9.1.2024 passed by respondent no. 2 is liable to be set aside & the same is hereby set aside. 14. The writ petition stands allowed and the respondent no.3/Nayab Tahsildar, Tahsil-Sadar, District Azamgarh is directed to decide the petitioners' application dated 9.1.2024, as expeditiously as possible, preferably within a period of 3 months, from the date of production of a certified copy of this order before the authority concerned, after affording proper opportunity of hearing to the parties concerned, in accordance with law. It is further directed that after disposal of petitioner's application dated 9.1.2024 filed on behalf of petitioners, the District Deputy Director of Consolidation shall record the name of the person on the basis of final order passed by the authorities before issuance of notification under Section 6(1) of U.P.C.H. Act.