Research › Search › Judgment

Allahabad High Court · body

2024 DIGILAW 1272 (ALL)

Mata Sewak v. State Of UP

2024-05-10

CHANDRA KUMAR RAI

body2024
JUDGMENT : Chandra Kumar Rai, J. 1.Heard Mr. Chandra Shekhar Agnihotri, learned counsel for the petitioners, Mr. Dan Bahadur Yadav, learned counsel for respondent Nos. 5 and 7, Mr. Bhupendra Kumar Tripathi, learned counsel for respondent Gaon Sabha and Mr. Jitendra Narain Rai, learned Additional Chief Standing Counsel for the State-respondents. 2. With the consent of learned counsel for the parties, the writ petition is being heard finally at the admission stage without inviting counter affidavit. 3. Brief facts of the case are that Plot No. 471 and 478 area 3.28 acre were given to the Pherai and Tehuli on 18.09.1950 by Bechan with permission of Zamindar. Tehuli was unmarried and died issueless in the year 1958. In the first Consolidation operation, which took place in the year 1962, the name of Bechan was recorded accordingly Assistant Consolidation in case No.3929 ordered to record the name of Pherai in respect to plot No.471 area 2.54 acre and plot No.478 area 0.74 acre. The name of Pherai was accordingly recorded in C.H.Form 11, 41 and 45. In C.H. form 45 new plot No.399 and 405 were mentioned from old plot Nos.471 and 478. The village was denotified under Section 52 of U.P. Consolidation of Holdings Act 1953 hereinafter referred to as "U.P.C.H. Act" on 03.08.1968. Second Consolidation operation started in the village in the year 2002 and the Section-9 of U.P.C.H. Act was made on 30.01.2002. In basic year Tirathraj and Aditya Nath were recorded over pot No.399 and 405 area 3.28 acre. Against the basic year entry, time barred title objection under Section 9A (2) of U.P.C.H. Act was filed on 31.08.2009 by contesting respondents in which report was submitted by Assistant Consolidation Officer on 29.09.2009. An appeal has also been filed by contesting respondents challenging the order dated 27.02.1963 passed during first consolidation operation in Case Nos.3928 and 3929. The aforementioned appeal was registered as Appeal No.2361 and 2022-23 under Section 11 (1) of U.P.C.H. Act and the same was allowed vide order dated 02.03.2023 after granting benefit of Section-5 of Indian Limitation Act as well as setting aside the order dated 27.02.1963 and remanded the matter before consolidation Officer to decide the objection afresh on merit. Consolidation Officer vide order dated 12.04.2023 granted benefit of Section 5 of Limitation Act in filing title objection under Section 9-A (2) of U.P.C.H. Act and fixed case for evidence of parties. Consolidation Officer vide order dated 12.04.2023 granted benefit of Section 5 of Limitation Act in filing title objection under Section 9-A (2) of U.P.C.H. Act and fixed case for evidence of parties. Petitioners filed revision against the order dated 02.03.2023 passed by Settlement Officer Consolidation in appeal and order dated 12.04.2023 passed by Consolidation Officer condoning delay in filing the title objection, the revision filed against the order dated 02.03.2023 was registered as Revision No.1360 of 2023-24. Revision filed by petitioners against the order dated 12.04.2023 was registered as Revision No.1769 of 2023-24. Petitioners filed application dated 16.12.2023 in aforementioned revision for summoning the record of Case No.563 under Section 9-A (2) (Santosh vs. State). Against the application dated 16.12.2023 filed by petitioners answering respondents have filed their objection dated 02.03.2024 stating that Hon'ble High Court has issued direction for expeditious disposal of Case No.563 under Section 9-A (2) of U.P.C.H. Act in Writ No.1628 of 2023 vide order dated 28.04.2023 as such the application filed by revisionist for summoning the record of the proceeding under Section 9-A (2) of U.P.C.H. Act is liable to be rejected. Deputy Director of Consolidation vide order dated 09.04.2024 rejected the petitioners' application dated 16.12.2023 on the ground that this Court has directed in Writ-B No.1628 of 2023 for deciding the title objection under Section 9-A (2) of the U.P.C.H. Act within specified period, hence this writ petition for following relief: "(1) i. To, issue a writ, order or direction in the nature of certiorari to quash the impugned order dated 09.04.2024 passed by the Deputy Director of Consolidation, Janpur in revision no. 1360/2023-24 (Mata Sevak and others Versus Goan Sabha and others), and the order dated 02.03.2023 passed by Settlement officer Consolidation, Jaunpur in appeal no. 2361 (Shanti Devi and others versus Suresh and others) and impugned order dated 12.04.2023 passed by the consolidation officer in case no.412/563 (Annexure no.1 2, and 3). ii. To, issue a writ, order or direction in the nature of mandamus directing the respondents not to dispossess the petitioners from the land in dispute during the pendency of the present writ petition" 4. Learned counsel for the petitioners submitted that village was denotified under Section 52 of U.P.C.H. Act on 03.08.1968 as such in appeal filed by contesting respondents an order passed by Assistant Consolation Officer in the earlier Consolidation Operation cannot be challenged. Learned counsel for the petitioners submitted that village was denotified under Section 52 of U.P.C.H. Act on 03.08.1968 as such in appeal filed by contesting respondents an order passed by Assistant Consolation Officer in the earlier Consolidation Operation cannot be challenged. He further submitted that in the second Consolidation operation which is going on, the title objection under Section 9-A(2) of U.P.C.H. Act has already been filed by contesting respondents against the Basic Year Entry. He further submitted that file which was summoned by Settlement Consolidation Officer in appeal was in respect to wrong case number, as such report was submitted that these cases are not registered in the Goswara. He further submitted that the application filed by petitioners to summon the records of proceeding under Section 9-A(2) of U.P.C.H. Act has been rejected on the misconceived ground. He further submitted that revision cannot be decided without summoning the lower court record and it is mandatory for the Deputy Director of Consolidation to summon the record of the proceeding. He further submitted that both revisions filed by petitioners involving the same dispute and parties are also same, as such, both the revisions should be clubbed and decided together. He further placed the provisions contained under Rule 109 B of U.P. Consolidation of Holdings Rules, 1954 in order to demonstrate that matter involving the same dispute should be clubbed and decided together. He further submitted that requisition was also sent by Deputy Director of Consolidation to the Court of Consolidation Officer to send the file from the Court concern, but later on the Deputy Director of Consolidation has rejected the petitioners' application under the impugned order dated 9.4.2024, which is wholly illegal. He further submitted that order dated 9.4.2024 is liable to be set aside and direction be issued to the respondent No. 1/Deputy Director of Consolidation to club both the revisions filed by petitioners, summon the record of the proceeding including proceeding of case No. 563 under Section 9-A (2) of U.P.C.H. Act and decide the revision in accordance with law. 5. On the other hand, Mr. Dan Bahadur Yadav, learned counsel for respondent Nos. 5. On the other hand, Mr. Dan Bahadur Yadav, learned counsel for respondent Nos. 5 and 7 submitted that fraud was committed by during first consolidation operation, as such, the appeal filed by contesting respondent against the order dated 27.02.1963 passed by Assistant Consolidation Officer has been rightly entertained, allowed as well as order of Assistant Consolidation Officer dated 27.02.1963 has been set aside. He further submitted that in pursuance of the appellate order dated 2.3.2023, the case under Section 9-A (2) of U.P.C.H. Act is pending before Consolidation Officer and this Court in Writ-B No. 1628 of 2023 filed by contesting respondent for mandamus to decide the pending proceeding under Section 9-A (2) of U.P.C.H. Act, directed to conclude the pending proceeding within period of six months, as such, the application for summoning the record of the proceeding under Section 9-A (2) of U.P.C.H. Act is malafide and the same has been rightly rejected under the impugned Order. He further submitted that petitioners have filed two separate revisions as such application filed in revision filed against different order, the record of proceeding of another case against which different revision is pending before Consolidation Officer cannot be summoned. He further submitted that both the revisions have been filed against the separate order, as such, both the revisions cannot be clubbed together. He further submitted that no interference is required in the matter and writ petition is liable to be dismissed. 6. I have considered argument advanced by learned Counsel for the parties and perused the record. 7. There is no dispute about the fact that two revisions filed by petitioners being revision Nos.1360 and 1769 of 2023-24 are pending before Respondent No. 2/Deputy Director of Consolidation, Jaunpur. There is also no dispute about the fact that parties are same in both the proceedings. There is also no dispute about the fact that one proceeding is pending before Consolidation Officer in respect to order dated 27.02.1963 passed during first Consolidation Operation, which has been set aside under the impugned appellate order and proceeding of Case Nos. 2928 and 3928 have been restored to their original numbers and another proceeding relates to title objection filed in the second Consolidation Operation in which delay in filing the title objection has been condoned. 8. 2928 and 3928 have been restored to their original numbers and another proceeding relates to title objection filed in the second Consolidation Operation in which delay in filing the title objection has been condoned. 8. In order to appreciate the controversy involved in the matter perusal of Rule 109-B of U.P.C.H. Rules will be relevant, which are as under: "109B. -(1) Where more than one case or proceeding involving substantially the same question for determination and based on the same cause of action are pending before two or more consolidation authorities, they shall, upon an order passed on an application made by any party to, or suo motu by, the authority to which the authorities, before whom cases or proceedings are pending, are all subordinate, be consolidated before one authority and decided by a single judgment. (2) A consolidation authority may consolidate suo motu case or proceedings pending before it, if it is satisfied, for reasons to be recorded, that such a course is necessary for a proper and expeditious disposal of the cases or proceedings and that it would not prejudice the interest of any party to the case or the proceeding." 9. It is material to mention that both the revisions filed by petitioners relates to the same disputed property and the parties are also same as such revision which have been filed by petitioners under Section 48 of U.P.C.H. Act are to be clubbed and must be decided together after summoning the record of both the proceedings. 10. Considering the entire facts and circumstances of the case, the impugned order passed by Deputy Director of Consolidation dated 09.04.2024 passed by Deputy Director of Consolidation in revision Nos. 1360 of 2023-24 cannot be sustained in the eye of law, as such the same is hereby set aside. The writ petition is allowed in part and matter is remitted back before Respondent No. 2/ Deputy Director of Consolidation to club the Revision Nos. 1360 and 1769 of 2023-24 and decide both the revisions together after summoning the record of the proceeding of Case No. 412/563 under Section 9-A(2) of U.P.C.H. Act (Santosh Kumar Vs. Aaditya) and decide both the revisions together after affording proper opportunity of hearing to the parties expeditiously preferably within a period of three moths from the date of production of certified copy of this order before him.