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2024 DIGILAW 2218 (ALL)

Wahid v. State Of UP

2024-10-17

CHANDRA KUMAR RAI

body2024
JUDGMENT : Chandra Kumar Rai,J. 1. Stamp Reporter has reported laches of 2785 days in filing the instant petition which has been sufficiently explained in paragraph Nos. 26 to 32 of the instant writ petitioner. 2. Heard Mr. Jai Prakash Prasad, learned counsel for the petitioner, Mr. Arun Kumar Pandey, learned counsel for respondent- Gaon Sabha and Mr. Ashish Chand Nishad, learned Standing Counsel for the State respondents. 3. With the consent of learned counsel for the parties, the writ petition is being heard and disposed of finally without inviting counter affidavit. 4. Brief facts of the case are that petitioner was allotted patta of the disputed plot situated in Village- Mustafapur-I, Pargana and Tehsil Thakurdwara, District Moradabad in the year 1975 by the Land Management Committee and the patta was approved by the then Sub Divisional Magistrate. On the basis of the patta executed in favour of petitioner, the petitioner was recorded over the plot in question. The Consolidation Officer under Section 9A (2) of U.P. Consolidation of Holdings Act, 1953 herein after referred as U.P.C.H. Act has expunged the petitioner's entry under the order dated 19.10.2016 hence this writ petition for the following reliefs:- " (i) Issue a writ, order or direction in the nature of certiorari to quash the impugned order dated 19.10.2016 passed by Consolidation Officer (1st), Moradabad. (ii) Issue an appropriate writ, order or direction in the nature of mandamus directing the respondent authorities not to interfere peaceful possession of the petitioner over his respective allotted Gata Nos. (description of which is contained in paragraph No. 11 of the writ petition)." 5. The same controversy has already been entertained by this Court in the bunch of writ petition leading Writ B No. 1000 of 2021 and the same were allowed vide judgement dated 18.8.2022 setting aside the order dated 19.10.2016 and remitting the matter back before the Consolidation Officer to decide the proceeding under Section 9A (2) of U.P.C.H. Act afresh after affording opportunity of hearing to petitioner of the writ petitioners. 6. Learned counsel for the petitioner submitted that petitioner is recorded tenure holder of the plot in question on the basis of patta executed in his favour, as such, without notice and opportunity of hearing, the petitioner's longstanding entry cannot be expunged by the Consolidation Officer. 6. Learned counsel for the petitioner submitted that petitioner is recorded tenure holder of the plot in question on the basis of patta executed in his favour, as such, without notice and opportunity of hearing, the petitioner's longstanding entry cannot be expunged by the Consolidation Officer. He further submitted that title objection under Section 9A (2) of U.P.C.H. Act should be decided according to the provisions contained under the U.P.C.H. Act and the Rules framed thereunder but without framing any issues and without notice as well as opportunity of hearing to the tenure holder, the entry of the plot has been expunged, as such, the impugned order cannot be sustained in the eye of law. He further submitted that petitioner is also entitled to the relief claimed in the instant writ petition in view of the earlier decision of this Court passed in Writ B No. 1000 of 2021. 7. On the other hand, Mr. Ashish Chand Nishad, learned Standing Counsel for the State respondents as well as Mr. Arun Kumar Pandey, learned counsel for resondent- Gaon Sabha submitted that the order impugned has been passed by the Consolidation Officer, as such, writ petition is not maintainable. They further submitted that writ petition has been filed after about eight years, as such, the same cannot be entertained. They submitted that land in dispute is a public utility land, as such, there is no illegality in the order of the Consolidation Officer. 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 Consolidation Officer has expunged the petitioner's entry in respect to the plot in question under the impugned order. There is also no dispute about the fact that similar controversy has already been adjudicated by this Court holding that longstanding entry cannot be expunged without notice and opportunity of hearing to the recorded tenure holder. 10. In order to appreciate the controversy involved in the matter, the perusal of Rule 26 of the U.P.C.H. Rule, 1954 will be relevant which is as under:- "26. Section 9 -A. (1) ..... (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" 11. Section 9 -A. (1) ..... (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" 11. In the instant matter, the petitioner's longstanding entry has been expunged without notice and opportunity of hearing to the petitioner as well as without framing issues in the title objection under Section 9A (2) of U.P.C.H. Act which is violation of the mandatory provisions contained under the Rule 26 of U.P.C.H. Rules 1954. 12. So far as the alternative remedy is concerned, Hon'ble Apex Court in the case reported in 2009 (1) AWC 437 (SC) Committee of Management and another Vs. Vice- Chancellor and Others has held that alternative remedy will not be bar for petitioner to file writ petition under Article 226 of the Constitution of India if the order impugned has been passed in violation of the principle of natural justice. 13. This Court in the case of Ram Kali (deceased) and 4 Others (Supra) has already entertained the controversy and decided the matter against the impugned order passed by Consolidation Officer, as such, petitioner of instant writ petition is also entitled for the relief claimed in the instant petition. 14. Considering the entire facts and circumstances of the case as well as the ratio of law laid down by Hon'ble Apex Court in the case of Committee of Management (Supra) as well as well as this Court in Smt. Ram Kali deceased and 4 Others (Supra) the impugned order dated 19.10.2016 passed by respondent no.2 is hereby set aside. Writ petition stands allowed in part and matter is remitted back before respondent no.2, Consolidation Officer (1st), Moradabad to decide the matter afresh after framing issues in the proceeding under Section 9A (2) of U.P.C.H. Act as well as afford opportunity to petitioner to lead evidence in accordance with law expeditiously preferably within period of four months from the date of production of certified copy of this order.