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2025 DIGILAW 73 (ALL)

Hifzurrahman v. State Of U. P.

2025-01-20

CHANDRA KUMAR RAI

body2025
JUDGMENT : Chandra Kumar Rai, J. 1. Heard Shri Ashish Kumar Singh, learned counsel for the petitioners, Mr. R.C. Singh, learned Senior Counsel assisted by Mr. Narayan Dutt Shukla and Mr. Rituvendra Singh, learned counsel for respondent nos. 5 and 6, Mr. Vinay Kumar Pathak, learned counsel for respondent no.4 and learned Standing Counsel for the State respondents. 2. Learned counsels for respondent nos. 4 to 6 submitted that writ petition be heard and disposed of finally without inviting any counter affidavit in the matter. 3. Brief facts of the case are that Village Sherwadeeh, Tappa- Banganwa, Pargana- Amroha, Teshil Haraiya, District Basti came under operation of U.P. Consolidation of Holdings Act, 1953 hereinafter referred to as U.P.C.H. Act long back. The Village in question has been denotified under Section 5 2 of U.P.C.H. Act in the year 1985. In the basic year of the consolidation operation, one Jamiluddin son of Rafiuddin was recorded in the khata No. 4 and Jamiluddin remained recorded in C.H. Form 45. After the death of Jamiluddin, the name of Maimuna Begum was recorded over the plot in question. According to contesting respondents, Maimuna Begum had executed a registered sale deed on 27.5.2016 in their favour. Petitioners' name was recorded in the proceeding under Rule 109-A of the U.P.C.H. Rules vide order dated 18.1.2021 on the basis of the order dated 31.7.1984 alleged to be passed in their favour in case Nos. 1134, 1135, 1136 under Section 9A (2) of the U.P.C.H. Act. On the basis of the restoration application filed against the order dated 18.1.2021 passed in the proceeding under Rule 109-A of the U.P.C.H. Rules, the order dated 18.1.2021 was set aside vide subsequent order dated 23.4.2021. Against the order dated 31.7.1984 passed in case Nos. 1134, 1135, 1136, restoration application was filed on 19.8.2021 before Consolidation Officer in which orders dated 11.11.2021, 17.11.2021 and 5.1.2022 were passed. An objection dated 7.12.2021 under Section 9A (2) of the U.P.C.H. Act was filed on behalf of the petitioners praying that their name be recorded over the plot in question after granting benefit of Section 5 of LIMITATION ACT . The aforementioned proceeding was registered as case No. 410 under Section 9A (2) of the U.P.C.H. Act. Against the order dated 5.1.2022, respondent nos. The aforementioned proceeding was registered as case No. 410 under Section 9A (2) of the U.P.C.H. Act. Against the order dated 5.1.2022, respondent nos. 4 to 6 filed a recall application dated 17.1.2022 and Muimuna Begum also filed a restoration application dated 17.1.2022 against the order dated 5.1.2022. The aforementioned restoration application dated 17.1.2022 was heard and rejected by the Consolidation Officer vide order dated 16.12.2022. Against the order dated 16.12.2022, a revision under Section 48 (1) of the U.P.C.H. Act was filed on behalf of respondent nos. 4 to 6 which was registered as case No. 819 computerized case No. 202354171400000001 under Section 48 of the U.P.C.H. Act before Deputy Director of Consolidation/ respondent no.2. The aforementioned revision was heard and decided under the impugned order dated 4.12.2024 allowing the revision setting aside the orders dated 11.11.2021, 17.11.2021, 5.1.2022, 16.12.2022 and directing to record the plot No. 1022 area 0-10-0 as banjar in the revenue records as well as proceeding under Section 9A (2) of the U.P.C.H. Act and Rule 109-A of the U.P.C.H. Rules were ordered to be dropped accordingly. Hence this writ petition filed on behalf of the petitioners for the following relief:- "Issue a writ, order or direction in the nature of certiorari to call for record quash and set aside the order dated 4.12.2024 passed by respondent no.2 Deputy Director of Consolidation Basti in revision No. 442 under Section 48 (1) of the U.P.C.H. Act, 1953." 4. Counsel for the petitioners submitted that revisional Court while passing the impugned revisional order has exceeded his jurisdiction under Section 48 of the U.P.C.H. Act. He further submitted that proceeding under Section 9A (2) of the U.P.C.H. Act was pending before the Consolidation Officer but while exercising the revisional jurisdiction, Deputy Director of Consolidation has illegally ordered for dropping the proceeding under Section 9A (2) of the U.P.C.H. Act as well as proceeding under Rule 109-A of the U.P.C.H. Rules. He submitted that proceeding initiated at the Court of first instance should be decided in accordance with the provisions of the Act and Rules framed thereunder, as such, the exercise of revisional jurisdiction under the impugned order is wholly illegal. He further submitted that the plot in dispute cannot be ordered to be recorded as banjar in the revenue record in exercise of revisional jurisdiction. He further submitted that the plot in dispute cannot be ordered to be recorded as banjar in the revenue record in exercise of revisional jurisdiction. He submitted that procedure for deciding the title proceeding under Section 9A (2) of the U.P.C.H. Act has been provided under Rule 26 of the U.P.C.H. Rules, as such, Deputy Director of Consolidation cannot exercise the revisional jurisdiction to decide the title proceeding in arbitrary manner. He submitted that interim order passed by the Consolidation Officer during pendency of the proceeding under Section 9A (2) of the U.P.C.H. Act cannot be challenged in the revision under Section 48 of the U.P.C.H. Act. He submitted that impugned revisional order passed by respondent no.2/ Deputy Director of Consolidation is liable to be set aside and pending proceeding under Section 9A (2) of the U.P.C.H. Act be decided in accordance with law. He further placed reliance upon the judgement reported in 2015 (126) RD 509 Shobh Nath Vs. State of U.P. and Others in support of his arguments. 5. On the other hand, Mr. R.C. Singh, learned Senior Counsel for contesting respondents submitted that the revisional jurisdiction has rightly been exercised under Section 48 of the U.P.C.H. Act in respect to the plot in question, as such, no interference is required against the impugned order. He further submitted that the objection under Section 9A (2) of the U.P.C.H. Act filed by petitioners as well as restoration applications cannot be entertained as the Village in question has already been notified under Section 5 2 of the U.P.C.H. Act in the year 1985. He further submitted that finding of fact has been recorded with respect to the plot in question while passing the impugned revisional order by Deputy Director of Consolidation that after 35 years of the denotification of the Village, the dispute cannot be raised under Section 9A (2) of the U.P.C.H. Act or by way of restoration application. He submitted that in the highly time barred proceedings, no interim order can be granted by the authorities. He submitted that no interference is required against the revisional exercise of jurisdiction by the Deputy Director of Consolidation and writ petition is liable to be dismissed. He further placed reliance upon the following judgements in support of his arguments:- (i) 1989 RD 281 Hari Ram Vs. He submitted that no interference is required against the revisional exercise of jurisdiction by the Deputy Director of Consolidation and writ petition is liable to be dismissed. He further placed reliance upon the following judgements in support of his arguments:- (i) 1989 RD 281 Hari Ram Vs. Deputy Director of Consolidation, Azamgarh and Others (ii) JT 1995 (3) S.C. 360 Jhumman Singh and Others Vs. Central Bureau of Investigation and Others (iii) JT 1994 (7) S.C. 459 Chandra Shashi Vs. Anil Kumar Verma (iv) 2017 SCC Online SC 211 Dnyandeo Sabaji Naik and Another Vs. Mrs. Pradnya Prakash Khadekar and Others (v) 2021 SCC Online SC K. Akbar Ali Vs. K. Umar Khan and Others 6. Learned Standing Counsel for the State respondents has also submitted that there is no illegality in the impugned revisional order as title objection has been filed by petitioners after about 35 years from the denotification of the Village in question, as such, the proceeding under Section 9A (2) of the U.P.C.H. Act and the proceeding under Rule 109-A of the U.P.C.H. Rules initiated at the instance of the petitioners has rightly been dropped under the impugned revisional order. 7. I have considered the arguments advanced by learned counsel for the parties and perused the records. 8. There is no dispute about the fact that Village in question has been denotified under Section 52 of the U.P.C.H. Act in the year 1985 and the title objection has been filed against the basic year entry after about 35 years that is in the year 2021. There is also no dispute about the fact that interim protection has been granted by Consolidation Officer in the time barred proceeding initiated by the petitioners. There is also no dispute about the fact that revision filed by contesting respondents has been allowed setting aside the interim orders passed during pendency of the proceeding under Section 9A (2) of the U.P.C.H. Act as well as dropped the proceeding under Section 9A (2) of the U.P.C.H. Act and the proceeding under Rule 109-A of the U.P.C.H. Rules. 9. The law is well settled that in the time barred proceeding, the interim protection should not be granted except in the exceptional cases and the time barred proceeding is to be decided by the Court/ authority after affording opportunity of hearing to the parties in accordance with law. 10. 9. The law is well settled that in the time barred proceeding, the interim protection should not be granted except in the exceptional cases and the time barred proceeding is to be decided by the Court/ authority after affording opportunity of hearing to the parties in accordance with law. 10. In the instant matter, the objection under Section 9A (2) of the U.P.C.H. Act as well as restoration proceeding have been initiated at the instance of petitioners as well as Gram Panchayat in the year 2021 along with prayer for condonation of delay in respect to the basic year entry and the Village in question has already been denotified in the year 1985, as such, grant of interim orders in the highly time barred proceeding is not proper exercise of jurisdiction. 11. Considering the aforementioned facts, the exercise of revisional jurisdiction under the impugned order for setting aside the orders dated 11.11.2021, 17.11.2021, 5.1.2022 and 16.12.2022 do not suffer from any error of law as the interim protection cannot be granted in the highly time barred proceeding. 12. So far as the dropping the proceeding under Section 9A (2) of the U.P.C.H. Act as well as the Rule 109-A of the U.P.C.H. Rules is concerned the same is not in accordance with law by the Deputy Director of Consolidation in exercise of jurisdiction under Section 48 of the U.P.C.H. Act rather the authority concerned/ Consolidation Officer should exercise the jurisdiction under Section 9A (2) of the U.P.C.H. Act in accordance with law as provided under the U.P.C.H. Act and Rules framed thereunder. 13. Considering the entire facts and circumstances of the case, the writ petition filed by petitioners is allowed in part setting aside the part of the impugned revisional order dated 4.12.2024 by which the proceeding under Section 9A (2) of the U.P.C.H. Act and under Rule 109-A of the U.P.C.H. Rules have been dropped and the part of the impugned revisional order dated 4.12.2024 by which orders dated 11.11.2021, 17.11.2021, 5.1.2022, 16.12.2022 passed by Consolidation Officer were set aside is maintained. It is further directed that Consolidation Officer shall decide the pending proceedings (objection under Section 9A (2) of the U.P.C.H. Act/ restoration proceeding/ Rule 109-A of the U.P.C.H. Rules) in accordance with law after affording opportunity of hearing to the parties and substituting the legal heirs of deceased parties, if any. It is further directed that Consolidation Officer shall decide the pending proceedings (objection under Section 9A (2) of the U.P.C.H. Act/ restoration proceeding/ Rule 109-A of the U.P.C.H. Rules) in accordance with law after affording opportunity of hearing to the parties and substituting the legal heirs of deceased parties, if any. It is made clear that there shall be no interim protection in the pending proceeding and entry of the plot in question shall be subject to the further orders passed by consolidation authorities. 14. No order as to costs.