Allahabad High Court
Sunder Lal Walia And Ors. vs Deputy Director Of Consolidation ... on 13 April, 2011
Bench: Shabihul Hasnain
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?A.F.R.
Court No. - 6
Case :- CONSOLIDATION No. - 315 of 2011
Petitioner :- Sunder Lal Walia And Ors.
Respondent :- Deputy Director Of Consolidation Unnao Camp At Lucknow And
Petitioner Counsel :- Umesh Kumar Srivastava
Respondent Counsel :- C.S.C.,R.N.Gupta
Hon'ble Shabihul Hasnain,J.
Heard Sri Umesh Kumar Srivastava, learned counsel for the petitioners and learned Standing counsel for opposite party No.s 1, 2 and 3 while Sri K. K. Gupta holding brief of Sri R. N. Gupta is present for opposite party No.4.
Petitioners have challenged the order of D.D.C. passed on 18.9.2010. There were two references which have been remanded back by the D.D.C. to be decided on merits after hearing both the parties by giving them notice and opportunity of hearing.
Preliminary objection has been raised by learned Standing counsel that the D.D.C. has simply remanded the matter and writ petition will not lie against a remand order where no right has been decided and where no lis is adjudicated and the D.D.C. has not given any findings for or against the revision. In such a situation, no cause of action arises for the revisionist to approach this Court under Article 226.
However, petitioner insists that since the consolidation officer, at the very inception, did not have the power to make this reference, hence the order of remand is bad. The D.D.C. by his remand order again confirmed the jurisdiction which in itself is barred by the scheme of consolidation.
The matter in short is that according to the petitioners they are the recorded tenure holders in the basic year. He further says that no objection was filed under Section 9 and hence the entries became final after that stage and when the chaks were carved out, the Consolidation Officer became bereft of any power to make a reference with regard to that entry in the land. Section 11-C of the U.P. Consolidation of Land Holdings Act, 1953, which has been subsequently added by the U.P. Act No.34 of 1974, provide as under:-
"11-C. In the course of hearing of an objection under Section 9-A or an appeal under Section 11, or in proceedings under Section 48, the Consolidation Officer, the Settlement Officer (Consolidation) or the Director of Consolidation, as the case may be, may direct that any land which vests in the State Government or the Gaon Sabha or any other local body or authority may be recorded in its name, even though no objection, appeal or revision has been filed by such Government, Gaon Sabha, body or authority."
Aforesaid section gives power to the Consolidation Officers to protect any government land which is unauthorizedly encroached upon by any person. Further, under Section-48 of the U.P. Consolidation of Holdings Act powers have been given to the D.D.C. in following manners:
"48. Revision and reference.-(1) The Director of Consolidation may call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings; or as to the correctness, legality or propriety of any order (other than an interlocutory order) passed by such authority in the case or proceedings, may, after allowing the parties concerned an opportunity of being heard, make such order in the case or proceedings as he thinks fit.
(2) Power under sub-section (1) may be exercised by the Director of Consolidation also on a reference under sub-section (3).
(3) Any authority subordinate to the Director of Consolidation may, after allowing the parties concerned an opportunity of being heard, refer the record of any case or proceedings to the Director of Consolidation for action under sub-section (1)."
The report of the Consolidation Officer, Mohanlalganj is available in the writ petition at page 45. It transpires that the land in question is a land described under Section-132 of the U.P. Zamindari Abolition Act. Such land is a government property and at no stage anybody is allowed to encroach upon it. At page 45 itself an opportunity was given to the persons to file objection against the land being under Section 132. None came forward. Under the circumstances, it was the duty of the Consolidation Officer to have made a reference to the higher authority under Section 48. The reference is absolutely valid. The remand order has been passed because the Consolidation Officer is vested with the power of taking cognizance of the evidence oral or documentary and it is competent court to decide whether the land belongs to the State Government or to a private party. The D.D.C. while passing the order of remand has not restricted or narrowed the scope of remand in any manner. Jurisdiction has been given to the Consolidation Officer to give opportunity to both the parties. The arguments can be raised, legal and factual, before the competent trial court. Therefore, no infirmity is there in the order of the D.D.C.
The petition is misconceived and devoid of merits. It is accordingly dismissed.
Order Date :- 13.4.2011
RKM.
