Kripa Shankar Pandey vs Dy. Director Of Consolidation ...
2015 Latest Caselaw 1667 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 6								Reserved	(AFR) 
 
Case :- WRIT - B No. - 4034 of 2015
 
Petitioner :- Kripa Shankar Pandey 
 
Respondent :- Dy. Director Of Consolidation Ballia And 5 Others
 
Counsel for Petitioner :- J.N. Pandey, K.R. Sirohi
 
Counsel for Respondent :-C.S.C.,R.C. Upadhyay
 

 
Hon'ble Ram Surat Ram (Maurya),J.

1. Heard Sri K.R. Sirohi, Senior Advocate, assisted by Sri J.N. Pandey, for the petitioner, Standing Counsel for State of U.P. and Sri R.C. Upadhyay, Standing Counsel for Gram Panchayat, who has supported the petitioner.

2. The writ petition has been filed against the order of Deputy Director of Consolidation, dated 24.07.2013, passed in the proceeding under Section 48 (3) of U.P. Consolidation Act, 1953 (hereinafter referred to as the Act). Stamp Reporter has reported a delay of one year 93 days in filing of the writ petition.

3. The dispute between the parties relates for reserving new plot 197 (area 0.530 hectare) of village Merwara Kalan, pargana Garha, district Ballia, as khalihan. Plot 445/1 (area 0.39 acre), 445/2 (area 0.39 acre), 445/3 (area 0.39 acre), 445/4 (area 0.10 acre) and 445/5 (area 0.03 acre), (total area 1.30 acre) were recorded in the name of Sahdeo Rai and others, in 1290 F khatauni and belonged to Mahal Bal Govind Rai. All the sub-plots of 445 were noted as parati kadeem (i.e. uncultivated for a long time). In 1356 F khatauni, in khata 21, plot 445 (area 0.42 acre), khata 45, plot 445 (area 0.31 acre), khata 61, plot 445 (area 0.08 acre) and khata 21, plot 445 (area 0.50 acre) (total area 1.31 acre) were recorded as banjar kabil jarayat, (i.e. uncultivated but cultivable land). In 1359 F khatauni, in khata 21, plot 445 (area 0.42 acre), khata 45, plot 445 (area 0.31 acre), khata 61, plot 445 (area 0.08 acre) and khata 21, plot 445 (area 0.50 acre) (total area 1.31 acre) were recorded as banjar kabil jarayat, (i.e. uncultivated but cultivable land). In previous consolidation operation in village in CH Form-41 and 45, various sub-plots of plot 445 were allotted new plot 56 (area 1.31 acre) as banjar land. In present consolidation operation in village in CH Form-41 and 45, plot 56 (area 1.31 acre) was allotted new plot 149 (area 0.530 hectare) as banjar land.

4. It may be mentioned that in view of Section 3 (2) of the Act, banjar land is not included in consolidation area. However, under Section 19-A (2), of the Act, Assistant Consolidation Officer has been authorized to allot such land in the chak of a tenure holder or use it for the purposes of carving out sector road, chak road or chak nali, after determination of its valuation in exceptional cases. Initially Consolidation Committee did not demand for reserving the land in dispute as khalihan at the time of preparation of Statement of Principles under Section 8-A nor any tenure holder of the village filed any objection under Section 9 of the Act, in this respect. After finalization of consolidation operation in the village, one Ashwani Kumar, Member of Land Management Committee filed an application dated 11.07.1997 before Deputy Director of Consolidation for reserving plots 55 (area 0.142 hectare), 56 (area 0.530 hectare) and 149 (area 0.514 hectare) as khalihan. (i.e. threshing floor). This writ petition is confined to old plot 56 (area 0.530 hectare).

5. Deputy Director of Consolidation called for a report from Assistant Consolidation Officer by order dated 11.07.1997. Assistant Consolidation Officer submitted his report dated 28.07.1997, mentioning therein that plots 55 (area 0.142 hectare), 56 (area 0.530 hectare) and 149 (area 0.514 hectare) were recorded as banjar land in column 5 of the khatauni in basic consolidation year. Settlement Officer Consolidation by order dated 19.01.1996 directed for recording plot 55 (area 0.052 hectare) as rasta and remaining area of 0.090 hectare as khalihan. Plots 56 and 149 were still recorded as banjar land. In order to convert them as khalihan a reference is required to be submitted. However, the matter remained pending for a long time. In the meantime, Pradhan of the village also filed his application dated 31.01.2013 before Deputy Director of Consolidation for converting plots 56 and 149 as khalihan. A compromise was also filed, signed by some persons of the village on 31.01.2013, before Deputy Director of Consolidation for reserving these plots as khalihan. Deputy Director of Consolidation again called for report from Settlement Officer Consolidation/Consolidation Officer by order dated 14.02.2013.

6. In pursuance of the order of Deputy Director of Consolidation, a fresh report dated 02.03.2013 has been submitted, mentioning therein that in some portion of plot 55 a school building of Bapu Uchchtar Madhyamik Vidyalaya has been raised and in some portion Shiv Lal has raised construction and planted groves and some portion was vacant. In plot 56 two old pipal trees were standing, some portion is in shape of pit and major portion is used as khalihan and vacant. On plot 149, Amarnath, Anath, Jiut, Deonarain and Arjun have raised constructions and occupied remaining land. The petitioner, his brothers and co-laterals also filed an application dated 07.03.2013, before Deputy Director of Consolidation, stating therein that plot 56 (new plot 197) has been used as khalihan by them and other villagers from time of immemorial. It has been wrongly recorded as banjar land. It should be recorded as khalihan. Now in paragraph-29 of the writ petition, the petitioner has stated that the land in dispute was used as khalihan from time of immemorial by the villages, who had acquired easementary right under Section 7 (aa) of U.P. Act No. 1 of 1951 and the land is not vested in State of U.P. under Section 4 of U.P. Act No. 1 of 1951. In paragraph-33 of writ petition, it has been stated that his ancestor was zamindar of the village and land in dispute was of the khewat of Fateh Narain Pandey. Deoki Nandan Pandey and Mst. Ugna Kuer executed a deed dated 15.04.1883 in which they had agreed it to use it as khalihan land through out. In paragraph-40 of Rejoinder Affidavit, it has been stated that he had deposited rent/revenue of the land in dispute in Zamindari Abolition Fund.

7. In the meantime, Hon'ble Chief Minister of State of U.P. visited the village on 11.01.2013 and announced for construction of Primary Health Center in the village Marwara Kalan. In pursuance thereof, Chief Medical Officer, Ballia wrote a letter dated 23.01.2013 to Sub-Divisional Officer to provide land to the extent of 1.50 acre to 2.00 acre in the village for construction of Primary Health Center. Sub-Divisional Officer wrote a letter to Collector Ballia to resume plot 197 (area 0.530 hectare) from Gaon Sabha for construction of Primary Health Center. The Collector by notification dated 31.01.2013 resumed plot 197 (area 0.530 hectare) from Gaon Sabha for construction of Primary Health Center, exercising powers under Section 117 (6) of U.P. Act No. 1 of 1951 as delegated to him by Government Order No. 258/Ra-1-16(1)/73 Lucknow dated 07.05.1981. Necessary fund for construction of Primary Health Center has been sanctioned by State Government. It is alleged that building of Primary Health Center has been substantially constructed.

8. Gaon Sabha Merwara Kalan challenged notification dated 31.01.3013 in Writ- C No. 33390 of 2013, which was disposed of by order dated 10.06.2013, directing the petitioners to file a representation before District Magistrate, who was directed to decide it. Thereafter, a representation dated 13.06.2013 was filed before District Magistrate, which was rejected by order dated 08.07.2013 holding that plot 277-Kha (area 0.1420 hectare) has already been reserved for khalihan in the village as such right of the villagers have been protected and the land in dispute was resumed for a better public purpose.

9. One Writ Petition (PIL) No. 19968 of 2013 has been also filed by Jai Ram Krishna Pandey and others, which was disposed of on 11.04.2013 directing Deputy Director of Consolidation to pass appropriate order on the application of the petitioners. Thereafter the matter was heard by Deputy Director of Consolidation, who by order dated 24.07.2013 held that Consolidation Committee did not demand for reserving the land in dispute as khalihan at the time of preparation of Statement of Principles under Section 8-A of the Act nor any objection was filed in this respect under Section 9 of the Act. In exercise of powers under Section 48 (3) of the Act, required relief cannot be granted to the petitioner. Deputy Director of Consolidation has no jurisdiction to change the nature of the land mentioned in Section 132 of U.P. Act No. 1 of 1951. On these findings he rejected the application of the petitioner. Hence this writ petition was filed. It may be mentioned that arguments of the parties in the writ petition was heard on 27.07.2015 and judgment was reserved. Thereafter, the petitioner filed an application dated 28.07.2015, for providing one more opportunity of arguments to the petitioner. This application was rejected by order dated 30.07.2015. The petitioner and Standing Counsel were given liberty to file Supplementary Affidavit and papers if any and written arguments. The petitioner then filed Supplementary Affidavit annexing copy of khatauni 1290 F of the land in dispute and written arguments on 04.08.2015. Standing Counsel supplied certified copies of khatauni 1356 F, 1359 F and CH Form 41 and 45 of previous consolidation operation. Entries of these documents have been narrated in paragraph-3 (supra).

10. The counsel for the petitioners submitted that before abolition of zamindari, land in dispute was numbered as plot 445. In first round of consolidation in village, it was numbered as plot 56 and in present consolidation, it was numbered as plot 197. Since the time of immemorial, the land in dispute was used as khalihan, which is proved from the document dated 15.04.1883 executed between Deoki Nandan Pandey and Mst. Ugna Kuer. Fateh Narain Pandey, father of the petitioner was zamindar of the village. Land in dispute was recorded in his khewat. Fateh Narain Pandey used to pay rent of the land in dispute to the zamindar. The villagers have been using the land in dispute as khalihan since before the date of vesting. Their right to use it as khalihan has been protected under Section 7 (aa) of U.P. Act No. 1 of 1951. The land in dispute was not vested in State of U.P. nor it was re-vested in Gaon Sabha. Even Gaon Sabha has also passed resolution for reserving the land in dispute as khalihan. The Collector has no right to resume the land in dispute. Power under Section 117 (6) of U.P. Act No. 1 of 1951 has to be exercise by State Government and not by the Collector. In CH Form-2-A, land in dispute was recorded as banjar, khalihan and garha. Entry of banjar land is incorrect and as a result of manipulation made by revenue authorities who are custodian of revenue records. Respondent-1 has illegally not gone into this issue in spite of specific direction of this Court in the order dated 11.04.2013 and rejected the representation of the petitioner and other villagers only on the ground that such a demand ought to have been made at the time of framing of Statement of Principle although it was a case of fabricating the consolidation record as in CH Form-2-A, existence of khalihan has been noted and also found in the report dated 02.03.2013. A fabricated entry could have been corrected exercising power under Section 42-A of the Act. He relied upon the judgments of this Court in Ch. Surat Singh Vs. Paltoo, 1963 R.D. 80, in which it has been held that under Section 7 (aa) of U.P. Act No. 1 of 1951, a bhumidhar or sirdar have right to collect manure, cow-dung, cakes and teathoring cattles etc., on the land, which they were using it before date of vesting. Rajaram Vs. State of U.P. and others, 1964 RD 226, in which it has been held that right to use the land, incidental to agricultural operations including khalihan are not easement but appurtenance to the holdings and agriculturist has right to use it continuously. Janardan Vs. State of U.P., AIR 1999 All 303 (DB) in which this Court held that the land used for burning Holika is community use of the villagers and its land use cannot be changed. Samsuddin Vs. State of U.P., 2012 (3) ADJ 358, in which this Court held that land of graveyard is not within the purview of U.P. Act No. 1 of 1951 and is not vested in State of U.P. under Section 4 and 6 of it and judgment of Supreme Court in U.P. State Sugar Corporation Ltd. Vs. DDC and others, AIR 2000 SC 878, in which Supreme Court held that land appurtenant to building was not vested in State of U.P. under U.P. Act No. 1 of 1951.

11. I have considered the arguments of the counsel for the parties and examined the record. First question arise as to what was vested in State of U.P. under Section 4 (1) of U.P. Act No. 1 of 1951. Relevant provisions are quoted below:-

Section-4-Vesting of estate in the State.- (1) As soon as may be after the commencement of this Act, the State Government may, by notification, declare that, as from a date to be specified, all estate situate in Uttar Pradesh shall vest in the State and as from the beginning of the date so specified (hereinafter called the date of vesting) all such estate shall stand transferred to and vest, except as hereinafter provided, in the State free from all encumbrances.

The word "estate" has been defined under Section 3 (8) as follows:-

Section-3 (8).- Estate means and shall be deemed to have always meant the area included under one entry in any of the registers described in clause (a) (b) (c) or (d) and in so far as it relates to a permanent tenure holder in any register described in clause (e) of Section 32 of U.P. Land Revenue Act, 1901 as it stood immediately prior to the coming into force of this Act, or subject to restriction mentioned with respect to the register described in clause (e), in any of the register mentioned in under Section 33 of the said Act or in similar register described in or prepared or maintained under any other Act, Rule Regulation or Order relating to the preparation or maintenance of record-of-rights in force at any time and includes share in or of an estate.

Section-6. Consequences of vesting of an estate in State.- When the notification under Section 4 has been published in the Gazette then, notwithstanding anything contained in any contract or document or in any other law for the time being in force and save as otherwise provided in this Act, the consequences as hereinafter set forth shall, from the beginning of the date of vesting, ensue in the area to which the notification relates, namely--

(a) all rights, title and interest of all the intermediaries--

(i)in every estate in such area including land (cultivable or barren), grove-land, forests whether within or outside village boundaries, trees (other than trees in village abadi, holding or grove), fisheries, tanks, ponds, water-channels, ferries, pathways, abadi sites, hats, bazars and melas other than hats, bazars and melas held upon land to which clauses (a) to (c) of sub-section (1) of Section 18 apply, and

(ii) in all sub-soil in such estates including rights, if any, in mines and minerals, whether being worked or not;

shall cease and be vested in the State of Uttar Pradesh free from all encumbrances;

* * *

12.Supreme Court in Maharaj Singh v. State of U.P., AIR 1976 SC 2602, held that reading the two sister sections together, certain clear conclusions emerge. Emphatically, three things happened on the coming into force of the Act. By virtue of Section 4 the right, title and interest of all intermediaries in every estate, including hats, bazars and melas, stood terminated. Secondly, this whole bundle of interests came to be vested in the State, free from all encumbrances, the quality of the vesting being absolute. Thirdly, one and only one species of property in hats, bazars and melas was expressly excluded from the total vesting of estates in the State viz. such as had been held on lands to which Section 18(1)(a) to (c) applied.

13.Supreme Court, while considering similar provisions and interpreting words "free from all encumbrances" in State of H.P. v. Tarsem Singh, AIR 2001 SC 3431, held that word "encumbrance" means a burden or charge upon property or a claim or lien upon an estate or on the land. "Encumber" means burden of legal liability on property, and, therefore, when there is encumbrance on a land, it constitutes a burden on the title which diminishes the value of the land. In Abdul Karim Khan v. Managing Committee, George High School, AIR 1936 ALL. 879 it was held that encumbrance would include easementary right of drainage over the land. In Rashid Allidina v. Jiwandas Khemji, AIR 1943 Cal. 35, it was laid down that the word "encumbrance" has always been understood to include easementary right. In Ganga Vishnu Swaika v. Machine Mfg. Co. Ltd., AIR 1955 Cal. 503, it was ruled that an easementary right to discharge water on other's land comes within the meaning of encumbrance on the right in the land. In the aforesaid decisions, it was laid down that the right of easement on land is an encumbrance on the land and once the land vests in the State free from all encumbrances, the easementary right pertaining to that land shall also vest in the State.

14.In view of aforesaid discussion, it is found that the land in dispute was parati/banjar land on the date of vesting and was an estate of an intermediary, as such, it was vested in the State of U.P., free from all encumbrances under Sections 4 and 6 of U.P. Act No. 1 of 1951 on the date of vesting. Under Section 6(a) of U.P. Act No. 1 of 1951, all rights, including easementary right to use the land in dispute as khalihan of the petitioner or other villagers, were terminated and vested in State of U.P.

15.Certain rights have been conferred under Sections-7 and 9 of the Act. In this case the petitioner relies upon Section 7 (aa) of the Act which is quoted below:

Section-7. Saving in respect of certain rights.- Nothing contained in this chapter shall in any way affect the right of any person-

(a)........

(aa) being a bhumidhar, sirdar, adhivasi or asami of any land, to continue to enjoy easement or any similar right for the more beneficial enjoyment of the land, as he was enjoying on the date immediately preceding the date of vesting;

16.The provisions of Section 9 are not applicable in this case. Section 7(aa) of U.P. Act No. 1 of 1951, confers right to enjoy any easement or similar right for more beneficial enjoyment of the land. The word 'easement' or 'similar right' have been further specified in reference to "for more beneficial enjoyment of the land". Thus, it is clear that all the easements are not protected. Only those easements which are more beneficial for enjoyment of the land of bhumidhars, sirdars, adhiwasis, asami of any land, has been protected.

17. Khalihan (threshing floor) is a land which is used for threshing the crops. In old times, the crops were harvested and heaped at one place as threshing used to take quite long time. Nowadays, the combined harvesters used to harvest and thresh the crops at the same time in the land itself. The other thresher used to thresh the crop after harvesting it. The agriculturist now instead of collecting the crop at one place, used to harvest the crop in the field itself, as in this process, his labour for collecting the crop from the field to the threshing field, is saved. Thus, at present, the threshing floor (khalihan) is not beneficial for enjoyment of the land, much less, it cannot be said that more beneficial for enjoyment of the land. Supreme Court in State of U.P. vs. Tarsem Singh, AIR 2001 SC 3431 held that easement of grazing cattle over pasture land is not saved after the date of vesting. Thus, khalihan cannot be said to be on easement for more beneficial enjoyment of the land, nor it falls within the purview of Section 7 (aa) of U.P. Act No. 1 of 1951.

18. Under Section 9 of U.P. Act No. 1 of 1951, the sites of well, or the buildings which are appurtenant thereof, have been settled with the owner of the well or building. Supreme Court in Maharaj Singh vs. State of U.P. AIR 1976 SC 2602 held that what is necessary for use and enjoyment of the building alone is appurtenant. Plea that the land attached to the building which was used for teathoring cattle or for collecting manure, cow dung and cakes, etc. are appurtenant land to the building, has been rejected by Supreme Court. In the same way, a khalihan land cannot be said to be a land for more beneficial enjoyment of the bhumidhari/sirdari land of the tenure holder and is not saved under Section 7(aa) of U.P. Act No. 1 of 1951.

19. This Court in Ch. Surat Singh Vs. Paltoo, 1963 R.D. 80 and Rajaram Vs. State of U.P. and others, 1964 RD 226, relying upon the earlier Full Bench decisions of this Court, held that khalihan is not easement, but appurtenance of the holding of agriculturist. Thus, this Court found that the khalihan is not an easement. So far as the finding that it is appurtenant to the holding is concerned, after the judgments of this Court, Supreme Court in Maharaj Singh vs. State of U.P. AIR 1976 SC 2602 held that there could be no appurtenance to the land. Relevant portion of the judgment of Supreme Court is quoted below: -

Ordinarily, what is necessary for the enjoyment and has been used for the purpose of the building, such as easements, alone will be appurtenant. Therefore, what is necessary for the enjoyment of the building is alone covered by the expression ''appurtenance'. If some other purpose was being fulfilled by the building and the lands, it is not possible to contend that these lands are covered by the expression ''appurtenances'. Indeed it is settled by the earliest authority, repeated without contradiction to the latest, that land cannot be appurtenant to land. The word ''appurtenances' includes all the incorporal hereditaments attached to the land granted or demised, such as rights of way, of common ... but it does not include lands in addition to that granted' " (Words and Phrases,).

Thus, the law laid down by this Court being directly in contradiction with the law laid down by the Supreme Court, as such, are not liable to be followed.

20. So far as the cases of Janardan Vs. State of U.P., AIR 1999 All 303 (DB) and Samsuddin Vs. State of U.P., 2012 (3) ADJ 358 are concerned, these cases related to the religious utilization of the public land where the sentiments of the public are attached to a particular piece of land. In case the public is deprived from using the piece of land where their sentiments are attached, then it is different matter, as the right of religion has been the fundamental right in view of Article 19(1)(b) and Article 25 of the Constitution, such a religious right has been protected by this Court in those cases. The land of khalihan cannot be kept at the par of the land which involved religious sentimental attachment of the public. The other case relied upon by the counsel for the petitioner of U.P. State Sugar Corporation vs. D.D.C. and others AIR 2000 SC 878 is in respect of the appurtenant land of the building, which has no application in this case, as it is based upon the right protected u/s 9 of the Act.

21. So far as the power of the Collector to resume the land in dispute is concerned, the power has been delegated to the Collector under the government order, which has to be exercised by State of U.P. under Section 117(6) of U.P. Act No. 1 of 1951. Thus, the Collector has power to resume the land in dispute. In this case, the resumption was made for the purposes of construction of Primary Health Centre in the village, which is a better public purpose and serves the people of the locality in a better way than keeping the land preserved as khalihan. thus, the resumption of the land is neither unreasonable, nor suffers from jurisdictional error.

22. As stated above, in view of Section 3 (2) of the Act, banjar land is not included in consolidation area. However, under Section 19-A (2), of the Act, Assistant Consolidation Officer has been authorized to allot such land in the chak of a tenure holder or use it for the purposes of carving out sector road, chak road or chak nali, after determination of its valuation in exceptional cases. At the time of framing of Statement of Principle, the public utility land is required to be reserved in consultation with the Consolidation Committee of the village. In this case, at the time of preparation of Statement of Principle, no demand has been made for reserving this plot as khalihan land by the Consolidation Committee, nor after notification of Section 9, any tenure holder has filed objection u/s 9 of the Act for reserving the land in dispute as khalihan land. It is only after finalization of the consolidation operation in the village, a demand has been made before the Collector. The Collector in the order dated 8.7.2013 found that plot no. 277-kha area 0.1420 hectare, has been reserved as khalihan land, which will serve the purpose of the petitioner. Thus, the petitioner has an alternative place for khalihan land and no need was there for reserving the land in dispute as khalihan land, which has already been resumed for the purposes of construction of Primary Health Centre.

23. Arguments that the land was recorded as khalihan in previous consolidation and by committing forgery by the officials, it has been recorded as 'banjar' land cannot be accepted. As noted in paragraph-3 (supra), from 1290 fasli till previous consolidation, the land in dispute was recorded as parati/banjar land. It is only under the Act, the land for various public purposes, as enumerated under Rule 24-A, can be reserved at the time of framing Statement of Principles under Section 8-A of the Act. There is no evidence to prove that the land in dispute was reserved as khalihan under Section 8-A of the Act. So far as CH Form 2-A is concerned, it is prepared on the basis of field to field survey and partal under Section 7 of the Act. But In final record, it was recorded as banjar land and not as khalihan.

24. In view of the aforesaid discussion, there is no merit in the writ petition. The writ petition is dismissed.

Order Date :- 7.8.2015

Jaideep/-