Durga Devi Rural And Educational ... vs State Of U.P. Through The ...
2015 Latest Caselaw 1222 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 38
 

 

 
Case :- WRIT - C No. - 70414 of 2011
 

 
Petitioner :- Durga Devi Rural And Educational Development Society
 
Respondent :- State Of U.P. Through The Principal Secretary & Others
 
Counsel for Petitioner :- Nikhil Agarwal
 
Counsel for Respondent :- C.S.C.,D.D. Chauhan,Diwakar Singh
 

 
Hon'ble Pankaj Mithal,J.

Heard Sri Dhruva Agarwal, Senior Counsel assisted by Sri Nikhil Agarwal, learned counsel for the petitioner and learned Standing Counsel appearing for respondents No.1 to 4.

The counter affidavit filed on behalf of the State has been perused.

No counter affidavit has been filed by the Gaon Sabha, respondents No.5 despite sufficient time granted earlier for the purpose.

The Court vide order dated 7.4.2015 had directed the Gaon Sabha six weeks' further time and no more but even then no counter affidavit was filed on behalf of respondent No.5.

In view of the above, the petition is being decided on the basis of the pleadings on record i.e. the counter affidavit filed on behalf of respondents No.1 to 4.

It is alleged that sometime in 1936 Smt. Durga Devi, the successor of erstwhile Zamindar Radhika Prasad Jauhari gifted 100 bighas of land situate in village Osa, Pargana Karari, Tehsil Manjhanpur, district Kaushambi in favour of one Shyam Das Agrawal by a registered gift deed. The said Shyam Das Agrawal some time in 1951 donated the said land to the petitioner. Some small portions of the said land were scattered. During the consolidation proceedings in the village the land of the petitioner was consolidated and finally, according to its valuation, one consolidated chak was allotted to the petitioner by the order of the Consolidation Officer passed in the year 1982. The said order became final and conclusive and was not challenged by any person. The consolidation proceedings in the village came to a close and a notification dated 18.11.1982 under Section 52 of the Consolidation of Holdings Act, 1953 (in short 'Act') was issued de-notifying the village from the consolidation operation.

On the basis of the aforesaid allotment of the chak the name of the petitioner was duly recorded in the revenue record. Sometime in the year proceedings under Section 33/39 of the U.P. Land Revenue Act, 1901 were initiated and an order was passed on 14.1.2010 for recording certain portion of the chak allotted to the petitioner in the name of Gaon Sabha. The said order was challenged by the petitioner by filing Writ petition No.38874 of 2010 and the matter was sent back to Bhu-Rajaswa Adhikari/Sub-Divisional Magistrate with the direction that the objections of the petitioner be entertained and the matter be decided after considering the same. It is in pursuance thereto that the impugned order dated 23.3.2011 has been passed by the Up-Ziladhikari, Manjhanpur for expunging the name of the petitioner in respect of certain portion of the said land as detailed in the order and recording the same as Banzar land of the Gaon Sabha. The aforesaid order has been affirmed in revision court vide order dated 17.10.2011 passed by the Additional Commissioner (I), Allahabad and the revision thereto has been dismissed.

The above two orders have been impugned in this writ petition.

The argument of Sri Dhruva Agarwal, learned Senior Counsel is that once the consolidation proceedings in the village have come to an end and a notification under Section 52 of the Act has been issued, all proceedings in respect of the matter which had attained finality during the consolidation stand barred by Section 49 of the Act. Thus, the impugned order passed in exercise of powers under Section33/39 of the U.P. Land Revenue Act, 1901 and the consequential revisonal are without jurisdiction and a nullity.

Extending his argument, he submits that during the consolidation proceedings some land of the Gaon Sabha after due valuation and opportunity of hearing to the Gaon Sabha was included in the chak allotted to the petitioner. This is reflected by CH Form 45 on record. The Gaon Sabha failed to challenge the aforesaid order of allotment of chak passed in favour of the petitioner. It is now estopped under law from disputing the same and contending that Gaon Sabha land was illegally included in the chak of the petitioner or to allege that the Gaon Sabha land could not have been included in the chak of the petitioner.

Learned Standing Counsel in defence of the impugned orders has relied upon paragraph 29 of the counter affidavit wherein it has been stated that the provisions of Sections 11-A, 19(2)(e) & (g), 28, 30, 32, 49 and 52 of the Act are not applicable in the proceedings under Section 33/39 of the U.P. Land Revenue Act, 1901. He further submits that the land in dispute is of the Gaon Sabha. It was recorded as Banzar land of the Gaon Sabha till the basic year 1359 F and, as such, could not have been part of the chak allotted to the petitioner during the consolidation. The inclusion of the Gaon Sabha land in the chak of the petitioner during consolidation is a fraudulent exercise and as fraud vitiates everything, petitioner is not entitle to any relief.

The short controversy which has been raised in this petition is whether in respect of the allotment of chak in favour of the petitioner which became final during the consolidation proceedings, any proceedings under Section 33/39 of the U.P. Land Revenue Act, 1901 could have been drawn after the close of the consolidation proceedings and whether the Banzar land of the Gaon Sabha could be included in the chak allotted to the petitioner.

The object of the Act is to consolidate agricultural holdings to facilitate the agricultural activities. In preparation of consolidation scheme the consolidation authorities are authorized to allot even the land belonging to the State Government or vested in the Gaon Sabha or any local authority to any tenure holder. Section 19-A of the Act in this regard is relevant. It reads as under:

"19-A. Preparation of provisional Consolidation Scheme by the Assistant Consolidation Officer. - (1) The Assistant Consolidation Officer shall in consultation with the Consolidation Committee, prepare in the form prescribed a provisional Consolidation Scheme for the unit.

(2) Notwithstanding anything contained in this Act, the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, or any other law for the time being in force, it shall be lawful for the Assistant Consolidation Officer, wherein in his opinion it is necessary or expedient so to do, to allot to a tenure-holder, after determining its valuation, any land belonging to the State Government, or any land vested in the Gaon Sabha, or any other local authority, as a result of notification issued under Section 117 or 117-A of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950:

Provided that where any such land is used for a public purpose, it shall be allotted only after the Assistant Consolidation Officer has declared in writing that it is proposed to transfer the rights of the public as well as of all individuals in or over that land to any other land specified in the declaration and earmarked for that purpose in the provisional Consolidation Scheme."

A plain reading of sub section (2) of Section 19-A of the Act reveals that it is lawful for the Assistant Consolidation Officer to allot even land belonging to State government or any land vested in the Gaon Sabha or any other local authority in favour of a tenure holder, if he is of the opinion that it is so necessary or expedient in the interest of justice.

In this regard a reference to Section 30 of the Act is also important. It provides for the consequences which shall ensue on exchange of possession. It provides, on the allotment of a chak to a tenure-holder including the portion of the land vested in the Gaon Sabha or any local authority it shall be deemed that such land has been resumed under Section 117/117-A of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 and settled in favour of the tenure-holder. This means that the land vested in the Gaon Sabha if allotted as part of a chak in favour of a tenure-holder, it would imply that it had been resumed by the State Government and has been settled in favour of the allottee of the chak.

In view of the aforesaid provisions it can be said with certainty that during consolidation proceedings the authorities are competent to include and allot the land vested in the Gaon Sabha also to a tenure holder. Therefore, any land recorded as Banzar land of the Gaon Sabha in the basic year 1359 F or before the consolidation proceedings is open for allotment to a tenure-holder in the consolidation proceedings on due determination of its valuation and its allotment and inclusion in the chak of the petitioner is not in any way illegal or without jurisdiction.

Now coming to the main aspect of the matter, it would be relevant to refer to Section 49 of the Act which provides for a bar to the jurisdiction of the civil or revenue courts. It reads as under:

"49. Bar to civil Courts jurisdiction. - Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of right of tenure-holder in respect of land lying in an area, for which a notification has been issued under sub-section (2) of Section 4 or adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding would or ought to have been taken under this Act, shall be done in accordance with the provisions of this Act and no Civil or Revenue Court shall entertain any suit or proceeding with respect to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under this Act:

Provided that nothing in this section shall preclude the Assistant Collector from initiating proceedings under Section 122-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 in respect of any land, possession over which has been delivered or deemed to be delivered to a Gaon Sabha under or in accordance with the provisions of this Act.

It provides that after a notification under Section 4 of the Act is issued or, in other words, the village is brought under Consolidation, all rights of the parties with regard to the holdings therein would be determined or adjudicated in accordance with the provisions of the Act and that no civil or revenue court shall entertain any suit or proceedings with respect to the rights in such land or with respect to any other matter with regard to which proceedings could or ought to have been taken under this Act.

The disputes with regard to rights of the parties or any other matter in respect of any land under consolidation is barred before a civil or revenue court to avoid multiplicity of proceedings and conflicting decisions and to bring all disputes in that regard before one single court.

The Supreme Court in the case of Zafar Khan and others Vs. Board of Revenue, U.P. and others 1984 (supp) SCC 505 while dealing with Sections 49 and 52 of the Act in a matter where allotment of the chak was questioned in civil/revenue court held that once the village has been de-notified under Section 52 of the Act all allotments of chaks become final and the suit questioning such allotment would be barred by Section 49 of the Act. The same principle applies with great rigor to proceedings under Sections 33/39 of the Act, 1901 in view of a plain reading of Section 49 of the Act inasmuch as the proceedings under Section 33/39 of the U.P. Land Revenue Act are of summary nature and in a way does not even result in adjudication of any substantive rights of the parties.

The provisions of Section 33/39 of the U.P. Land Revenue Act do not empower the Collector to decide a dispute involving any question of title over the land. It is limited to make changes due to succession & transfers and for making corrections on account of errors. The Up Zila Adhikari acting as a delegate of the Collector has not ordered for the above change in favour of Gaon Sabha on account of any succession or transfer of land or for making any correction. The exemption to the name of the petitioner was directed as the Gaon Sabha land could not have been included in the chak of the petitioner in consolidation proceedings and that some fraud was played. It is not the ground covered by either Section 33 or 39 of the U.P. Land Revenue Act and, as such, the impugned order has been passed without any authority of law.

The Gaon Sabha or the State could have objected to the proposed allotment of chak to the petitioner during consolidation and could have filed an appeal or revision as provided under the Act, if it was not satisfied by the said order of allotment but admittedly nothing was done in this regard either by the Gaon Sabha or the State of U.P. and the proceedings of allotment of chak in favour of the petitioner was allowed to become final. Therefore, the finality attached to the consolidation proceedings vide Section 49 of the Act could not have been disturbed under Section33/39 of the Act after the village was de-notified.

In view of the aforesaid facts and circumstances, the impugned orders dated 23.3.2011 passed by the Up-Ziladhikari, Manjhanpur, Kaushambi and dated 17.10.2011 passed by the Additional Commissioner (I), Allahabad are certainly without jurisdiction and have been passed in proceedings which were not maintainable and stood barred by Section 49 of the Act. Accordingly, the impugned orders dated 23.3.2011 and 17.10.2011 are quashed and the writ petition is allowed.

The parties are directed to bear their own costs.

Order Date :- 14.7.2015

Brijesh