Krishna Gopal vs State Of U.P. & 16 Others
2017 Latest Caselaw 2901 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Court No. - 7
 
Case :- WRIT - B No. - 34146 of 2017
 
Petitioner :- Krishna Gopal
 
Respondent :- State Of U.P. & 16 Others
 
Counsel for Petitioner :- Brij Bhushan Paul,Anand Prakash Paul
 
Counsel for Respondent :- C.S.C.,Ashish Kumar Srivastava
 

 
Hon'ble Vivek Kumar Birla,J.

Heard learned counsel for the petitioner as well as learned Standing Counsel appearing for the State respondents and Sri Ashish Kumar Srivastava, learned counsel for the Gaon Sabha and perused the record.

Present petition has been filed with the following prayers:

"(i) Issue a writ, order or direction in the nature of certiorari, calling for record of the case, quashing impugned order of respondent Deputy Director of Consolidation dated 18.11.2016 to the extent it is against the petitioner.

(ii) Issue writ of mandamus, commanding the respondent no. 2 to allot plot no. 2304 and 2317 on original holding of petitioner and in the alternative allot Gaon Sabha Plot No. 1113 and 1023 in chak of petitioner.

(iii) Issue ad interim mandamus, staying effect and operation of order dated 18.11.2016 to the extent it is against the petitioner, so as to meet the ends of justice.

(iv)......."

The impugned order has been challenged on the ground that the same is bad to the extent it allots Udan Chak to the petitioner on plot nos. 267 and 269, 10 kilometer away from the original holding and thus, the same is violative of Section 19 of U.P. C.H. Act and therefore, suffers from miscarriage of justice and that the petitioner was entitled for allotment on the plots originally held by him or in the alternative in the same vicinity/locality, preferably on Gaon Sabha plot no. 1113 and 1023.

Submission of the learned counsel for the petitioner is that the petitioner was entitled for allotment on the plots originally held by him or in the alternative in the same vicinity/locality, preferably on Gaon Sabha plot no. 1113 and 1023. Original holding of petitioner was on plot no. 2304 and 2317 now bearing plot no. 1008 Cha area 0.32 Acre and the same situates nearby Metal Road named Vrindavan-Chatikara Road and therefore, the findings of the Deputy Director of Consolidation are bad to this extent; are without jurisdiction; perverse; suffers from material irregularity; and are liable to be set aside. In support of his submissions, he has placed reliance on the judgements rendered in the case of Shyam Narayan Rai vs. Deputy Director of Consolidation, 1981 RD 307, Nathuni Singh vs. Assistant Deputy Director of Consolidation, 1990 RD 258 and Dahari Lal and others Vs. DDC and others, 2011 (1) AWC 628 to contend that even after publication of notification under Section 52 denotifying the consolidation proceedings, the consolidation authorities still have jurisdiction to entertain the same.

Placing reliance on judgment of this Court passed in case of Muniraj and others Vs. Deputy Director of Consolidation/A.D.M S.R. Nagar and others, 2015(127) RD 872 he further submitted that matter of condonation of delay is the sole discretion of the original Court and if delay is condoned, the higher Courts should not interfere.

Per contra, learned counsel appearing for the respondents have submitted that the revision was filed straightway to the Deputy Director of Consolidation, Etawah Camp at Mathura challenging the order dated 19.10.1978 passed by the Assistant Consolidation Officer in Suit No. 1868 filed under Section 9A of the UP CH Act after a gap of about 38 years, which was illegally allowed. It was further submitted that simply on the statement of Pradhan Smt. Veerwati w/o Sri Jaipal Singh that the writ petition is pending, although details of the petition were not disclosed, and that she has no objection in case some other land is allotted to the petitioner. The impugned order has been passed. It is next submitted that as reflected from the order of Additional District Magistrate (Administration), Mathura dated 11.7.2017 (Annexure 6 to the writ petition) that the consolidation proceedings were completed in the year 1994 itself and publication under Section 52 of the U.P.C.H. Act was made and therefore, the consolidation authorities have no jurisdiction to enter into such controversy. Submission, therefore, is that the impugned judgement itself is illegal and bad and is liable to be set aside in its entirety.

In view of the stand taken and submissions made by the learned Standing Counsel no counter affidavit is being called for, particularly when the land of Gaon Sabha/State is affected.

I have considered the rival submissions and perused the record.

Annexure 6 to the writ petition is a report dated 11.7.2017 submitted by the Additional District Magistrate (Administration), Mathura to the District Magistrate, Mathura wherein he has categorically noticed the fact that the consolidation proceedings were over in the year 1994 and the impugned order has been passed in connivance of the consolidation officials as well as officers. He has also noticed that the Gram Pradhan Smt. Veerwati has submitted her no objection without any approval from the Land Management Committee and Sub Divisional Magistrate and that the land involved belongs to gaon sabha but higher authorities in this regard were not informed by the Lekhpal and other lower concerned authorities. In such view of the matter, even action has been proposed against Gram Pradhan as well as Lekhpal and the then Deputy Director of Consolidation-Sri Umesh Giri who had passed the order without hearing the Land Management Committee and the State.

A perusal of the no objection filed by the Gram Pradhan Smt. Veerwati nowhere indicates that any approval has been taken from authority concerned. No details of any petition pending before this Court have been given in regard to Navin Gata No. 1113.

Further, a perusal of paragraphs 3 and 4 of the affidavit filed in support of the revision no. 134/2015-16 indicates that the only explanation of delay of 38 years has been given that the revision is being filed after obtaining the opinion from the counsel, which is within the time from the date of knowledge, which as per paragraph 3 of the affidavit, is 12.10.2016. In the impugned order dated 18.11.2016 the delay of 38 years has been condoned only on the ground that the plot holders are small farmers and in case they are not given benefit of Section 5 of the Limitation Act, they shall be deprived of justice forever. Thus, it is very much clear that there was no explanation whatsoever submitted for such huge delay of 38 years and application filed under Section of 5 Limitation Act has been allowed only on the basis of misplaced sympathy, which, on the face of it, appears to be mala fide and not sustainable in the eye of law.

In Brijesh Kumar and others vs. State of Haryana and others, (2014) 11 SCC 351, the Hon'ble Apex Court has held that there is a difference between delay and inordinate delay and such inordinate delay cannot be condoned on misplaced sympathy. The relevant paragraph 10 of the aforesaid judgement is quoted as under:

"10. The courts should not adopt an injustice-oriented approach in rejecting the application for condonation of delay. However the court while allowing such application has to draw a distinction between delay and inordinate delay for want of bona fides of an inaction or negligence would deprive a party of the protection of Section 5 of the Limitation Act, 1963. Sufficient cause is a condition precedent for exercise of discretion by the court for condoning the delay. This Court has time and again held that when mandatory provision is not complied with and that delay is not properly, satisfactorily and convincingly explained, the court cannot condone the delay on sympathetic grounds alone."         (Emphasis supplied)

In such view of the matter, I do not find any good ground to grant any relief to the petitioner as has been prayed for in prayer (ii) and (iii) and the same is hereby refused and the petition stands dismissed to that extent. 

However, this Court is of the opinion that insofar as prayer (i) is concerned, the impugned order dated 18.11.2016 passed by the Deputy Director of Consolidation is liable to be set aside in its entirety, though for different reasons, inasmuch as, as already noticed that no explanation was given in the affidavit filed in support of the revision for the purpose of condonaing the huge delay of 38 years which has been condoned on absolutely misplaced sympathy and on misconceived ground, which also prima facie indicates mala fide functioning of the authority concerned and also for the fact that the revision was allowed only on the basis of no objection given by Gram Pradhan Smt.Veerwati without any approval from the Land Management Committee and Sub Divisional Magistrate, and no information was given to the higher authorities in this regard by the Lekhpal or any other concerned authority and Gaon Sabha land has been allotted to the petitioners.

In the opinion of the Court, the observation of this Court in the case of Dina Nath vs. State of UP and others, 2009 (9) ADJ 735 appropriately applies in this case also, although the facts of the case were different, wherein it has been observed that "prima facie it appears to be loot of the public property" and "the experience of the Court is that during consolidation proceedings, Consolidation Authorities/Officers liberally donate the Gaon Sabha properties to influential/resourceful persons by passing such orders as has been passed in the instant case."

Thus, for the reasons as noted above, apparently a fraud has been played by the petitioner in collusion with Gram Pradhan and the revenue authorities and since fraud vitiates every solemn proceedings, the impugned order dated 18.11.2016 is liable to be quashed.

As such, it is absolutely clear that the impugned order dated 18.11.2016 which has been passed after the closure of the Consolidation Proceedings and publication of the notification under Section 52 of the UP CH Act, 1953 is liable to be quashed and is hereby quashed. Prayer (i) stands allowed. The authorities are also at liberty to verify the correctness of the CH Form 2-Ka (Annexure 1 to the petition) and genuineness of the holdings of the petitioner and if so required, may take necessary action in accordance with law.

It is made clear that authorities concerned on administrative side are at liberty to initiate action as proposed against the concerned officials/officers/persons as per the report dated 11.7.2017.

Let a copy of this order may be given to the learned Standing Counsel appearing for the respondents no. 1 and 2 free of costs within three working days from the date this order is uploaded on the net.

The petition stands disposed of with the observations as noted above.

Order Date :- 2.8.2017/Abhishek