Ramanand Singh vs Chief Revenue Officer/D.D.C. & 3 ...
2017 Latest Caselaw 7771 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 33
 
										AFR
 
Case :- WRIT - B No. - 56376 of 2017
 

 
Petitioner :- Ramanand Singh
 
Respondent :- Chief Revenue Officer/D.D.C. & 3 Others
 
Counsel for Petitioner :- Anil Kumar Rai, Vishnu Singh
 
Counsel for Respondent :- C.S.C., Arvind Kumar, Manoj Kumar Yadav, Vijay Kumar Rai
 

 
Hon'ble Manoj Misra,J.

Heard Sri Vishnu Singh for the petitioner; learned Standing Counsel for the respondents 1 and 2; Sri Manoj Kumar Yadav for the respondent no.4; and Sri Vijay Kumar Rai for the respondent respondent no.3.

This petition is directed against orders dated 31.10.2017 and 31.08.2017 passed by the Chief Revenue Officer/ Deputy Director of Consolidation, Varanasi in Revision No.9 of 2017 and the Settlement Officer of Consolidation in Case No.136 of 2017, respectively.

The dispute relates to plot no. 317/2 area 20 are. It is not in dispute that the petitioner and the third respondent are co-sharers of the said plot which was kept out of consolidation. The petitioner applied to the Settlement Officer of Consolidation for grant of an injunction to restrain the third respondent from raising construction over any portion of the said plot during the course of consolidation proceedings.

By the order impugned, dated 31.08.2017, the Settlement Officer of Consolidation rejected the application on the ground that parties were co-sharers; there was no dispute pending adjudication inter se parties in respect of their share or possession over the said plot; and as, admittedly, the disputed portion of the plot was kept out of consolidation scheme, the consolidation authorities had no jurisdiction to grant injunction as prayed for. Aggrieved by rejection of his application, the petitioner preferred revision before the Deputy Director of Consolidation which was dismissed by the impugned order dated 31.10.2017.

The learned counsel for the petitioner has urged that even if a particular plot is kept out of consolidation, the consolidation courts do not cease to have jurisdiction to deal in respect of the right and title of the claimants over such plot and since the said plot falls in the consolidation area, the consolidation courts would have jurisdiction to pass appropriate order to protect the interest of the parties. More so, when section 5(1)(c)(i) of the U.P. Consolidation of Holdings Act (in short the C.H. Act) specifically provides that no tenure holder, except with the permission in writing of the Settlement Officer of Consolidation, use his holding or any part thereof for purposes not connected with agriculture, horticulture or animal husbandry including pisciculture and poultry farming. It is thus the case of the petitioner that the consolidation authorities have erred in law by refusing to accord consideration to the injunction application filed by the petitioner.

In support of the above submission, the learned counsel for the petitioner has placed reliance on two single judge bench decisions of this Court, namely, Laxmi Narain and others Vs. Gelhar and others: 1986 RD 152 and Smt. Barsatiya Vs. District Judge, Ghazipur and others: 1984 RD 156.

Per contra, Sri Vijay Kumar Rai, who had appeared on behalf of the contesting respondent no.3, has submitted that the consolidation courts are not vested with plenary powers as exist in a civil court and can exercise only those powers which are conferred upon them by the statute or such other powers which are incidental thereto. It has been submitted that the effect of a notification under Section 4(2) of C.H. Act is provided in detail in the provisions of Section 5 of the Act. Sub-section (2) of Section 5 of the Act provides for the consequences that ensue in the area to which the notification relates. Clause (a) of sub-section (2) provides that every proceeding for correction of records and every suit and proceeding in respect of declaration of rights or interest in any land lying in the area, or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any Court or authority whether of the first instance or of appeal, reference or revision, shall, on an order being passed in that behalf by the Court or authority before whom such suit or proceeding is pending, stand abated. It has been submitted that the import of the aforesaid provision would be that the proceeding must relate to correction of records and it should be in respect of declaration of rights or interest in any land lying in the area. So that such claim couuld be raised before consolidation authorities in accordance with the provisons of the Act and the Rules framed thereunder. It has been submitted that, admittedly, plot no.317/2 has been put off consolidation scheme and there is no dispute as regards the rights or interest of the parties in the said plot. Admittedly, the petitioner and the third respondent are co-sharers of the plot and no objection under Section 9 of the C.H. Act has been filed or is pending in respect of any dispute relating to the right or interest of the parties thereon. It has been submitted that there is also no application under Section 9-C of the C.H. Act for partition of the said plot therefore there is no dispute whatsoever in respect of right or interest in the plot concerned between the parties and as no correction in the entry has been sought, the application for grant of injunction was not maintainable before the consolidation authorities and has been rightly rejected.

In support of the aforesaid submission, learned counsel for the third respondent has placed reliance on a decision of this Court in Jokhu Vs. State of U.P. and others: 2015 (126) RD 673 wherein it was held that where the land in dispute is declared chak-out and is Abadi, then parties are free to raise their dispute before the civil court and, under the circumstances, application seeking permission under Section 5(1)(c)(i) is not maintainable. A division bench decision of this Court in the case of Banwari Lal and others Vs. Tulsi Ram and others: 1979 RD 136 has also been relied upon. In that case it was held that where the parties are not desirous of adjudication of their rights and simply claim for removal of encroachment, then the civil suit would not abate under Section 5(2)(a) of the C.H. Act.

I have given thoughtful consideration to the rival submissions and have perused the authorities cited by the learned counsel for the parties in support of their respective submissions.

The decisions on which learned counsel for the petitioner has placed reliance are on the issue that even in respect of chak-out plots where a dispute relates to the entries, the consolidation authorities would have jurisdiction to adjudicate. In Smt. Barsatiya's case (supra) it has been held that where grant of injunction turns upon declaration of right and title of the parties, then the suit would abate under Section 5(2)(a) of the C.H. Act because, in such a situation, declaration of right/title would be required which could be made exclusively by the consolidation courts, upon notification of consolidation operations, in accordance with the provisions of the C.H. Act.

The decisions relied upon by the learned counsel for the petitioner would be applicable to a case where a dispute is raised in respect of the entries or the interest of the parties over a plot in the area. In the instant case, admittedly, no objection has been taken under Section 9 of the C.H. Act in respect of the entries of the plot concerned, therefore the question of adjudication of dispute in respect of the entries does not arise. Under the circumstances, the consolidation courts would not have jurisdiction to grant injunction in respect of the said plot, particularly, when the plot has been kept out of the consolidation scheme.

As regard applicability of Section 5(1)(c)(i) of the C.H. Act, it be observed that the said provision is there to ensure that during consolidation operations improvements are not carried out by tenure-holders to claim equity in respect of allotment of a particular plot. However, where a plot is kept out of consolidation such a claim based on equity is obviated. In Suraj Pal Vs. Ram Manorath and others, 2017 (136) RD 621, the Apex Court had the occasion to consider the object of the then existing provision of Section 5(c)(ii). After going through the provisions of Section 5(c) of the Act, the Apex Court had observed: "The purpose of a consolidation scheme is to provide consolidation of agricultural holdings. Abadi land, groves etc. are kept outside the scope of consolidation scheme. They cannot be re-allocated or re-allotted to any other person. Therefore, strictly speaking, they are not subject matter of the consolidation scheme. The intention of introducing Section 5(c)(ii) of the Act was that if the land holding is subject to consolidation proceedings then permission of the Settlement Officer (Consolidation) is required before the same is transferred. This is so because if the land, which is subject matter of consolidation proceedings, is sold or permitted to be transferred during consolidation proceedings, it could affect the entire consolidation scheme. However, if the land is not subject matter of the consolidation scheme, though it may be part of the holding of the tenure holder, then no permission is required." By observing as above, the apex court had refused to apply the provisions of section 5 (1) (c) (ii) of C.H. Act on chak-out plot.

The above decision of the Apex Court spells out the purpose of placing restriction on raising of construction, etc., as contemplated by section 5(1)(c)(i) of the C.H. Act. The said purpose is to preserve the plot included in a consolidation scheme in its original condition so that it could be conveniently allotted to any person including its original tenure holder as per the provisions of the C.H. Act and the scheme framed thereunder.

A fortiori, where a plot is not part of the consolidation scheme, and no dispute in respect of right or title or interest of the parties of the plot is pending adjudication before the consolidation authorities, the consolidation authorities would have no jurisdiction to entertain an application for grant of injunction simpliciter in respect of such plot. For such relief the parties may approach the civil court, keeping in mind the law laid down by Division Bench of this Court in Banwari Lal's case (supra).

As in the instant case, there is no dispute pending before consolidation authorities for adjudication in respect of the share of the parties over 20 are of plot no.317/2, and no objection / application either under Section 9 or under Section 9-C of the C.H. Act has been filed so far, the Settlement Officer of Consolidation as well as the Deputy Director of Consolidation was legally justified in rejecting the prayer of the petitioner for grant of injunction. The petition is dismissed.

Order Date :- 7.12.2017

AKShukla/-