Allahabad High Court
Vijay Kumari vs Consolidation Officer, ... on 13 March, 2019
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
A.F.R.
Court No. - 4
1. Case :- CONSOLIDATION No. - 6946 of 2019
Petitioner :- Vijay Kumari
Respondent :- Consolidation Officer, Sawayajpur, Hardoi & 2 Others
Counsel for Petitioner :- Anurag Shukla
Counsel for Respondent :- C.S.C.,Yogendra Nath Yadav
Connected with.
2. Case :- CONSOLIDATION No. - 6937 of 2019
Petitioner :- Babu Singh
Respondent :- Consolidation Officer, Sawayajpur, Hardoi & 2 Others
Counsel for Petitioner :- Anurag Shukla
Counsel for Respondent :- C.S.C.,Yogendra Nath Yadav
3. Case :- CONSOLIDATION No. - 6938 of 2019
Petitioner :- Ramchela
Respondent :- Consolidation Officer, Sawayajpur, Hardoi & 2 Others
Counsel for Petitioner :- Anurag Shukla
Counsel for Respondent :- C.S.C.,Yogendra Nath Yadav
4. Case :- CONSOLIDATION No. - 6939 of 2019
Petitioner :- Pushpendr Kumar Mishra
Respondent :- Consolidation Officer, Sawayajpur, Hardoi & 2 Others
Counsel for Petitioner :- Anurag Shukla
Counsel for Respondent :- C.S.C.,Yogendra Nath Yadav
5. Case :- CONSOLIDATION No. - 6940 of 2019
Petitioner :- Rampal
Respondent :- Consolidation Officer, Sawayajpur, Hardoi & 2 Others
Counsel for Petitioner :- Anurag Shukla
Counsel for Respondent :- C.S.C.,Yogendra Nath Yadav
6. Case :- CONSOLIDATION No. - 6941 of 2019
Petitioner :- Seetaram
Respondent :- Consolidation Officer, Sawayajpur, Hardoi & 2 Others
Counsel for Petitioner :- Anurag Shukla
Counsel for Respondent :- C.S.C.,Yogendra Nath Yadav
7. Case :- CONSOLIDATION No. - 6942 of 2019
Petitioner :- Mandarik
Respondent :- Consolidation Officer, Sawayajpur, Hardoi & 2 Others
Counsel for Petitioner :- Anurag Shukla
Counsel for Respondent :- C.S.C.,Yogendra Nath Yadav
8. Case :- CONSOLIDATION No. - 6943 of 2019
Petitioner :- Sanjay
Respondent :- Consolidation Officer, Sawayajpur, Hardoi & 2 Others
Counsel for Petitioner :- Anurag Shukla
Counsel for Respondent :- C.S.C.,Yogendra Nath Yadav
9. Case :- CONSOLIDATION No. - 6944 of 2019
Petitioner :- Kunvar Pal
Respondent :- Consolidation Officer, Sawayajpur, Hardoi & 2 Others
Counsel for Petitioner :- Anurag Shukla
Counsel for Respondent :- C.S.C.,Yogendra Nath Yadav
10. Case :- CONSOLIDATION No. - 6947 of 2019
Petitioner :- Ram Naresh
Respondent :- Consolidation Officer,Sawayajpur,Hardoi And Ors.
Counsel for Petitioner :- Anurag Shukla
Counsel for Respondent :- C.S.C.,Yogendra Nath Yadav
11. Case :- CONSOLIDATION No. - 6948 of 2019
Petitioner :- Jhaulal
Respondent :- Consolidation Officer, Sawayajpur, Hardoi & 2 Others
Counsel for Petitioner :- Anurag Shukla
Counsel for Respondent :- C.S.C.,Yogendra Nath Yadav
12. Case :- CONSOLIDATION No. - 6949 of 2019
Petitioner :- Ram Prakash
Respondent :- Consolidation Officer,Sawayajpur,Hardoi And Ors.
Counsel for Petitioner :- Anurag Shukla
Counsel for Respondent :- C.S.C.,Yogendra Nath Yadav
13. Case :- CONSOLIDATION No. - 6950 of 2019
Petitioner :- Ramrahish
Respondent :- Consolidation Officer,Sawayajpur,Hardoi And Ors.
Counsel for Petitioner :- Anurag Shukla
Counsel for Respondent :- C.S.C.,Yogendra Nath Yadav
14. Case :- CONSOLIDATION No. - 6951 of 2019
Petitioner :- Ram Karan
Respondent :- Consolidation Officer,Sawayajpur,Hardoi And Ors.
Counsel for Petitioner :- Anurag Shukla
Counsel for Respondent :- C.S.C.
15. Case :- CONSOLIDATION No. - 6952 of 2019
Petitioner :- Ramchandra
Respondent :- Consolidation Officer,Sawayajpur,Hardoi And Ors.
Counsel for Petitioner :- Anurag Shukla
Counsel for Respondent :- C.S.C.,Yogendra Nath Yadav
16. Case :- CONSOLIDATION No. - 6954 of 2019
Petitioner :- Murli
Respondent :- Consolidation Officer,Sawayajpur,Hardoi And Ors.
Counsel for Petitioner :- Anurag Shukla
Counsel for Respondent :- C.S.C.,Yogendra Nath Yadav
17. Case :- CONSOLIDATION No. - 6955 of 2019
Petitioner :- Bhura Singh
Respondent :- Consolidation Officer,Sawayajpur,Hardoi And Ors.
Counsel for Petitioner :- Anurag Shukla
Counsel for Respondent :- C.S.C.,Yogendra Nath Yadav
18. Case :- CONSOLIDATION No. - 6956 of 2019
Petitioner :- Anand Kashyap
Respondent :- Consolidation Officer,Sawayajpur,Hardoi And Ors.
Counsel for Petitioner :- Anurag Shukla
Counsel for Respondent :- C.S.C.,Yogendra Nath Yadav
19. Case :- CONSOLIDATION No. - 6957 of 2019
Petitioner :- Vijendra
Respondent :- Consolidation Officer,Sawayajpur,Hardoi And Ors.
Counsel for Petitioner :- Anurag Shukla
Counsel for Respondent :- C.S.C.,Yogendra Nath Yadav
20. Case :- CONSOLIDATION No. - 6958 of 2019
Petitioner :- Om Veer
Respondent :- Consolidation Officer,Sawayajpur,Hardoi And Ors.
Counsel for Petitioner :- Anurag Shukla
Counsel for Respondent :- C.S.C.,Yogendra Nath Yadav
21. Case :- CONSOLIDATION No. - 6959 of 2019
Petitioner :- Dragpal
Respondent :- Consolidation Officer,Sawayajpur,Hardoi And Ors.
Counsel for Petitioner :- Anurag Shukla
Counsel for Respondent :- C.S.C.,Yogendra Nath Yadav
22. Case :- CONSOLIDATION No. - 6960 of 2019
Petitioner :- Khushiram
Respondent :- Consolidation Officer, Sawayajpur, Hardoi & 2 Others
Counsel for Petitioner :- Anurag Shukla
Counsel for Respondent :- C.S.C.,Yogendra Nath Yadav
23. Case :- CONSOLIDATION No. - 6961 of 2019
Petitioner :- Divari
Respondent :- Consolidation Officer, Sawayajpur, Hardoi & 2 Others
Counsel for Petitioner :- Anurag Shukla
Counsel for Respondent :- C.S.C.,Yogendra Nath Yadav
24. Case :- CONSOLIDATION No. - 6962 of 2019
Petitioner :- Nirmla Devi
Respondent :- Consolidation Officer, Sawayajpur, Hardoi & 2 Others
Counsel for Petitioner :- Anurag Shukla
Counsel for Respondent :- C.S.C.,Yogendra Nath Yadav
25. Case :- CONSOLIDATION No. - 6963 of 2019
Petitioner :- Ram Baran
Respondent :- Consolidation Officer, Sawayajpur, Hardoi & Ors.
Counsel for Petitioner :- Anurag Shukla
Counsel for Respondent :- C.S.C.,Yogendra Nath Yadav
26. Case :- CONSOLIDATION No. - 6965 of 2019
Petitioner :- Omveer
Respondent :- Consolidation Officer Sawayajpur Hardoi & Ors.
Counsel for Petitioner :- Anurag Shukla
Counsel for Respondent :- C.S.C.,Yogendra Nath Yadav
27. Case :- CONSOLIDATION No. - 6967 of 2019
Petitioner :- Somvati
Respondent :- Consolidation Officer, Sawayajpur, Hardoi & Ors.
Counsel for Petitioner :- Anurag Shukla
Counsel for Respondent :- C.S.C.,Yogendra Nath Yadav
28. Case :- CONSOLIDATION No. - 6968 of 2019
Petitioner :- Kamlesh Kumar Singh
Respondent :- Consolidation Officer, Sawayajpur, Hardoi & Ors.
Counsel for Petitioner :- Anurag Shukla
Counsel for Respondent :- C.S.C.,Yogendra Nath Yadav
29. Case :- CONSOLIDATION No. - 6970 of 2019
Petitioner :- Satish
Respondent :- Consolidation Officer Sawayajpur Hardoi & Ors.
Counsel for Petitioner :- Anurag Shukla
Counsel for Respondent :- C.S.C.,Yogendra Nath Yadav
30. Case :- CONSOLIDATION No. - 6972 of 2019
Petitioner :- Jageshwar
Respondent :- Consolidation Officer,Sawayajpur District Hardoi And Ors.
Counsel for Petitioner :- Anurag Shukla
Counsel for Respondent :- C.S.C.,Yogendra Nath Yadav
31. Case :- CONSOLIDATION No. - 6974 of 2019
Petitioner :- Ruk Mangal
Respondent :- Consolidation Officer,Sawayajpur District Hardoi And Ors.
Counsel for Petitioner :- Anurag Shukla
Counsel for Respondent :- C.S.C.,Yogendra Nath Yadav
32. Case :- CONSOLIDATION No. - 6979 of 2019
Petitioner :- Khunnu Lal
Respondent :- Consolidation Officer,Sawayajpur District Hardoi And Ors.
Counsel for Petitioner :- Anurag Shukla
Counsel for Respondent :- C.S.C.,Yogendra Nath Yadav
33. Case :- CONSOLIDATION No. - 7015 of 2019
Petitioner :- Rampal
Respondent :- Consolidation Officer Sawayajpur Hardoi & Ors.
Counsel for Petitioner :- Anurag Shukla
Counsel for Respondent :- C.S.C.,Yogendra Nath Yadav
34. Case :- CONSOLIDATION No. - 7016 of 2019
Petitioner :- Avadhesh
Respondent :- Consolidation Officer, Sawayajpur, Distt. Hardoi & Ors.
Counsel for Petitioner :- Anurag Shukla
Counsel for Respondent :- C.S.C.,Yogendra Nath Yadav
35. Case :- CONSOLIDATION No. - 7026 of 2019
Petitioner :- Babu Ram
Respondent :- Consolidation Officer, Sawayajpur, Distt. Hardoi & Ors.
Counsel for Petitioner :- Anurag Shukla
Counsel for Respondent :- C.S.C.,Yogendra Nath Yadav
Hon'ble Devendra Kumar Upadhyaya,J.
Heard learned counsel for the petitioners, Sri Anurag Shukla and learned Standing Counsel representing the State-respondents. Sri Yogendra Nath Yadav has also been heard on behalf of the Land Management Committee concerned.
Since common questions of law and facts are involved in all these writ petitions, with the consent of learned counsel appearing for the parties, the same are being decided by the common judgment and order, which follows:
For the sake of convenience, the facts narrated by the petitioner in Writ Petition No.6946 (Consolidation) of 2019 are being extracted in this judgment and the said writ petition shall be treated to be the leading writ petition.
Under challenge in these writ petitions instituted under Article 226 of the Constitution of India is an order dated 12.02.2019, passed by the Consolidation Officer, Sawayajpur, District Hardoi, whereby land in question in each writ petition has been ordered to be recorded as per the record pertaining to 1379 Fasli in original Khata after expunging the names of the petitioners of all these writ petitions.
Before dealing with the arguments raised by the learned counsel representing the respective parties, certain facts may be noticed. Before 31.10.1992 the entire land which is the subject matter of these writ petitions was recorded in category-6 in terms of the provision contained in Paragraph A-124 of U.P. Land Record Mannual which provides for arrangement of land within each village in the Khatauni. Paragraph A-124 of the U.P. Land Record Mannual provides different categories of lands which are to be arranged in the Khatauni. Paragraph A-124 is found in Chapter A-VIII of the U.P. Land Record Mannual in relation to Khatauni and Errata-list as applicable to the areas to which the U.P. Z.A. & L.R. Act, 1950 applies.
There is no dispute in this case that the area in which the land is situated, the provisions of U.P. Z.A & L.R. Act apply and accordingly, the category of land as mentioned in the Khatauni is as per the provision contained in Paragraph A-124. The category-5 as described in the said Paragraph A-124 of the U.P. Land Record Mannual denotes cultivable land (culturable land or d`f"k ;ksX; Hkwfe) with different sub-categories, such as new fallow (uohu ijrh or ijrh tnhn), old fallow (iqjkuh ijrh or ijrh dnhe), culturable waste (d`f"k ;ksX; catj½ such as the land covered by forests of timber trees, permanent pasture and other grazing grounds, grass and bamboo bushes and other culturable waste. The category-6 relates to barren land i.e. uncultivated land or vd`"kd Hkwfe which is further categorized in various sub-categories such as the land covered with water, sites, roads, railways, buildings and other lands put to non-agricultural uses and the land which is otherwise barren.
It appears that on 05.04.1992, a report was submitted by the Lekhpal stating therein that the land in question is recorded in category-6, however, the Land Management Committee/Gaon Sabha concerned has passed a resolution for changing the category from category-6 to category-5. Various plots which were earlier thus recorded in category-6 as Nala, Pasture land, Khalihan and Devsthan etc. was, thus, proposed to be recorded in category-6 by the Lekhpal, vide his report dated 05.04.1992. The Revenue Inspector also submitted his report to the same effect on 12.04.1992 where after similar report was submitted by the Naib Tehsildar on 16.04.1992.
Considering the said report, it appears that the Tehsildar on 31.10.1992 made a recommendation to the Sub Divisional Officer to change the category of the land in question from category-6 to category-5 as per report submitted by the Lekhpal, Revenue Inspector and Naib Tehsildar. On the said recommendation made by the Tehsildar on 31.10.1992, the Sub Divisional Officer, Bilgram, District Hardoi accorded his approval on the same day i.e. on 31.10.1992. Thus, under the aforesaid approval accorded by the Sub Divisional Officer, Bilgram, District Hardoi, the category of land was changed from category-6 to category-5.
Learned Standing counsel representing the State-respondents has produced the original record relating to grant of Pattas to the petitioners, a perusal of which discloses that on the proposal submitted by the Land Management Committee of the village concerned, the petitioners and certain other individuals were granted Pattas with the approval of the Sub Divisional Officer on 31.10.1992. It appears that on the basis of said Pattas granted to the petitioners, their names were also recorded in the relevant Khatauni.
The village in which the land in question is situated was brought under the Consolidation Operation by issuing Notification under Section 4 of the U.P. Consolidation of Holdings Act issued in the year 2004. It further appears that the land in question which was settled by means of lease dated 31.10.1992 in favour of the petitioners was assigned valuation in terms of the provisions contained in the U.P. Consolidation of Holdings Act during consolidation operation and accordingly, the petitioners were also given their chaks and their chaks were also carved out under Section 20 of the U.P. Consolidation of Holdings Act. It is also not in dispute that in the proceedings under Section 23 of the U.P. Consolidation of Holdings Act as well, the names of the petitioners stood recorded and on carvation of chaks, the petitioners were also delivered possession of their chaks carved during consolidation operation on 01.07.2013. The petitioners are thus said to be in possession over the land in question from the date of execution of leases in their favour i.e. w.e.f. 31.10.1992 and thereafter they are also said to be in possession of their respective chaks allotted to them under Consolidation Operations, Kabja Parivartan whereof was effected on 01.07.2013.
Before recording further facts, there is yet another very relevant aspect of the matter which needs to be noted at this juncture itself. On allotment of Pattas in favour of the petitioers, it appears that certain individuals, namely, Shiv Karan etc. had instituted the proceedings under Section 198(4) of the U.P. Z.A. & L.R. Act before the Collector, Hardoi with the prayer to cancel the pattas executed in favour of 68 persons which included the petitioners as well. The said proceedings under Section 198(4) of the U.P. Z.A. & L.R. Act were rejected by the Additional Collector, Haroid, vide his order dated 19.08.1994. It is also noted that a revision petition was preferred challenging the said order dated 19.08.1994, passed by the Additional Collector, Hardoi before the Additional Commissioner, Lucknow Division, Lucknow, who, too, dismissed the same, vide his order dated 04.08.1999.
It is true that the application moved by Shiv Karan and others seeking a prayer for cancellation of the Pattas executed in favour of the petitioners under Section 198(4) of U.P.Z.A. & L.R. Act was though rejected by the Additional Collector, Hardoi, vide his order dated 19.08.1994, however, the findings recorded therein by the Additional Collector are relevant to be referred to. While dismissing the said application moved under Section 198(4) of the U.P. Z.A. & L.R. Act, the Additional Collector, Hardoi has recorded a categorical finding that from a perusal of the record, it is established that there is no prima-facie evidence which proves the execution of Pattas in respect of the land in question and accordingly the Additional Collector further proceeds to observe that once execution of Pattas itself is not proved and, therefore, there is no justification for considering any prayer for cancellation of such non-existent Pattas. The relevant extract of the said order dated 19.08.1994, passed by the Additional Collector, Hardoi is extracted herein below:
" foi{khx.k ds fo}oku vf/koDrk us eq[; rdZ ;g j[kk fd izkFkhZx.k us izFke n`"V;k ,slk dksbZ lk{; nkf[ky ugh fd;k gS] ftlls iVVs dh iqf"V gks lds A i=koyh ds voyksdu ls ;g rF; fl) gks tkrk gS fd ,slk i=koyh ij izFke n`"V;k lk{; ugh gSa] ftlls fookfnr Hkwfe ds iVVs gksuk fl) gksaA vr% tc rd iVVs gksuk gh fl) ugh gS rks muds fujLrhdj.k ij fopkj djus dk dksbZ vkSfpR; ugh curk gSA izkFkZuk iVVk ealw[kh vkSfpR;ghu gksus ds dkj.k vc eS vkxs dksbZ tkWp djkuk mfpr ugha le>rk gwWaA mijksDr foospuk ds vk/kkj ij izkFkZuk i= iVVk ealw[kh cyghu gS vkSj fujLr gksus ;ksX; gSA"
Proceeding further, it may also be noticed that the Consolidator submitted a report dated 08.02.2016 to the Assistant Consolidation Officer stating therein that the land in question was recorded in 1379 Fasli as public utility land, such as Khalihan and Pasture land etc, which is referable to the land described under Section 132 of the U.P. Z.A. & L.R. Act, however, names of the petitioners have been recorded in the revenue records on the basis of Pattas as Bhumidhar with non-transferable rights and since the land in question is referable to Section 132 of the U.P. Z.A. & L.R. Act and no Patta in respect of such land is permissible to be granted, as such the names of the petitioners have wrongly been recorded which should be expunged.
Learned Assistant Consolidation Officer forwarded the said report of the Consolidator on 08.02.2016 itself to the Consolidation Officer. In the meantime, it appears that an application on behalf of the State and the Land Management Committee was filed under Section 198(4) of the U.P. Z.A. & L.R. Act before the Collector on 30.05.2016, however, instead of acting further on the said application moved under Section 198(4), the District Magistrate/Collector appears to have referred the matter to the consolidation authorities and it is on the basis of the said reference made by the District Magistrate/Collector that the impugned order dated 12.02.2019 has been passed by the Consolidation Officer. A perusal of the said order dated 12.02.2019 reveals that the matter was referred to him under an order passed by the District Collector on 27.10.2017. It is this order dated 12.02.2019, passed by the Consolidation Officer, which has been impeached by these writ petitions.
Learned counsel for the petitioners has vehemently argued that the land in question was recorded in the basic year in the name of the petitioners whereafter during consolidation operations, no objection was filed by the Gaon Sabha or any other individual or authority under Section 9A(2) of the U.P. Consolidation of Holdings Act. Accordingly, the Consolidation Officer could not have proceeded in the matter to pass the order dated 12.02.2019 for the reason that such an action was barred by the provisions contained in Section 11-A of the U.P. Consolidation of Holdings Act. It has further been argued by learned counsel for the petitioners that since valuation of the land in question was also given to the petitioners and further proceedings under Sections 20, 23 and 27 of the U.P. Consolidation of Holdings Act were also drawn in pursuance thereof the petitioners have been allocated their chaks and have been put in possession over their chaks way back on 01.07.2013, as such the Consolidation Officer could not have taken cognizance of the report submitted by the Consolidator or the Consolidation Officer could not have legally proceeded to pass the impugned order on the basis of the order of the Collector/District Magistrate dated 27.10.2017 for the reason that the District Magistrate in the matter does not have any jurisdiction. Sri Shukla has also submitted that it is the well settled principle of law, in view of the Full Bench judgment rendered by this court, reported in AIR 1977 Alld., 360, that the Consolidation Authorities are not vested with any power, authority or jurisdiction to adjudicate upon the validity of the Patta, except in certain exceptional circumstances and, thus, the Consolidation Officer by giving a finding on the validity of the Pattas executed in favour of the petitioners way back on 31.10.1992, has completely erred in law.
Learned counsel for the petitioners has also argued that there is an order passed/approval accorded by the Sub Divisional Officer to change the category of land from category-6 to category-5 for which in terms of the provisions contained in Paragraph Ka-155 Ka of the U.P. Land Record Mannual, the Sub Divisional Officer is the competent authority and hence the order passed/approval accorded for change of category of land was a valid order.
It has also been very forcefully submitted by the learned counsel for the petitioners that once the proceedings under Section 198(4) of the U.P. Z.A. & L.R. Act were instituted by the State and Land Management Committee before the competent court/authority, namely, the Collector, it was not open to the District Magistrate/Collector to have either referred or transferred the matter to the Consolidation Courts or authorities including the Consolidation Officer. He has also drawn attention of the Court to the provision contained in Section 8 of the Evidence Act on the basis of which it has been argued on behalf of the petitioners that the conduct of the State/Land Management Committee in this case is also to be seen, inasmuch as that treating the Pattas executed in favour of the petitioners to be irregular or illegal, once the application under Section 198(4) of the U.P. Z.A. & L.R. Act was moved before the Collector, it was not open for the Collector to have referred the matter to the Consolidation Officer. His submission based on the said conduct of the State/Land Management Committee is that the very institution of the proceedings under Section 198(4) of the U.P. Z.A. & L.R. Act by the State and Land Management Committee itself establishes the fact that the State and Land Management Committee have treated the Pattas to have been executed and only then the application/proceedings were instituted under Section 198(4) of the U.P. Z.A. & L.R. Act. In other words, his submission is that the institution of the proceedings under Section 198(4) by the State/Land Management Committee reveals and establishes clearly that it has never been a case of the Land Management Committee that the Pattas executed on 31.10.1992 in favour of the petitioners were void, otherwise there was no occasion for the State and Land Management Committee to have instituted the proceedings under Section 198(4) of the U.P. Z.A. & L.R. Act.
Learned counsel for the petitioners has lastly argued that the Consolidation Officer while passing the impugned order has taken aid of the provision contained in Section 11-C of the U.P. Consolidation of Holdings Act which in the facts of the instant case will have no application for the reason that for putting the provision under Section 11-C of the U.P. Consolidation of Holdings Act into service, there are certain per-requisites which need to be fulfilled. According to the learned counsel for the petitioners, the first requisite is that Section 11-C of the U.P. Consolidation of Holdings Act can be used only if the land in question is recorded in the basic year Khatauni i.e. the Khatauni prepared immediately before publication of the Notification under Section 4 of the U.P. Consolidation of Holdings Act in the name of Gaon Sabha. He has also stated that it is not the only the requisite for invoking Section 11-C; rather for invoking said provision there has to be a formal declaration of vesting of the land in question in the Gaon Sabha or the State.
On the aforesaid counts, learned counsel for the petitioners has contended that the impugned order is not sustainable and is, thus, liable to be set aside.
Opposing the prayers made in this petition, learned counsel representing the State-authorities, Sri Upendra Singh and the learned counsel representing the Land Management Committee, Sri Yogendra Nath Yadav have submitted in unison that the instant writ petition is based on highly misconceived notions, which is liable to be dismissed. Both the learned counsel representing the State-authorities as well as the Land Management Committee have submitted that in the fact and circumstances of the case, the order passed by the Consolidation Officer is perfectly lawful for the simple reason that before the change of category of land from category-6 to category-5, the land in question was recorded as public utility land as defined under Section 132 of the U.P. Z.A. & L.R. Act, in respect of which no Pattas for agricultural purpose could have been granted by the Land Management Committee and as such the Pattas dated 31.10.1992 on the basis of which the petitioners have laid their claim were void-abinitio and accordingly the Consolidation Officer has rightly passed the orders directing expunction of the names of the petitioners and recording the land in question in terms of the original record pertaining to 1379 Fasli.
I have given my anxious consideration to the competing arguments raised by the learned counsel representing the respective parties and have also perused the record available before me.
The question which will determine the fate of this case is as to whether the Pattas said to have been executed in favour of the petitioners in the year 1992 are void or these Pattas are voidable which required appropriate proceedings to be drawn for their cancellation. Another question which needs determination in this case by the Court and the said question is as to whether the District Collector on receiving the application under Section 198(4) of the U.P. Z.A. & L.R. Act could or could not have referred the matter for appropriate decision to the Consolidation Authorities or should he have decided the application preferred by the State and Land Management Committee under Section 198(4) of the U.P. Z.A. & L.R. Act himself.
There is yet another question which falls for consideration of the Court i.e. as to whether the order passed/approval granted by the Sub Divisional Officer for changing the category of the land in question from category-6 to category-5 can be said to be justified, lawful and within his jurisdiction.
The allotment of land to certain categories of persons mentioned in Section 198 of the U.P. Z.A. & L.R. Act is made under the provision of Section 195 of the said Act which clearly provides that the Land Management Committee with the previous approval of the Sub Divisional Officer may admit any person as Bhumidhar with non-transferable rights to any land other than the land falling in any of the classes mentioned in Section 132 of the Act. Section 195 of the U.P. Z.A. & L.R. Act is quoted herein under:
"195. Admission to land. - The [Land Management Committee] [with the previous approval of the [Assistant Collector-in-charge of the sub-division] shall have the right to admit any person as [bhumidhar with non-transferable rights] to any land (other than land being in any of the classes mentioned in Section 132) where-
(a) the land is vacant land;
(b) the land is vested in the [Gaon Sabha] under Section 117; or
(c) the land has come into the possession of [Land Management Committee] under Section 194 or under any other provisions of this Act".
As per scheme of the U.P. Z.A. & L.R. Act, there are two types of land which are vested in Gaon Sabha. The first type of land which vests in Gaon Sabha is referable to Section 117 of the U.P. Z.A. & L.R. Act and other category of land which vests in Gaon Sabha is referable to Section 132 of the U.P. Z.A.& L.R. Act. The land described in and referable to Section 132 of the U.P. Z.A. & L.R. Act is the land which is public utility land which includes pasture lands and the lands covered by water and used for the purpose of growing singhara or other produce or land in the bed of a river which may be used for casual or occasional cultivation. Section 132 further provides various other kinds of land in respect of which there is a prohibition on conferment of Bhumidhar rights. Section 132 of the U.P. Z.A. & L.R. Act is quoted herein under:
"132. Land in which bhumidhari rights shall not accrue.- Notwithstanding anything contained in Section 131, but without prejudice to the provisions of Section 19, [bhumidhari] rights shall not accrue in-
(a) pasture lands or lands covered by water and used for the purpose of growing singhara or other produce or land in the bed of a river and used for casual or occasional cultivation;
(b) such tracts of shifting or unstable cultivation as the State Government may specify by notification in the Gazette; and
[(c) lands declared by the Slate Government by notification in the Official Gazette, to be intended or set apart for taungya plantation or grove lands of a [Gaon Sabha] or a Local Authority or land acquired or held for a public purpose and in particular and without prejudice to the generality of this clause-
(i) lands set apart for military encamping grounds;
(ii) lands included within railway or canal boundaries;
(iii) lands situate within the limits of any cantonment;
(iv) lands included in sullage farms or trenching grounds belonging as such to a local authority;
(v) lands acquired by a town improvement trust in accordance with a scheme sanctioned under Section 42 of the U.P. Town Improvement Act, 1919 (U.P. Act V11 of 1919) or by a municipality for a purpose mentioned in Clause (a) or Clause (c) of Section 8 of the U.P. Municipalities Act, 1916 (U.P. Act VII of 1916); and
(vi) lands set apart for public purposes under the U.P. Consolidation of Holdings Act, 1953 (U.P. Act V of 1954).]"
Thus, from a bare perusal of Sections 117, 195 and 132 of the U.P. Z.A. & L.R. Act, what emerges is that no Bhumidhari rights accrue in the land referable to Section 132 and further that Bhumidhari Patta for agricultural purposes can be granted by the Land Management Committee with the approval of the Sub Divisional Officer only in respect of the land which is referable to Section 117 of the U.P. Z.A. & L.R. Act.
The only Patta which is permissible to be granted by the Land Management Committee in a land referable to Section 132 is the Asami Patta in terms of the provision contained in Section 133(c). However, such Asami Patta which is permissible to be granted over a land referable to Section 132 cannot be granted in perpetuty; rather term of Asami Patta is restricted to a period of 5 years in terms of the provision contained in Rule 176-A of the U.P. Z.A. & L.R. Rules. Admittedly, the nature of pattas on which the petitioners place reliance in this case are not Asami Patta. Even if, it is presumed that pattas said to have been granted in favour of the petitioners on 31.10.1992 were Asami Pattas, their term itself has come to an end in terms of the provisions contained in Rule 176-A of the U.P. Z.A. & L.R. Rules.
Submission of learned counsel for the petitioners for evading the wrath of Section 132 is that before the pattas were granted to the petitioners on 31.10.1992, the category of land in question was changed from category-6 to category-5, as such after such change in category of land by the approval of the Sub Divisional Officer accorded by him on 31.10.1992, the land in question no more remained referable to Section 132; rather it became the land as defined under Section 117 of the U.P. Z.A. & L.R. Act and, therefore, there is no illegality in the pattas granted to the petitioners on 31.10.1992
At first hand the above said argument made by the learned counsel for the petitioners appears to be attractive, however on deeper probe of the said argument what I find is that the same deserves to be rejected.
The category assigned to a particular kind of land in terms of the provisions contained in Paragraph A-124 of U.P. Land Record Manual, in my considered opinion, is impermissible to be changed. Learned counsel for the petitioners has not been able to show any provision which confers any power or jurisdiction on any authority including the Sub Divisional Officer to change the category of land. In this regard, he has attempted to argue that in terms of the provisions contained in clause 9 of Paragraph Ka-155-Ka of U.P. Land Record manual, the Collector is empowered to change the category of land and the Collector since includes Assistant Collector, First Class, as such the Sub Divisional Officer will also have the authority to change the category of land.
Paragraph Ka-155-Ka was inserted in the Land Record Manual by way of notification of the State Government dated 06.04.1989, which is extracted herein under:
"d&15&d] vkns'k nsus ds fy, l{ke vf/kdkjh ¼1½ [kkrsnkjksa ds vf/kdkjksa ;k LoRoksa dks izHkkfor djus okys ifjorZu ;k O;ogkj lEcU/kh bUnjkt dsoy ,sls vf/kdkjh dh vkKkvksa ds v/khu fd;s tk;saxs ftldk mYys[k fuEufyf[kr izR;sd en ds lkeus fd;k x;k gS&
¼1½ fufoZokn mRrjkf/kdkj lEcU/kh bUnjkt Hkwys[k rglhynkj
fujh{kd ;k
¼2½ Hkwfe izcU/k lfefr;ksa }kjk fu"ikfnr fd;s x;s Hkwys[k fujh{kd
iVVksa ds vk/kkj ij u;s [kkrsnkjksa ds lEcU/k es
bUnjkt
¼3½ladze.kh; vf/kdkj okys Hkwfe/kjh }kjk gLrkUrj.k ds ekeys ds lEcU/k esa bUnjkt
¼4½ izR;iZ.k ds bUnjkt rglhynkj
¼5½ ifjR;kx ds ekeyksa ds lEcU/k esa bUnjkt
¼6½ mRrjkf/kdkj ds fooknxzLr ekeys
¼7½ ekyxqtkjh ;k yxku ds ifjorZu ds lEca/k es
bUnjkt
¼8½ dNkj dh Hkwfe ds lEcU/k esa tks xkWo es lfEefyr izHkkjh ijxuk ds gks x;h gks la[;k;s Mkyuk rFkk mldk fy[kk tkuk vf/kdkjh vflLVssaV vkSj ty Iykou lEcU/kh bUnjktksa dk ifj"dkj
¼9½,d oxZ ds [kkrs dk nwljs oxZ ds [kkrs esa ladzfer gksus dysDVj dk bUnjkt
¼10½ fucfU/kr ¼jftLVhd`r½ iVVksa ds fcuk u;s [kkrsnkjks ds lEcU/k esa bUnjkt
¼11½Hkwfe izca/kd lfefr ds }kjk fu"iknu ds vfrfjDr vU; rglhynkj jftLVMZ iVVksa ds vk/kkj ij u;s [kkrsnkjksa ds bUnjkt
¼12½vf/kdkjksa ;k LoRoksa dks izHkkfor djus okys dksbZ vU; ijxuk ds izHkkjh ifjorZu ;k O;ogkj tks en 1 ls 11 rd vf/[email protected] vflLVssaV
ds varxZr u vkrs gkas dysDVj
¼2½ en la[;k ¼1½ vkSj ¼2½ ds lEcU/k esa vkKkvksa dh lwpuk Hkwys[k fujh{kd ds }kjk ys[kiky dks nh tk;sxh tcfd en la[;k ¼3½ ls ¼12½ rd ds lEcU/k dh lwpuk iath;d Hkwys[k fujh{kdk }kjk nh tk;sxhA"
Clause 9 of the aforesaid paragraph of Land Record Manual speaks about entries in relation to change of one category of khata to another category of khata. Change of category of khata does not, in any manner, would mean, neither can it be construed to mean, alteration or change in category of land. Even otherwise, it is noticeable that in absence of any statutory provision vesting an authority or power or jurisdiction in Collector or Sub Divisional Officer to change the category of land merely because of clause 9 of Paragraph Ka-155-Ka of the Land Record Manual, the Collector/Sub Divisional Officer cannot be said to be vested with any substantive authority or power or jurisdiction to change the category of land. There is no dispute that the U.P. Land Record Manual is a piece of subordinate legislation and unless and until the principal legislation (in this case either U.P. Land Revenue Act or U.P. Z.A. & L.R. Act or U.P. Consolidation of Holdings Act or U.P. Revenue Code, 2006) provides for or vests any authority or power or jurisdiction in an officer or court to do something, nothing is permissible to be done by such an authority on the strength of any provision whatsoever available in a piece of subordinate legislation.
Accordingly in view of the aforesaid discussion, I am not impressed upon the submission made by the learned counsel for the petitioners that the Sub Divisonal Officer has the authority and jurisdiction to change the category of land as provided by clause 9 of Paragraph Ka-155-Ka of U.P. Land Record Manual. Since the order passed/approval accorded for change of category of land on 31.10.1992 by the Sub Divisional Officer is absolutely without jurisdiction, as such on the basis of said approval accorded by the Sub Divisional Officer, any change in the category of land in the khatauni has to be ignored and would be, thus, void ab initio. In this view, submission of learned counsel for the petitioners that after change of category of land from category-6 to category-5, the Land Management Committee was empowered to execute leases of such land in favour of the petitioners on 31.10.1992 is highly misconceived which is hereby rejected.
At the cost of reiteration, I may observe that I have no hesitation to hold that the leases executed on 31.10.1992 in favour of the petitioners were void ab initio for the reason that such leases are clearly prohibited by virtue of Section 132 of U.P .Z.A. & L.R. Act and further that the change in category of land in question from category-6 to category-5 was legally impermissible. Thus, the approval accorded for such change of category of land by the Sub Divisional Officer on 31.10.1992 is void being without jurisdiction. In this view of the matter the pattas executed in favour of the petitioners on 31.10.1992 could not confer any right, whatsoever, upon them and hence any claim based on such pattas is not tenable.
So far as the submissions made by learned counsel for the petitioners that on the basis of pattas executed in their favour, names of the petitioners were recorded in the khatauni which stood recorded in the basic year and that during consolidation operation the valuation of the plots were also assigned and the petitioners have been allotted their chaks as well over which possession has also been delivered, I may only observe that the basis of basic year entry in respect of the land in question in favour of the petitioners was the pattas dated 31.10.1992 which has already been held to be void ab initio above in the preceding paragraphs of this judgment. Accordingly, the petitioners cannot be permitted to take benefit of any mistake committed by the consolidation authorities during the consolidation operations.
As regards the submission made by the learned counsel for the petitioners that consolidation authorities/courts do not have any jurisdiction to adjudicate upon the validity of the pattas, I may only indicate that determination of validity of pattas is one thing and the patta being void ab initio is another thing. There cannot be any dispute to the legal proposition laid down by the Full Bench of this Court reported in AIR (1977)All. 360, however, in case the pattas being relied upon by a party is void ab initio, there is no question of any cancellation thereof and such pattas can be resisted seeking its cancellation. Accordingly, even if the Consolidation Officer while passing the order has no jurisdiction to cancel the pattas, since pattas being relied upon by the petitioners are void ab initio for the reason as aforesaid, the judgment, reported in AIR 1977 Alld. 360 being relied upon by the petitioners does not come to their rescue.
Learned counsel for the petitioners has also raised an issue that once the proceedings by the State/Land Management Committee were instituted under Section 198(4) of the U.P. Z.A. & L.R. Act, it was not open to the Collector to have referred the matter to the Consolidation Officer for the reason that it is the Collector who ought to have decided the issue regarding validity of the Pattas. This submission advanced by the learned counsel for the petitioners is also not tenable for the simple reason that the Collector/District Magistrate is an ex-officio District Deputy Director of Consolidation as well, who is the highest Officer so far as the consolidation matters and the matters relating to maintenance of revenue records in the district are concerned. In his capacity as the District Deputy Director of Consolidation, if any irregularity of such a nature, as is present in the present case, comes to his notice, it is always open to the District Collector in his capacity as District Deputy Director of Consolidation to refer the matter to the appropriate consolidation court/consolidation authority to take corrective measures and action, which may be warranted in given facts and circumstances of a particular case. For this reason, the said submission of learned counsel for the petitioners does not appeal to the Court.
As regards the submission made by learned counsel for the petitioners based on bar of the provision of Section 11-A and the provision contained in Section 11-C of the U.P. Consolidation of Holdings Act, there cannot be any doubt that Section 11-A of U.P. Consolidation of Holdings Act clearly creates a bar on objection in respect of the claim over land, partition on joint holdings, valuation and plots etc. relating to consolidation area, which has not been raised under Section 9 or which might or ought to have been raised under the said Section i.e. under Section 9, but has not been so raised. Language applied in Section 11-A of the U.P. Consolidation of Holdings Act is, thus, very clear which would mean that in case any objection which ought to have been made or could have been made at the stage of Section 9, has not been raised and the proceedings have moved further, no objection would be entertained in view of the bar created under Section 11-A. However, having said as above, this Court cannot lose sight of the specific provision contained in Section 11-C. Section 11-C of the U.P. Consolidation of Holdings Act permits the Consolidation Officer, Settlement Officer of Consolidation and Deputy Director of Consolidation in proceedings under Section 9A(2), 11 and Section 48 of the Act respectively to direct that any land which vests in State or Gaon Sabha may be ordered to be vested as such even though no objection or appeal or revision has been preferred by the State or Gaon Sabha or the local authority concerned.
The Legislature has consciously enacted the provision contained in Section 11 with a purpose and from bare perusal of the said provision, the purpose is very clear. In my opinion, the purpose for which the Section 11-C has been enacted in the Act is that it empowers the consolidation courts, namely, Consolidation Officer, Settlement Officer of Consolidation and Deputy Director of Consolidation to take all possible steps to safeguard the interest of the land belonging to the Gaon Sabha or State. In such a situation, these authorities/courts can act accordingly in absence of any objection or appeal or revision. Thus, in respect of some land belonging to the Gaon Sabha, even if no objection at the stage of Section 9 of the U.P. Consolidation of Holdings Act is filed and even though the proceedings have moved on further under the said Act, it will be always open to the Consolidation Officer or Settlement Officer of Consolidation or Deputy Director of Consolidation to pass appropriate orders in favour of Gaon Sabha/State in exercise of their powers vested in them under Section 9-A, Section 11(2) and Section 48 of the Act.
For the aforesaid reasons, I am not inclined to accept or agree with the submission made by learned counsel appearing for the petitioners based on the bar contemplated in Section 11-A of the U.P. Consolidation of Holdings Act.
Learned counsel for the petitioners has lastly argued that to put into service the provisions of Section 11-C of the U.P. Consolidation of Holdings Act, the land ought to be recorded in the Gaon Sabha in the basic year Khatauni and that there has to be a formal declaration of vesting of land in Gaon Sabha. He has thus argued that Section 11-C can be used by the authority /court concerned only on fulfillment of the above said two preconditions.
I am afraid, I cannot, in any manner, be in agreement with the said submission raised by the learned counsel for the petitioners. If the name of Gaon Sabha over the land in the revenue record is already recorded in the basic year Khatauni, there is no question of passing any order for safe guarding the interest of the Gaon Sabha by the Consolidation Officer or other consolidation courts. In that situation, the Gaon Sabha need not even file objection under Section 9A(2) and hence the said submission is absolutely misdirected and misconceived which merits rejection and is hereby rejected.
In view of the discussions made and reasons given above, all the writ petitions are highly misconceived, which are hereby dismissed.
However, before parting with the case, I find it appropriate to observe that from a perusal of the Patta Allotment File, it appears that all the petitioners belong to the lowest strata of the society and they are either landless labourers or the labourers with very very small holding. The Land Management Committee in its wisdom and with all bonafide had allotted the land to these petitioners for permitting them to cultivate the same to earn their living. Because of the reasons disclosed herein above, the said Pattas could not have been granted and Pattas, in fact, were void ab initio as the same related to the land described in Section 132 of the U.P. Z.A. & L.R. Act. But the fact remains that the petitioners also need to earn their bread and butter and for the said purpose, I hereby direct that in case any other land in the village concerned is available in respect of which valid pattas for agricultural purpose can be granted, the Land Management Committee as also the Sub Divisional Officer concerned shall while granting such pattas give petitioners the first preference.
The aforesaid direction regarding giving preference to the petitioners in allotment of pattas shall be followed by the Land Management Committee and the Sub Divisional Officer concerned whenever any such proposal is mooted herein after.
There will be no order as to costs.
Order Date :- 13.3.2019
Sanjay
