Vishala Devi Uchchttar Madhyamik ... vs State Of U.P. Thru Secy.Deptt.Of ...
2019 Latest Caselaw 410 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 4
 

 
Case :- CONSOLIDATION No. - 637 of 2013
 

 
Petitioner :- Vishala Devi Uchchttar Madhyamik Vidyalaya Thru Adhyakshya
 
Respondent :- State Of U.P. Thru Secy.Deptt.Of Revenue Civil Sectt. & Ors.
 
Counsel for Petitioner :- Ravi Nath Tilhari,Vimal Pandey
 
Counsel for Respondent :- C.S.C.,Yogendra Nath Yadav
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Heard learned counsel for the petitioner, learned Standing Counsel representing the State-authorities and Sri Yogendra Nath Yadav, learned counsel representing the Land Management Committee/Gaon Sabha concerned.

Under challenge in this petition is an order dated 26.04.2013, passed by the Consolidation Officer concerned whereby he has cancelled/set aside his earlier order dated 22.06.1998, which was passed on an application preferred by the petitioner under Rule 109-A of the U.P. Consolidation of Holdings Rules and it was ordered that Parwana Amaldaramad be issued for recording the land in question in the name of the petitioner in revenue records.

Having heard the learned counsel representing the respective parties and perused the records available on this petition, what I find is that this case presents very disturbing facts.

The land in question is huge in area and is comprised in Gata Nos. 455M, area 8 Bighas, 6 Biswas and 0 Biswansi, Gata No. 464, area 8 Bighas, 0 Biswa and 0 Biswansi, Gata No. 463, area 1 Bigha, 11 Biswas and 0 Biswansi and Gata No. 366, area 8 Bighas, 15 Biswas and 10 Biswansis, which, if aggregated, comes out to be 26 Bighas, 12 Biswas and 10 Biswansis. The land in question is situated in Village Itaunja, Pargana Gondwa, Tehsil Sandila, District Hardoi.

Admittedly, the entire land in question was recorded in the name of Gaon Sabha in the basic year Khatauni. It appears that on an objection filed by the petitioner, the Consolidation Officer passed an order on 26.09.1992 under Section 9A(2) of the U.P. Consolidation of Holdings Act (herein after referred to as ''Act'), whereby the name of Gaon Sabha was ordered to be expunged and that of the petitioner was ordered to be recorded. The said order dated 26.09.1992, passed by the Consolidation Officer on the objection preferred by the petitioner under Section 9A(2) of the Act is on record, a perusal of which shows that the very basis of the claim of the petitioner was his alleged possession. The Consolidation Officer has recorded the statement of one Uma Shankar Trivedi, who is the Manager of the petitioner-institution and that of certain members of the then Land Management Committee. Before Consolidation Officer, it appears that no one had put in appearance on behalf of the Land Management Committee. The Consolidation Officer has passed the order dated 26.09.1992 only on the basis of the oral statements made by the witnesses produced by the petitioner, who stated that on the land in question, the petitioner-institution has been in possession for quite long time and that there is some proposal made by the village panchayat for getting the name of the petitioner-institution recorded.

It is well settled principle of law that on the basis of mere possession, that too, against the Gram Sabha land, no one can claim right or tile.

There was no other basis of the claim put-forth by the petitioner before the Consolidation Officer, who appears to have got swayed only on the basis of the statements made by the witnesses. The petitioner has completely failed to adduce any evidence other than the oral evidence of the Manager of the institution and 2-3 members of the Land Management Committee. The Land Management Committee did not contest the matter which appears to be very strange. The area of land in question is more than 26 Bighas which is very valuable. It is equally settled that during consolidation operations, though any gaon sabha land can be earmarked for School which will be a public purpose, however, such earmarking cannot be permissible in favour of any private school or institution. Reliance placed by the Consolidation Officer on the alleged resolution said to have been passed by the Land Management Committee in favour of the petitioner is heavily shrouded with clouds of doubt and is not relevant at all.

It is equally strange to notice that neither the State nor the Land Management Committee challenged the said order dated 26.09.1992 by taking recourse to appropriate remedy which is available under the scheme of U.P. Consolidation of Holdings Act by filing an appeal under Section 11(1) of the Act before Settlement Officer of Consolidation before the year 2013.

It appears that on some complaint, the aforesaid order dated 26.09.1992 came to the notice of learned Deputy Director of Consolidation, however, he instead of considering the validity of the order dated 26.09.1992, passed an order on 08.11.1996 stating therein that on such complaint, which is referable to Section 42-A of the Act, an order passed under Section 9A(2) of the Act cannot be set aside and if the Gram Sabha is aggrieved, it ought to have challenged the said order by filing appeal under Section 11(1) of the Act. He by his order dated 08.11.1996 directed the Settlement Officer of Consolidation to take appropriate action in view of the complaint dated 21.08.1994 after giving appropriate opportunity of hearing to the Village Pradhan as also to the Consolidation Committee. However, the Settlement Officer of Consolidation, as well, did not take into account the irregularities committed by the Consolidation Officer while passing the order dated 26.09.1992 and, thus, passed an order on 27.02.1997 stating therein that on such a reference the order dated 26.09.1992 passed by the Consolidation Officer cannot be set aside.

Before I proceed any further, at this juncture itself I may make a reference to the provisions contained in Section 11-C of the U.P. Consolidation of Holdings Act which is extracted herein below:

11C. In the course of hearing of an objection under Section 9-A or an appeal under Section 11, or in proceedings under Section 48, the Consolidation Officer, the Settlement Officer (Consolidation) or the Director of Consolidation, as the case may be, may direct that any land which vests in the State Government or the Gaon Sabha or any other local body or authority may be recorded in its name, even though no objection, appeal or revision has been filed by such Government, Gaon Sabha, body or authority.

The afore-quoted provision contained in Section 11-C of the Act clearly provides that the Consolidation Officer, the Settlement Officer of Consolidation or the Deputy Director of Consolidation in the course of hearing of a case may direct that any land which vests in the State Government or Gaon Sabha or any other local body or authority may be recorded in the name of Gaon Sabha or the State Government or Local Body or Authority, as the case may be, even though no objection, appeal or revision has been filed by the State Governement or Gaon Sabha or such body or Authority. Section 11-C has been in existence in the statute book right from the year 1974.

The Consolidation Officer in this case has passed the order on 26.09.1992 and thereafter the matter was brought to the notice of Deputy Director of Consolidation as also to the Settlement Officer of Consolidation, who passed the orders on 08.11.1996 and 22.02.1997 respectively. Thus, on the said dates i.e. on 26.09.1992, 08.11.1996 and 27.02.1997 the powers envisaged under section 11-C of the Act were very well available to the Consolidation Officer, Deputy Director of Consolidation as also the Settlement Officer, Consolidation. When the complaint was received, the provision contained in section 11-C, in my considered opinion, ought to have been taken into consideration by the Deputy Director of Consolidation himself, who passed the order on 08.11.1996. On the reference made by the Deputy Director of Consolidation, vide his order dated 08.11.1996 the matter was directed to be considered by the Settlement Officer of Consolidation, who also was vested with adequate and ample powers under section 11-C to look into the validity, legality and propriety of the order dated 26.09.1992. The Deputy Director of Consolidation on receiving the complaint could have even exercised the powers vested in him under Section 48 of the Act, wherein it is not necessary that any revision petition against the order passed by his subordinate can be heard only on some petition preferred by the aggrieved person; rather the Deputy Director of Consolidation is empowered to take suo motu action and proceed accordingly.

Thus, what is apparent in this case is that all the three consolidation courts, namely, court of Consolidation Officer, Settlement Officer of Consolidation and Deputy Director of Consolidation while passing the orders dated 26.09.1992, 27.02.1997 and 08.11.1996 have not been conscious and careful and have completely failed to exercise the jurisdiction and powers vested in them under section 11-C as also under section 48 of the Act.

Section 11-C of the Act was enacted by the legislature with a purpose and the purpose is apparent from a bare perusal of the said provision itself, according to which the consolidation courts/officers have been statutorily empowered to correct any legal error existing in the revenue records to safeguard the interest of the Gaon Sabha or the State or the Local Body or the Authority, may be on the basis of some orders passed by the consolidation courts or authorities without their being any challenge made either by the State Government or by the Gaon sabha or by the Local Body or Authority. The mandate given under section 11-C of the Act to the Consolidation Courts/Authorities is, thus, in all appropriate cases needs to be exercised to protect the interest of Gaon Sabha or the State.

In the instant case, I have no hesitation to observe that all the three consolidation courts, namely, Consolidation Officer, Settlement Officer of Consolidation and Deputy Director of Consolidation have not been conscious of their duties and the jurisdiction, as discussed above.

Coming to the facts of the case further, an application appears to have been made by the petitioner on 26/29.09.1994 under Rule 109-A for incorporation of the order dated 26.09.1992 passed by the Consolidation Officer in the revenue records. The said application was allowed by the Consolidation Officer, vide his order dated 22.06.1998 and accordingly a direction was issued for issuing Parwana Amaldaramad so that necessary incorporation of the order dated 26.09.1992 may be made in the revenue records. However, it appears that even after the order dated 26.09.1992 when the name of the petitioner was not recorded in the relevant revenue records, another application was moved by the petitioner on 24.02.2003 seeking implementation and incorporation of the order dated 26.09.1992 passed by the Consolidation Officer in the light of the direction issued by the Consolidation Officer in his order dated 22.06.1998. The said application appears to have been dismissed in default on 25.06.2004/25.08.2007, as is reflected from page 57 of the writ petition. The petitioner thereafter moved a restoration application along with an application under section 5 of Limitation Act seeking condonation of delay in moving the restoration application. The Consolidation Officer on hearing the said restoration application, vide his order dated 26.04.2013 has not only rejected the restoration application but has also set aside/cancelled the order dated 22.06.1998. It is this order dated 26.04.2013, passed by the consolidation Officer whereby he has set aside the order dated 22.06.1998 against which this petition has been preferred.

For the aforesaid reasons and also for the reason that the appeal against the order dated 26.09.1992 has been preferred by the State/Gaon Sabha before the Settlement Officer, Consolidation in the year 2013 which is still pending and in which an order of stay has been passed on 10.01.2019 by the Settlement Officer, Consolidation, I am not inclined to interfere in this petition.

Before parting with this case, I may record that I will be failing in my duty if the Consolidation Officer, Settlement Officer of Consolidation and Deputy Director of Consolidation, who have passed the orders dated 26.09.1992, 22.02.1997 and 08.11.1996 respectively are not reminded of their statutory duty cast on them under section 11-C of the Act. It is thus upon the officers of the Consolidation department to ponder over such duties cast on them.

The writ petition, for the reasons discussed above, is thus dismissed. Interim order passed earlier, if any, shall stand discharged forthwith.

The Settlement Officer of Consolidation is directed to expedite the proceedings of the appeal said to be pending before him against the order dated 26.09.1992, passed by the Consolidation Officer and conclude the same within a maximum period of three months from today. The Settlement Officer of Consolidation shall provide adequate opportunity of hearing to the parties concerned.

It it further directed that the parties to the proceedings before the Settlement Officer of Consolidation shall not seek any unnecessary adjournments and adjournment, if prayed for, will be permissible to be granted by the Presiding Officer only in exceptional circumstances.

Order Date :- 5.3.2019

Sanjay