Bhaiya Lal And 6 Others vs Deputy Director Of Consolidation ...
2023 Latest Caselaw 10806 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 18
 

 
Case :- WRIT - B No. - 1009 of 2023
 

 
Petitioner :- Bhaiya Lal And 6 Others
 
Respondent :- Deputy Director Of Consolidation And 7 Others
 
Counsel for Petitioner :- Sunil Kumar Yadav,Raj Kamal Srivastava
 
Counsel for Respondent :- C.S.C.,Azad Rai
 

 
Hon'ble Chandra Kumar Rai,J.

Heard Mr. Sunil Kumar Yadav and Mr. Raj Kamal Srivastava, learned counsel for the petitioners, learned Standing Counsel for the State-respondents and Mr. Azad Rai, learned counsel for the respondent- Land Management Committee.

Learned counsel for the petitioners submitted that respondent no.5, 6 & 7 are proforma respondents, as such, notice to respondent nos.5, 6 & 7 is dispensed with.

With the consent of the parties, the writ petition is being heard and disposed of finally without inviting counter affidavit.

Brief facts of the case are that objection under Section 9 A (2) of U.P.C.H. Act was filed by the petitioner in respect to Plot No.502 area 4 bigha, 11 biswa and 6 dhoor situated in Village- Jalalpur Shana, Pargana and Tahsil- Chayal, District- Kaushambi. Basis of the petitioners' objection was the registered sale deed executed in their favour in the year 1970 and continuous possession over the plot in dispute. The Consolidation Officer without framing issue has decided the objection vide order dated 29.8.2011. Against the order of the Consolidation Officer, appeal under Section 11 (1) of U.P.C.H. Act was filed by the petitioners which was dismissed by the Settlement Officer of Consolidation vide order dated 29.6.2022. Against the appellate order, petitioners filed revision under Section 48 of U.P.C.H. Act which has been dismissed vide order dated 29.9.2022, hence this writ petition.

Learned counsel for the petitioners submitted that title objection filed by the petitioners has been dismissed without following the provisions of Rule 26 (2) of U.P.C.H. Rules, which is mandatory He further submitted that the case of the petitioners has not been considered as setup in the title objection, as such, the order passed by the Consolidation Officer was illegal. He next submitted that the appeal and revision has been also dismissed arbitrarily. He placed reliance upon the provisions contained under Rule 26 (2) of U.P.C.H. Rules as well as law laid down by this Court reported in 2015 (127) RD 163, Banshraj and Others Vs. Deputy Director of Consolidation, Basti and Others in order to demonstrate that the provisions of Rule 26 (2) of U.P.C.H. Rules is mandatory in nature.

On the other hand, learned Standing Counsel and counsel for the Gaon Sabha submitted that the objection has been rightly decided by the Consolidation Officer. They further submitted that the order has been rightly maintained in appeal and revision. They next submitted that the petitioners have no case on merit, as such, no interference is required against the impugned judgments.

I have considered the argument advanced by learned counsel for the parties and perused the records.

There is no dispute about the fact that the title objection under Section 9 A (2) of U.P.C.H. Act filed by the petitioners has been dismissed by the Consolidation Officer without framing issue and within giving parties to lead evidence according to the issues framed in the matter. There is also no dispute about the fact that appeal and revision has been also dismissed.

In order to appreciate the controversy, perusal of Rule 26 (2) Of U.P.C.H Rule is relevant, which is as under:

"Rule 26 (2) On the date fixed under sub-rule (2) of Rule 25-A, or on any subsequent date fixed for the purpose, the Consolidation Officer shall hear the parties, frame issues on the points in dispute, take evidence, both oral and documentary, and decide the objections."

Perusal of the order of Consolidation Officer fully reveals that provisions of Rule 26 (2) of U.P.C.H. Rules has not been followed. The order of Consolidation Officer runs as follows:

????????? ??????? ??????? ??????? ???? ????????

??? ?????? 1056+1057+1058 ???? 9?(2) ??? ??? ????

????? ???? ???? ??? ???

??? ???? ?????? 29.8.2011

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29.8.2011- ???????? ??? ???? 9 ? (2) ??? ?? ???? ???? ??? ??? ?? ?????? ?? ?????? ???? ?? ?? ????? ??????? ???? ?? ???? ?????? 502 ????? ?? ????? ?? ???? ?? ???? ????????????? ?????? ????? ??? ??? ???????? ?? ?????? ???? ?? ?????? ???? ?? ????????????? ?? ??? ???? ? ???? ????? ?? ???? ???? ????????????? ?? ???? ??? ?? ???????? ???? ?? ??? ???? ????? ?? ???? ????? ??? ??? ??? ?????? ?? ???? ????? ?? ??? ?? ????? ??? ?????? ???? ???? ?? ???? ????? ??? ???????? ???? ???? ?? ??? ?? ?? ?? ???? ??????????? ?? ?? ??? ?? ??? ?? ?????? ???? ??? ?? ???? ?? ??? ??? ?? ????? ?? ??? ?? ???? ?? ????? ??? ?? ??? ????? ??? ??? ?? ?? ? ??? ?? ????????????? ?? ????? ??????? ?? ??? ?????? ?????? 26.6.1970 ???????? ???? ?? ??? ?? ??? ?? ?? ???? 45 ???????? ???? ????? ??????????? ?? ???? ??? ????? ?? ????????????? ?? ??????? ??? ????? ??? ???? ??? ??????? ???????? ?? ???? ???? ???????? ?? ??????? ???? ????

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??? ???? ???? ???? ?? ?? ?????? ???? ??? ??? ??????? ?? ???? ?? ????? ??????? ???? ?? ???? ?????? 502/1/0.0600 ????? ?? ????? ???? ??? ????? ??? ??? 502/2/0.2600 ????? ?? ?????? ???? ???? ?? ????? ????? ??? ??? 502/3/0.7220 ?? ?????? ???? ????????????? ?? ??? ????? ?? ????? ?????? ???? ???? ?? ????? ??? ?????? 502/3/0.7220 ??? ?????? 1 / 4 ??? ???? 1 / 4 ????? ????? 1 / 4 ??? ??? ???? ??? ?????? 1057+1058 ?? ?? ???? ????? ?? ?? ?? ?? ??????? ?? ?????? ???????? ??? ??? ????? ???? ? ???? ??? ?

This Court in the case of Bansraj (supra) has held that the title objection is to be decided after following the mandatory provisions of Rule 26 (2) of U.P.C.H. Rules. Paragraph Nos.10 & 11 of the judgment is relevant, which are as follows:

"10. There was a separate appeal before Settlement Officer Consolidation from the order of Consolidation Officer dated 29.01.2014 as such he was competent to examine legality and propriety of the order of Consolidation Officer on merit. Settlement Officer Consolidation recorded a finding that Consolidation Officer had not framed issues. Thus proper trial was not conducted and the parties were not given opportunity of evidence. It is well settled that in consolidation objection does not pay any vital role. Consolidation Officer has to observe the procedure as provided under Rule 26 (2), which provides for framing issues after hearing the parties and record evidence both oral and documentary and decide the dispute. Deputy Director of Consolidation did not consider the reasons and findings recorded by Settlement Officer Consolidation and held that the petitioners were given proper opportunity to adduce evidence but they failed to adduce any evidence.

11. Before Consolidation Officer, the objections of the petitioners were in effect a counter objection. In any case, names of respondents-2 and 3 were not recorded in basic consolidation records as such for deciding their objections issues were required to be framed and evidence was required to be recorded. Deputy Director of Consolidation has illegally failed to consider that although 16.10.2004 was the date fixed for evidence of Uma Shankar but his oral evidence has not been recorded nor there was any thing to show that his evidence was closed. The objection of the petitioners as well as the objections of respondents - 2 and 3 were consolidated and evidence has to be recorded of the parties. Admittedly the evidence of the parties has not been recorded. In such circumstances findings recorded by Settlement Officer Consolidation that a proper trial was not conducted by Consolidation Officer, does not suffer from any illegality. Deputy Director of Consolidation has illegally remarked that from 1997 till 2004 the petitioners were given opportunity for evidence. Although by that time issues were not framed. Thus the finding in this respect does not appears to be proper. Deputy Director of Consolidation has illegally interfered with the order of Settlement Officer Consolidation which is liable to be set aside."

Considering the entire facts and circumstances, the impugned order dated 29.8.2011 passed by the Consolidation Officer, order dated 29.6.2022 passed by Settlement Officer of Consolidation and order dated 29.9.2022 passed by Duptey Director of Consolidation are liable to be set aside and the same are hereby set aside.

The writ petition is allowed in part. The matter is remitted back before respondent no.3 i.e. Consolidation Officer, Muratganj, District- Kaushambi to register the objection under Section 9 A (2) of U.P.C.H. Act on its original number and decide the same on merit after framing issue and giving parties to lead evidence in accordance with law expeditiously preferable within period of six months from the date of production of certified copy of this order before him.

Order Date :- 12.4.2023

Rameez