Basdev vs State Of U.P. And 5 Others
2023 Latest Caselaw 23742 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


AFR
 
Neutral Citation No. - 2023:AHC:173700
 
Reserved -: 17/08/2023
 
Delivered -: 29/08/2023
 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD 
 
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Case :- WRIT - B No. - 947 of 2023

Petitioner :- Basdev

Through :- Jitendra Yadav, Advocate

vs.

Respondent :- State Of U.P. And 5 Others

Through :- Sri M.C. Chaturvedi, Additional Advocate General

assisted by Sri Tejaswi Mishra, Brief Holder

Sri Rameshwar Prasad Shukla, Advocate

Case :- WRIT - B No. - 1433 of 2023

Petitioner :- Ramlakhan And Another

Through :- Jitendra Yadav, Advocate

vs.

Respondent :- State Of U.P. And 5 Others

Through :- Sri M.C. Chaturvedi, Additional Advocate General

assisted by Sri Tejaswi Mishra, Brief Holder

Sri Rameshwar Prasad Shukla, Advocate

Case :- WRIT - B No. - 2044 of 2023

Petitioner :- Paramdev And 3 Others

Through :- Rajendra Rai, Advocate

vs.

Respondent :- The State Of U.P. And 5 Others

Through :- Sri M.C. Chaturvedi, Additional Advocate General

assisted by Sri Tejaswi Mishra, Brief Holder

Sri Rameshwar Prasad Shukla, Advocate

Case :- WRIT - B No. - 1992 of 2023

Petitioner :- Radhika Yadav And Another

Through :- Rajendra Rai, Advocate

vs.

Respondent :- State Of U.P. And 5 Others

Through :- Sri M.C. Chaturvedi, Additional Advocate General

assisted by Sri Tejaswi Mishra, Brief Holder

Sri Rameshwar Prasad Shukla, Advocate

Case :- WRIT - B No. - 1999 of 2023

Petitioner :- Shrichand

Through :- Jitendra Yadav, Advocate

vs.

Respondent :- State Of U.P. And 5 Others

Through :- Sri M.C. Chaturvedi, Additional Advocate General

assisted by Sri Tejaswi Mishra, Brief Holder

Sri Rameshwar Prasad Shukla, Advocate

Case :- WRIT - B No. - 2266 of 2023

Petitioner :- Balchandra

Through :- Prahlad Kumar Bhardwaj, Advocate

vs.

Respondent :- State Of U.P. And 5 Others

Through :- Sri M.C. Chaturvedi, Additional Advocate General

assisted by Sri Tejaswi Mishra, Brief Holder

Sri Rameshwar Prasad Shukla, Advocate

Case :- WRIT - B No. - 1995 of 2023

Petitioner :- Ravindra And 5 Others

Through :- Rajendra Rai, Advocate

vs.

Respondent :- State Of U.P. And 5 Others

Through :- Sri M.C. Chaturvedi, Additional Advocate General

assisted by Sri Tejaswi Mishra, Brief Holder

Sri Rameshwar Prasad Shukla, Advocate

Case :- WRIT - B No. - 1538 of 2023

Petitioner :- Ramesh And 8 Others

Through :- R.K. Paramhans Singh and

Awadhesh Kumar Singh, Advocates

vs.

Respondent :- State Of U.P. And 59 Others

Through :- Sri M.C. Chaturvedi, Additional Advocate General

assisted by Sri Tejaswi Mishra, Brief Holder

Sri Rameshwar Prasad Shukla, Advocate

Case :- WRIT - B No. - 1432 of 2023

Petitioner :- Amarjeet

Through :- Jitendra Yadav, Advocate

vs.

Respondent :- State Of U.P. And 5 Others

Through :- Sri M.C. Chaturvedi, Additional Advocate General

assisted by Sri Tejaswi Mishra, Brief Holder

Sri Rameshwar Prasad Shukla, Advocate

Case :- WRIT - B No. - 1427 of 2023

Petitioner :- Jayram And 10 Others

Through :- Jitendra Yadav, Advocate

vs.

Respondent :- State Of U.P. And 5 Others

Through :- Sri M.C. Chaturvedi, Additional Advocate General

assisted by Sri Tejaswi Mishra, Brief Holder

Sri Rameshwar Prasad Shukla, Advocate

Case :- WRIT - B No. - 1447 of 2023

Petitioner :- Kamlesh And 5 Others

Through :- Jitendra Yadav, Advocate

vs.

Respondent :- State Of U.P. And 5 Others

Through :- Sri M.C. Chaturvedi, Additional Advocate General

assisted by Sri Tejaswi Mishra, Brief Holder

Sri Rameshwar Prasad Shukla, Advocate

CORAM : HON'BLE SAURABH SHYAM SHAMSHERY, JUDGE

1. The fact which is not in dispute is that nature of land in dispute, in the present case, was not on record during first consolidation proceedings. However, during second consolidation proceedings, the land in dispute was earmarked for charagah/pasture land (hereinafter referred to as 'pasture land'). The second consolidation proceedings got over and a notification under Section 52(1) of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as "Act, 1953") was issued on 04.12.1993. Later on, land in dispute was valued and allotted to petitioners on valuation and present status of land allotted to petitioners are on record i.e. some parts of land are still vacant and on some parts of land constructions of different nature are raised. Details of allotment of land in dispute to petitioners such as respective allotment orders specifying respective allotted areas, dates of such allotmentare not on record.

2. Further, it is also not disputed that after 24 years of a notification being issued under Section 52 of the Act, 1953, the private contesting respondent (Raj Narayan) has submitted an application dated 17.07.2017, before the District Magistrate, Azamgarh, making a specific allegation that about 4.42 aire of land i.e. land in dispute was recorded under the category of 'pasture land' in revenue records, however, it was allotted illegally to the petitioners and at present only 3.48 aire land is available being 'pasture land' and it was also alleged that petitioners are powerful persons and officials are in hand in glove with them. The allotment was devoid of any due process and thus being illegal are obtained by fraud and, therefore, order be set aside and appropriate action be taken.

3. It appears that the said complaint was referred to Deputy Director of Consolidation, Azamgarh, who sought a report from the Consolidation Officer by order dated 05.09.2017 and it was further directed that all concerned parties shall be put on notice. Later on, on basis of a report received, the Settlement Officer of Consolidation, Azamgarh, by a communication dated 07.01.2023, addressed to District Magistrate, has prepared a chart mentioning all details such as, new Gata numbers and old Gata Numbers and respective area thereof as well as names of tenure holders mentioned in Form 45 and present status of land in dispute with relevant naksha-nazri (spot map). The details thereof have not been seriously disputed by any petitioner. A spot map was also prepared which apparently indicates that all petitioners were allotted abutting land i.e. adjacent to main road, which also indicates that land has potential value.

4. The Deputy Director of Consolidation heard the parties (petitioners in different writ petitions) and passed the impugned order dated 28.02.2023. Issue of compliance of principles of natural justice has not been seriously argued.

5. The District Magistrate/Deputy Director of Consolidation, Azamgarh, has placed reliance on report, revenue records as well as considered arguments of rival parties and held that since the land in dispute was earmarked for 'pasture land' which could not be allotted to petitioners being contrary to provisions of Section 132 of U.P. Zamindari Abolition and Land Reforms Act, 1950 and, therefore, allotments so made were cancelled and it was directed that land in dispute be restored/recorded back as 'pasture land' in revenue record. In the impugned order, Revisional Authority has taken note of procedure, nature of land which could be valued and allotted and that if the allotment was beyond jurisdiction, it would be void and in such case, limitation would be of no consideration. It also referred judgments passed by the Supreme Court. The relevant part of impugned order is mentioned hereinafter -:

"जिला शासकीय अधिवक्ता राजस्व द्वारा लिखित बहस प्रस्तुत कर तर्क प्रस्तुत किया गया कि पत्रावली में संलग्न आख्या व संदर्भ दिनॉक 26.08.2017 व 07.01.2023 से स्पष्ट है कि चारागाह के खाते में अंकित भूमि को दौरान चकबंदी मालियत लगाकर विभिन्न चकों व मदों में प्रस्तावित व आरक्षित किया गया है, जो विधिविरुद्ध व शून्य है, क्योंकि चकबंदी अधिकारियों को केवल कास्तकारों की भूमि का ही मूल्यांकन लगाकर चकों में प्रविष्ट किये जाने व अन्य मद में आरक्षित किये जाने का अधिकार प्राप्त है, गाँवसभा भूमि तथा सार्वजनिक उपयोग में अंकित भूमि का मूल्यांकन लगाकर चकों में प्रस्तावित करने का कोई प्राविधान नही है। यदि ऐसा किया गया हो तो भी ऐसे आदेश को संज्ञान में आने के उपरान्त कभी भी निरस्त किया जा सकता है। इसमें कालबाधिता तथा पोषणीयता का बिन्दु बाधक नही है। मा० सुप्रीम कोर्ट द्वारा जगपाल सिंह व अन्य बनाम पंजाब राज्य व अन्य में दिनाँक 28.01.2011 को आदेश पारित करते हुये तालाब, चारागाह, खलिहान आदि की भूमि को जो 1359 फ0 के अभिलेख में अंकित हैं, को पूर्ववत कायम किये जाने का निर्देश दिया गया है। इस क्रम में आयुक्त एवं सचिव राजस्व परिषद, लखनऊ उ0प्र0 द्वारा दिनॉक 10.07.2020 को समस्त जिलाधिकारी, उ0प्र0 को निर्देश जारी किया गया है। उक्त निर्देश के क्रम में भी पशुचर भूमि को पूर्ववत पशुचर खाते में अंकित किया जाना आवश्यक है।

उपरोक्त विवेचना से स्पष्ट है की जमींदारी विनाश अधिनियम की धारा 132 सार्वजनिक प्रयोग की वादीय भूमि के रकबे में मालियत लगाकर चक निर्माण एवं विभिन्न मदों में आरक्षण की कार्यवाही क्षेत्राधिकार से परे जाकर की गयी है। इस स्थिति में संदर्भ दिनांक 26.08.2017 स्वीकार योग्य है।

आदेश

संदर्भ दिनांक 26.08.2017 स्वीकार किया जाता है। तदनुसार अभिलेखों में संशोधन किया जाय। आदेश की प्रति संदर्भ पत्रावली के साथ उप संचालक चकबन्दी आजमगढ को अनुपालनार्थ प्रेषित की जाय। इस न्यायालय की पत्रावली आवश्यक कार्यवाही के उपरान्त अभिलेखागार में संचित की जाय।"

(Emphasis Supplied)

6. S/Sri Jitendra Yadav, Awadhesh Kumar Singh, Rajendra Rai and Prahlad Kumar Bhardwaj, learned counsel for their respective writ petitioners have argued at length and their arguments in brief are being culled out as follows -:

(a) The entire exercise undertaken by District Magistrate/Deputy Director of Consolidation, Azamgarh on the basis of complaint of private respondent being after the notification issued under Section 52(1) of Act, 1953 was beyond jurisdiction since it was barred by the provisions of said section. For ready reference, Section 52 is as follows -:

"52. Close of consolidation operations. - (1) As soon as may be, after fresh maps and records have been prepared [under sub-section (1) of Section 27], the State Government shall issue a notification in the Official Gazette that the consolidation operations have been closed in the [unit and the village or villages forming a part of the unit] shall then cease to be under consolidation operations :

[Provided that the issue of the notification under this section shall not affect the powers of the State Government to fix, distribute and record the cost of operations under this Act.]

[(1A) The notification issued under sub-section (1) shall be published also in a daily newspaper having circulation in the area and in such other manner as may be considered proper]

[(2) Notwithstanding anything contained in sub-section (1), any order passed by a Court of competent jurisdiction in cases of writs filed under the provisions of the Constitution of India, or in cases of proceedings pending under this Act on the date of issue of the notification under sub-section (1), shall be given effect to by such authorities, as may be prescribed and the consolidation operation shall, for that purpose, be deemed to have not been closed.]

[(3) Where the allotment or lease of any land made before the Consolidation Scheme becomes final under Section 23, is cancelled by an order under sub-section (4) of Section 198 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 and such order becomes final, then notwithstanding anything contained in the provisions of this Act, such order shall be given effect to by such authorities, as may be prescribed, in the following manner, and the consolidation operation shall, for that purpose, be deemed to have not closed, namely -

(a) the value of the land which was the subject-matter of such allotment or lease shall first be ascertained in the manner prescribed;

(b) the value referred to in clause (a) shall be deducted from the total value of land allotted to the tenure-holder concerned during consolidation proceedings;

(c) the tenure-holder shall be entitled, during consolidation proceeding, to land equivalent in valuation to the said land.]"

(b) Section 8-A(2)(c) of the Act, 1953 provides that during consolidation proceedings, details of land to be earmarked for public purpose out of land vested in Gaon Sabha has to be prepared and Section 19-A(2) of the Act, 1953 provides that such lands which are earmarked for public purposes shall only be allotted after the Assistant Consolidation Officer has declared in writing i.e. there is no bar for allotment of a land earmarked in consolidation proceedings for 'public purpose', which would also include 'pasture land'.

(c) No objection was raised at the stage when the land was earmarked as a 'pasture land' or it was allotted in parts to the petitioners of writ petitions many years ago. Even no objections were filed at the stage of Section 9(A)(2) of the Act, 1953, therefore, at belated stage, when much water has flown, since constructions or other activity has already been commenced/completed on land in dispute, therefore, it could not be disturbed by an order passed without jurisdiction. The Gram Sabha being the aggrieved party has not come forward, therefore, complainant has no locus to initiate any proceedings qua to land in dispute. The impugned order being passed without jurisdiction could not be interfered by the Court under writ jurisdiction. Learned counsel also referred Section 11-A of the Act, 1953 and stated that it imposes a bar for raising such dispute which could have been raised at the time of filing of objections under Section 9A(2) of the Act, 1953.

7. Learned counsel for petitioners have placed reliance upon judgments of Supreme Court and this Court passed in the cases of Shri Ram vs. State of U.P. and 4 others, 2018:AHC:148669; Sita Ram vs. Deputy Director of Consolidation and others, 1982 All L.J. 76; Hari Ram vs. D.D.C., Azamgarh, 1989 RD 281; Gafoora vs. Deputy Director of Consolidation, Meerut, (1975) 2 SCC 568. Relevant paragraphs thereof are quoted hereinafter -:

Hari Ram (supra):

".........The position of law is well settled. The Deputy Director of Consolidation has no jurisdiction to exercise power under Section 48(3) of the Act if a de-notification has already taken place under Section 52 of the Act. The Deputy Director of Consolidation, therefore, will first record a finding as to whether a Notification under Section 52 of the Act had, in fact, been issued on February 13, 1982. If he finds that such a notification exists and if he also finds that the land which is the subject matter of dispute is covered by the said Notification, he shall desist from exercising any power under Section 48 (3) of the Act. With this direction the petition is disposed of finally."

Sita Ram (supra):

"18. A person cannot initiate legal proceedings on behalf of or for the benefit of another without any authority from that other. Para 128 of the Gaon Sabha Manual provides the procedure and the manner in which suits or proceedings can be filed and conducted on behalf of the Gaon Sabha and the same has got to be done in that particular manner.

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21. The Gaon Sabha is a body corporate and the Land Management Committee is an executive body of the Gaon Sabha charged with the functions to supervise and protect the property vested in the Gaon Sabha and it has to function in the manner sanctioned under law. The provisions contained in para 128 of the Gaon Sabha Manual and Rule 110A of the U. P. Zamindari Abolition and Land Reforms Rules prescribed the manner in which the litigation is to be conducted by and on behalf of the Gaon Sabha. These provisions, which are mandatory, would govern the litigation to be conducted on behalf of the Gaon Sabha in all proceedings under the provisions of the U. P. Consolidation of Holdings Act.

Gafoora (supra):

"3. The short question that arises for consideration is whether the High Court is correct in not interfering with the order of the Deputy Director (Consolidation) under Article 226 of the Constitution. Jurisdiction under Article 226 is well settled. The High Court will interfere only if some order is passed bv an authority in excess of jurisdiction or there is a manifest error of law, apparent on the face of the records. The principal question that was canvassed before the Deputy Director (Consolidation) was whether failure to prefer objection within the time limit prescribed under Section 9(2) of the Act would en title an aggrieved party to agitate the matter beyond the prescribed period without any explaining the cause of delay in preferring the objection and obtaining a proper order of condonation of delay from the appropriate authority. It is clear from the records that no objection was preferred within the prescribed time. The Deputy Director (Consolidation) refused, if we may say so, rightly to accept that the appellants had earlier lodged any objection on November 21, 1966. The being the position, there was no material whatsoever before the Settlement Officer (Consolidation) for exercising his jurisdiction to condone the delay in lodging objection under Section 9(2) of the Act. Section 11A bars all objections in respect of claim to land, partition of joint holdings and valuation of plots etc. relating to the consolidation area which have been raised under Section 9 or which might or ought to have been raised under that section but have not been so raised. These questions under Section 11A cannot be raised or heard at any subsequent stage of the consolidation proceedings. That being the position there is no error of law in the order of Deputy Director (Consolidation) nor is there any excess of jurisdiction committed by him in disposing of the matter as he did in exercise of his revisional power under Section 48."

(Emphasis Supplied)

8. Learned counsel for petitioners on basis of above referred judgments have submitted that in certain circumstances, the Land Management Committee could grant lease with sirdari rights in respect of land preserved for public purposes including 'pasture land' and that Deputy Director of Consolidation has no jurisdiction to exercise power under Section 48(3) of the Act, 1953, if a de-notification has already taken place under Section 52 of the Act, 1953. Learned counsel prayed that impugned order, being illegal, be set aside.

9. Per contra, Sri M.C. Chaturvedi, Additional Advocate General assisted by Sri Tejaswi Mishra, Brief Holder for the State of U.P., Sri Rameshwar Prasad Shukla, learned counsel for Gaon Sabha, and Sri Om Prakash Pandey, learned counsel for respondent no. 6/complainant (in Writ B No. 947 of 2023) have vehemently urged that procedure undertaken by Revisional Authority was within its jurisdiction and since there is a specific bar under Section 132 of U.P. Zamindari Abolition and Land Reforms Act, 1950 that bhoomidhari right shall not accrue on certain land which includes a 'pasture land' also.

10. Learned A.A.G. for State has also referred scheme of Consolidation as prescribed under Section 3(2)(iii) i.e. for rearrangement for the purpose of consolidation, a holding shall not include land mentioned in Section 132 of U.P.Z.A. and L.R. Act which includes the land reserved for 'pasture land'.

11. Learned A.A.G. for State has further referred Section 8(A)(c) of the Act, 1953 and submitted that when preparation of Statement of Principles is done, details of land to be earmarked for public purposes out of land vested in a Gaon Sabha or a Local Authority under Section 117 or Section 117-A of the U.P.Z.A. and L.R. Act, if any, has to be specifically mentioned therein.

12. Learned A.A.G. for State has further submitted that concerned Authority made allotment from land earmarked for 'pasture land' to private persons, which was nothing but a 'fraud on statute' and on 'statutory obligation'.

13. Learned A.A.G., to buttress his argements, has placed reliance upon judgments of this Court as well as of Supreme Court passed in Ram Bahadur vs. D.D.C. and others, AIR 1973 ALL 414; Iqbal Ahamad and others vs. D.D.C. and others, 2005 (3) AWC 2423 ALL; Palakdhari vs. Gaon Sabha Devara, 2011 (3) ADJ 251; Ram Nihor vs. Additional Commissioner (Admin.) Vindhyanchal Division, 2014:AHC:183012 and relevant paragraphs of above referred judgments are mentioned below -:

Ram Bahadur (supra):

"2. The issuance of the Notification does not, however affect the orders passed by the High Court or the Supreme Court under the provisions of the Constitution of India or in cases or proceedings pending under this Act on the date of issue of notification under sub-section (1) and orders passed will have to be given effect to notwithstanding anything contained in the Notification. In Dilawar Singh's case, 1972 All WR (HC) 557: (AIR 1973 All 411) the Division Bench observed that the term "proceedings" in Section 52 (2) has been used in the comprehensive sense of proceedings commencing from the one which is initiated before the Consolidation Officer and including that taken in the appeal Court. It was held that an appeal does not initiate a fresh proceeding. On the institution of the appeal the proceedings, which had become dormant on the decision of the trial Court revive and remain pending, the only difference being that they are now pending in a different Court, namely, the Court of appeal. It was also held that the notification under Section 52 (1) does not have the effect of destroying vested rights of the litigants. For instance, if a litigant has a right of appeal against a particular order he can exercise it notwithstanding the publication of the notification under Section 52 (1) and the moment an appeal is filed the effect in law is that the original proceedings stand revived.

3. In our opinion the principle laid down in this case is applicable to an application for setting aside an ex parte order. Section 41 of the Consolidation of Holdings Act makes the provisions of Chapters IX and X of the U. P. Land Revenue Act applicable to all proceedings under the Consolidation of Holdings Act. Sections 200 and 201 of the U. P. Land Revenue Act are in Chapter IX. Section 200 provides that whenever any party to such proceeding neglects to attend on the day specified in the summons, or on any day to which the case may have been postponed, the Court may dismiss the case for default or may hear and determine it ex parte. Section 201 says that no appeal shall lie from an order passed under Section 200 ex parte or by default. That section provides for re-hearing on proof of good cause for non-appearance. The petitioner had made an application under this provision for the re-hearing of the case on showing good cause for non-appearance. Actually his case was that he was all along present but he was informed that the case would be heard on some other date. The proceedings are thus for the re-hearing of the matter. The petitioner had a statutory right to make such an application. This right accrued to him on 23-12-1968 the date when the Consolidation Officer disposed of the objection. That right could not be extinguished by the issuance of the notification under Section 52 (1). The effect of the exercise of that right was to invoke the revival of the proceedings before the Consolidation Officer. In our opinion, such proceedings are on the same footing as an appeal because they have the effect of reviving the original proceedings."

Iqbal Ahamad and others (supra):

"5. I duly considered arguments of learned counsel for the petitioners and I am of the view that none of the arguments pressed by the learned counsel for the petitioners could be sustained in law. Under the U.P.C.H. Act 'consolidation' is defined under Section 3 (2). Explanation (iii) of Section 3(2) of the U.P.C.H. Act makes it clear that land mentioned under Section 132 of U.P. Zamindari Abolition & Land Reforms Act (in short hereinafter referred to as the U.P.Z.A. & L.R. Act) shall not be included in consolidation Scheme.

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7. From perusal of the above provisions, it is clear that if any land is mentioned under Section 132 of the U.P.Z.A. & L.R. Act it shall not be included in the consolidation scheme for the purposes of consolidation.

8. Section 132 of the U.P.Z.A. & L.R. Act makes it clear that notwithstanding any thing contained in this Section, but without prejudice to Section 19 of the U.P.Z.A. & L.R. Act, Bhumidhari rights shall not accrue to any land covered by water. As plot in question is Garhi it cannot be part of consolidation scheme for allotment proceeding in the unit and as such it was rightly excluded by the Deputy Director of Consolidation from the consolidation scheme.

9. From the material on record it transpires that the land in dispute was recorded as Gaen Sabha property, as mentioned under Section 132 of the U.P.Z.A. & L.R. Act and as SUC at the time of revision of Field Book, Determination of valuation etc. and preparation of Statement of Principles, as required under Sections-8 and 8-A of the U.P.C.H. Act on the date of publication of the record under Section-9 of the U.P.C.H. Act in the unit, this land was not included in the consolidation scheme, and that is why valuation of this land was not determined with the result the matter relating to valuation of the plot became final under Section-11-A of the U.P.C.H. Act, which runs as follows:-

"11-A. Bar on objection.- No question in respect of-

(i) claims to land,

(ii) partition of joint holdings, and

(iii) valuation of plots, trees, wells and other improvements, where the question is sought to be raised by a tenure-holder of the plot or the owner of the tree, well or other improvements recorded in the annual register under Section 10,

relating to the consolidation area, (which has been raised under Section 9 or which might or ought to have been raised under that section), but has not been so raised, shall be raised or heard at any subsequent stage of the consolidation proceedings."

10. From perusal of record it is also clear that in correction proceeding, the valuation of the plot in dispute was determined and was illegally included in the consolidation Scheme and allotted in the petitioners' Chak. The Deputy Director of Consolidation rightly passed the impugned order in accordance with law. There is no illegality in the order of the Deputy Director of Consolidation and does not call for any interference."

Palakdhari (supra):

"8. The reference to section 117 and 117-A of the U.P. Zamindari Abolition & Land Reforms Act, 1950 has been specifically made in Section 8-A of the U.P. Consolidation of Holdings Act, 1953. Section 117 of the U.P. Zamindari Abolition & Land Reforms Act, 1950clearly provides with respect to vesting of land in the State Government and its subsequent vesting in the Gaon Sabha by a declaration to be made by publication of notification by the State Government. Section 117(6) of the U.P. Zamindari Abolition & Land Reforms Act, 1950 clearly provides that the State Government may, at any time, order for resuming such land vested in Gaon Sabha back to the State Government. The aforesaid provision clearly indicates that when on the date of vesting the land is vested in the State Government and a notification under section117(1) of the U.P. Zamindari Abolition & Land Reforms Act, 1950 has been issued by the State Government, the land would vest in Gaon Sabha. Such vesting of land in Gaon Sabha only provided the power of use of the land by the Gaon Sabha. Land which was vested in the Gaon Sabha by virtue of a notification under section 117(1) was clearly not a complete vesting of right, title and interest. The vesting was for specified purpose as given in Section 117(1) of the U.P. Zamindari Abolition & Land Reforms Act, 1950 particularly when under section 117(6) of the Act the State could resume the land from the Gaon Sabha. Hence it was not a vesting of right, title and interest but the State continues to have power to resume it. Therefore, to state that the land so vested in Gaon Sabha was subject matter of allotment by the Consolidation Officer to a private institution, would be against the very provision of vesting such land in the Gaon Sabha by the State Government. Clearly the consolidation officer could only earmark the land for public purpose, but it could not pass order with respect to specific use of such land. It is only the Gaon Sabha which can allot the land vested in it by the State Government under section 117(1) of the U.P. Zamindari Abolition & Land Reforms Act, 1950. The consolidation authorities can only earmark such land of the Gaon Sabha for public purpose in consolidation proceedings.

9. Therefore, the first appellate court has rightly held that the consolidation officer has acted beyond his jurisdiction in directing entry in the revenue record to be made of a land earmarked for a public purpose in the name of the institution of which the appellant claims to be the manager. Such function of use of public land vested in Gaon Sabha could have been performed only by the Gaon Sabha. There is no error in the view taken by the first appellate court. The suit of the Gaon Sabha has been rightly allowed. The first substantial question of law so argued by learned counsel is decided against the appellant and in favour of the plaintiff-Gaon Sabha.

10. Insofar as submission regarding bar of Section 49 of the U.P. Consolidation of Holdings Act, 1953 is concerned, the submission of learned counsel is that even if the consolidation officer has passed an order which is illegal or beyond jurisdiction, it cannot be interfered with in a civil suit in view of the bar under section 49 of The U.P. Consolidation of Holdings Act, 1953.

11. Such submission of learned counsel for the appellant appears to be quite mis-conceived. Section 49 relates to declaration and adjudication of rights of a tenure holder. Definitely these courts are courts which can adjudicate and declare the rights of tenure holder. Even the appellant who claims to be in possession of the land by order of the consolidation officer is not claiming rights of a tenure holder or bhumidhar of the land in question. He is claiming rights over the land as play ground on the basis of an order of the consolidation officer upon land earmarked as land for public purpose. He does not dispute that the land was earmarked by the consolidation officer for public purpose. When the appellant is not a tenure holder and has no title over the land in question his possession can, at the most, be by virtue of an allotment of public land. Since the order of the Consolidation Officer in allotting public land belonging to and earmarked for the Gaon Sabha was not within his power, clearly the Consolidation Officer had no jurisdiction to allot the land earmarked for public purpose to a private body or person. Consequently the bar under section 49 of the U.P. Consolidation of Holdings Act, 1953 does not apply. The submission is mis-conceived and is accordingly rejected."

Ram Nihor (supra):

"The U.P. Consolidation of Holdings Act, 1953 Provides that when scheme of Consolidation in a village is finalised, land shall be ear-marked for public purpose. Under Section 8-A of the U.P. Consolidation of Holdings Act, statement of principles is required to contain details of the areas ear-marked for extension of abadi site for Harijans and landless persons in the unit, and for such other public purposes as may be prescribed. Under Rule 24-A of the U.P. Consolidation of Holdings Rules, framed under section 54 of the Act, public purposes for which the area should be era-marked are prescribed. According to this rule in addition to the reservation of land for extension of Abadi including the areas for abadi sites for Harijans and landless persons, land may be earmarked according to the local requirements for the public purposes, viz: manure pits, roads, 'pasture land' land, thrashing floor, play grounds, primary and other schools, hospitals, panchayat ghars, cremation and graveyards, water channels etc. Under section 19 of the Act, tenure holders are required to contribute land for their holdings towards the land which is earmarked for a public purpose as required by the Act and the Rules. The land so set out by the consolidation authorities for the public purposes mentioned in the Act and the Rules, vests in the Gaon Sabha under Section 29-C of the Act and such land can not be utilised for any other purpose.

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Thus from a conjoint reading of above mentioned provisions, it is evident that the land so set out for public purpose mentioned in the Consolidation of Holdings Act and the Rules, vests in the Goan Sabha under section 29-C of the Act and such land can be utilised for any other purpose set out in Rule 24-A of the U.P. Consolidation of Holdings Rules.

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In the case in hand, the allotment was not cancelled on the ground that there was any irregularity in procedure. It was found that the land which was allotted to the petitioner was a public utility land, thus allotment was void abnitio. It was a fraudulent exercise by Goan Sabha in passing the resolution proposing the change of purpose for which the land has been earmarked in consolidation. The Goan Sabha had no power to do so."

(Emphasis Supplied)

14. Sri Rameshwar Prasad Shukla, learned counsel for respondent/complainant has adopted the argument of learned A.A.G. and has placed reliance upon Ram Bahadur (supra); Sheo Nand and others vs. D.D.C., Allahabad and others, (2000) 3 SCC 103, and Babu Lal vs. D.D.C., Allahabad and others, 1985 RD 236, relevant paragraphs of above judgments are quoted hereinafter -:

Babu Lal (supra):

".........The statutory provisions of Section 11-C of the Act are reproduced below for the sake of convenience:-

11-C. 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."

In view of the aforesaid section it is that even though in respect of the clear land of the Gaon Sabha no objection. appeal or revision could have been filed the Court can protect the interest of the Gaon Sabha in case it has been found that the land has actually vested in the Gaon Sabha. It is thus abundantly clear that even though no appeal could have been filed on behalf of the Gaon Sabha. nor the revision could have been preferred the interest of the Gaon Sabha could have been protected. In this view of the matter, with profound resnect to the view taken in the case of Sita Ram v. Dy. Dir. of Consolidation (supra) the case is not indistinguishable."

Sheo Nand and others (supra):

"5. The Deputy Director of Consolidation on a consideration of the oral and documentary evidence on record had come to the conclusion that Jethu who was not heard of for more than 7 years and had consequently died a civil death, had not left any heir who could be recorded as tenure-holders of those plots in his place. The property would, therefore, vest in the Gaon Sabha by Escheat. The decision of the Deputy Director was challenged before the High Court and during the pendency of the Writ Petition, the provisions of Section 11-C were introduced in the principal Act. Consequently, it was the duty of the High Court to give effect to those provisions at the time of the final decision of the Writ Petition. As pointed out above, it is the statutory duty of all the authorities functioning under the Act to give effect to the provisions of Section 11-C of the Act and to record the property as having vested in the Gaon Sabha even if no claim was laid by the Gaon Sabha nor was any petition filed by the Gaon Sabha under the Act. Even though the provisions of Section 11-C were not available to the Deputy Director at the time of the decision of the revision filed by the appellants before him, his order that the property should be recorded in the name of the Gaon Sabha could be sustained on the basis of the provisions of Section 11-C at the time of hearing of the writ petition and the High Court was, therefore, justified in upholding his order. There is, thus, no error in the judgment of the High Court.

20. The Section gives very wide powers to the Deputy Director. It enables him either suo motu on his own motion or on the application of any person to consider the propriety, legality, regularity and correctness of all the proceedings held under the Act and to pass appropriate orders. These powers have been conferred on the Deputy Director in the widest terms so that the claims of the parties under the Act may be effectively adjudicated upon and determined so as to confer finality to the rights of the parties and the Revenue Records may be prepared accordingly.

21. Normally, the Deputy Director, in exercise of his powers, is not expected to disturb the findings of fact recorded concurrently by the Consolidation Officer and the Settlement Officer (Consolidation), but where the findings are perverse, in the sense that they are not supported by the evidence brought on record by the parties or that they are against the weight of evidence, it would be the duty of the Deputy Director to scrutinise the whole case again so as to determine the correctness, legality or propriety of the orders passed by the authorities subordinate to him. In a case, like the present, where the entries in the Revenue record are fictitious or forged or they were recorded in contravention of the statutory provisions contained in the U.P. Land Records Manual or other allied statutory provisions, the Deputy Director would have full power under Section 48 to re-appraise or re-evaluate the evidence on record so as to finally determine the rights of the parties by excluding forged and fictitious revenue entries or entries not made in accordance with law."

(Emphasis Supplied)

15. In the background of above referred factual and legal aspects and rival submissions, the issue before this Court which requires consideration is, Whether the land which is either referred as a 'pasture land' in revenue record or earmarked during consolidation proceedings as 'pasture land' i.e. for a public purpose, could be allotted to petitioners on valuation, and if the answer is in affirmative, then whether in the facts and circumstances of present case, the land was allotted after due process or not?, and whether such allotment could be scrutinized after 24 years of publication of notification issued under Section 52 of the Act, 1953?

16. It is a case of petitioners that nature of land was not specified during first consolidation proceedings, however, admittedly during second consolidation proceedings, entire land in dispute was earmarked as ''pasture land'' and it is also not in dispute that it was allotted in parts to the petitioners on valuation and on some part of land certain constructions have been erected, whereas, some parts of land are still vacant and there is no dispute in regard to present status of land as provided in the Inspection Report dated 07.01.2023.

17. Further, in order to consider the rival submissions, relevant provisions of U.P. Consolidation of Holdings Act, 1953 and U.P. Zamindari Abolition and Land Reforms Act, 1950 which have been referred by learned counsel for parties are mentioned hereinafter -:

"U.P. CONSOLIDATION OF HOLDINGS ACT, 1953

Section 3(2) "Consolidation'' means re-arrangement of holdings in a unit amongst several tenure-holders in such a way as to make their respective holdings more compact;

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(iii) land mentioned in Section 132 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P Act no. 1 of 1951);

8-A. Preparation of Statement of Principles. - (1) The Assistant Consolidation Officer shall, in consultation with the Consolidation Committee, prepare, in respect of each unit under consolidation operations, a statement in the prescribed form (hereinafter called the Statement of Principles) setting forth the principles to be followed in carrying out the consolidation operations in the unit.

(2) The Statement of Principles shall also contain -

(a) details of areas, as far as they can be determined at this stage, to be earmarked for extension of abadi including area for abadi site for Harijans and landless persons in the unit, and for such other public purposes as may be prescribed;

(b) the basis on which the tenure-holders will contribute land for extension of abadi and for other public purposes; and

(c) details of land to be earmarked for public purposes out of land vested in a Gaon Sabha or a Local Authority under Section 117 or Section 117-A of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950( U.P. Act No. 1 of 1951).

(d) the standard plots for each unit.

(3) The standard plots referred to in clause (d) of sub-section (2) shall be determined by the Assistant Consolidation Officer after ascertaining from the members of the Consolidation Committee and the tenure-holders of the units, the best plot or plots of the unit, regard being had to productivity, location and the existing soil class of the plot or plots.

19. Conditions to be fulfilled by a Consolidation Scheme. - (1) A Consolidation Scheme shall fulfil the following conditions, namely, -

(a) the rights and liabilities of a tenure-holders, as recorded in the annual register prepared under Section 10 are, subject to the deductions, if any, made on account of contributions to public purposes under this Act, secured in the lands allotted to him;

(b) the valuation of plots allotted to a tenure-holder, subject to deductions, if any, made on account of contributions to public purposes under this Act, is equal to the valuation of plots originally held by him:

Provided that, except with the permission of the Director of Consolidation, the area of the holding or holdings allotted to a tenure-holder shall not differ from the area of his original holding or holdings by more than twenty- five per cent of the later;

(c) the compensation determined under the provisions of this Act, or the rules framed thereunder, is awarded -

(1) to the tenure-holder -

(i) for trees, wells and other improvements, originally held by him and allotted to another tenure-holder; and (ii) for land contributed by him for public purposes;

(2) to the Gram Sabha, or any other local authority, as the case may be, for development, if any, effected by it in or over land belonging to it and allotted to a tenure-holder;

(d) the principles laid down in the Statement of Principles are followed;

(e) every tenure-holder is, as far as possible, allotted a compact area at the place where he holds the largest part of his holding :

Provided that no tenure-holder may be allotted more chaks than three, except with the approval in writing of the Deputy Director of Consolidation : Provided further that no consolidation made shall be invalid for the reason merely that the number of chaks allotted to a tenure-holder exceeds three;

(f) every tenure-holder is, as far as possible, allotted the plot on which exists his private source of irrigation or any other improvement, together with an area in the vicinity equal to the valuation of the plots, originally held by him there; and

(g) every tenure-holder is, as far as possible, allotted chaks in conformity with the process of rectangulation in rectangulation units.

(2) A Consolidation Scheme before it is made final under Section 23, shall be provisionally drawn up in accordance with the provisions of Section 19-A.

19-A. Preparation of provisional Consolidation Scheme by the Assistant Consolidation Officer. - (1) The Assistant Consolidation Office shall in consultation with the Consolidation Committee, prepare in the form prescribed a provisional Consolidation Scheme for the unit.

(2) Notwithstanding anything contained in this Act, the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950(U.P. Act No. 1 of 1951), or any other law for the time being in force, it shall be lawful for the Assistant Consolidation Officer where in his opinion it is necessary or expedient so to do, to allot a tenure-holder, after determining its valuation, 70any land belonging to the State Government, or any land vested in the Gaon Sabha, or any other local authority, as a result of notification issued under Section 117 or 117-A of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950(U.P. Act No. 1 of 1951):

Provided that where any such land is used for a public purpose, it shall be allotted only after the Assistant Consolidation Officer has declared in writing that it is proposed to transfer the rights of the public as well as of all individuals in or over that land to any other land specified in the declaration and earmarked for that purpose in the provisional Consolidation Scheme.

29-C. Vesting of land contributed for public purpose -: (1) The land contributed for public purposes under this Act shall, with effect from the date on which the tenure holders became entitled to enter into possession of the chaks allotted to them under the provisions of this Act as amended from time to time, vest and be always deemed to have vested in the Gaon Sabha [in an area in which Section 117 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 applies and in the State Government in any other area, and shall be utilised for the purpose for which it was earmarked in the final Consolidation Scheme, or in case of failure of that purpose, for each other purpose as may be prescribed.]

(2) The provisions of Section 117 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act No. 1 of 1951) shall mutatis mutandis apply to such land [vested in the Gaon Sabha] as if the land had vested in the Gaon Sabha by virtue of a declaration made by the State Government under sub-section (1) of that Section and as if the declarations were made subject to the conditions respecting utilisation specified in sub-section (1) of this Section.

52. Close of consolidation operations. - (1) As soon as may be, after fresh maps and records have been prepared under sub-section (1) of Section 27, the State Government shall issue a notification in the Official Gazette that the consolidation operations have been closed in the unit and the village or villages forming a part of the unit shall then cease to be under consolidation operations :

Provided that the issue of the notification under this section shall not affect the powers of the State Government to fix, distribute and record the cost of operations under this Act.

(1-A) The notification issued under sub-section (1) shall be published also in a daily newspaper having circulation in the area and in such other manner as may be considered proper.

(2) Notwithstanding anything contained in sub-section (1), any order passed by a Court of competent jurisdiction in cases of writs filed under the provisions of the Constitution of India, or in cases of proceedings pending under this Act on the date of issue of the notification under sub-section (1), shall be given effect to by such authorities, as may be prescribed and the consolidation operation shall, for that purpose, be deemed to have not been closed.

(3) Where the allotment or lease of any land made before the Consolidation Scheme becomes final under Section 23, is cancelled by an order under sub-section (4) of Section 198 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act No. 1 of 1951) and such order becomes final, then notwithstanding anything contained in the provisions of this Act, such order shall be given effect to by such authorities, as may be prescribed, in the following manner, and the consolidation operation shall, for that purpose, be deemed to have not closed, namely-

(a) the value of the land which was the subject-matter of such allotment or lease shall first be ascertained in the manner prescribed;

(b) the value referred to in clause (a) shall be deducted from the total value of land allotted to the tenure-holder concerned during consolidation proceedings;

(c) the tenure-holder shall be entitled, during consolidation proceeding, to land equivalent in valuation to the said land."

U.P. CONSOLIDATION OF HOLDINGS RULES, 1954

"Rule 24-A. Section 8-A AND 54 - (1) The "Statement of Principles" shall be prepared in his own hand in C.H. Form 21 by the Assistant Consolidation Officer in consultation with the Consolidation Committee and after making enquiries from as many tenure-holders of the unit as he may be able to collect. The statement shall contain reasons for the principles incorporated therein and shall be accompanied by a copy of the map of the unit, which shall show :

(i) "Standard Plots" of the unit as determined under Rule 20-A;

(ii) the existing permanent features, such as Abadi sites, canals their distributaries along with field channels (gools) roads, groves, wells, nalas, rivers, graveyards, cremation grounds and other areas, used for public purposes;

(iii) the additions and alterations proposed in the site, alignment or dimensions of any of the items mentioned in clause (ii); and

(iv) areas to be earmarked for any other public purposes.

(2) Besides reservation of lands for extension of Abadi, including areas for Abadi sites for Harijans and landless persons in the unit for present and future needs land may also be reserved according to the needs of each unit for the following public purposes :

(i) Manure pits;

(ii) Roads, village and inter-village rastas;

(iii) Pasture lands;

(iv) Threshing-floor;

(v) Playground;

(vi) Primary and other schools;

(vii) Hospitals;

(viii) Panchayat ghars;

(ix) Plantation of trees;

(x) Cremation grounds and graveyards;

[(xi) Water channels (gools or nalis) and canals for irrigation purposes];

(xii) Flaying sites; and

(xiii) any other objects of similar nature for which reservation of land may be considered necessary in the interest of the tenure-holders of the unit.

Note. - Reservation for ail the purposes specified above, including those for Abadi sites shall be made separately for present needs and for future needs.

(3) During the course of the preparation of the Statement of Principles every specific problem of the unit having a bearing on equitable allotment of Chaks shall receive the attention of the Assistant Consolidation Officer and the Consolidation Committee. The principles on which such problems are proposed to be resolved should be in consonance with the provisions of the Act and these Rules, and must be incorporated in the statement. The statement shall also show the details of the "Standard Plots" determined under Rule 20-A.

(4) If there is a difference of opinion between the Assistant Consolidation Officer and the Consolidation Committee on any of the terms of the Statement of Principles, the Assistant Consolidation Officer shall prepare a note covering the points of differences and forward it to the Consolidation Officer.

(5) If the Consolidation Officer is unable to resolve the difference between the Assistant Consolidation Officer and the Consolidation Committee, he shall forward the record to the Settlement Officer, Consolidation, together with his opinion on each point of difference.

(6) The Settlement Officer, Consolidation, shall after hearing the Consolidation Committee, give his decision on the points referred to him under sub-rule (5)."

"U.P. ZAMINDARI ABOLITION AND LAND REFORMS ACT, 1950

117. Vesting of certain lands, etc. in Gaon Sabhas and other Local Authorities.] - (1) At any time after the publication of the notification referred to in Section 4. the State Government may [by general or special order to be published in the manner prescribed], declare that as from a date to be specified in this behalf, all or any of the following things, namely-

(i) lands, whether cultivable or otherwise, except lands for the time being comprised in any holding or grove;

(ii) forests;

(iii) trees, other than trees in a holding or on the boundary of a holding or in a grove or abadi',

(iv) fisheries;

(v) hats, bazars and melas, except hats, bazars and melas held on lands to which the provisions of Clauses (a) to (c) of sub-section (1) of Section 18 apply or on sites and areas referred to in Section 9; and

(vi) tanks, ponds, private ferries, water channels, pathways and abadi site,-

which had vested in the State under this Act, shall vest in a Gaon Sabha or any other local authority established for the whole or part of the village in which the said things are situate or partly in one such local authority (including a Gaon Sabha) and partly in another :

Provided that it shall be lawful for the State Government to make the declaration aforesaid subject to such exceptions and conditions as may be [specified in such order].

(2) Notwithstanding anything contained in this Act or in any other law for the time being in force, the State Government may, [by general or special order to be published in the manner prescribed], declare that as from a date to be specified in this behalf, all or any of the things specified in Clauses (i) to (vi) of sub-section (1) which after their vesting in the State under this Act, had been vested in a Gaon Sabha or any other local authority, either under this Act or under Section 126 of the Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959, shall vest in any other local authority (including a Gaon Sabha) established for the whole or part of the village in which the said things are situate.

(3) Where any declaration has been made under sub-section (1) or subsection (2) vesting any of the things specified in Clauses (i) to (vi) of sub-section (1) in any Gaon Sabha and the village or the part of the village in which that thing is situate lies outside the circle of the Gaon Sabha, such Gaon Sabha or its Land Management Committee shall in respect of that thing perform, discharge and exercise the functions, duties and powers assigned, imposed or conferred by or under this Act or the U.P. Panchayat Raj Act, 1947, on a Gaon Sabha or a Land Management Committee, as the case may be, as if that village or part of village also lay within that circle.

(4) Where a declaration has been made under sub-section (1) or sub-section) vesting any of the things specified in Clauses (i) to (vi) of sub-section (1) in a local authority other than a Gaon Sabha and the village or the part of village in which the thing is situate is outside the limits of such local authority or where after any declaration is made under sub-section (1) or sub-section (2), the thing vests or as the case may be, had vested in a Nagar Mahapalika under Section 126 of the Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959, such local authority shall in respect of that thing perform, discharge and exercise the functions, duties and powers assigned, imposed or conferred by or under this Act or the U.P. Panchayat Raj Act, 1947, on a Gaon Sabha or Land Management Committee :

Provided that the local authority shall in the performance, discharge and exercise of its functions, duties and powers under this sub-section follow such procedure as may be prescribed.

(5) Where any of the things specified in Clauses (i) to (vi) of sub-section (1) is vested in a local authority other than a Gaon Sabha the provisions of Sections 126 and 127 shall, subject to such exceptions and modifications, if any, as the State Government may specify in this behalf [by general or special order to be published in the manner prescribed] apply, mutatis mutandis, to such local authority.

(6) The State Government may at any time, [by general or special order to be published in the manner prescribed], amend or cancel any [declaration, notification or order] made in respect of any of the things aforesaid, whether generally or in the case of any Gaon Sabha or other local authority and resume such thing and whenever the State Government so resumes any such things, the Gaon Sabha or other local authority, as the case may be, shall be entitled to receive and be paid compensation on account only of the development, if any, effected by it in or over that things :

Provided that the State Government may after such resumption make a fresh declaration under sub-section (1) or sub-section (2) vesting the thing resumed in the same or any other local authority (including a Gaon Sabha), and the provisions of sub-sections (3), (4) and (5), as the case may be, shall mutatis mutandis, apply to such declaration.

117A. Further provision for exercise of further extra territorial jurisdiction by Gaon Sabha or other local authority. - (1) Where-

(a) any village or part of a village situated within the circle of a Gaon Sabha is included alter the 7th day of July, 1949, within the limits of any other local authority (not being a Gaon Sabha); or

(b) any village or part of a village situated within the limits of any other local authority (not being a Gaon Sabha) is, after the 7th day of July, 1949, included within the circle of a Gaon Sabha; or

(c) any of the things specified in Clauses (i) to (vi) of sub-section (1) of Section 117 is vested under that section in any Gaon Sabha or other local authority within whose local limits it does not lie,-

then the State Government, may by general or special order to be published in the manner prescribed direct that in relation to the holding area within any such village or part thereof or in the case of a Clause (c) within the remainder of the village or part thereof to which the thing referred to in that clause appertains, such Gaon Sabha or its Land Management Committee or other local authority as may be specified in such order shall perform, discharge and exercise, subject to such exceptions, conditions and modifications if any, as may be specified in this behalf, the functions, duties and powers assigned, imposed or conferred by or under this Act or the U.P. Panchayat Raj Act, 1947 on a Gaon Sabha or Land Management Committee.

(2) Any Gaon Sabha or other local authority performing, discharging or exercising any of the functions, duties or powers of the nature referred to in subsection (1) in relation to any area or thing referred to therein on the day immediately before the commencement of the Uttar Pradesh Land Laws Amendment Act, 1965, shall continue to perform, discharge or exercise such functions, duties or powers until any modification or annulment is made in respect thereof by notification or order under the said sub-section.

(3) The provisions of this section shall be in addition to and not in derogation of anything contained in sub-sections (3) to (6) of Section 117.

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 VII 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).]"

18. From above referred provisions, it could conclusively be held that according to Section 132 of U.P.Z.A. and L.R. Act, no bhoomidhari right shall accrue on 'pasture land', a land for public utility and purpose and during consolidation proceedings, such lands shall not be included in scheme of consolidation. Section 29-C of Act of 1953 provides land contributed for public purposes shall be utilized for the said purpose as earmarked in the fixed consolidation scheme and further that Section 19-A of Act of 1953 which is an enabling Section, enables the Assistant Consolidation Officer while preparing the provisional consolidation scheme to make allotment of Gaon Sabha land after determination of its valuation but only in compliance of due process and after due consideration of factors enumerated therein, in exceptional circumstances and not in a routine manner.

19. In a case where a land, if recorded in revenue records as a 'pasture land' i.e. a land defined in Section 132 of U.P.Z.A. and L.R. Act, that land shall not be included under the consolidation proceedings as specifically excluded by the provisions of Section 3(2) of Act of 1953, however, since in the present case, either of rival parties have not placed any document on record that land in dispute was initially recorded as 'pasture land', therefore, there was no illegality or irregularity when land in dispute was included in consolidation proceedings.

20. It has also not been seriously disputed that during first consolidation proceedings, the land in dispute was not either earmarked or entered into revenue records as 'pasture land' i.e. for public purpose. As curled out from the facts of present case, during second consolidation proceedings, the land in dispute was earmarked for a public purpose of 'pasture land' while preparation of the consolidation scheme by Assistant Consolidation Officer.

21. In Ram Nihor (supra), a coordinate Bench has rightly held that land, if earmarked for public purpose during finalizing of consolidation scheme, the Gram Sabha is not empowered to allot the same for any other purpose, however, consideration of Section 19-A of Act, 1953 had skipped or probably, it was not the case before coordinate Bench, which provides that where in opinion of Assistant Consolidation Officer, it is 'necessary' or 'expedient' to allot, a tenure holder, after determining its valuation, any land vested in Gram Sabha, as a result of a notification issued under Section 117-A of U.P.Z.A. and L.R. Act, it can be allotted and it further provides that where such land is used for a public purpose, it shall be allotted only after Assistant Consolidation Officer has declared in writing that it is proposed to transfer rights of the public as well as of all individuals in or over the land to any other land specified in the declaration and earmarked for that purpose in the provisional consolidation scheme.

22. Now the question is whether such land i.e. a land earmarked for public purpose as a 'pasture land' in present case, could be allotted on valuation under Section 19-A of the Act, 1953 and in this regard, judgments of Supreme Court in Hinchlal Tiwari vs. Kamala Devi and others, (2001) 6 SCC 496 and Jagpal Singh and others vs. State of Punjab and others, (2011) 11 SCC 396, would be relevant by which a general mandamus was issued to evict unauthorized and illegal occupants on land of Gaon Sabha. It was also specifically noted in Jagpal (supra) that the Act of 1953 was widely misused to usurp the Gram Sabha lands either with connivance of the Consolidation Authorities, or by forging orders purported to have been passed by Consolidation Officers in the long past so that they may not be compared with original revenue record showing the land as Gaon Sabha land, as these land records have been weeded out.

23. In the present case, petitioners have not brought on record copy of orders, whereby land earmarked for public purpose ('pasture land') was allotted to them, in order to scrutinize whether the Assistant Consolidation Officer was satisfied that the allotment of such land was 'necessary' or 'expedient' as well as it would not be against the public purpose and after allotment, how much area of land was likely to be left with Gaon Sabha for the purpose of 'pasture land'. There is nothing on record that in lieu of the land in dispute, some other equal area (in terms of valuation or otherwise) was earmarked as 'pasture land' and it becomes more relevant since it has been pointed out by learned counsel for respondent/complainant that the land in dispute is abutting to main road, thereby is having a potential value.

24. The procedure and satisfaction of being 'necessary' or 'expedient' are not empty formality but has great relevancy since the Authority is going to allot a land earmarked for public purpose, which, he could not do in normal circumstances, and in view of object of provisions of U.P.Z.A. and L.R. Act as well as provisions of Act, 1953 and Rules of 1954, the order of allotment shall necessary include 'necessity and expediency' in specific and considered manner and there shall be some alternative land which could be earmarked for said public purpose.

25. I have carefully perused the report of Settlement Officer of Consolidation dated 07.01.2023 addressed to District Collector, Azamgarh wherein it has been mentioned that Gata Nos. 240, 299, 301 which are not in dispute were recorded as a 'pasture land' in the revenue records of 1369 F and after it is now being recorded for agriculture and for other purposes and since allotment was beyond jurisdiction, therefore, entries made in revenue records were deleted and land in dispute was restored as 'pasture land' in revenue records.

26. I have also carefully perused the impugned order 28.02.2023 wherein on basis of an application of respondent/complainant dated 17.07.2017, an inquiry was conducted and it was found that land earmarked for 'pasture land' in consolidation proceedings was allotted to the petitioners and after taking note of judgment passed by this Court in Second Appeal No. 81 of 2011 and in Public Interest Litigation No. 1474 of 2019, reported in 2011 (12) RD 595 and 1997 (58) RD 52 respectively as well as considering that in matter of public interest, the competent Authority is empowered to act suo moto in accordance with law. The Authority has also taken note of legal principles that fraud, if committed, vitiates all solemn proceedings. The Authority has also taken note of circulars issued by Government of U.P. and judgment passed by Supreme Court in the cases of Hinchlal Tiwari (supra) and Jagpal Singh (supra) and held that allotment of a 'pasture land' on valuation was a result of fraud and had set aside the allotment orders and restored the revenue entry of land in dispute as 'pasture land'.

28. As referred above, the land in dispute was earmarked as 'pasture land' during second consolidation and in order to allot the same, on valuation, the procedure required to be adopted is provided under Section 19-A of the Act, 1953, and specifically in proviso to its sub-section (2) and as referred above, since no document of allotment is placed on record as well as any document or order indicating satisfaction of Assistant Consolidation Officer 'necessity and expediency' to allot a land earmarked for public purpose, as per the mandate of section 19-A of Act, 1953, while making allotment of land to the petitioners, is also not on record. Process of allotment cannot be an empty formality since a large chunk of land which is admittedly earmarked for public purpose was allotted to petitioners who are in large numbers and as allotments being made in devoid of observance of due process, without noting in writing the satisfaction of its being 'necessary' or 'expedient', are irregular and illegal, therefore, allotment orders cannot be sustained.

29. The argument that Deputy Director of Consolidation has taken cognizance of application at very belated stage i.e. after more than 2 decades, may be relevant but since there is per se presence of element of 'fraud on statute' and that Assistant Consolidation Officer has allotted a public land to petitioners without any 'necessity' or 'expediency' and without any alternative land being earmarked for said public purpose ('pasture land'), therefore, as it is well settled that a 'fraud' which also includes a 'fraud on statute', if detected, can be considered even at any later stage. Legal principle that 'fraud vitiates every solemn act' which also amounts to an abuse of the process, and the court or concerned Authority has inherent power to set aside, an order obtained by fraud practised upon it or a statute also and for that few paragraphs of a judgment passed by Supreme Court in Smriti Madan Kansagra vs. Perry Kansagra, 2021 SCC Online SC 909, would be relevant and being quoted below -:

"49. xxxx

23. Since fraud affects the solemnity, regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of court, the courts have been held to have inherent power to set aside an order obtained by fraud practised upon that court. Similarly, where the court is misled by a party or the court itself commits a mistake which prejudices a party, the court has the inherent power to recall its order.

xxxx

50. In United India Insurance Co. Ltd. v. Rajendra Singh, (2000) 3 SCC 581, this Court observed:-

"16. Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly-discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim."

(emphasis supplied)

30. In view of above discussion, I do not find any merit in arguments of learned counsel for petitioners and there is no illegality in the impugned order, therefore, prayers made in all writ petitions are rejected.

31. However, it is clarified that since the Court is of the opinion that even in case a land earmarked for public purpose it could be allotted, however, such allotment has to be carried out in accordance with due process prescribed under Section 19-A of the Act, 1953 with specific reasoning, i.e. necessity and expediency for allotment, and it is up to the appropriate Authority to exercise such procedure afresh, if situation so warrants and for that a status-quo is directed to be maintained on the land in dispute only for a period of three months from today. Meanwhile, State of Uttar Pradesh or the concerned appropriate Authority, may take an appropriate decision in terms of Section 19-A of the Act, 1953, if so warranted.

32. It is also made clear that while passing any order the State or the concerned Authority will take note of judgments passed by Supreme Court in Hinchlal Tiwari (supra) and Jagpal Singh (supra) and other judgments and provisions referred in present judgment. The observations and order of status quo for three months shall not be construed that this Court has directed to undertake any fresh exercise of allotment and if the State or Authority concerned does not initiate fresh proceedings for allotment within aforesaid period, the legal consequence of impugned order shall follow and Authority shall take necessary steps for its implementation, expeditiously within shortest time.

33. All writ petitions are disposed of.

34. No order as to costs.

Dt/- August 29, 2023

Nirmal Sinha

[Saurabh Shyam Shamshery, J.]