Jagdish Singh And Another vs Board Of Revenue Allahabad And 10 ...
2023 Latest Caselaw 1414 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Reserved on: 5.12.2022
 
Delivered on:13.01.2023
 
Court No. - 7 
 
Case :- WRIT - B No. - 3985 of 2018
 
Petitioner :- Jagdish Singh And Another
 
Respondent :- Board Of Revenue Allahabad & 10 Others
 
Counsel for Petitioners :- Om Prakash Pandey,Arvind Kumar Mishra
 
Counsel for Respondent :- C.S.C., Dharm Vir Jaiswal, Pradeep Kumar
 
Hon'ble Chandra Kumar Rai,J.

1. Heard Mr. O.P. Pandey, learned counsel assisted by Shri A.K. Mishra, learned counsel for the petitioners and Mr. D.V. Jaiswal, Advocate assisted by Mr. Pradeep Kumar, counsel for respondent No.4.

2. Brief facts of the case are that old Plot No.138m area 0.9 acre and 520m area 0.14 acre, allotted plot no.262 (New Plot No.448m area 0.17 hectare situated in Village Illahabad, Tappa Banki, Pargana, Haveli Tehsil - Sadar, Gorakhpur, now Maharajganj. Petitioners are in possession over Plot Nos.138 and 520 (new Plot No.448) even prior to the consolidation operation and also during consolidation operation, petitioners are in possession of the aforementioned plot and are cultivating the same. During consolidation operation allotted plot No.262 (new Plot No.448) was carved out. C.H. Form No.41 has been annexed along with the writ petition as Annexure No.1 to the writ petition. Aforesaid old Plot No.138m area 14 decimal and 520m area 14 decimal was recorded as matrook. Consolidation Officer, Gorakhpur, vide order dated 4.7.1984 passed the order in favour of petitioner and expunged the entry of matrook in respect to disputed plot. Consolidation Officer has also ordered that the plot be recorded in the name of the Jai Nath Singh s/o Ram Raj (father of the petitioner No.1 and grandfather of petitioner No.2). Order dated 4.7.1984 passed in Case No.14570/452 has been implemented and reference Case No.649 dated 20.4.1985 was initiated and on the basis thereof, revision No.649 was registered before the Deputy Director Consolidation. Deputy Director Consolidation approved the report referred to him by Consolidation Officer. In pursuance of the order of Deputy Director Consolidation approving the report, the Old Plot No.262m (New Plot No.448) was entered in Chak No.80 of the petitioners. Area was accordingly deducted from naveen parti of Chak No.294. In pursuance of the order dated 4.7.1984 and implementation order dated 25.4.1985 passed in Case No.2091 as well as Reference Order dated 29.5.1985 passed in Revision No.649, the final records have been prepared in the name of the petitioners.

3. Copy of the Khatauni has been annexed as Annexure No.4 to the writ petition in order to demonstrate that plot No.448m area 0.17 has been recorded in the name of Jai Nath (father of petitioner No.1). Plot No.448 was not recorded as Gram Sabha land nor it was vacant land even then the patta was alleged to be executed in favour of respondents No.4 to 10 under Section 19(5) of the U.P.Z.A. & L.R. Act. According to petitioners, contesting respondents Nos.4 to 10 are not in possession of disputed Plot No.448 nor patta was executed in the name of contesting respondent. Petitioners filed an application for cancellation of patta on 13.2.1985 against the alleged allotment order made in favour of respondent Nos.4 to 10 taking specific ground that disputed plot was not vacant nor disputed plot was recorded as Gaon Sabha plot at the relevant point of time as such the patta is liable to be cancelled. Respondent No.3, vide order dated 31.12.1987, rejected the application filed by petitioners for cancellation of patta. Petitioners filed revision No.710 of 1995 on 16.1.1988 before the Commissioner against the order dated 31.12.1987, the Commissioner, Gorakhpur Division, Gorakhpur through its order dated 27.8.1988 dismissed the revision filed by petitioners. Petitioners challenged the order of the Additional Commissioner through revision before the Board of Revenue in which initially interim order was granted but subsequently, Board of Revenue after hearing the parties dismissed the revision vide order dated 25.5.2002. Petitioners filed review petition before the Board of Revenue against the order dated 25.5.2002 which was rejected vide order dated 28.2.2018 on the ground of limitation. Hence, this writ petition.

4. This Court while entertaining the writ petition passed the following interim order dated 23.5.2018 which was extended from time to time :-

"It is stated that the Board of Revenue has granted status quo order while admitting the revision on 8.1.1991 and it was continuing till the disposal of the revision.

Learned Standing Counsel appears for respondent nos. 1, 2 & 3 and Sri Tariq Maqbool Khan, learned Advocate has put in appearance on behalf of respondent no. 11.

Issue notice to respondent no. 4 to 10 returnable on 5.9.2018.

Steps be taken within ten days.

Respondents may file counter affidavit counter affidavit on or before the next date of listing.

List this case on 5.9.2018. Till then parties are directed to maintain status quo and they shall not create third party interest without leave of the Court."

5. Counsel for the petitioner submitted that the petitioner is owner in possession of the disputed plot as such, patta cannot be executed in favour of respondents No.4 to 10 as plot in dispute is neither Gram Sabha plot nor it was vacant at the relevant point of time as provided under Section Section 19(5) of the U.P.Z.A. & L.R. Act. He further submitted that in pursuance of the order dated 4.7.1984 along with implementation order dated 25.4.1985 passed in Case No.2091 as well as reference order dated 29.5.1985 passed in Revision No.649, the final records have been prepared in the name of the petitioner as such, there was no occasion for allotment of plot in dispute in favour of respondents No.4 to 10. He further submitted that application filed by petitioner under Section 198(4) of the U.P.Z.A. & L.R. Act., the grant of patta prior to the publication of notification under Section 52 of the U.P. Consolidation of Holdings Act, is wholly illegal as disputed plot was not vacant plot, petitioner is in possession of the same, Gaon Sabha was not owner of the disputed plot No.448 nor in possession of the same coupled with the fact that there was no publication of notification under Section 52 of the U.P.C.H. Act. He further submitted that respondent Nos.1, 2 and 3 have arbitrarily rejected the revision appeal and application for cancellation of patta filed by petitioners without considering the point raised by petitioners in accordance with law. He further submitted that Board of Revenue has further committed illegality in rejecting the review application filed by the petitioners. He placed reliance upon the following judgments of this Court ;

(i) 2011 I.B.R.D. 201 Balbir Singh and others vs. State of U.P. and others.

(ii) (2003) 5 AWC 3808 Benimadho vs. Deputy Director Consolidation Deoria and others.

6. On the other hand, counsel for the contesting respondents Nos.4 to 10 submitted that petitioner has not impleaded all the necessary parties in the proceedings as such writ petition filed by petitioners cannot be entertained. He further submitted that plot in dispute was recorded in favour of the Gram Sabha as such the allotment was made in accordance with law to the respondent No.4 who belonged to Scheduled Caste community. He further submitted that the name of respondent No.4 has been accordingly recorded in the revenue record. He further submitted that Appellate Court and Revisional Court have rightly dismissed the appeal and revision filed by petitioners. He further submitted that plot No.448, area 0.41 hectare was recorded as naveen parti in the C.H. Form 45 accordingly, the patta was executed in favour of respondents in accordance with law. He further submitted that order passed by the Deputy Director Consolidation dated 30.3.1992 appears to be fictitious, as such, no reliance can be placed upon the same. He next submitted that petitioners have filed Civil Suit No.915 of 2012 which was dismissed for non-prosecution, vide order dated 21.4.2014, as such, no interference is required against the impugned order. He finally submitted that allotment was made to the contesting respondent much before the order passed by Deputy Director Consolidation, the land was admittedly recorded as matrook which means nobody's land vested in the Gaon Sabha. As such, no case for cancellation of patta granted in favour of the contesting respondent is made out and writ petition is liable to be dismissed.

7. I have considered the arguments advanced by learned counsel for the parties and perused the records. There is no dispute about the fact that application for cancellation of lease filed by petitioners under Section 198(4) of the U.P.Z.A. & L.R. Act has been dismissed by the respondent No.3 and the order has been maintained in appeal and revision by respondent No.2 and 1 respectively. According to petitioners in the consolidation proceedings, Deputy Director Consolidation, vide order dated 25.04.1985 approved the reference submitted in the proceeding by which the plot in dispute was ordered to be recorded in the name of the petitioners' father and the entry of matrook has been expunged. Although contesting respondents are denying the fact and submitting that orders passed by Consolidation Court are not genuine order.

8. Since Consolidation Court has passed the order dated 4.7.1984, 25.4.1985 and 29.5.1985 by which the entry of matrook has been expunged and the name of petitioners' father was ordered to be recorded and the order has attained finality, as such, mere denial by the contesting respondents about the genuineness of the order of Consolidation Court is not sufficient. The case cited by counsel for the petitioners with respect to the order passed by the Consolidation Court and its binding affect in the other proceedings are relevant for consideration. Paragraph No.11 of the judgment rendered in Balbir Singh (Supra) is as follows :-

"11. Admittedly, when the ceiling proceedings were initiated against the tenure holder Jaswant, the consolidation proceedings stood completed in the village and Jaswant became the absolute owner of the property in his individual capacity. In Jaswant Kumar v. State of U.P. and others, it was held that the findings recorded by the Consolidation Courts in consolidation proceedings is final and binding on all the parties and, such findings cannot be re-adjudicated or challenged in any Civil or Revenue Court. The Court further held that section 49 of the Consolidation Act in a way laid down a rule of res-judicata in so far as the question relating to declaration and adjudication of the rights of a tenure holder in respect of his holdings. The Court further held that the ceiling authorities had a right to take the land from the tenure holder as it was declared surplus by the Consolidation Court.

9. Para No.14 of the judgment rendered in Benimadho (Supra) is as follows :-

"14. Another ground for not interfering is that the parties have been given full opportunity to contest their matter on merits in appeal in the consolidation proceedings where rights are settled finally and after such orders neither civil court nor revenue court could interfere in such adjudication. The consolidation disputes are disputes which arise on notification under Section 4 of the U.P. Consolidation of Holdings Act. Parties willing or not willing are compelled to go to this forum compulsorily in order to get their rights finally settled. In such a situation, the technical view in the matter of limitation could not be taken and all such technical matters are required to be construed liberally. I do not consider it a fit case for interference on this additional ground also."

10. All the three Courts have arbitrarily rejected the petitioners' application for cancellation of patta and approved the patta granted in favour of the contesting respondents on the ground that at the time of grant of patta, plot-in-dispute was recorded as naveen parti and vacant land. The Courts below have failed to consider the effect of the order passed by the Consolidation Court. Courts below have failed to consider that order passed by the Consolidation Court cannot be ignored at all but the Courts below have arbitrarily rejected the petitioners' application for cancellation of lease executed in favour of contesting respondents.

11. It is also relevant to mention that petitioners are claiming themselves to be in possession since before the Consolidation operation, as such, the land was not vacant at all at the time of grant of patta and the entry which was illegally made in respect to the petitioner's plot that was corrected by the order of Deputy Director Consolidation, as such, there was no occasion to grant the lease to the contesting respondent.

12.Considering the entire facts and circumstances as well as ratio of law laid down in Balbir Singh (Supra) as well as Benimadho (Supra), the impugned orders dated 28.2.2018 and 25.5.2002 passed by Board of Revenue, 27.8.1988 passed by Additional Commissioner and 31.12.1987 passed by Additional District Magistrate, Finance and Revenue, Gorakhpur are liable to be set aside and the same are hereby set aside.

13. The writ petition stands allowed and matter is remitted back before the respondent No.3 ? to decide the petitioners' application under Section 198(4) which was registered as Case No.382 of 1985 afresh on merit in the light of the observations made in the body of the judgment expeditiously, preferably within a period of three months from the date of production of certified copy of this order.

14. No order as to costs.

Order Date :- 13.01.2023.

Vandana Y.