Tauheed vs State Of U.P. And 4 Others
2023 Latest Caselaw 290 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on: 28.11.2022 
 
Delivered on: 04.01.2023 
 

 
Case :- WRIT - B No. - 2240 of 2022 
 

 
Petitioner :- Tauheed 
 
Respondent :- State Of U.P. And 4 Others 
 
Counsel for Petitioner :- Ayub Khan,Kailash Nath Singh 
 
Counsel for Respondent :- C.S.C.,Vipin Kumar Singh 
 

 
Hon'ble Siddharth,J. 

Heard learned counsel for the petitioner; Shri B.P. Singh, learned Senior Counsel assisted by Shri Ayub Khan and Shri Kailash Nath Singh; Shri Vipin Kumar Singh, learned counsel for respondent nos.3, 4 and 5 and learned Standing Counsel for respondent nos. 1 and 2.

2. This writ petition has been filed praying for quashing of the judgment and order dated 30.07.2022 passed by the Additional District Magistrate (Finance and Revenue)/Deputy Director of Consolidation, Janupur/respondent no.2 in Case No.RST/1278/2022 (Tauheed Vs. State of U.P.) under Section 48 (3) of Uttar Pradesh Consolidation of Holdings Act, 1953 (in short ''UPCH Act') and for a direction to the respondents and their agents restraining them from alienating or making construction or use, in any manner, of land at Gata No.574/3, area 0.68 acre, situated in village Manikalan, Pargana, Anguli, Tehsil Shahganj, District Jaunpur except for the purpose of graveyard.

3. The case of the petitioner is that he is a member of Muslim community and resident of the same village where the land in dispute is situated. The plots in question are plot nos.1908, 1909 and 1910 area 0.68 situated at Manikalan, Pargana, Anguli, Tehsil Shahganj, District Jaunpur in the khatauni of 1356.

4. The aforesaid land was recorded as Kabristan and continued to be recorded as such in the first round of consolidation operations, which started in the year 1955 and came to an end in 1964 with Notification under Section 52 of the UPCH Act. In the first round of consolidation proceedings the land of Kabristan was chak out and no valuation was assigned to the land. However, due to mistake, the aforesaid land was recorded in C.H. Form 41 without any order of competent authority and new plot no.574 was carved out and allotted to Aulad Husain, son of Nazeer Ahmad who was the ancestor of respondent nos.3 and 4. Khatauni was prepared in his name.

5.The second round of consolidation operations started in the year 1981 and chak was allotted to respondent no.2 and 3 over plot no.574/3 area 0.68 hectare. Respondent no.3 and 4 executed a rent agreement in favour of respondent no.5 over the aforesaid plot area 35x35 meter, total 1225 sq.meter.

6.The respondent no.5, Abhimanyu, sought permission from Settlement Officer Consolidation, Jaunpur (SOC) for raising constructions over the plot rented to him by respondent no.3 and 4, which was granted to him on 15.03.2021 by SOC.

7. When the petitioner came to know about the aforesaid application filed by respondent no.5, he filed an application for correction of the record before the DDC on 17.03.2021, with the prayer that plot no.574, old plot nos.1908, 1909 and 1910, total area 0.98 hectare, be recorded as Kabristan as per khatauni of 1356 and 1359 fasli and the construction being made by respondent no.5 may be stopped. The DDC sought report from the Assistant Consolidation Officer and Consolidator in this regard.

8.The petitioner also filed an application before the SOC with the prayer that in view of order 17.03.2021, the order dated 15.03.2021 may be recalled/set aside. On another application of the petitioner for stay, the SOC suspended his order dated 15.03.2021 by his order dated 01.04.2021.

9. On 04.10.2021, the SOC submitted his report before the DDC in favour of the petitioner. The DDC after perusal of the report and the material on record came to the conclusion that C.H. Form 23 was prepared on wrong facts and the application of the petitioner filed under Section 48 (3) of the UPCH Act dated 17.03.2021 was allowed and direction was issued for deleting the name of recorded tenure holder from plot no.574/3 area 0.68 acre and recording the same as Kabristan by order dated 01.07.2022.

10. Against order dated 01.07.2022, the respondent nos. 3 and 4 and also respondent no. 5 moved review applications which were allowed by the impugned order dated 30.07.2022 by the DDC reviewing earlier order dated 01.07.2022.

11. Learned counsel for respondent nos.3, 4 and 5 have not filed any counter-affidavit but have filed written submissions. Relying on same he has submitted that the DDC has no power to initiate proceedings under Section 48 (3) of the UPCH Act on application of any party. He can do so only on valid reference made by subordinate consolidation authorities and in this view of the matter by order dated 30.07.2022, order dated 01.07.2021 has rightly been recalled by DDC. He has relied upon the judgment of this Court in the case of Bhagwat Vs. Shekhar [(1970) RD 169].

12. It has further been submitted that the petitioner is a stranger and has no concern with the land of Kabristan. On account of ulterior motives he has resorted to this litigation because respondent no.3 and 4 have given part of the land in dispute to respondent no.5 for opening petrol pump. The dispute with regard to Kabristan cannot be decided by Consolidation Authorities since it is not covered under the definition of land in the UPCH Act.

13. The land in dispute was allotted to Aulad Husain in the first round of litigation and it is not open to challenge in the second round of consolidation proceedings which is barred by Section 49 of UPCH Act. No dispute was raised regarding the land in dispute in the first round of litigation. The permission was already granted to the respondent no.5 by SOC on 15.03.2021, which was upheld by DDC by his order dated 06.09.2021, which is impugned in the connected Writ Petition No.1728 of 2021.

14. Order dated 01.07.2022 has rightly been recalled by DDC, since it was contrary to order dated 06.09.2021 passed by his predecessor. It has been submitted that the DDC has not reviewed his order but recalled the same being ex-parte. He has submitted that the Kabristan comes from different khata and the land in dispute belongs to different khata. Order dated 01.07.2022 was obtained fraudulently by the petitioner hence, it has rightly been recalled.

15. After hearing the learned counsel for the parties, this Court finds that the dispute between the parties is whether order dated 30.07.2021, recalling order dated 01.07.2022 passed by DDC amounts to review or not. A perusal of the impugned order dated 30.07.2022 shows that the DDC has mentioned in his finding that he has heard the counsel for the parties on the review application and perused the material on record.

16. Thereafter, he has dealt with the merit of the case and the findings recorded in the earlier order and have been held erroneous and he has recalled his earlier order dated 01.07.2022 on the ground that it was passed only after considering the case of the petitioner and after considering the material brought on record by the review applicants, order dated 01.07.2022 deserves to be recalled.

17. Clearly impugned order dated 30.07.2022 passed by the DDC amounts to review of his earlier order dated 01.07.2022 and is against the mandate of this Court in the case of Shivraji Vs. Deputy Director of Consolidation, Allahabad, [(1997 LawSuit (All) 955]. The order does not shows that it is an order of recall.

18. The earlier order dated 01.07.2022 was passed by the same DDC, Shri Rajnish Rai, after hearing the counsel for all the parties and, therefore, it was not open for him to pass the subsequent order dated 30.07.2022 reviewing his earlier order dated 01.07.2022.

19. In view of the above consideration, order dated 30.07.2022 passed by the DDC, Jaunpur is quashed. Shri Rajnish Rai, DDC Jaunpur has clearly passed the impugned order against the mandate of this Court which is clear from the record.

20. This writ petition is allowed with the direction that the Consolidation Commissioner, Lucknow, U.P. will look into the conduct of Shri Rajnish Rai, Additional District Magistrate (Finance and Revenue)/Deputy Director of Consolidation, Janupur and take suitable action against him for committing misconduct in office. D.D.C. has disobeyed judgment of this Court.

Misconduct in office has been defined as:

"Any unlawful behaviour by a public officer in relation to the duties of his office, willful in character. Terms embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the fact of an affirmative duty to act."

21. It shall be open for the respondent nos.3, 4 and 5 to avail the remedy available to them under law against order dated 01.07.2022 passed by the DDC, Jaunpur.

22. Writ petition is allowed. There shall be no order as to costs.

Order Date :- 04.01.2023

Subham/Rohit