Ganga Singh vs State Of U.P. And 4 Others
2023 Latest Caselaw 8704 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 18
 

 
Case :- WRIT - B No. - 1091 of 2023
 

 
Petitioner :- Ganga Singh
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Suchita Dwivedi,Shyam Bahadur
 
Counsel for Respondent :- C.S.C.,Hari Narayan Singh
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Mr. Shyam Bahadur, Counsel for the petitioner, Sri Hari Narayan Singh, learned counsel for respondent-gram panchayat and learned standing counsel for State-respondents.

2. With the consent of learned counsel for the parties, the instant petition is being heard and disposed of without inviting counter affidavit.

3. Brief facts of the case are that village- Dev Raj Ka Purva, Mauja- Sehud, Tehsil, Pargana and District Auraiya came under operation of U.P. Consolidation of Holdings Act through notification issued in the year 1983 under Section-4 of U.P. Consolidation of Holdings Act. The objection under Section 9-A(2) of the U.P. C.H. Act has been filed by the petitioner against the basic year entry. The Consolidation Officer, after framing the issue and considering the evidence on record, vide order dated 21.12.1989, decided the objection in favour of the petitioner, directing that petitioner be recorded as bhumidhar with non-transferable right in respect to the plot no.484 area 1.50 acre and plot no.993, area 1.50 acre, after expunging the basic year entry. The village was notified under Section 6(1) of the U.P. C.H. Act vide notification dated 25.6.2012. On the basis of the final order passed by the Consolidation Officer in the year 1989, petitioner approached the authorities for the recording his name and issuance of the revenue records in his favour in view of the provisions contained under Section 6(2) of the U.P. Consolidation of Holdings Act but the authorities have not considered the petitioner's case, hence, petitioner ultimately filed Writ B No.1321 of 2020 which was disposed of vide order dated 1.12.2020, directing the Tehsildar to decide the petitioner's representation within a period of 3 months. In pursuance of the order of this Court dated 1.12.2020, the Tehsildar passed the impugned order dated 10.1.2023. Hence this writ petition.

4. Learned counsel for the petitioner submitted that title objection filed by the petitioner on the basis of lease executed in his favour in the year 1967, was allowed after considering the evidence on record including the original lease deed filed before the Consolidation Officer. He further submitted that the order passed by the Consolidation Officer dated 21.12.1989 has attained finality before issuance of the notification under Section 6(1) of the U.P. C.H. Act, as such, petitioner was entitled to the benefit contained under Section 6(2) of the U.P. C.H. Act but the authorities have not discharged their duties. It is also submitted that by the impugned order the Tehsildar has passed the order in arbitrary manner, holding that the lease executed in favour of the petitioner in the year 1967 is also suspicious. He submitted that the lease granted in favour of the petitioner, has not been cancelled and the Consolidation Officer, relying upon the lease deed executed in favour of the petitioner, has allowed the objection, as such, the Tehsildar has no jurisdiction to hold that the lease executed in favour of the petitioner is suspicious. It is also submitted that the order passed by the Tehsildar that the record of the case in which order dated 21.12.1989 has been passed is not available, as such, no benefit can be given to the petitioner, is not correct, as the petitioner has annexed the copy of the order before this Court as such and the authorities should inquire from the records room in accordance with law as the order was passed in the year 1989, as such, petitioner is entitled to the benefit of Section 6(2) of the U.P. C.H. Act.

5. On the other hand, learned standing counsel submitted that the impugned order has been passed in accordance with law and no interference is required in the matter.

7. I have considered the submissions advanced by learned counsels for the parties and perused the records.

8. There is no dispute about the fact that the village was notified under Section 4 of the U.P. C.H. Act in the year 1983 and again village was notified under Section 6(1) of the U.P. C.H. Act in the year 2012. According to the petitioner, a title objection filed by the petitioner was allowed on 21.12.1989 and the order has attained finality.

9. In order or appreciate the controversy, the perusal of Section 6 (1) and 6 (2) of U.P.C.H. Act is necessary which is as under:

"6. Cancellation of notification under Section 4 - (1) It shall be lawful for the State Government at any time to cancel the made under Section 4 in respect of the whole or any part of the area specified therein.

(2) Where a notification has been cancelled in respect of any unit under sub-section (1), such area shall, subject to the final orders relating to the correction of land records, if any, passed on or before the date of such cancellation, cease to be under consolidation operations with effect from the date of the cancellation."

10.This court in the case reported in 2018(139) RD 322 Rajendra Prasad Dixit and Others Versus State of U.P. and Others has considered the effect of the orders which have attained finality before issuance of notification under Section 6(2) of U.P.C.H. Act and has held that benefit of final order shall be given as provided under section 6(2) of U.P.C.H. Act. Paragraph Nos. 9,10 and 11 of the judgment rendered in Rajendra Prasad Dixit (Supra) are relevant which are as under:-

"9. In the present case, the notification under Section 4 of the Act 1953 was issued on 27.10.1990, whereas the cancellation notification under Section 6(1) of the Act 1953 was issued on 10.10.2005. Therefore, the order of the Consolidation Officer, which was passed on 17.3.2004, was passed prior to the date of notification under Section 6(1).

10. Furthermore, if the initial order had been passed within 21 days of the publication of notification under Section 6(1), then the aggrieved parties would have a right of appeal under Section 11(1) within 21 days as prescribed therein and thereafter, a further right of revision under Section 48, and in such an eventuality, the original order passed by the Consolidation Officer would not be treated to have attained finality as it cannot be said that the right of appeal or revision under the Act, 1953 itself would be taken away, as doing so, would result in a situation where the initial order even if illegal will be sustained or perpetuated, therefore, the order of the Consolidation Officer under Section 9-A(2) cannot be treated as final order till expiry of 21 days prescribed under Section 11(1) for filing the appeal. On passing such an order under Section 9-A(2), the right of appeal automatically accrues in favour of the aggrieved person under Section 11 (1) and likewise the right of revision under Section 48, therefore, such vested rights cannot be said to have been taken away by the notification under Section 6(1) on the same analogy, as, sometimes appeals and revisions are filed supported by application under Section 5 of Limitation Act even after notification under section 52 of the Act, 1953.

11. In view of the above discussion, the order of the Sub-divisional Magistrate cannot be sustained, the same is, accordingly, quashed. The petitioner shall be entitled to the benefit of the order dated 17.3.2004 passed by the Consolidation Officer as per law."

11. So far as genuineness of a record has to be decided then misilband register has to be examined but in the instant case without conducting inquiry in accordance with law the impugned order has been passed by Tehsildar as such matter requires reconsideration by higher authority.

12. So far as the validity of the lease is concerned, the lease was granted in favour of the petitioner in the year 1967 and the same has not been cancelled, as such, no finding can be recorded regarding execution of the lease deed in favour of the petitioner by the consolidation court as the consolidation court has himself found that the original lease was filed before the Consolidation Officer and the same was examined by him, as such, there is no question of suspicion about the execution of lease in favour of the petitioner.

13. Inview of ratio of law laid down by this court in Rajendra Prasad Dixit (Supra) the authority will re-examine the issue of finality of the order passed by the Consolidation Officer before issuance of the notification under Section 6(1) of the U.P. C.H. Act and if it is found that order passed by the Consolidation Officer has attained finality before issuance of the notification, then petitioner shall be entitled to be recorded in the revenue records in respect to the plot in dispute.

14. Considering the entire facts and circumstances, the impugned order passed by the Tehsildar is liable to be set aside and the same is hereby set aside.

15. The writ petition stands allowed in part and the matter is remitted back before respondent no.2/District Magistrate/District Deputy Director of Consolidation, Auraiya, to decide the matter afresh, in the light of the provisions contained under Section 6(2) of the U.P.C.H. Act after examine the order of Consolidation Officer dated 21.12.1989, expeditiously, preferably within a period of 3 months from the date of production of the certified copy of the order.

Order Date :- 24.3.2023

C.Prakash