Allahabad High Court
Raj Kumar vs State Of U.P. And 3 Others on 29 March, 2023
Bench: Chandra Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 18
Case :- WRIT - B No. - 885 of 2023
Petitioner :- Raj Kumar
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Akhilesh Chandra Shukla
Counsel for Respondent :- C.S.C.
Hon'ble Chandra Kumar Rai,J.
Heard Mr. Akhilesh Chandra Shukla, learned counsel for the petitioner and learned Standing Counsel for the State-respondents.
With the consent of the parties, the writ petition is being heard and disposed of finally without inviting counter affidavit in the matter.
The instant writ petition has been filed for the following reliefs:
"i. Issue a writ, order or direction in the nature of the certiorari and call for record of the case and quash the order dated 28.10.2020, 28.9.2022 passed by Consolidation Officer, Bhagpat in Case No.167 and entire proceeding of Section 9 A (1) of U.P.C.H. Act in respect of Khasra No.2961 / 0.7712 hectare of Village- Barnawa and notice dated 23.1.2023 issued by respondent no.2.
ii. Issue a writ, order or direction in the nature of mandamus directing the respondent no.2 not to dispossess the petitioner and his brother from the land in question and permit the petitioner to continue his farming upon the land without any interference.
iii. Issue any other writ, order or direction as this Hon'ble Court may deem fit and proper under the circumstances of the case."
Brief facts of the case are that petitioner belongs to Scheduled Castes Community and he is in possession of land of Khasra No.2961 situated in Village- Binauli, Tahsil- Baraut, District- Baghpat having area 3 bigha 1 biswa. In earlier consolidation operation, the order was passed by the Consolidation Officer for recording the name of the petitioner's father in respect to plot no.2961 area 3 bigha 1 biswa after expunging the name of the forest department vide order dated 10.3.1989. Petitioner and Rohtash were ordered to be recorded after the death of petitioner's father being his legal heir. The order dated 10.3.1989 attained finality as the village was de-notified under Section 52 of U.P.C.H. Act. In the second consolidation operation, an order has been passed by the Consolidation Officer for expunging the name of the petitioner in respect to the plot no.2961 area 3 bigha 1 biswa without notice and opportunity to the petitioner, as such, petitioner filed restoration application which has also been dismissed, hence this writ petition.
Learned counsel for the petitioner submitted that the petitioner filed appeal under Section 11 (1) of U.P.C.H. Act before the Settlement Officer of Consolidation along with stay application which is pending before the Settlement Officer of Consolidation. He further submitted that the order passed by the Consolidation Officer is without jurisdiction as well as the same has been passed without affording opportunity of hearing to the petitioner. He further submitted that the Consolidation Officer has passed the cryptic order without framing issue etc. in the proceeding under section 9A(2) of U.P.C.H. Act. He next submitted that order passed by the Consolidation Officer in the first consolidation operation has attained finality, as such, the objection in the second consolidation operation in respect of the same claim is barred by law. He also submitted that since no interim order has been granted in appeal, as such, forest department is taking steps to dispossess the petitioners which will cause irreparable injury to the petitioner. He placed reliance upon the judgment of this Court reported in 2007 (102) RD 498, Ali Sher Vs. State of U.P. Through Collector, Bijnor and Others in order to demonstrate that the interim protection be granted during pendency of appeal / revision if the order under appeal and revision has serious civil consequences.
On the other hand, learned Standing Counsel submitted that the appea l and stay application filed by the petitioner is pending before the Settlement Officer of Consolidation, as such, petitioner should approach the court of Settlement Officer of Consolidation and no interference is required in the matter at this stage.
I have considered the argument advanced by learned counsel for the parties and perused the record.
There is no dispute about the fact that the petitioner's father was ordered to be recorded over the plot in dispute in the first consolidation operation and the order has attained finality. There is also no dispute about the fact that in the subsequent consolidation proceeding, the Consolidation Officer has passed the ex-parte order for expunging the name of the petitioner in respect to the same plot as such the appeal filed by the petitioner along with stay application is pending before the Settlement Officer of Consolidation.
This Court in the case of Ali Sher (Supra) has held that the interim protection be granted during pendency of appeal / revision if the order under appeal and revision has serious civil consequences.
Paragraph Nos.4 & 5 of the judgment is relevant which are as follows:
"4. It is well settled that once an appeal or revision is entertained by a higher Court against an order having civil consequences stay normally should be granted to avoid swinging pendulum unless the Court for the reasons to be recorded finds that there is no case for grant of stay as observed by the Hon'ble Apex Court in the case of Mool Chand v. Raza Buland Sugar Industries.
5. Considering the facts and circumstances, impugned order dated 16.11.2006 is hereby quashed. Writ petition stands allowed. Appellate Court is directed to disposal of the appeal of petitioner in accordance with law as expeditiously as possible preferably within a period of two months from the date of production of certified copy of this order before him and till the disposal of appeal as directed above, parties shall maintain status quo with regard to nature and possession over the land in dispute."
Considering the ratio of law laid down by this Court in Ali Sher (Supra) coupled with the fact the petitioner's father/petitioner remained recorded during first consolidation operation on the basis of order of consolidation officer, the instant petition is finally disposed of directing respondent no.4 i.e. Settlement Officer of Consolidation, Baghpat to decide the petitioner's appeal under section 11(1) of U.P.C.H. Act filed against the ordered dated 28.9.2020/28.10.2020 on merit in accordance with law after affording opportunity of hearing to the parties expeditiously preferably within period of four months from the date of production of certified copy of this order.
It is further directed that till the disposal of the appeal by respondent no.4, petitioner shall not be dispossessed from the plot in dispute and status quo shall be maintained with respect to nature and possession of the plot in dispute.
With the above directions, the writ petition is finally disposed of.
Order Date :- 29.3.2023
Rameez
