Vijay Narayan vs Deputy Director Of Consolidation ...
2023 Latest Caselaw 13999 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?    AFR
 
Reserved on:- 29.3.2023
 
Delivered on:- 3.5.2023 
 
Court No. - 18
 

 
Case :- WRIT - B No. - 218 of 2022 
 

 
Petitioner :- Vijay Narayan
 
Respondent :- Deputy Director Of Consolidation And 6 Others
 
Counsel for Petitioner :- Anand Kumar Srivastava
 
Counsel for Respondent :- C.S.C.,Ashutosh Pandey,Pankaj Kumar Gupta
 

 
Hon'ble Chandra Kumar Rai,J.

Heard Mr. Anand Kumar Srivastava, Counsel for the petitioner, Mr. Ashutosh Pandey, Counsel for respondent no. 3, learned Standing Counsel for the State-respondents and Mr. Pankaj Kumar Gupta, Counsel for respondent no. 7, Gaon Sabha.

Brief facts of the case are that name of the petitioner was ordered to be recorded in the revenue records vide order dated 4.9.1976 passed by the Assistant Consolidation Officer in case No. 425 under Section 12 of the U.P.C.H. Act in respect to plot No. 60, New Nos. 176, 177, 302, 303 and 304 situated in Village Marvat Tappa Puraina Pargana Amroha, Tehsil Harraiya, District-Basti. On the basis of the order dated 4.9.1976, the name of the petitioner was recorded in revenue records. C.H. Form 45 has been annexed along with the writ petition as Annexure No. 1. Petitioner remained in possession of the plot in dispute on the basis of the order dated 4.9.1976. Notification under Section 52 of U.P.C.H. Act took place on 8.2.1978 in respect to Village in question. Against the order dated 4.9.1976, private- respondent nos. 3 to 5 filed an appeal under Section 11(1) of the U.P.C.H. Act along with the delay condonation application. The appeal was registered as appeal No. 512 on 26.4.2017. Petitioner filed his objection dated 18.12.2017 in aforementioned appeal No. 512 stating specifically that Village has been denotified under Section 52 of the U.P.C.H. Act on 8.2.1978. Therefore the appeal is liable to be rejected on the ground of limitation, the ground has also been taken in the objection that respondent nos. 3 to 5 have no locus to file an appeal against the order dated 4.9.1976. Settlement Officer Consolidation vide order dated 19.9.2019 allowed the delay condonation application vide order dated 19.9.2019 and fixed the appeal for disposal on merit. Against the order dated 19.9.2019, petitioner filed a revision under Section 48 of the U.P.C.H. Act which was dismissed vide order dated 12.10.2021 on the ground of maintainability. Against the order dated 12.10.2021, petitioner filed a restoration application which was also dismissed on 21.12.2021. Hence this writ petition.

Counsel for the petitioner submitted that appeal filed under Section 11(1) of the U.P.C.H. Act along with application under Section 5 of Limitation Act after 41 years on behalf of respondent nos. 3,4 and 5 who has no locus to file the application has been illegally entertained by Settlement Officer Consolidation. He further submitted that delay of 41 years has been arbitrarily condoned by the Settlement Officer Consolidation. He further submitted that Village has also been denotified long back, as such, the appeal filed by respondent nos. 3 to 5 under Section 11(1) of the U.P.C.H. Act was not maintainable before the Consolidation Court. He further submitted that respondent nos. 3 to 5 have no locus to file the appeal against the order dated 4.9.1976 but the Settlement Officer Consolidation has illegally granted benefit of Section 5 of Limitation Act in filing appeal which was delayed by 41 years. He further submitted that Revisional Court has dismissed the revision as well as the restoration application in arbitrary manner on the ground that revision is no maintainable against the order passed condoning the delay in filing the appeal. He submitted that impugned orders be set aside as the filing of appeal after 41 years by the respondent nos. 3,4 and 5 is a abuse of process of law.

On the other hand, Mr. Ashutosh Pandey appearing for respondent nos. 3,4 and 5 submitted that respondent nos. 3,4 and 5 are residents of Village Maravat and Village Maravat is within the Gram Panchayat Gobhiya. He further submitted that petitioner Vijay Narayan was posted as Lekhpal in the year 1975-1976 and he misused his position. He further submitted that the order dated 4.9.1976 is the fraudulent act of the petitioner, Vijay Narayan. He further submitted that no lease was executed by the Land Management Committee in respect to the plot in dispute in favour of the petitioner, Vijay Narayan and land in dispute was a bachat land of the Gaon Sabha accordingly, the appeal under Section 11(1) of the U.P.C.H. Act was rightly filed against the order of Assistant Consolidation Officer dated 4.9.1976 along with the prayer for condonation of delay. He further submitted that by the impugned order only delay in filing the appeal has been condoned, as such, no interference is required against the impugned order passed by Appellate Court condoning the delay in filing the appeal. He further submitted that appeal will be decided on merit in accordance with law and petitioner can appear before the Appellate Court for decision of appeal under Section 11(1) of the U.P.C.H. Act filed by the respondent nos. 3,4 and 5. He further submitted that Revisional Court has rightly decided the revision in accordance with law by placing the certified copy of the orders of Revisional Court dated 4.11.2020, 7.9.2011 and 14.9.2021 in order to demonstrate that proper opportunity of hearing was afforded to the parties before deciding the revision under Section 48 of the U.P.C.H. Act by the petitioner. Counsel for the respondent nos. 3 to 5 placed reliance upon the judgment of this Court reported in 2014 (125) RD 333 Dodram vs. Collector Peelibheet, 2006 Volume 1 AWC 205 Tripal Singh s/o Sone Lal Vs. State of U.P. and Others, 2014 (124) RD 2019 Ram Jiavan and Additional Commissioner Vindhyachal Mandal Mirzapur and Others in order to demonstrate that matter should be decided on merit rather on technical grounds.

I have considered the arguments advanced by Counsel for the parties and perused the records.

There is no dispute about the fact that Assistant Consolidation Officer in case No. 425 passed an order dated 4.9.1976 under Section 12 of the U.P.C.H. Act in respect to the plot in dispute. There is also no dispute about the fact that respondent nos. 3 to 5 filed an appeal No. 512 under Section 11(1) of the U.P.C.H. Act on 26.4.2017 along with the delay condonation application. There is also no dispute about the fact that Settlement Officer Consolidation has condoned the delay in filing the aforementioned appeal vide order dated 19.9.2019 and fixed the appeal for disposal on merit. There is also no dispute about the fact that revision under Section 48 of the U.P.C.H. Act filed by petitioner as well as the restoration application filed in revisions have been dismissed by the Deputy Director Consolidation.

In order to appreciate the controversy, the perusal of Section 11 of the U.P.C.H. Act will be relevant which is as under:-

"(1) Any party to the proceedings under Section 9-A, aggrieved by an order of the Assistant Consolidation Officer or the Consolidation Officer under that section, may, within 21 days of the date of the order, file an appeal before the Settlement Officer, Consolidation, who shall after affording opportunity of being heard to the parties concerned, give his decision thereon which, except as otherwise provided by or under this Act, shall be final and not be questioned in any Court of law.

(2) The Settlement Officer, Consolidation, hearing an appeal under subsection (1) shall be deemed to be a Court of competent jurisdiction, anything to the contrary contained in any law for the time being in force notwithstanding."

The perusal of Section 11 of the U.P.C.H. Act reveals that appeal can be filed by any party to the proceeding under Section 9-A of U.P.C.H. Act can file appeal under Section 11 of the U.P.C.H. Act.

This Court in the case reported in (2003) 94 RD 79 Smt. Sukhjinder Jeet Kaur and others Vs. Deputy Director of Consolidation, Rampur and Others has considered the scope of Section 11 of U.P.C.H. Act and has held that only party to the proceeding can file appeal under Section 11 of U.P.C.H. Act. Paragraph Nos. 9,10,11 and 12 of the judgement are relevant which are as under:-

"9. So far as the question of maintainability of the appeals filed by the State Government is concerned, as admitted by learned standing counsel, the State Government was not a party to the proceedings before the Assistant Consolidation Officer. It, therefore, had no right to file the appeals in view of the amended provisions of Section 11(1) of the Act, which reads as under:

?11. Appeals.?(1) Any party to the proceedings under Section 9A, aggrieved by an order of the Assistant Consolidation Officer or the Consolidation Officer under that section, may, within 21 days of the order, file an appeal before the Settlement Officer, Consolidation, who shall after affording opportunity of being heard to the parties, concerned, give his decision thereon which, except as otherwise provided by or under this Act, shall be final and not be questioned in any court of law.?

10. The aforesaid statutory provision came up for interpretation before this Court in Writ Petition No. 36233 of 1991, Gaon Sabha through its Pradhan v. Deputy Director of Consolidation, Basti, decided on 3.12.2002. This Court after referring to the provisions of Section 11, held as under:

?A reading of the aforesaid statutory provision reveals that an appeal can be filed only by a party to the proceedings. It is well settled in law that right of appeal, revision or review are the statutory rights. They are conferred by the statutes and unless conferred, they can not be availed of by any person and no authority can entertain an appeal, revision or review unless the said authority is authorized by the statute to entertain the same. The Deputy Director of Consolidation was, thus, right in holding that the aforesaid petitioners were not the

party to the proceedings and they had no right to file an appeal. The appeal filed by them was legally not maintainable.?

11. Further, Section 47 of the Act provides as under:

?47. Appeals, etc., to be allowed by Act.?No appeal and no application for revision shall lie from any order passed under the provisions of this Act except as provided by or under this Act.?

12. The aforesaid section clearly provides that no appeal and no application for revision shall lie from any order passed under the Act except as provided by or under the Act. Thus, all the appeals filed by the State Government, in which the State Government, admittedly, was not a party to the proceedings before the Assistant Consolidation Officer, after six years against the order passed by the Assistant Consolidation Officer, the Settlement Officer, Consolidation acted illegally and in excess of his jurisdiction in entertaining the said appeals. Further, having refused to grant any relief to the State Government, there was no justification for the Settlement Officer, Consolidation to grant relief in favour of the petitioners in the connected case. He could at the best remand the case to the Assistant Consolidation Officer for referring the matter to the Consolidation Officer for decision. The order passed by the Settlement Officer, Consolidation dated 12.1.2001 is, thus, illegal and liable to be quashed. Learned counsel for the petitioners in the leading case attempted to say that the order passed by the Settlement Officer, Consolidation which was in favour of his clients, was valid and lawful. He referred to and relied upon the decision in the case of Palakdhari v. Deputy Director of Consolidation, Basti, 1992 (1) AWC 228 : 1992 RD 111. In the said decision, question of maintainability of an appeal under Section 11 of the Act by a person who was not a party to the proceeding was neither raised nor considered by the Court. Therefore, no advantage can be claimed by learned counsel for the petitioners on the basis of the said case. What was decided by the Court in the said case was to the effect that the petitioner, who was a member of the Gaon Sabha could file an objection on behalf of the Gaon Sabha. It may be noted that Section 11 of the Act was amended by the U.P. Act No. VIII of 1963. Before amendment, the words used were ?any person aggrieved by the order of the Assistant Consolidation Officer under Section 9 or the Consolidation Officer under Section 10?, but after the amendment, the words ?person aggrieved? have been deleted and in the place the words ?any party to the proceedings under Section 9A aggrieved by an order of the Assistant Consolidation Officer or Consolidation Officer under that section? have been substituted. In view of the provisions of Section 11 of the Act, referred to above, the appeals filed by the State Government were legally not maintainable. The Settlement Officer, Consolidation as well as the Deputy Director of Consolidation have acted illegally and in excess of their jurisdiction in entertaining the appeals and revisions filed by the State Government, as the State Government was not a party to the said proceedings before the Assistant Consolidation Officer and in allowing the same. Impugned orders passed by the authorities below are, thus, wholly illegal and without jurisdiction."

The order passed by the Settlement Officer Consolidation dated 19.9.2019 will be relevant for perusal which is as follows:-

"???? ?????? ?? ?? ?? ???? ??? ???? ??? ???????? ?? ?????? ????? ???????? ???? ????? ????? ??? ?? ?????? ???? ????? ??? ?? ??????? ????? ??? ????? ??????? ??????? ?? ???? ?????? 04.9.76 ?? ??????? ?????? 26.4.17 ?? ??? ???? ?? ??? ???????? ???? ???? ???????? ?? ?????? ?? ????? ??????? ?? ????? ???? ?? ?? ?????? ????? ???? ?? ????????? ??, ????? ??????? ???? ?? ???????? ?????? ???? ???? ???? ???? ???? ????? ??? ?????? ??? ???????? ??? ????? ?? ?????? ?? ???? ?????? ???? ???? ???? ???? ???

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??? ??????? ??????? ?? ???? ?? ???? ??? ?? ???????? ???? ?????? ?? ??? ???? ??? ???????? ??? ???? ??????? ???? ???-5 ????? ????? ?? ??? ?????? ???? ???? ??? ???????? ?????? ???-??? ?? ??? ???? ?????? 29.9.19 ?? ??? ???

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19.09.19

?????? 19.9.19 (???? ?????)

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The perusal of the order passed by the Settlement Officer Consolidation dated 19.9.2019 reveals that delay in filing the appeal under Section 11(1) of the U.P.C.H. Act has been condoned and the appeal has also held to be maintainable.

This Court in the case reported in 1982 ALJ76 Sita Ram Versus Deputy Director of Consolidation and others has held that an objection under Section 9-A(2) of the U.P.C.H. Act cannot be filed by private person as procedure has been prescribed under Para-128 of Gaon Sabha Manual for conducting or initiating proceeding in respect of Gaon Sabha property. Paragraph Nos. 21 and 22 of the judgement are relevant which are as under:-

"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.

22. Thus, in view of the above I am of the opinion that the objection filed by opposite party No.3 Sheo Prasad cannot be treated to be a valid objection on behalf of the Gaon Sabha under Section 9-A(2) of the U.P. Consolidation of Holdings Act, on the ground that he was himself an interested person under Section 9-A(2) of the Act, as admittedly the Land Management Committee of the Gaon Sabha had not passed any resolution taking decision to file objection, appeal and revision nor opposite party No. 3 was authorized to file those on behalf of the Gaon Sabha. It is also not disputed that the action of opposite party No.3, in filing objections, appeal and revision on behalf of the Gaon Sabha, was not ratified by the Land Management Committee in its meetings. Thus, the objections, appeal and revision filed by opposite party No.3 Sheo Prasad on behalf of the Gaon Sabha were wholly incompetent and opposite party Nos. 1 and 2 acted illegally and without jurisdiction in passing the impugned orders."

In view of ratio of law laid down in Smt. Sukhinder Jeet Kaur (Supra) as well as in Sita Ram (Supra), the appeal under Section 11 of U.P.C.H. Act filed by contesting respondents cannot be entertained as contesting respondents were not parties to the proceeding before Consolidation Officer nor contesting respondents have title in respect to dispute plot rather their stand is that they are protecting the State/ Gaon Sabha property, as such, there was no question of condonation of delay in filing the appeal and fixing the same for decision on merit. The continuance of the appellate proceeding at the instance of contesting respondents on the ground that by impugned order only delay in filing appeal has been condoned and rest matter will be decided later on will be abuse of process of law. In the case of Sita Ram (Supra), it has been held that Gaon Sabha litigation initiated/ conducted in violation of Para-128 of Gaon Sabha Manual is illegal.

It is also relevant that appeal under Section 11(1) of U.P.C.H. Act has been filed by contesting respondents on 26.4.2017 against the order of Assistant Consolidation Officer dated 4.9.1976 and Village has been denotified under Section 52 of U.P.C.H. Act on 8.2.1978, as such, entertaining the appeal after 41 years will be abuse of process of law.

Case laws cited by learned counsel for the contesting respondent no.3 are not applicable in the dispute arising out of U.P.C.H. Act where procedure has been provided for filing objection / appeal / revision at proper stage by person authorized to initiate the proceeding.

Considering the entire facts and circumstances as well as ratio of law laid down in Smt. Sukhjinder Jeet Kaur (Supra) and Sita Ram (Supra) the impugned order dated 19.9.2019 passed by Settlement Officer Consolidation as well orders dated 21.12.2021 and 12.10.2021 passed by the Deputy Director Consolidation are liable to be set aside and are hereby set aside. The writ petition stands allowed. No order as to cost.

Order Date :- 3.5.2023

Vandana Y.