Havaldar Singh And 12 Others vs District Deputy Director Of ...
2023 Latest Caselaw 14001 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. - 534 of 2022
 

 
Petitioner :- Havaldar Singh And 12 Others
 
Respondent :- District Deputy Director Of Consolidation And 2 Others
 
Counsel for Petitioner :- Narayan Dutt Shukla,Rituvendra Singh Nagvanshi,Shiv Chand Yadav,Shyam Lal,Sr. Advocate
 
Counsel for Respondent :- C.S.C.,Rameshwar Prasad Shukla
 

 
Hon'ble Chandra Kumar Rai,J.

Heard Mr. R.C. Singh, learned Senior Counsel assisted by Mr. Narayan Dutt Shukla, learned Counsel for the petitioners, learned Standing Counsel for the State-respondents and Mr. Rameshwar Prasad Shukla for respondent No.3, Gaon Sabha.

Brief facts of the case are that predecessors-in-interest of the petitioners namely Shri Laxmi Singh was recorded owner of disputed plot no. 362 situated in village-Kishundurpur, Tappa-Attaisi, Pergana-Nizamabad, Tahasil- Sadar, District-Azamgarh. Copy of Khewat of 1356 fasli to 1359 fasli of the Village Kishundaspur, Tappa Attaisi, Pargana Nizamabad Tehsil Sadar District Azamgarh has been annexed as Annexure No. 1 to the writ petition in order to demonstrate the ownership of petitioners' predecessors-in-interest. Copy of khatauni of 1356 fasli, 1359 fasli as well as khasra of 1359 fasli have been annexed as Annexure Nos. 2, 3 and 4 to the writ petition to demonstrate the ownership of the petitioners' predecessors-in-interest. Village was brought under consolidation operation on 30.10.1955 by way of notification issued under Section 4 of the U.P.C.H. Act. In the khatauni of 1362 fasli, plot no. 362 was recorded in the name of petitioners' predecessors-in-interest, the copy of khatauni of 1362 fasli has been annexed as Annexure No. 6 to the writ petition. During consolidation operation, petitioners filed an objection under Section 8 of U.P.C.H. Act to rectify the revenue entry. New plot nos. 213 ka and kha were carved out from old plot no. 362. The order dated 30.10.1955 passed by Consolidation Officer in a proceeding under Section 8 of the U.P.C.H. Act to record the plot as brick klin became final as nobody challenged the order in first consolidation operation. The first consolidation operation came to an end in the year 1962. Village was again brought under consolidation operation in the year 1981. Basic year entry remained in the name of petitioners and no objections were filed against the basic year entry which remained in the name of petitioners. Final records were accordingly prepared in the name of petitioners. New plot no. 311 ka and kha carved out from old plot no. 213. According to petitioners, new plot no. 213 ka and kha have never been pond and bhita. A four lane road is being constructed by National Highway Authority of India across the aforesaid plots, as such, there is no question that pond and bhita exist in the plot. The land in dispute was never recorded as pond either before the abolition of zamindari or after abolition of zamindari. According to petitioners their predecessors had established a brick klin in the year 1940 and the business continued till 1950. The portion of the plot in question was acquired by National Highway Authority of India by way of notification published in Hindi newspaper dated 30.6.2017. No dispute was raised by any person before the competent authority appointed under the National Highway Act 1956 accordingly award dated 31.5.2018 was made by competent authority under section 3G of the National Highways Act. Copy of the award dated 31.5.2018 has been annexed as Annexure No. 12 to the writ petition. At the time of disbursement of the amount determined under the award, a complaint has been made by the Pradhan that old plot no. 213, new plot no. 311 is a pond and bhita therefore compensation in respect of the aforementioned plot should not be disbursed. Competent Authority accordingly issued order dated 22.7.2020 that payment of compensation be deferred. Pradhan filed revision under Section 48(1) of the U.P.C.H. Act on 16.7.2020 before the Deputy Director of Consolidation to set aside the order dated 30.10.1955 in respect to plot no. 362 and record the same as pokhari and bhita. On the basis of the complaint made by Pradhan, a case no. D202015060001018 has been registered under Section 38(1) of U.P. Revenue Code, 2006 for correction of revenue entry in respect to old plot no. 362 of Village Kishundaspur. Raj Narayan and Others also filed revision under Section 48(3) of the U.P.C.H. Act, Vijay Prakash and Others also filed separate revisions challenging the order of Assistant Consolidation Officer dated 30.10.1955 in the aforementioned proceeding, the reports were submitted by the authorities. Petitioners challenged the proceeding initiated under Section 48(1) of the U.P.C.H. Act as well as the proceeding initiated under Section 38(1) of the U.P. Revenue Code, 2006 through writ-B no. 3 of 2021. This Court vide order dated 7.9.2021 disposed of the writ petition filed by petitioners with direction that petitioners can file objection in the pending proceeding which shall be decided in accordance with law within period of two weeks. Proceedings under Section 48(1) of the U.P.C.H. Act as well as the proceeding under Section 38(1) of the U.P. Revenue Code, 2006 were heard together by District Deputy Director of Consolidation/ Collector and the same were decided vide separate order dated 6.12.2021 expunging the petitioners' entry and directing that plot in dispute be recorded as pokhari, bhita and banjar. Hence this writ petition.

This Court vide order dated 1.4.2022 directed the learned Standing Counsel as well as the Counsel for the Gaon Sabha to file counter-affidavit within three weeks. In pursuance of the order of this Court dated 1.4.2022, learned Standing Counsel has filed his counter-affidavit. Petitioners have filed rejoinder-affidavit also.

Counsel for the petitioners submitted that the proceeding initiated after 65 years for setting aside the order dated 30.10.1955 is abuse of process of law. He further submitted that no objection was raised during consolidation operation, as such, the initiation of proceeding by way of revision under Section 48 of the U.P.C.H. Act as well as by way of proceeding under Section 38(1) of the U.P. Revenue Code, 2006 is abuse of process of law. He further submitted that land in dispute was never recorded as pond and bhita. He further submitted that even in the map plot in question was not shown as pond and bhita. He further submitted that longstanding revenue entry cannot be expunged in the arbitrary manner. He submitted that complete procedure has been provided under U.P.C.H. Act for challenging the basic year entry, as such, the initiation of proceeding after 65 years challenging the order passed during first consolidation operation is wholly illegal and is abuse of process of law. He further submitted that first consolidation operation was finalized in the year 1962 and second consolidation operation was started in the year 1981, as such, the initiation of the impugned proceeding after such a long period to expunge the petitioners' entry cannot be permitted. He further submitted that there was no consideration by respondent No.2 while passing the impugned order for condonation of delay of 65 years. He further submitted that delay condonation matter and the merit of the case should be decided separately, but respondent No.2 has failed to consider the same and passed the impugned order in arbitrary manner. He further placed reliance upon the judgment of this Court as well as Apex Court in order to demonstrate that the right which has accrued due to expiry of period cannot be taken away in arbitrary manner. The particulars of the case law cited by learned counsel for the petitioners are as follows :-

i) 1998 A.L.J. 525 Smt. Chandan Devi Vs. IInd Additional District Judge Nainital

ii) 2017 (5) SCC 496 Dnyandeo Sabaji Naik and another Vs. Mrs. Pradnya Prakash Khadekar and Others

(iii) 1987 A.L.J 137 Smt. Raj Kumar Kapoor Vs. Civil Judge Kanpur and Others

(iv) 2009(1) ADJ 554 Kedar Nath and others Vs. Fulena and Others

(v) 1988 A.L.J. 852 Gulab Chandra Vs. Munsiff West Allahabad and Others

(vi) 2015 (129) RD 249 Saleem Vs. Deputy Director of Consolidation G.B. Nagar

(vii) 1960 RD 189 Bhikku and another Vs. Deputy Director of Consolidation and Others

(viii) 1969 RD 34 Mandir Shivji Maharaj through Parmal Singh Vs. Commissioner (Director of Consolidation) Meerut and Others

(ix) 2020 (13) SCC 745 University of Delhi Vs. Union of India and Others

On the other hand, learned Standing Counsel submitted that land in dispute is pond and bhita, as such, no right will accrue to the petitioners even after expiry of 65 years. He further submitted that the impugned order has been passed in accordance with law as it has been found that the order passed on 30.10.1955 is fraudulent. He submitted that there is no limitation against the fraudulent order/proceeding, as such, the impugned order has been passed in the interest of State/Gaon Sabha land. He submitted that no interference is required in the matter and writ petition is liable to be dismissed.

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

There is no dispute about the fact that first consolidation operation came in the village in the year 1955 and the same was finalized in the year 1962. There is also no dispute about the fact that second consolidation operation took place in the village in the year 1981. According to the petitioners, the Consolidation Officer has passed the order in favour of the predecessors-in-interest of the petitioners on 30.10.1955 during first consolidation operation. There is also no dispute about the fact that the instant proceedings have been initiated under Section 48 of the U.P.C.H. Act as well as under Section 38(1) of the U.P. Revenue Code, 2006 in the year 2020 and the impugned orders have been passed for expunging the petitioners' entry.

In order to appreciate the controversy involved in the matter the perusal of the provisions contained under Sections 8 and 48 of the U.P.C.H. Act, 1953 with amendment of 1956 and 1963 will be relevant as the order impugned was passed on 30.10.1955. Provisions before the amendment and after the amendment in respect to U.P.C.H. Act are as under:-

8. That Section 8 of the U.P.C.H. Act, 1953, as it originally existed, is being reproduced herein below:

"8. Revision and correction of records.- (1) Where, upon an examination of the land records as aforesaid, the Assistant Consolidation Officer is of the opinion that a revision of maps or records is necessary before proceeding with the preparation of provisional Consolidation Scheme, he shall make a report accordingly, in the form and manner prescribed, to the Settlement Officer (Consolidation).

(2) Upon receipt of the report under sub-section (1) to the Settlement Officer (Consolidation) shall, after such inquiry as he may consider necessary, either -

(a) direct the Assistant Consolidation Officer to proceed with the correction of maps or records, or

(b) recommend to the State Government for revision of maps or records in accordance with the provisions of Chapter IV of the U.P. Land Revenue Act, 1901.

(3) Upon receipt of the directions under Clause (a) of Sub-section (2), the Assistant Consolidation Officer shall after such further partal as may consider necessary correct the entries in the Annual Register in accordance with the provisions contained in Chapter III of the U.P. Land Revenue Act, 1901.

(4) Any person aggrieved by the order of Assistant Consolidation Officer under sub-section (3) may, within 30 days of the order, appeal to the Consolidation Officer, whose decision shall, except as otherwise provided by or under this Act, be finaly"

9. That the aforesaid provision came to be substituted by UP Act No. XXXVIII of 1956 which ran as under:

"8" Revision of field-book and the current Annual Register - Upon revision of the village maps under Section 7, the District Deputy Director of Consolidation shall, subject to the provisions hereinafter contained, cause to be revised the field-book of the unit after field to field partal and the current annual register after its test and verification. He shall also cause to be prepared in respect to the plots falling in the unit, a statement showing the mistakes and disputes discovered during the course of field to field partal and test and verification of the current Annual Register".

10. That Section 8 again came to be substituted in the present position vide U.P. Act No. VIII of 1963 which ran as under:

"[8. Revision of the field-book and the current annual register- Determination of valuations and shares in joint holdings.- (1) Upon the revision of the maps under Section 7, the District Deputy Director of Consolidation shall, subject to the provisions hereinafter contained, and in such manner as may be prescribed, cause to be-

(i) revised, the field book of the unit after field to field partal, and the current annual register after its test and verification;

(ii) determined, in consultation with the Consolidation Committee, the valuation of-

(a) each plot after taking into consideration its productivity, location and availability of irrigation facilities, if any; and

(b) all trees, wells and other improvements existing in the plots for the purpose of calculating compensation therefore;

(iii) ascertained the share of each owner, if there be more owners than one, out of the valuation determined under sub-clause (b) of clause (ii); and

(iv) determined the shares of individual tenure-holder in joint holdings for the purpose of effecting partition to ensure proper consolidation.

(2) The District Deputy Director of Consolidation shall cause to be prepared a khasra chakbandi, in the form prescribed in respect of all the plots falling in the units as also a statement showing the mistakes 49 [undisputed cases of succession] and disputes discovered during the test and verification of the annual register and in the course of the field to field partal].

11. That by virtue of provision contained under sub-section (4) of Section 8 (as it originally existed) order of Assistant Consolidation Officer would be appealed before the Consolidation Officer and order of the Consolidation Officer was final and same was not subject to appeal or revision.

12. That original Section 48 of the U.P.C.H. Act, 1953 read as under:

"48. Revision - The Director of Consolidation may call for the record of any case if the Officer, (other than the Arbitrator) by whom the case was decided appears to have exercised a jurisdiction not vested in him by law or to have failed to exercise jurisdiction so vested, or to have acted in the exercise of his jurisdiction illegality or with substantial irregularity and may pass such orders in the case as it may think fit.

13. That the original Section 48 came to be substituted by U.P. Act No. XXIV of 1956 which is being reproduced herein below:

"48. Powers of Director of Consolidation to call for records and to revise orders. - The Director of Consolidation may call for the record of any case or proceeding if the Officer (other than the Arbitrator) by whom the case was decided or proceeding taken appears to have exercised a jurisdiction not vested in him by law or to have failed to exercise jurisdiction so vested, or to have acted in the exercise of his jurisdiction illegality or with substantial irregularity and may pass such orders in the case as it may think fit."

14. That Section 48 again came to be amended by the Act No. XXXVIII of 1958 which ran as under:

"48. Revision. - The Director of Consolidation may call for the record of any case decided or proceeding taken, where he is of opinion that a Deputy Director, Consolidation has -

(i) exercised jurisdiction not vested in him in law, or

(ii) failed to exercise jurisdiction vested in him, or

(iii) acted in the exercise of his jurisdiction illegality or with substantial irregularity, and as a result of which substantial injustice appears to have been caused to a tenure-holder, and he may, after affording reasonable opportunity of hearing to the parties concerned, pass such order in the case or proceeding as he think fit."

Petitioners' predecessors were continuously recorded since 1955 and there was no proper objection in two consolidation operations took place in the village but in the year 2020, the proceeding has been initiated by the Pradhan for expunging the petitioners' entry as well as setting aside the order dated 30.10.1955 and the respondent No.2 has passed the impugned order in the proceeding under Section 48 of the U.P.C.H. Act as well as the proceedings under U.P. Revenue Code, 2006 expunging the long standing entry of the petitioners without considering the fact that 65 years have been passed and consolidation operations have over in the village but without considering the impact of the expiry of consolidation operation as well as inordinate delay of 65 years, the impugned orders have been passed simultaneously under U.P.C.H. Act and U.P. Revenue Code, 2006.

Hon'ble Apex Court in the Case reported in AIR 2010 Supreme Court 3043 Balwant Singh (Dead) Versus Jagdish Singh and Others has held that once a valuable right, as accrued in favour of one party as a result of the failure of the other party to explain the delay, it will be unreasonable to take away the right on the mere asking of the applicant. Paragraph No.13 of the Judgement is relevant which is as under:-

"13. As held by this Court in the case of Mithailal Dalsangar Singh (AIR 2003 SC 4244: 2003 AIR SCW 4878) (supra)the abatement results in denial of hearing on the merits of the case, the provision of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be considered liberally.We may state that even if the term "sufficient cause" has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of "reasonableness" as it is understood in its general connotation.The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly.The application filed by the applicants lacks in details. Even the averments made are not correct and ex facie lack bona fide. The explanation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. If it does not specify any of the enunciated ingredients of judicial pronouncements, then the application should be dismissed. On the other hand, if the application is bona fide and based upon true and plausible explanations, as well as reflects normal behaviour of a common prudent person on the part of the applicant, the Court would normally tilt the judicial discretion in favour of such an applicant. Liberal construction cannot be equated with doing injustice to the other party. In the case of State of Bihar v. Kameshwar Prasad Singh [(2000) 9 SCC 94 : 2000 SCC (L&S) 845] this Court had taken a liberal approach for condoning the delay in cases of the Government to do substantial justice. Facts of that case were entirely different as that was the case of fixation of seniority of 400 officers and the facts were required to be verified. But what we are impressing upon is that delay should be condoned to do substantial justice without resulting in injustice to the other party. This balance has to be kept in mind by the Court while deciding such applications.In the case of Ramlal v. Rewa Coalfields Ltd. [AIR 1962 SC 361] this Court took the view:

"7. In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan ILR (1890) 13 Mad 269.

It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration;"

The case law cited by learned Counsel for the petitioner are also relevant in the matter as in the judgement of Bhikku (Supra) scope of entries of Sections 7,8 and 12 of U.P.C.H. Act as they stood prior to 1958 amendment were taken into consideration. In the case of University of Delhi (Supra) Hon'ble Apex Court has held that condonation of long delay should not be automatic and merely because petitioner/ applicant is a public body.

In the instant matter, there is not only delay of 65 years in initiating the instant proceedings rather bar of two consolidation operation are also there, as such, there is no question of expunging the petitioners' entry to nullify the order dated 30.10.1955 which is continuing since first consolidation operation rather before amendment of 1958 took place in the U.P.C.H. Act.

Considering the entire facts and circumstances, the impugned order dated 6.12.2021 passed by respondent No.1 in case No. 01197/ 2020 Computerized No. D202015060001197 under Section 48(1) of U.P.C.H. Act and order dated 6.12.2021 passed by respondent no.1 in Case No. 01018/2020 Computerized Case No. D202015060001018 under Section 38(1) of the U.P. Revenue Code, 2006 are liable to be set aside and the same are hereby set aside.

Writ petition stands allowed and respondent No.1 is directed to record the names of the petitioners in the revenue records in respect to disputed plot within a period of six weeks from the date of production of a certified copy of this order.

Order Date :- 3.5.2023

Vandana Y.