Mohd. Nabi vs State Of U.P. And 8 Others
2023 Latest Caselaw 14960 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

				      Neutral Citation No. - 2023:AH:103474 
 
						       Court No. 18
 
						       Reserved on: 25.4.2023
 
						       Delivered on: 12.5.2023
 
				         WRIT - B No. - 1547 of 2022
 
Petitioner :- 			Mohd. Nabi
 
Respondent :- 			State of U.P. and 8 Others
 
Counsel for Petitioner:- 	Rajesh Kumar
 
Counsel for Respondent :- 	C.S.C., Arvind Srivastava-III
 
Hon'ble Chandra Kumar Rai,J.

1. Heard Mr. Rajesh Kumar, learned counsel for the petitioner, Mr. Arvind Srivastva-III, learned counsel for respondent nos. 2 & 3/1 and learned counsel standing counsel for stated respondents.

2. Brief facts of the case are that Ram Charan son of Mangali was recorded tenure holder of plot nos.566, 746, 747, 749, 750, 751,752,753,754,755,756 (total 12 plots) situated in village- Jatpura, Tehsil- Shahbad, District- Rampur. Ram Charan son of Mangali executed a registered sale-deed in favour of petitioner as well as respondent no.8 in respect to his share in the disputed plots. The village came under consolidation operation and denotified on 22-11-2012 under section 52 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred as the "U.P.C.H. Act"). Petitioner filed chak objection on 16.11.2012 i.e. 6 days before the denotification of the village, although according to respondent nos. 2 & 3/1, chak objection was filed on 30.11.2012, the copy of the chak objection has been annexed as Annexure No. SA-1 to the supplementary affidavit dated 29.7.2022 in which it is mentioned that when petitioner obtained copy of C.H. Form 45 then he came to know that his chak has been disturbed. The Consolidation Officer vide order dated 30.11.2012 dismissed the objection as not maintainable as chak adjustment has already been made in the village. Against the order of Consolidation Officer dated 30.11.2012, an appeal under section 21(2) of the U.P.C.H. Act was filed by respondent no.8 along with petitioner which was registered as Appeal No.139 and another appeal was filed by Istkar against the petitioner which was registered as Appeal No.140. Both the appeals were consolidated and heard together. The Settlement Officer of Consolidation allowed both the appeals vide order dated 6.7.2013 allotting chak to the petitioner alongwith respondent no.8 on plot nos. 752,753,754. The contesting respondents filed revision under section 48 of U.P.C.H. Act before Deputy Director of Consolidation which was registered as Revision No. 33 of 2014-15 and petitioner along with respondent no.8 also filed revision against the order of Settlement Officer (Consolidation) dated 6.7.2013 which was registered as Revision No. 275 of 2015-16. The Deputy Director of Consolidation after hearing the counsel for the parties, allowed the revision filed by contesting respondent, setting aside the appellate order dated 6.7.2013 hence this writ petition.

3. This court vide order dated 5.8.2022 directed the counsel for the contesting respondents to file counter affidavit, accordingly, counter affidavit has been filed on behalf of respondent nos. 2 & 3/1. Petitioner has filed his rejoinder affidavit also.

4. Counsel for the petitioner submitted that chak objection filed by petitioner on 16.11.2012/20.11.2012 was arbitrarily rejected by the Consolidation Officer as not maintainable. He further submitted that chak appeal filed by petitioner was allowed in accordance with law and petitioner was allotted chak according to long possession of the petitioner as well as considering the provisions relating to allotment of road-side plot. He further submitted that chak revision filed by contesting respondents has been allowed on misconceived ground that village has been denotified under section 52 of U.P.C.H. Act on 22.11.2012. He further submitted that revisional court has failed to consider that chak objection was filed on behalf of petitioner before denotification of the village, as such, there was no occasion for the revisional court to dislodge the petitioner's claim on the ground of denotification of the village under section 52 of U.P.C.H. Act. He further submitted that finding recorded by revisional court is perverse with respect to filing of objection by petitioner and denotification of the village, as such, the revisional order is wholly illegal. He further submitted that for the purpose of pending proceeding, consolidation operation shall not be presumed to be closed. He further placed reliance upon the judgment reported in 2008(104) RD 565, Ramanuj Tiwari vs. Deputy Director of Consolidation, Deoria and Others and 2013 (120) RD 634, Ramanand vs. Deputy Director of Consolidation, Faizabad in order to demonstrate that dispute is to be decided on merit and notification issued under Section 52 of the U.P. C.H. Act will not come in the way of tenure holder to file appeal or revision.

5. On the other hand counsel for the contesting respondent nos. 2 & 3/1 submitted that contesting respondents are having 1/6 share in the disputed plots. He further submitted that during consolidation operation at the stage of Consolidation Officer, respondent nos. 2 & 1/3 were given their share on plot nos. 751 & 752 and C.H. Form 23 was accordingly prepared and there was no objection by petitioner at appropriate stage of the consolidation operation. He further submitted that at the advance stage of consolidation operation, sale deed was executed in favour of petitioner and respondent no.8 by Ram Charan son of Mangali, as such, the chak objection filed by petitioner after preparation of C.H. Form 45 etc. was rightly rejected by Consolidation Officer as not maintainable. He further submitted that chak objection is dated 16.11.2012 but it was filed on 30.11.2012. He further submitted that chak appeal filed by petitioner was arbitrarily allowed, hence revisional court has exercised jurisdiction under Section 48 of U.P.C.H. Act in setting aside the appellate order which requires no interference by this court. He further submitted that writ petition filed by petitioner is liable to be dismissed.

6. I have considered the argument advanced by learned counsel for the parties and perused the records as well as written argument filed by learned counsel for the petitioner.

7. There is no dispute about the fact that chak objection dated 16.11.2012 has been filed by petitioner on 16.11.2012 but there is dispute about the date of filing of chak objection. According to petitioner, chak objection was filed on 16.11.2012 but according to the respondent nos. 2 and 3/1 it was filed on 30.11.2012. There is no dispute about the fact that village was denotifed under section 52 of U.P.C.H. Act on 22.11.2012. There is also no dispute about the fact that chak objection filed by petitioner was dismissed by Consolidation Officer as not maintainable vide order dated 30.11.2012 but the order was set aside in appeal granting relief to the petitioner. There is also no dispute about the fact that chak revision filed by contesting respondents was allowed, setting aside the appellate order.

8. In order to appreciate the controversy, the perusal of sections 20, 21 & 23 of U.P.C.H. Act will be relevant with respect to filling of chak objection:-

"[20. Publication of the provisional Consolidation Scheme and receipt of objections thereon.- (1) Upon the preparation of the provisional Consolidation Scheme, the Assistant Consolidation Officer shall send, or cause to be sent, to the tenure-holders concerned and persons interested, notices containing relevant extracts therefrom. The provisional Consolidation Scheme shall thereafter be published in the unit.

(2) Subject to the provisions contained in Section 11-A, any person to whom notice has been sent under sub-section (1) and any other person affected by the provisional Consolidation Scheme, disputing the propriety or correctness of the entries in the provisional Consolidation Scheme, or in the extracts furnished therefrom may, within fifteen days of the receipt of the notice, or of the date of the publication of the provisional Consolidation Scheme, as the case may be, file an objection before the Assistant Consolidation Officer or the Consolidation Officer.

(3) Any person affected, or any person having any interest or right, in addition to the right of public highway, in or over any public land, or having other interest or right which is substantially prejudiced by the declaration made under sub-section (2) of Section 19-A, may within fifteen days after the publication of the provisional Consolidation Scheme, file an objection before the Assistant Consolidation Officer or the Consolidation Officer stating the nature of such interest or right.]

21. Disposal of objection on the statement.-[(1) All objections received by the Assistant Consolidation Officer shall, as soon as may be, after the expiry of the period of limitation prescribed therefor, be submitted by him to the Consolidation Officer, who shall dispose of the same, as also the objections received by him, in the manner hereinafter provided after notice to the parties concerned and the Consolidation Committee.]

(2) Any person aggrieved by the order of the Consolidation Officer under sub-section (1) may within[15] days of the date of the order, file an appeal before the Settlement Officer, Consolidation whose decision shall, except as otherwise provided by or under this Act be final.

[(3) Disposal of objections to the provisional Consolidation Scheme. - The Consolidation Officer shall, before deciding the objections, and the Settlement Officer, Consolidation, may, before deciding an appeal, make local inspection of the plots in dispute after notice to the parties concerned and the Consolidation Committee.]

[(4) If, during the course of the disposal of an objection or the hearing of an appeal, the Consolidation Officer or the Settlement Officer, Consolidation, as the case may be, is of the opinion that material injustice is likely to be caused to a number of tenure-holders in giving effect to the provisional Consolidation Scheme, as prepared by the Assistant Consolidation Officer, or as subsequently modified by the Consolidation Officer, as the case may be, and that a fair and proper allotment of land to the tenure-holders of the units is not possible without revising the provisional Consolidation Scheme, or getting a fresh one prepared, it shall be lawful, for reasons to be recorded in writing, for -

(i) the Consolidation Officer to revise the provisional Consolidation Scheme, after giving opportunity of being heard to the tenure- holders concerned, or to remand the same to the Assistant Consolidation Officer, with such directions as the Consolidation Officer may consider necessary; and

(ii) the Settlement Officer, Consolidation, to revise the provisional Consolidation Scheme, after giving opportunity of being heard to the tenure-holders concerned or to remand the same to the Assistant Consolidation Officer, or the Consolidation Officer, as the Settlement Officer, Consolidation, may think fit, with such directions as he may. consider necessary.]

(5) [* * *]

(6) [* * *]

23. Confirmation of the provisional Consolidation Scheme and the issue of allotment orders. - (1) The Settlement Officer, Consolidation, shall confirm the provisional Consolidation Scheme -

(a) if no objections are filed within the time specified in Section 20; or

(b) where such objections are filed, after such modifications or alterations as may be necessary in view of the orders passed under subsections (1) to (4) of Section 21.

(2) The provisional Consolidation Scheme so confirmed shall be published in the unit and, except as otherwise provided by or under this Act, shall be final.

(3) (i) Where the allotments made under Section 19-A are not modified under Section 21 and are confirmed under sub-section (1), the extracts contained in the notice issued under Section 20, shall [except as provided by or under the Act] be treated as final allotment orders for the tenure-holders concerned.

(ii) In cases not covered by clause (i), revised extract specifying the modified allotments, as confirmed under sub-section (1), shall be issued by -

(a) the Consolidation Officer, where the allotments are not modified by the Settlement Officer, Consolidation, and

(b) by the Settlement Officer, Consolidation, where he has modified the allotments, and the same [except as otherwise provided by or under this Act,] shall be the final allotment orders for the tenure-holders concerned."

9. Section 20(2) & 20(3) of the U.P.C.H. Act specifically provides that objection is to be filed within 15 days of the receipt of the notice or of the date of publication of the provisional consolidation scheme. It has been further provided under sections 21 & 23 of the U.P.C.H. Act as quoted above that in what manner objection will be decided and provisional consolidation scheme will be confirmed. In the instant matter chak objection has been filed after finalization of consolidation operation and just 6 days before the denotification of the village under section 52 of the U.P.C.H. Act which is not just and proper as the initiation of consolidation operation and conclusion of consolidation operation took long time, as such, filing of chak objection at the verge of denotification of the village, has been rightly refused by the revisional court under the impugned order. It is correct that provisions of Section 5 of Indian Limitation Act are applicable under the U.P. C.H. Act as provided under Section 53-B of the U.P. C.H. Act but that does not mean that objection can be entertained at any stage of the consolidation operation or at any time after conclusion of consolidation operation.

10. The main emphasis of the learned counsel for the petitioner is that objection was filed before denotification of village, as such, objection was maintainable for allotment in respect to road-side plot, however counsel for the contesting respondent submitted that objection has been filed after denotification of the village, as such, the same was rightly rejected but the fact remains that objection has been filed in November, 2012 (whether on 16.11.2012 or 20.11.2012 or after 22.11.2012) and village has been denotified under Section 52 of the U.P. C.H. Act on 22.11.2012, as such, filing of chak objection at such a late stage has been rightly refused by Consolidation Officer as well as by Deputy Director of Consolidation. The argument advanced by learned counsel for the petitioner cannot be accepted in the fact and circumstances of the case.

11. Considering the provisions of the U.P. C.H. Act as well as entire facts and circumstances of the case, no interference is required against the impugned order.

12. Writ petition is devoid of merit and is dismissed, accordingly. No order as to costs.

Order Date :- 12.5.2023

C.Prakash

(Chandra Kumar Rai, J.)