Allahabad High Court
Birendra Pratap And 3 Others vs State Of U.P. And 6 Others on 19 May, 2023
Bench: Chandra Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:109509
Court No. - 18
Case :- WRIT - B No. - 1962 of 2023
Petitioner :- Birendra Pratap And 3 Others
Respondent :- State Of U.P. And 6 Others
Counsel for Petitioner :- Saroj Kumar Yadav
Counsel for Respondent :- CSC,Bhupendra Kumar Tripathi
Hon'ble Chandra Kumar Rai,J.
1. Heard Sri Saroj Kumar Yadav, learned counsel for the petitioners, learned Standing Counsel for State-respondents and Mr. Bhupendra Kumar Tripathi, Counsel for respondent-Land Management Committee.
2. With the consent of the parties, writ petition is being heard and disposed of finally without calling counter affidavit.
3. Stamp reporter has reported laches of 1164 days in filing the writ petition, which has properly been explained in para No.24 of the writ petition.
4. The instant writ petition has been filed for the following relief:
"(i) issue a writ of certiorari thereby calling for records and to quash the impugned order dated 4.12.2019 passed by the Respondent No.5/ Consolidation Officer Kirtapur, District-Jaunpur by which he has approved the report dated 4.12.2019 forwarded by Assistant Consolidation Officer Devkali/Manikala, Jaunpur on 4.12.2019 itself, for correcting the records regarding the Gata No.1188, admeasuring area 0.96 dismil of chak no.1030, passed in Case No.672 of 2020-21 (State of U.P. vs. Harikaran) and to expunge the name of tenure holder Harikaran son of Jaggu from aforementioned gata and to enter the aforementioned land as 'Taal' in the revenue records (contained as Anneure No. 3 to this writ petition).
(ii) issue a writ, order or direction in the nature of mandamus, directing the respondents not to interfere in the peaceful enjoyment of the petitioners over Gata No.1188 situate at village Kachhra, Pargana- Anguli, Tehsil Shahganj, District Jaunpur.
5. Counsel for the petitioners submitted that the Consolidation Officer has passed the ex-parte order without any notice or opportunity of hearing to the petitioners in the proceeding under Section 9A (2) of U.P.C.H. Act. He further submitted that the similar controversy has been entertained by this Court in several writ petitions, which have been allowed by this Court. One of the order passed by this Court in Writ B No.3658 of 2022 on 02.01.2023 has been annexed as Annexure No.1 to this Writ Petition by which order of Consolidation Officer dated 13.01.2021 has been quashed and matter has been sent back before the Consolidation Officer to deice the proceeding within stipulated period after affording opportunity of hearing to the tenure holders/petitioners.
6. On the other hand, learned Standing Counsel for the State-respondent submitted that impugned order has been rightly passed by the Consolidation officer as the plot in dispute is a pond, as such no interference is required. He further submitted that against the impugned order remedy of appeal and revision is available to the petitioners as such writ petition is liable to be dismissed on the ground of alternative remedy.
7. I have considered the arguments advanced by the counsel for the parties and perused the record.
8. There is no dispute about the fact that petitioners were recorded as tenure holders of the plot in dispute and without proper opportunity of hearing and notice, petitioners' entry have been expunged. There is also no dispute about the fact that similar controversy has been entertained and decided by this Court in Bunch of writ petitions by which order of Consolidation Officer dated 13.01.2021 has been quashed and matter has been sent back before the Consolidation Officer to decide the case afresh in accordance with law.
9. Since the impugned order has been passed without framing issues and without affording opportunity of hearing to the petitioners, as such the same is in-violation of the mandatory provisions contained under Rule 26 (2) of U.P.C.H. Rules, which is as under:
"Rule 26 of U.P.C.H. Rules:-
[26. Section 9-A. -(1) The cases received from the Assistant Consolidation Officer shall be entered in the Misilband register in C.H. Form 6 in the office of the Consolidation Officer.
(2) On the date fixed under sub-rule (2) of Rule 25-A, or on any subsequent date fixed for the purpose, the Consolidation Officer shall hear the parties, frame issues on the points in dispute, take evidence, both oral and documentary, and decide the objections.
(5) For deciding dispute relating to the determination of exchange ratio of a plot or the valuation of a tree, well or other improvement existing on a plot, the Consolidation Officer shall make a local inspection of the plot concerned, prepare an inspection memo and place it on the connected file.
(3) The notice, which it may become necessary for the Consolidation Officer to issue to any person in connection with the disposal of a dispute by him, shall be in C.H. Form 6-A.
(4) Where all the tenure-holders of a joint holdings oppose partition and the Consolidation Officer is satisfied that the opposition of each co-tenure-holder is genuine, he shall not proceed with the partition, unless for reasons to be recorded by him in writing, he considers it necessary so to do in the interest of better consolidation"
10. So far as availability of alternative remedy is concerned, The Apex Court in a case reported in 2009 (1) AWC 437 (SC) Committee of Management and another Vs. Vice Chancellor and others has held that alternative remedy will not be bar if the impugned order has been passed in violation of principle of natural justice, the relevant paragraph No.21 of the judgment as as follows:
"21. Furthermore, when an order has been passed by an authority without jurisdiction or in violation of the principles of natural justice, the superior courts shall not refuse to exercise their jurisdiction although there exists an alternative remedy. In this context, it is appropriate to refer to the observations made by this Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai & Ors. (1998) 8 SCC 1:
"15. .... But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. ...."
[See also Guruvayoor Devaswom Managing Committee & Anr. v. C.K. Rajan & Ors. (2003) 7 SCC 546]
In this case, albeit, before us for the first time, the vires of the proviso appended to Section 16 of the Act is in question, besides other points noticed by us hereinbefore."
11. Considering the facts and circumstances of the case as well as order passed by this Court in Writ B No.3658 of 2022 on 02.01.2023, the impugned order cannot be sustained in the eye of law. Accordingly, the impugned order dated 04.12.2019 passed by Consolidation Officer is liable to be set aside and the same is hereby set aside.
12. The writ petition is allowed in part and matter is remitted back to the Consolidation Officer/ respondent No.5 to decide the objection/ Case No.672 of 2019-20 under Section 9 A (2) of U.P.C.H. Act afresh after framing issues and giving opportunity to the parties to lead the evidence in accordance with law expeditiously and preferably within a period of six months from the date of production of certified copy of this order after giving opportunity of hearing to the parties concerned and without granting unnecessary adjournments to either of the parties.
Order Date :- 19.5.2023/C.Prakash
