State Of U.P. vs Smt. Vimla Sabbarwal And Others
2023 Latest Caselaw 16501 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Neutral Citation No. - 2023:AHC-LKO:37030
 
Court No. - 4
 

 
Case :- WRIT - B No. - 775 of 1985
 

 
Petitioner :- State of U.P.
 
Respondent :- Smt. Vimla Sabbarwal And Others
 
Counsel for Petitioner :- C.S.C.
 
Counsel for Respondent :- Savita Jain,Uma Shankar Sahai
 

 
Hon'ble Rajesh Singh Chauhan,J.

1. Heard Sri Ramesh Kumar Singh, learned Senior Advocate and Additional Advocate General of State of U.P. assisted by Sri Krishna Singh, learned counsel for the petitioner and Mohd. Arif Khan, learned Senior Advocate assisted by Sri U.S. Sahai, learned counsel for the opposite party nos. 2/1 and 2/2.

(Order on I.A. No. 20 of 2023)

2. Heard learned counsel for the parties on the amendment application and perused the contents of amendment application and objection so filed.

3. The amendment application is allowed.

4. Since the petitioner has filed amended writ petition, the amended writ petition is hereby treated as part of the record, therefore, there is no need to incorporate the amendment in the writ petition.

(Order on I.A. No. 22 of 2023)

5. By means of the aforesaid application filed by Sri U.S. Sahai, Advocate for the contesting opposite parties who have prayed that they may be permitted to withdraw their claim whatsoever over the land in dispute being the heirs of legal representative of the deceased opposite party nos. 2 and 3 and the applicants i.e. legal heirs of opposite party no. 2 may be permitted to withdraw themselves from being substituted and from contesting the writ petition.

6. Sri U.S. Sahai has further submitted that the aforesaid withdrawal of the claim is an unconditional withdrawal of the claim, therefore, this application may be allowed.

7. The aforesaid application has been supported with joint affidavit of the parties who are being represented by Sri U.S. Sahai, Advocate.

8. Sri Sahai has submitted that a joint affidavit has been filed by the contesting opposite parties as well as the legal heirs i.e. Ramesh Sethi so that the claim in respect of property in question may be withdrawn by the contesting opposite parties and legal heirs thereof. For the convenience the formal part of the joint affidavit is being reproduced herein below:

"JOINT AFFIDAVIT

ON BEHALF OF THE HEIRS AND LEGAL REPRESENTATIVES OF THE DECEASED OPPOSITE PARTIES NO. 23 IN SUPPORT OF THE APPLICATION FOR WITHDRAWAL OF CLAIM OF THE DEPONENTS OVER THE LAND IN DISPUTE AND FOR PERMISSION OF THE HON'BLE COURT TO WITHDRAW THEMSELVES FROM WRIT PETITION

We, (1) Raja Sethi, aged about 71 years, son of Late Ram Asrey Sethi, Religion Hindu, Occupation Business, resident of G-15, Kirti Nagar, New Delhi, (2) Rajendra Sethi, aged about 59 years, son of Late Ram Asrey Sethi, Religion Hindu, Occupation Business, resident of 610/211, Keshav Nagar, Sitapur Road, Lucknow, (3) Smt. Renu Sethi, aged about 53 years, widow of Late Shri Ramesh Sethi, Religion Hindu, Occupation Housewife, resident of 84/18, 19, 20 Maya Ram Ka Hata, Dikshit Chauraha, Makboolganj Lucknow-226018 (4) Ritik Sethi, aged about 21 years, son of Late Shri Ramesh Sethi, Religion Hindu, Occupation Student, resident of 84/18, 19, 20 Maya Ram Ka Hata, Dikshit Chauraha, Makboolganj and Lucknow 226018, (S) Ms. Khushi Sethi, aged about 21 years daughter of Late Shri Ramesh Sethi, Religion Hindu, Occupation Student, resident of 84/18, 19, 20 Maya Ram Ka Hata, Dikshit Chauraha, Makboolganj, Lucknow-226018 and (6)Piyush Sethi, aged about 20 years, son of Late Shri Ramesh Sethi, Religion Hindu, Occupation Student, resident of 84/18, 19, 20 Maya Ram Ka Hata, Dikshit Chauraha, Makboolganj, Lucknow-226018, the deponents, do hereby solemnly affirm and state as under-....."

9. Sri Krishna Singh has however, filed an objection against the aforesaid application on 26.4.2023 but if the contesting opposite parties are giving up their all claims in respect of the property in question and a proper affidavit has been filed by the contesting opposite party as well as by the legal heirs thereof, they may not be compelled to contest the case. Sri U.S. Sahai has filed reply to the aforesaid objections by taking the same plea which has been considered above.

10. Therefore, I.A. No. 22 of 2023 is hereby allowed.

11. Accordingly, the contesting opposite parties and legal heirs of Ramesh Sethi may not raise claim of any kind whatsoever over the land in dispute and the land in question shall be vested in the State Government strictly in accordance with law.

(Order on the writ petition)

12. Heard learned counsel for the parties and perused the material available on record.

13. By means of this petition the petitioner has prayed following relief :

"A. issue a writ, order or direction in the nature of certiorari and quash the impugned orders dated 11.1.1984 (Annexure no. 12) and 13.1.1984 (Annexure no. 1) passed by the Deputy Director of Consolidation, the opposite party no. 7,

B. Issue a writ, order or direction in the nature of mandamus commanding the Deputy Director of Consolidation, the opposite party number 7 to exercise powers under Section 11(C) of the U.P. Consolidation of Holdings Act and in favour of the State Government and cancel the entry made in the record in favour of the opposite party numbers 1 to 6 in respect of Old Plots No. 18 M area 7.520 Acres and Old Gata No. 34 area 16.530 Acres renumbered as Gata No. 21Da area 16.530 Acres in Prapatra-18 and further renumbered as Gata No. 19Ka area 16.530 Acres in Form CH-41, situated in Village Hariharpur Lalpur, Pargana Dharmapur, Tehsil Nanpara District Bahraich as notified in Section 20 of the Indian Forest Act."

14. While assailing the aforesaid order learned counsel for the petitioner has stated that the prayer made for summoning the records vide Annexure No. 10 to the writ petition and for spot inspection vide Annexure No. 11 to the writ petition was not to delay the disposal of the revision but for made to facilitate the opposite party no. 1 to arrive at a correct decision. While rejecting the applications 11.1.1984 the Deputy Director of Consolidation lost sight of the fact and has pointed out by this Court in the judgment and order dated 23.9.1982 that under Section 11(C) it was obligatory for the Consolidation Authorities to make an order in favour of the Government if it is so warranted even though no objections have been filed by the Government under Section 9(2) of the Act. It has been submitted that the Deputy Director of Consolidation ignored the fact that had the record been examined it would have been established that the opposite party no. 1 had accepted the ownership over the plot in dispute of the petitioner and the Deputy Director of Consolidation further ignored that if a site inspection of the plot in dispute was made the assertions of the petitioner that threes over Rs. 10 lakhs existed over the land in dispute and it was the forest land would have been found to be correct.

15. It has also been submitted that by now allowing the application dated 11.1.1984 (Annexure No. 10 and 11) the grave injustice has been caused to the petitioner and the directions of this Court requiring the Deputy Director of Consolidation to permit the petitioner to lead evidence was ignored. The Deputy Director of Consolidation completely lost sight of the fact that the Consolidation Proceedings under Section 48 of the Act were pending before him and as such he was competent under Section 11(C) of the Act to make a direction that the land in dispute which vests in the State Government be recorded in its name as Forest Land.

16. Learned counsel has submitted that in view of the judgment and order dated 23.9.1982 passed by this Court in Writ Petition No. 1904 of 1982 there was no other alternative for the Deputy Director of Consolidation except to consider the case of the petitioners and decide whether the entry made in favour of the opposite party no. 1 was wrong and incorrect and the plot in dispute had vested in the Government records were required to be corrected accordingly and having failed to do so the Deputy Director of Consolidation exercise jurisdiction not vested in him.

17. Having been conceded on behalf of the opposite party no. 1 before this Court in Writ Petition No. 1904 of 1982 that the Deputy Director of Consolidation should decide the matter on merits, it was not open for the Deputy Director of Consolidation to have considered the matter pertaining to the restoration of the objections but the Deputy Director of Consolidation ought to have reopened the decision dated 28.11.1975 of the Consolidation Officer and ought to have decided the case on merits and in not doing so failed to exercise jurisdiction vested in him.

18. The decision by the Deputy Director of Consolidation vide judgment and order dated 13.1.1984 is contrary to the direction of this Court in writ petition no. 1904 of 1982.

19. Further attention has been drawn towards para 7A of the amended petition which reads as under :

"7A. That after perusal of the Revenue Record and enquiry report dated 12.05.2022 submitted by the Committee constituted by the District Magistrate. Bahraich, it has come to the notice that the land of "Old Gata No. 18 M and 34 M No. 21Da area 16.530 Acres in Prapatra-18 and renumbered as Gata No. 19Ka area 16.530 Acres in Form CH-41" has been declared to be the land of the reserved forest area under Section 20 of the Indian Forest Act, but in the record proceedings of 1975 Fasli the aforesaid plot alongwith other plots appear to be recorded not in the name of the Forest Department but in the name of different persons and these entries are incorrect, which may be rectified and the land of Old Gata No. 34 area 16.530 Acres, renumbered as Gata No. 21Da area 16.530 Acres in Prapatra- 18 and further renumbered as Gata No. 19Ka area 16.531 Acres in Form C1 b. ken to be covered by the reserved forest area as decided under Section 20 of the Indian Forest Act. A copy of the relevant annexure is jointly annexed as annexure no 1."

20. In support of the aforesaid submission the reliance has been placed towards the judgment of Apex Court in re: (1996) 5 Supreme Court Cases 194 (State of U.P. vs. Dy. Director of Consolidation and others), Civil Appeal No. 7017 of 2009 (Prabhagiya Van Adhikari Awadh Van Prabhag vs. Arun Kumar Bhardwaj (Dead) thr. LRS. and Ors.), Misc. Bench No. 2548 of 1978 (State of U.P. vs. Kamal Jeet Singh).

21. Since the contesting opposite parties have relinquished their claim, therefore, they did not try to justify the impugned orders. Besides, considering the arguments of Sri Ramesh Kumar Singh, learned Senior Advocate and perusing the material available on record as well as the aforesaid decisions of the Apex Court and this Court, I find that the impugned order dated 11.1.1984 (Annexure no. 12) and 13.1.1984 (Annexure no. 1) passed by the Deputy Director of Consolidation, the opposite party no. 7 is patently illegal, arbitrary and without jurisdiction order, therefore, the impugned orders are liable to be set aside.

22. Accordingly, the writ petition is allowed.

23. The impugned orders dated 11.1.1984 (Annexure no. 12) and 13.1.1984 (Annexure no. 1) passed by the Deputy Director of Consolidation, the opposite party no. 7 are hereby set aside.

24. The Deputy Director, Consolidation is directed to exercise powers u/s 11(c) of the U.P. Consolidation of Holdings Act in favour of the State Government and cancel the entry made in the records in favour of the opposite parties no. 1 to 6 in respect of Old Plot nos. 18 M area 7.520 Acres and Old Gata No. 34 area 16.530 Acres renumbered as Gata No. 21Da area 16.530 Acres in Prapatra-18 and further numbered as Gata No. 19ka area 16.530 Acres in Form CH-41, situated in Vilalge Hariharpur Lalpur, Pargana Dharamapur, Tehsil Nanpara, District Bahraich as notified in Section 20 of the Indian Forest Act with expedition strictly in accordance with law.

25. No order as to costs.

.

(Rajesh Singh Chauhan, J.)

Order Date :- 24.5.2023

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