Bare Lal vs State Of U.P.
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Allahabad High Court

Bare Lal vs State Of U.P. on 5 February, 2024

Author: Dinesh Pathak

Bench: Dinesh Pathak

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:28457
 
Court No. - 48
 

 
Case :- WRIT - B No. - 11 of 2024
 

 
Petitioner :- Bare Lal
 
Respondent :- State of U.P.
 
Counsel for Petitioner :- Agnivesh,Agnivesh
 
Counsel for Respondent :- C.S.C.,Hari Narayan Singh,Hari Narayan Singh
 

 
Hon'ble Dinesh Pathak,J.
 

1. Heard learned counsel for the petitioner, learned Standing Counsel for the respondents No. 1 to 4, learned counsel for the Gaon Sabha and perused the record on board.

2. Facts culled out from the record are that instant writ petition has arisen out of proceeding under Section 9A(2) of UP Consolidation of Holdings Act (in brevity, UPCH Act). Petitioner is claiming his right and title over the property in question on the basis of lease deed said to have been executed by Gaon Sabha in the year 1972. On the premise of said lease deed, his name was recorded in the basic consolidation record over Khata No. 295. Assistant Consolidation Officer has submitted his report dated 14.8.2020 questioning the entry made in the name of petitioner being a lessee over plots No. 563, 559 and 591 total three plots area 2.97 acres of Khata No. 295 with an averment that in the basic consolidation record, unusual entry has been made with green ink and there is no existence of land allotment record in the Tehsil and, therefore, prima facie, entry is forged. On the basis of said report, a case under Section 9A(2) of UPCH Act has been registered. The Consolidation Officer, vide order dated 28.9.2020, has issued a direction to expunge the entry made in the name of petitioner from the land record being it forged and in violation of law. Having been aggrieved, the present petitioner has preferred a time barred appeal. The Settlement Officer of Consolidation has dismissed the appeal, vide order dated 1.10.2022, affirming the order dated 28.9.2020 passed by the Consolidation Officer. The Deputy Director of Consolidation, on revision being filed on behalf of the present petitioner, has dismissed the same, which is under challenge before this Court.

3. Learned counsel for the petitioner has advanced two fold submissions that all the three consolidation courts have illegally discarded the claim of the petitioner over demised land without properly appreciating the evidence on record and the Settlement Officer of Consolidation has illegally decided the appeal without passing any appropriate order on the delay condonation application moved along with memo of appeal. In support of his submission, learned counsel for the petitioner has cited the judgment dated 3.2.2022 passed by Division Bench of this Court in Consolidation (Writ) No. 6574 of 2016, Ram Prakash Vs. Deputy Director of Consolidation, Hardoi and others.

4. Per contra, learned Standing Counsel as well as learned counsel for the Gaon Sabha have vehemently opposed the submissions raised by the learned counsel for the petitioner and supported the findings of fact returned by all the three consolidation courts.

5. Having considered the rival submissions advanced by the learned counsel for the parties and perusal of record, it is manifested that in basic consolidation record, on the advent of consolidation operation, entry in the name of present petitioner has been shown to be made over Khata No. 295 by Tehsildar on 22.6.1995 on the basis of order dated 28.11.1972 passed by Assistant Consolidation Officer in Case No. 105 under Section 12 of UPCH Act. This entry was made with green ink. Questioning genuineness of the aforesaid entry, consolidation courts have given a categorical finding that Tehsildar has inherent lack of jurisdiction to make any entry in the consolidation record. Apart from that, previous consolidation operation was completed in the year 1963-1964, however, order dated 28.11.1972 has been shown to be passed by the Assistant Consolidation Officer under Section 12 of UPCH Act whereas at that time village was not under the consolidation operation. Subsequent consolidation operation was started in the year 1995, therefore, the order dated 28.11.1972 shown to be passed by the Assistant Consolidation Officer is a forged and fictitious order. Entry made with green ink is also questionable inasmuch as there is no provision under the law to make any entry in the basic consolidation record with green ink which is visibly distinguishable from other entries made in the basic consolidation record. The consolidation courts have made further observation that even assuming that the Assistant Consolidation Officer had passed the order in previous consolidation operation (1963-1964), plot numbers should have been mentioned with their old identity as existed in 1963-1964. Order of 1972 has been shown to be passed on the plot numbers which came into existence after previous consolidation operation, whereas, after completion of consolidation operation the jurisdiction of the consolidation courts ceases. Petitioner has impressed upon entry made over Khata No. 81Va in Khatauni 1388 F. to 1392 F. The consolidation courts have observed that Khata No. 81 is related to the private bhumidhari land. Even assuming for the sake of argument that petitioner was granted lease over the aforesaid plot numbers, the entry in the name of the petitioner would have been made in the Khata of Bhumidhari with non-transferable right/Sirdari right. Despite the alleged entry made in the Khata No. 81Va, area of plots No. 563, 559 and 591 as endorsed in the Khata of barren land of the Khatauni 1379 F. was consistent and continued till Khatauni 1388 F. to 1392. The consolidation courts have genuinely questioned such entry on the ground that if the entry of Khata No. 81Va was genuine, alleged area should have been reduced from the Khata of barren land and came to conclusion that, prima facie, petitioner has fraudulently got his name recorded in the consolidation record and is claiming his right on the basis thereof. Therefore, I found no substance in the first submission advanced by the learned counsel for the petitioner. All the consolidation courts have delve in deep to find out the basis of entry made in favour of the petitioner in the basic consolidation record and rightly came to the conclusion that the entry in favour of the petitioner is a forged entry. Documents relied upon by the petitioner are not supporting to his claim. There is no record available in Tehsil/Taluka relating to the land allotment proceeding by which the petitioner has been granted alleged lease in the year 1972. The petitioner has failed to support the entry made in the basic consolidation record.

6. So far as second submission is concerned, with respect to the decision on appeal without condoning delay, I am sceptical of the submissions advanced by the learned counsel for the petitioner. While assailing the order dated 28.9.2020 passed by the Consolidation Officer, petitioner has filed delay condonation application under Section 5 of Limitation Act supported by an affidavit along with memo of appeal. The Settlement Officer of Consolidation, while passing the order dated 1.10.2022, has referred to the delay condonation application and decided the revision on merits as well as the delay condonation. Although no specific observation has been made by the Settlement Officer of Consolation qua allowing the delay condonation application moved on behalf of the petitioner, I am of the considered opinion that delay condonation application would be deemed to be allowed on the premise that the Settlement Officer of Consolidation has decided the case of the parties on its own merits. Therefore, on technical ground of absence of specific observation with respect to allowing the delay condonation application, the order passed by the Settlement Officer of Consolidation cannot be questioned, precisely, while appeal was decided on merits. There is no specific case of the petitioner that the Settlement Officer of Consolidation has decided the appeal sans opportunity of hearing accorded to him. Full opportunity of hearing was accorded to the petitioner and the defence forwarded by him to protect the entry made in his name has been considered thoroughly. The Settlement Officer of Consolidation has clearly observed that he has heard the parties on delay condonation as well as merits of the appeal. The observation made by the Settlement Officer of Consolidation has not been rebutted by the petitioner. Even otherwise, the order passed by the Settlement Officer of Consolidation is merged under the 'principle of merger' in the order passed by the Deputy Director of Consolidation who has decided the revision filed on behalf of the petitioner on merits as well. No such plea has been taken by the petitioner before the Deputy Director of Consolidation qua decision on appeal sans deciding the delay condonation application.

7. In this conspectus, as above, I do not find any justifiable ground to entertain the instant writ petition and interfere in the order passed by the consolidation courts. Right and title of the petitioner over the land in question on the basis of alleged lease deed said to have been executed in the year 1972 has concurrently been discarded by all the three consolidation courts. There is no illegality, perversity or ambiguity in the concurrent finding of fact returned by all the three consolidation courts so as to exercise the extraordinary jurisdiction of this Court under Article 226 of Constitution of India.

8. Resultantly, instant writ petition, being misconceived and devoid of merit is dismissed with no order as to the costs.

Order Date :- 5.2.2024

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