Heard Sri M.G. Tripathi, learned counsel for the petitioner, learned Standing Counsel representing the State-respondents and Sri Jai Kumar, learned counsel representing the Land Management Committee/Gaon Sabha concerned.
Subject matter of this writ petition is the land comprised in Khasra Plot Nos. 689, 690, 691, 692, 693 and 694, situate in Village Ikauna Dehat, Pargana and Tehsil Ikauna, District Shrawasti.
On commencement of consolidation operations in the village, it appears that the land in question was recorded in the basic year khatauni in the name of Gaon Sabha, however, objections under Section 9A(2) of the U.P. Consolidation of Holdings Act were filed by the petitioner stating therein that the land in fact ought to be recorded in the name of the petitioner on the ground that the same stood recorded in the 1356 and 1359 Fasli in the name of predecessors-in-interest of the petitioner and further that the land was wrongly recorded in the name of Gaon Sabha subsequently. The said objections along with several other objections in respect of some other land were referred to by the Assistant Consolidation Officer for decision to the Consolidation Officer, vide his report dated 20.11.2003, which has been annexed as Annexure No.7 to the writ petition, a perusal of which clearly reveals that objections raised in respect of the land in question, namely, plots nos. 690, 691, 692, 693 and 694 were also referred to the Consolidation Officer. Consolidation Officer appears to have considered the objections and decided the same, vide his order dated 27.07.2005, which has also been annexed as Annexure No. 8 to the writ petition.
Perusal of the said order dated 27.07.2005 reveals that the objections were decided in absence of the parties concerned. Though objections filed by the petitioner and certain other individuals were decided by order dated 27.07.2005 by the Consolidation Officer exparte, however, no mention of the dispute raised by the petitioner in respect of the land in question has been made in the said order.
It appears that one Shabbir Ahmad filed a restoration application against the order dated 27.07.2005, passed by the Consolidation Officer. It is noticeable that by the same report dated 20.11.2003, the objection raised by Shabbir Ahmad was also referred to the Consolidation Officer along with objections filed by the petitioner in respect of plot nos. 689 etc. The restoration application preferred by Shabbir Ahmad appears to have been dismissed by the Consolidation Officer, vide his order dated 04.08.2006.
It is noticeable that the petitioner did not challenge the order dated 27.07.2005, however, mistakenly he filed an appeal before the Settlement Officer of Consolidation challenging the order dated 04.08.2006. The said appeal by the petitioner was filed on 09.09.2008, however, the appeal filed by the petitioner against the order dated 04.08.2006 was dismissed in default by the Settlement Officer of Consolidation, vide his order dated 25.09.2008. Though the order dated 25.09.2008, passed by the Settlement Officer of Consolidation makes a mention that the appellant-petitioner was not present, however, while dismissing the appeal certain observations regarding merit of the claim of the petitioner has also been made in the said order and the observation made is that since the land in question comprised in Gata Nos. 690, 691, 692, 693 and 694 is recorded as Khalihan and Banjar as such the petitioner cannot possibly claim the rights over the said land.
The petitioner thereafter preferred a restoration application against the order dated 25.09.2008 before the Settlement Officer of Consolidation. The said restoration application was filed on 10.11.2008 promptly after the order dated 25.09.2008. However, the said restoration application dated 10.11.2008 was rejected by the Settlement Officer of Consolidation, vide order dated 01.10. 2009.
The petitioner thereafter filed a revision petition before the Deputy Director of Consolidation on 13.10.2009, which, too, has been dismissed by the Deputy Director of Consolidation, vide his order dated 26.10.2010.
The Settlement Officer of Consolidation while passing the order dated 01.10.2009, whereby the restoration application moved by the petitioner was rejected, has only observed that the reasons given by the petitioner seeking restoration of the case were not tenable. The order by the Settlement Officer of Consolidation was passed on 25.09.2008, whereas the restoration application was preferred by the petitioner on 10.11.2008 i.e. within two months. The Settlement Officer of Consolidation, however, did not condone the delay which was of negligible duration.
Learned Deputy Director of Consolidation has also not taken into account the fact that the petitioner has never been provided any opportunity of being heard on presentation of his case on merit so far as the tenancy rights being claimed by him in the land in question is concerned. It is needless to observe that the courts should take liberal view while considering the sufficient cause in moving the restoration application for the reason that endeavour of the courts should be to provide hearing, rather than to shut the same, specially in consolidation proceedings where stake holders are ordinary villagers who may not be, most of the time, well versed of the procedural aspects of litigation.
It is also relevant to notice that the Settlement Officer of Consolidation while rejecting the appeal filed by the petitioner against the order dated 09.09.2008 and 27.07.2005 has not only recited that the petitioner was not present at the time of hearing of the appeal, but has also made certain observations on the claim of the petitioner to the effect that the land is recorded as Khalihan and Banjar and the petitioner could not claim his rights over the same.
Had a case been set up by the petitioner only on the basis of possession against the land recorded in Gaon Sabha, even this court would have been lax in considering the prayer made by the petitioner. As a matter of fact, claim of the petitioner in the land in question appears to be based on certain revenue entries pertaining to 1356 and 1359 Fasli which have not its own sanctity in terms of the provisions contained in the relevant provision of U.P. Z.A. & L.R. Act. There is no denial of the fact that the claim of the petitioner on merit has not been considered. As a matter of fact, the petitioner himself had committed a blunder by not challenging the order dated 27.07.2005, however, what is noticeable is that the order dated 27.07.2005 though rejects the objection but the same does not make any observation in respect of the plots in question, namely, plot nos. 690, 691,692, 693 and 694. The entire material available on record clearly shows that the case of the petitioner has not been considered on merit by either of the courts below. In fact the opportunity to the petitioner for putting forth his case before the courts concerned has thus not been appropriately given to him.
For the discussions made and reasons given above, this writ petition deserves to be allowed.
The writ petition is, thus, allowed. The order dated 26.10.2010, passed by the Deputy Director of Consolidation, Bahraich/Shrawasti in Revision No. 287/200, under Section 48 of the U.P. Consolidation of Holdings Act, which has been annexed as Annexure No. 1 to the writ petition is hereby quashed. The order dated 01.10.2009, passed by the Settlement Officer of Consolidation, Bahraich/Shrawasti, in Appeal No. 365, under Section 11(1) of the U.P. Consolidation of Holding Act, which has been annexed as Annexure No.2 to the writ petition is also hereby quashed. The order dated 25.09.2008, passed by the Settlement Officer of Consolidation in respect of the petitioner is also hereby quashed. The order dated 27.07.2005, passed by the Consolidation Officer, which has been annexed as Annexure No. 8 to the writ petition and the order dated 04.08.2006, passed by the Consolidation Officer in so far as it relates to the petitioner are also hereby quashed.
The matter is remitted to the Consolidation Officer concerned, who shall decide the objections filed by the petitioner under Section 9A(2) of the U.P. Consolidation of Holdings Act in respect of the land in question after affording opportunity of hearing and adducing evidence to him as also to the Gaon Sabha/Land Management Committee concerned. The Consolidation Officer shall decide the objections under this order within a maximum period of three months from the date of production of certified copy of this order before him.
Let copy of this order be furnished to the Sub Divisional Officer concerned by the learned Standing Counsel, who shall ensure that the case of the Gaon Sabha/Land Management Committee concerned is appropriately contested before the Consolidation Officer.
There will be no order as to costs.
Order Date :- 28.8.2019 Sanjay