Court No. - 9
Case :- WRIT - B No. - 5119 of 2018 Petitioner :- Chandra Dev And 6 Others Respondent :- Deputy Director Of Consolidation And Another Counsel for Petitioner :- Adarsh Kumar Counsel for Respondent :- C.S.C.,Ramesh Chandra Upadhyay connect with Case :- WRIT - B No. - 5518 of 2018 Petitioner :- Chandrama And 2 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Santosh Kumar Singh Counsel for Respondent :- C.S.C.,Ramesh Chandra Upadhyay
Hon'ble Anjani Kumar Mishra,J.
Heard learned counsel for the parties in these petitions.
The orders impugned in these petitions have been passed in references under Section 48(3) of the U.P. Consolidation of Holdings Act forwarded to the Deputy Director of Consolidation, who has approved them. Thereby, names of the petitioners stand expunged from land which was earlier recorded as bhita, on the ground that bhita being land covered by Section 132 of the U.P. Zamindari Abolition and land Reforms Act, wherein no rights can acrue in favour of any person.
The contention of learned counsel for Chandra Deo and others, the petitioners in Writ Petition No.5119 of 2018 is that an allotment had been made in favour their father in the year 1977. This allotment was for 1 acre of land of plot no.478. This allotment was duly approved and affirmed and a chak has been carved out in their favour during the second round of consolidation operations, which took place in the year 1990 and the petitioners chak was demarcated and they are bhumidhars with transferable rights of the land allotted in favour of their father.
Thereafter, a fresh allotment of an area of .15 decimal of plot no.478 was made in their favour. The plot no.478 as per ZA Form 58, which has been filed on record. This allotment was made on 30.12.1980.
The last argument of desperation is that in the map prepared, no bheeta is shown to exist to plot no.478. This revenue map is prepared in 1376 fasali (page 44 of the paper book).
Relying upon the Full Bench decision of this Court in Similesh Kumar Vs. Gaon Sabha Uskar Ghaziabad and others, AIR 1977 All 360, it has been vehemently argued that since the allotment made in favour of the petitioners predecessor-in-interest had attained finality, the same cannot be looked into by the consolidation authorities.
It has also been contended that the land of bheeta is not 'land' within the meaning of Section 132 of the U.P. Zamindari Abolition and Land Reforms Act and therefore, also being the impugned order could not have been passed in favour of the petitioner.
The contention of counsel for the petitioner is that the first round of consolidation operation started in the year 1977 and the consolidation came to be closed in the year 1976-77. The alleged allotment made in favour of the petitioner in the year 1980 was an area of plot no.478 kha. This is borne out by ZA Form 58 filed on record.
The second round of consolidation operations started in the year 1991 and in this round of consolidation operations, the land which is subject matter of allotment in favour of the petitioners' has been declared chak out.
The reference was made and the order impugned has been passed without any opportunity of hearing having been provided to the petitioner.
Learned counsel has also placed reliance upon the Full Bench decision in Similesh Kumar to submit that the allotment made in favour of the petitioner has never been cancelled by the competent court in accordance with the procedure prescribed for the purpose under Section 198(4) of the U.P. Consolidation of Holdings Act.
The contention of learned Standing Counsel is that the ZA Form-58 filed by the petitioners in Writ Petition No.5118 of 2018 mentions 478 Sa and not 478 Kha, as is the case of the petitioner.
I have heard learned counsel for the parties and perused the record.
On an earlier occasion, the following order had been passed -
"Learned Standing Counsel has produced the original revenue record pertaining to plot no.478, namely, the record of the first consolidation operations, especially CH Form-41 prepared then.
On its basis, it has been submitted that in CH Form-41, plot no.478 is recorded in two parts , 478 K area 3.03 acres is recorded as Bhita while plot no.478 ka area 0.49 acres is recorded as navin parti.
This position is stated to have continued up to 1386 fasali. In the khatauni of 1394 fasali, for the first time, the name of the petitioner came to be recorded over 1 acre of plot no.478 without mentioning, whether, the amaladaramad is being made over plot 471 ka or 478 kha.
In any case, the amaldaramad could not be made over plot no.478 kha, which had an area of 0.49 acre only. The document containing this amaldaramad has also been filed by the petitioner along with the writ petition.
The original ZA Form 58 annexed to the writ petition on page 35 of the paper book, shows an allotment of plot no.478 Sa area 15 decimal in favour of Chandra Dev, petitioner no.1. Contrary to this document, amaldaramad has been made regarding 1 acre of land.
The certificate of patta in ZA Form 58 filed on record pertains only to the petitioner no.1.
Counsel for the petitioner states that he shall file the said certificate issued to the other petitioners also.
Accordingly, put up as fresh on 19.11.2018.
The original revenue record produced and perused by the Court is no longer required and may be returned. Learned Standing Counsel is however, directed to retain a photostat copy of the relevant pages of this document."
At the very outset, it would be relevant to note that the proceedings wherefrom this petition arises were drawn in pursuance of the directions issued by the Apex Court's in the case of Hinch Lal Tiwari.
It is also clear and is established from the original record, which was examined by this Court that plot no.478 ka, was recorded as bheeta while plot no.478 ka was recorded as naveen parti. There is no other sub division of plot no.478. For this reason alone, any allotment of plot no.478 or sub divisions apart from sub divisions kha and ka is an allotment of a non existent plot.
The allotment is therefore, void abinitio and the same therefore, would not require its cancellation by following the procedure prescribed under Section 198(4) of the U.P. Zamindari Abolition and Land Reforms Act.
Learned counsel for the petitioner has also produced the original ZA Form-58, photostat copy whereof has been filed on page28-A of the paper book and the allotment is clearly of plot no.478 Sa and not Kha as is the case of the petitioners.
Therefore, again the allotment was of a plot, which did not exists in the revenue records.
Making use of the above and other fraudulent pattas, the petitioners in the aforesaid two petitions have get their names recorded as plot no.478/ 1,2,3 and 4 etc.
The impugned order even if passed for reasons, which are not correct, this Court while exercising jurisdiction under Article 226 of the Constitution of India can refuse to interfere, in case, it finds that substantial justice done by the order impugned. This is a case, where, such a stand is liable to be taken merely because a fraudulent patta was obtained and a fraudulent entry on its basis has continued for several years despite consolidation operations. This would not render the initial allotment, a valid one.
The connivance of the revenue officials as also the Gaon Sabha in this regard is writ large of the face of the record. In so far as, the alleged allotment in favour of the petitioners in the aforesaid two writ petitions is concerned, the Court is not proposing any further action since, the matter is more than 40 years old. It is hardly likely that any person, who was responsible for this fraudulent action would be alive, as on date.
I also do not find any merit in the submissions of counsel for the petitioners that proceedings for cancellation of the allotment should have been drawn, in accordance with the provisions contained in Section 198(4) of the U.P. Zamindari Abolition and Land Reforms Act.
The very basis of the petitioners claim is not only under a serious cloud. In fact, it is doubtful beyond all the measure. The Gaon Sabha could not have been made a valid allotment of a plot, which did not exist in the revenue records as that has been recorded in the order passed by this Court on 01.11.2018, which is has been reproduced herein-above.
Under the circumstances, I do not find any illegality in the impugned orders in either of these writ petitions. Both petitions are totally devoid of merits.
The petitions are accordingly, dismissed.
Order Date :- 27.11.2018 RKM