Heard Shri Bhola Nath Yadav, learned counsel for the petitioner and Shri Pankaj Kumar Gupta, learned counsel for the Gaon Sabha and learned Standing Counsel for the State-respondents.
By the impugned order dated 10.12.2020, the Deputy Director of Consolidation has allowed the restoration application filed by the Gaon Sabha and set aside the order dated 06.01.2000 passed by the Deputy Director of Consolidation.
The impugned order also dismisses the revision filed by the petitioner and directs the mutation of the land records in favour of the Gaon sabha in regard to the disputed parcels of land.
Shri Bhola Nath Yadav, learned counsel for the petitioner does not press the challenge to the impugned order insofar as it sets aside the ex-parte order passed by the Deputy Director of Consolidation dated 06.01.2000. The challenge to the impugned order is restricted to the extent that it dismisses the revision and decides the controversy on merits.
The contention of Shri Bhola Nath Yadav, learned counsel for the petitioner is that the petitioner was not heard on merits. The impugned order insofar as it dismisses the revision suffers from non application of mind. The grounds taken in the revision by the petitioner have not been considered.
Shri Pankaj Kumar Gupta, learned counsel for the Gaon Sabha and learned Standing Counsel for the State could not show consideration of the grounds raised in the memo of revision in the impugned order dated 10.12.2020.
Heard learned counsel for the parties.
The petitioner claims that he was entitled to be allotted Gaon Sabha land after correct evaluation. It is also contended that the land is not for public utility.
Reliance has been placed by the petitioner on the law laid down by this Court in Ram Kumar and another Vs. Zila Adhikari/DDC, Muzaffar Nagar and others, reported at (2002) 93 RD 403.
The holding of this Court in Ram Kumar (supra) seems relevant to the facts of this case, is extracted hereinunder:
?12. Section 10-A (2) provides "notwithstanding anything contained in this Act", thus this provision will prevail over any other provision contained in U. P. Consolidation of Holdings Act, 1953- Further, Section 19A (2) also provides "notwithstanding anything contained in the U. P, Zamindari Abolition and Land Reforms Act, 1950". Thus, the power under Section 19A (2) is given to the Assistant Consolidation Officer to allot to a tenure holder any land belonging to the State Government or any land vested in the Gaon Sabha or any other local authority. Thus, the counsel for the petitioners is right in his submission that the land belonging to the State Government/ Gaon Sabha, even if it is for public purpose, can be allotted to a tenure holder in the consolidation proceedings and there ts no lack of jurisdiction in the consolidation authorities in allotting the land for public purpose.
13. However, the power given under Section 19A has to be exercised subject to condition and requirements as provided in proviso to Section 19A (2). The proviso requires in mandatory form that where any such land is used for public purpose, it shall be allotted only after the Assistant Consolidation Officer has declared in writing that it is proposed to transfer the rights of the public as well as of all individuals in or over that land to any other land specified in the declaration and earmarked for that purpose in the Provisional Consolidation Scheme. Thus, the public purpose land belonging to Gaon Sabha cannot be allotted to a tenure holder unless any other land is specified in writing by the Assistant Consolidation Officer. The above proviso has been enacted to safeguard the public interest. The intention of the proviso is that the public purpose be not defeated and if a land is earmarked for the public purpose, then it should not be allotted to a tenure holder unless any other land is specified to serve the public purpose. For example. If any pasture land is proposed to be allotted to a tenure holder, the same cannot be done unless any other land is specified in writing to take place of the land sought to be allotted. Thus, for example, on a pasture land, the public has a right to graze its animals, the said right can be taken away then it is proposed that the said rights will be given on some other specified land, if this provision is not there, then there will be loss to public interest and large number of public purpose land can be allotted to tenure holders causing injury Co rights of public. The proviso gives indication that rights of individual tenure holder can be transferred to public in a particular land. Thus, the land belonging to Gaon Sabha can be allotted to tenure holders and land of similar valuation can be given to Gaon Sabha by tenure holders. Proviso does not contemplate allotment of public purpose land to tenure holders without there being specification of other land in which the rights of the public have to be conferred.
14. From the above discussion, it is clear that though the allotment of land belonging to Gaon Sabha is permissible but the said allotment is subject to condition of specification of other land in writing by the Assistant Consolidation Officer while making allotment to tenure holders. Thus, the question Nos. 1 and 3 are decided accordingly.?
A perusal of the order passed by the learned revising court clearly shows that the court below neglected to consider the aforesaid aspects of the controversy.
The impugned order cryptically records that the disputed parcels of land are recorded as Bandh and Banjar and is Gaon Sabha property. It is not specified in the impugned order as to what part of the land is Bandh or Banjar land and whether the said land is liable to be used for public purpose. The impugned order has noticed that part of the land is used for Bandh. Bandh is definitely for public purpose. The land recorded in the name of Bandh cannot be allotted to any private person. However, full specification with detailed measurements of the disputed parcels of land which may be allotted to the private person or are liable to be retained by the Gaon Sabha or are earmarked for public purposes and hence cannot be allotted to private persons are matters of fact, which have to be determined as per law by the learned revising court.
In the wake of the preceding discussion, the impugned order dated 10.12.2020 insofar as it sets aside the ex-parte order dated 06.01.2000 is upheld. The impugned order dated 10.12.2020 insofar as it dismisses the revision of the petitioner on merits is liable to be set aside and is set aside.
The matter is remitted to the learned revisional court.
A writ in the nature of mandamus is issued to the learned revisional court to execute the following directions:
I. The learned revisonal court shall decide the revision of the petitioner on merits in light of the observations made in the body of the judgment.
II. The learned revisional court shall also go into the issue of the correctness of valuation of the disputed parcels of land before passing any final order.
It is also contended that the petitioner has erected constructions over the disputed parcels of land. Petitioner contends that he faces imminent threat of eviction and demolition of the constructions raised by him on the disputed parcels of land.
It is open to the petitioner to make an application for interim relief before the learned revisional court. In case the petitioner files an application for interim relief, the learned revisional court shall decide the same within a period of one month from the date of production of the said application.
For a period of 45 days from today, the status quo in regard to the disputed parcels of land shall be maintained by the parties.
It is clarified that the application for interim relief shall be decided by the revisional court upon independent application of mind and in accordance with law by a reasoned and a speaking order and without being influenced by the interim protection granted by this order to the petitioner for the aforesaid period of 45 days.
The writ petition is allowed to the extent indicated above.
Order Date :- 19.2.2021 Dhananjai