(Oral) (1) Heard Shri Vijay Bahadur Verma, learned counsel for the petitioners, Shri Upendra Singh, learned counsel appearing for the State-respondents and Shri Mohan Singh, appearing for the Gaon Sabha and perused the record.
(2) This petition has been filed challenging the order dated 23.01.2021 passed by the Consolidation Officer, Akbarpur, District Ambedkar Nagar, under Rule 109 A (1) of the Rules framed under the Consolidation of Holdings Act hereinafter referred to as Act.
(3) It is the case of the petitioners that the old Gata No.813 Min. admeasuring 2 bigha and 15 Biswansi and old Gata no.875 Min. admeasuring 2 bigha i.e. a total of two plots of land measuring 4 bighas and 15 Biswansi situated in Village Sudhari, Mauja Afjalpur, Pargana and Tehsil Akbarpur, District Faizabad, later on, District Ambedkar Nagar, was the Zamindari land of the Intermediary Musamaat Shakeena Bibi widow of Syed Rafiq Hussain resident of Lorpur. The said land was given on patta to the predecessor in interest of the petitioner on 01.07.1947. A copy of the patta/lease deed for agricultural purpose entered into between Power of Attorney holder of Intermediary and the father of the petitioners Bhola Ahir has been filed as Annexure-1 to the petition.
(4) It has been submitted that even after Zamindari was abolished in 1952 the predecessor in interest of the petitioners continued to be in possession of the land in question and continued also to cultivate the same. It was recorded in the name of the father of the petitioners in 1363 to 1365 Fasli and again in 1366 to 1368 Fasli. When consolidation operation, began in the village, the land in question was recorded in CH Form-2A as Matruk and Banjar to some extent and also in the names of Badal and others and Beni Madhav, Daya Ram, Ram Sahay and others. The father of the petitioners Bhola Ahir filed a petition under Section 9A (2) saying that due to error the land in question had been recorded as Matruk and Banjar. The case was registered as Case No.585/6424 namely Bhola Vs. State and others. After the petitioners father produced evidence both oral and documentary, the Consolidation Officer, Akbarpur, passed an order on 08.06.1972 that name of the father of the petitioners be recorded in the Revenue Records instead of the land in question being recorded as Banjar and Matruk and the arrears of land revenue be also deposited by the tenure holder.
(5) The order dated 08.06.1972, however, was not endorsed either in CH Form-11 or any other CH Form published thereafter, although there is a specific duty cast upon the Consolidation Authorities under Paragraph 249 to 254 of the Consolidation Manual for every order passed by the Assistant Consolidation Officer under 9A (1) or the Consolidation Officer under 9A (2) to be recorded in the Revenue Records.
(6) Learned counsel for the petitioners submitted that under Section 10 (1) of the Act and Rule 28 it is the duty of the Consolidation Authorities to get all orders implemented by making a mention thereof in CH-11. Since, no mention was made in CH-11 of the order dated 08.06.1972, or in CH-41 to CH-45, Old Gata No.875/12 and 813/9 were converted into new numbers 520 Ka and recorded as Navin parti, and 429 Ka and recorded as Banjar in the Revenue Records.
(7) It is the case of the petitioners that because certain portion of Old Gata No.875/12 and 813/9 was recorded as Banjar land and old parti it remained outside the consolidation operation and no chak was allotted thereon, therefore, the father of the petitioners could not come to know of the land being recorded as Navin parti and Banjar land in favour of the Gaon Sabha. It is only when the Lekhpal issued notice to the petitioners for removal of encroachment on Gaon Sabha land that the petitioners came to know about the entry of the order dated 08.06.1972 not being made in the Revenue Records and therefore, applied under Rule 109 A (1) of the Rules. The Consolidation Officer submitted a report on 19.02.2019 to the Assistant Consolidation Officer saying that the land in question was recorded as Navin parti and Banjar in CH Form-41 and CH Form-45. The matter was referred to the Consolidation Officer who by his order dated 23.01.2021 impugned in this petition has rejected the application of the petitioners as being not maintainable and also observing that Section 52 Notification for the Unit concerned was issued on 08.04.1982 and the Consolidation Officer's order being of 08.06.1972 of which Amaldaramad was being sought he had no jurisdiction to consider the application.
(8) It has also been submitted by Shri Vijay Bahadur Verma, that an order passed under Rule 109 A (1) is not appealable order and therefore, this Court has been approached by the petitioners instead of approaching the Settlement Officer (Consolidation) or the Deputy Director of Consolidation.
(9) It has been submitted by the learned counsel for the petitioners that on the basis of judgment rendered in the case of Ramraj Vs. Deputy Director of Consolidation reported in 2002 (93) RD 884, Paragraph 12 that even after de-notification of the village under Section 52 the Consolidation Authorities could entertain an application under Rule 109A more particularly when fraud and forgery was being alleged by one of the parties, not only upon the parties to the dispute but also upon the Court. The Court had observed that the scope of Rule 109 is quite wide and the de-notification under Section 52 of the Act is of no consequence. The Consolidation Authorities, if they are present in the district, shall give effect to orders passed by the Competent Consolidation Courts, and for that purpose consolidation operations shall be deemed not to have closed as provided under Sub Section (2) of Section 52 of the Act.
(10) Learned counsel for the petitioners has also placed reliance upon a Division Bench /Larger Bench decision of this Court in Mukhtar Vs. Deputy Director of Consolidation, Azamgarh, reported in 1993 RD 457 wherein learned Single Judge having found divergence of opinions between two judgments rendered by two learned Single Judges in the case of Raja Ram Vs. Deputy Director of Consolidation and Others reported in 1982 RD 387 and Brij Bir Singh Vs. Deputy Director of Consolidation, Ambedkar Nagar and others reported in 1987 RD 66 had referred the question as follows:-
"Whether after Gazette Notification under Section 52 of the Act, an application under Rule 109 A (1) of the Rules was maintainable or not?
(11) The Court had observed on the basis of language of Section 52 (2) and on the basis of Rules framed thereunder that the duty for revising the Revenue Records is upon the Consolidation Authorities and it is for the Consolidation Authorities to implement the order which are passed under the Act. The scheme of the Act is not like the scheme which has been provided under the Code of Civil Procedure in the sense that after obtaining the judgment and decree in his favour, a party has to apply for Execution within a certain period of limitation prescribed under the Rules for implementation of the Decree. Here in the CH Act, the duty is enjoined upon the Consolidation Authorities themselves to implement orders which have been passed under the Act and no duty is cast on the person in whose favour the decision has been given to make an application to the Authorities, for implementation of the order within any prescribed period of limitation. The Court held that the Consolidation Authorities were bound to implement the directions contained in the final order passed by the Deputy Director of Consolidation, and even though a Notification under Section 52 (1) of the Act had taken place the proceedings would necessarily be deemed to be pending for the said purpose.
(12) It has been submitted on the basis of the aforesaid two judgments by the learned counsel for the petitioners that even if the order was passed in 1972 and Section 52 Notification had been issued thereafter in 1982, the proceedings would be deemed to be pending and therefore the application under Rule 109 A (1) was maintainable and the order passed by the Consolidation Officer, Akbarpur, is erroneous and ought to be set aside by this Court.
(13) Shri Upendra Singh, learned Standing Counsel appearing on behalf of the State of U.P. has brought to the notice of the Court that fact that the petitioners themselves admit that the patta in question was granted by the intermediary in 1948 and such patta/lease of land become ineffective in view of Section 8 of the U.P.Z.A. & L.R. Act, wherein it has been provided that any contract for grazing or gathering of produce from land, or collection of forest produce or fishes from any forest or fisheries entered into after 8 day of August, 1946 between the intermediary and any other person in respect of any private fisheries or land shall become void with effect from the date of vesting.
(14) It has been submitted that as soon as the Zamindari Abolition Act came into force the patta in question became ineffective and the land vested in the Gram Sabha and therefore, was recorded as Matruk and Banjar, and Old Parti in the Revenue Records.
(15) It has been submitted by Shri Upendra Singh, that it is the case of the petitioners themselves that even before consolidation operation started om the village as is evident from CH Form 2A, the land in question was recorded as Matruk and Banjar and Old Parti and the petitioners father had initiated the proceedings under the 9A (2) claiming "Sirdari" over the land in question on the ground that patta had been given by the intermediary to him before Zamindari Abolition Act.
(16) It has been further submitted by Shri Upendra Singh that the father of the petitioners could only show some entries in the Revenue Records from 1363 to 1368 Fasli. In his name but even in those entries that were in his name there were other co-tenure holders names also recorded, and a portion of the land in question continued to be recorded as Old Parti and Banjar land belonging to Gaon Sabha.
(17) It has been submitted by Shri Upendra Singh that even if the petitioners' case is accepted that it was the duty of the Consolidation Authorities under Paragraph 2049-2050 of the Consolidation Manual to get the orders passed by the Consolidation Authorities recorded in the Revenue records and at each stage the entries were to be checked and rechecked, then it is highly improbable that the Consolidation Lekhpal, the Assistant Consolidation Officer, the Consolidation Officer all failed to notice the order passed allegedly on 08.06.1972 in favour of the father of the petitioners. It has also been submitted that this Court has held in several cases that such an old entry like that of the year 1972 if it is being sought to be implemented under Rule 109 after several decades, it becomes suspect.
(18) It has further been argued that the entries in question on the land in dispute were initially of Banjar, and old parti in favour of Gaon Sabha. Even after the order dated 08.06.1972 they continued to be recorded as Banjar and Matruk and a New Parti in favour of the Gaon Sabha. Such old entries can be corrected only under Sections 38/39 of the U.P. Land Revenue Act by making an appropriate application in this regard to the Collector who would get all records examined for checking the veracity of the claim made by the petitioners. The Collector would have records of earlier days and the records of later dates with him and the order impugned has been passed taking into account the fact that the consolidation operations were closed in 1982 in the village concerned and this Court should not interfere in writ jurisdiction in such an order. It has been submitted that the petitioners have statutory remedy of approaching the Collector for correction of Revenue Records under the Land Revenue Act.
(19) Shri Vijay Bahadur Verma, in rejoinder has submitted that the arguments regarding Section 8 of the U.P.Z.A. & L.R. Act would not be available to the State respondents as in the case of the petitioners the predecessor in interest had been given the land for cultivation by the intermediary and this Court by a Co-ordinate Bench decision in Mohd. Naimuddin and Others Vs. Deputy Director of Consolidation, Barabanki, in Writ Petition No.3438 (Consolidation) of 1981 decided on 08.01.2020 has held that Section 8 is not attracted in lease of land where the purpose of the lease is to use the land for the purpose of agriculture. A lease of land for the purpose of cultivation which confers on the lessee not merely a right in the land but also the right to exclusive possession of the land and to turn it to cultivation, is not a transaction covered by Section 8 of the U.P.Z.A. & L.R. Act. This Court had placed reliance upon the judgment a Division Bench judgment in the case of Raghunath Singh and Another Vs. State of U.P. and Another reported in 1960 RD 337.
(20) This Court having considered the arguments raised by the learned counsel for the parties as also gone through the order dated 23.01.2021. It finds therefrom that the Consolidation Officer had expressed his inability to entertain the application under Rule 109 A (1) only because Section 52 Notification had been published on 08.04.1982 and the order sought to be implemented was quite old i.e. of 08.06.1972. The maintainability of such application under Rule 109 A (1) being in question the Consolidation Officer refused to exercise his jurisdiction to consider the merits of the case as set up by the learned counsel for the petitioners.
(21) In view of the judgment of a Division Bench of this Court in Mukhtar Vs. Deputy Director of Consolidation, Azamgarh, reported in 1993 RD 457, the question is no longer res integra that even after Section 52 Notification is issued, the Consolidation Authorities, if they are present in the District, having jurisdiction to implement the order passed by the Consolidation Officer or by any other Consolidation Authority for which the consolidation operations would be deemed to be pending. The order impugned is set aside only on this ground alone.
(22) However, this petition is finally disposed of with a direction to the Consolidation Officer to consider his responsibility under Section 11 C of the Act also, when the orders sought to be implemented has been passed allegedly on 08.06.1972 i.e. nearly fifty years ago. He will summon all records regarding to the entry of Banjar, Old Parti and New Parti in favour of the Gaon Sabha, and after considering the same as also after hearing the counsel for the Gaon Sabha he should pass appropriate orders strictly in accordance with law.
Order Date :- 22.2.2021 PAL