Heard Sri Rajesh Kumar, learned counsel for the defendant-appellant.
This is a second appeal under section 100 of the Code of Civil Procedure against the judgment and decree datd 30.10.2010 passed in Civil Appeal No.58 of 1999 by the Additional District Judge, Court No.1, Azamgarh whereby the appeal filed by Gaon Sabha Devara Tripurarpur has been allowed and judgment and decree of the trial court whereby the suit of Gaon Sabha was dismissed, has been set aside.
Learned counsel for the defendant-appellant has firstly submitted that when the land in question Gata No.459 area 1.509 hectare was declared as play ground of the institution known as Kisan Prathmik Vidyalay, the Gram Sabha could not file the suit against the institution for the reason that it was land belonging to the Gaon Sabha and the institution was encroaching upon it. The second submission made by learned counsel for the appellant is that the orders passed by the consolidation authorities have attained finality and there is a statutory bar of a suit under section 49 of the Uttar Pradesh Consolidation of Holdings Act, 1953 and as such the trial court had rightly dismissed the suit of the Gaon Sabha, but the first appellate court has committed an illegality in decreeing the same.
Insofar as the first submission of learned counsel for the appellant is concerned, the first appellate court had considered the issues and found that on facts the land in question was proved to be belonging to the Gaon Sabha and the entry in the revenue record obtained by the institution in pursuance of the order of consolidation officer were illegal and could not be made.
The first appellate court while considering the second submission has also non suited the defendant-appellant on the ground that it was land meant for public purpose and hence it could not be allotted by the Consolidation Officer.
The substantial question of law involved in this appeal would be:-
"1) Whether the Consolidation Officer could allot land earmarked for public purpose and vested in the Gaon Sabha?
2) Whether the suit was barred under section 49 of the U.P.Consolidation of Holdings Act, 1953?"
Having considered the submissions of learned counsel for the appellant and perused the impugned judgment, reference to Section 8-A of the Uttar Pradesh Consolidation of Holdings Act, 1953 has been made by learned counsel. Section 8-A of the Uttar Pradesh Consolidation of Holdings Act, 1953 provides for preparation of a statement of principles by the assistant Consolidation Officer in consultation with the consolidation committee. The statement of principles will also contain the details of land to be earmarked for public purpose out of the land vested in Gaon Sabha under sections 117 or 117-A of the U.P.Zamindari Abolition & Land Reforms Act, 1950. From a perusal of the aforesaid provision it is quite apparent that the consolidation authorities has power to prepare the statement for the purpose of earmarking a land for public purpose which were vested in the Gaon Sabha.
The reference to section 117 and 117-A of the U.P.Zamindari Abolition & Land Reforms Act, 1950 has been specifically made in Section 8-A of the U.P.Consolidation of Holdings Act, 1953. Section 117 of the U.P.Zamindari Abolition & Land Reforms Act, 1950clearly provides with respect to vesting of land in the State Government and its subsequent vesting in the Gaon Sabha by a declaration to be made by publication of notification by the State Government. Section 117(6) of the U.P.Zamindari Abolition & Land Reforms Act, 1950 clearly provides that the State Government may, at any time, order for resuming such land vested in Gaon Sabha back to the State Government. The aforesaid provision clearly indicates that when on the date of vesting the land is vested in the State Government and a notification under section117(1) of the U.P.Zamindari Abolition & Land Reforms Act, 1950 has been issued by the State Government, the land would vest in Gaon Sabha. Such vesting of land in Gaon Sabha only provided the power of use of the land by the Gaon Sabha. Land which was vested in the Gaon Sabha by virtue of a notification under section 117(1) was clearly not a complete vesting of right, title and interest. The vesting was for specified purpose as given in Section 117(1) of the U.P.Zamindari Abolition & Land Reforms Act, 1950 particularly when under section 117(6) of the Act the State could resume the land from the Gaon Sabha. Hence it was not a vesting of right, title and interest but the State continues to have power to resume it. Therefore, to state that the land so vested in Gaon Sabha was subject matter of allotment by the Consolidation Officer to a private institution, would be against the very provision of vesting such land in the Gaon Sabha by the State Government. Clearly the consolidation officer could only earmark the land for public purpose, but it could not pass order with respect to specific use of such land. It is only the Gaon Sabha which can allot the land vested in it by the State Government under section 117(1) of the U.P.Zamindari Abolition & Land Reforms Act, 1950. The consolidation authorities can only earmark such land of the Gaon Sabha for public purpose in consolidation proceedings.
Therefore, the first appellate court has rightly held that the consolidation officer has acted beyond his jurisdiction in directing entry in the revenue record to be made of a land earmarked for a public purpose in the name of the institution of which the appellant claims to be the manager. Such function of use of public land vested in Gaon Sabha could have been performed only by the Gaon Sabha. There is no error in the view taken by the first appellate court. The suit of the Gaon Sabha has been rightly allowed. The first substantial question of law so argued by learned counsel is decided against the appellant and in favour of the plaintiff-Gaon Sabha.
Insofar as submission regarding bar of Section 49 of the U.P.Consolidation of Holdings Act, 1953 is concerned, the submission of learned counsel is that even if the consolidation officer has passed an order which is illegal or beyond jurisdiction, it cannot be interfered with in a civil suit in view of the bar under section 49 of The U.P.Consolidation of Holdings Act, 1953.
Such submission of learned counsel for the appellant appears to be quite mis-conceived. Section 49 relates to declaration and adjudication of rights of a tenure holder. Definitely these courts are courts which can adjudicate and declare the rights of tenure holder. Even the appellant who claims to be in possession of the land by order of the consolidation officer is not claiming rights of a tenure holder or bhumidhar of the land in question. He is claiming rights over the land as play ground on the basis of an order of the consolidation officer upon land earmarked as land for public purpose. He does not dispute that the land was earmarked by the consolidation officer for public purpose. When the appellant is not a tenure holder and has no title over the land in question his possession can, at the most, be by virtue of an allotment of public land. Since the order of the Consolidation Officer in allotting public land belonging to and earmarked for the Gaon Sabha was not within his power, clearly the Consolidation Officer had no jurisdiction to allot the land earmarked for public purpose to a private body or person. Consequently the bar under section 49 of the U.P.Consolidation of Holdings Act, 1953 does not apply. The submission is mis-conceived and is accordingly rejected.
Both the substantial questions of law are answered against the defendant-appellant and in favour of the plaintiff-Gaon Sabha.
The second appeal is accordingly dismissed.
No order is passed as to costs.
Order Date :- 4.2.2011 PK