Court No.21 Case :- WRIT - B No. - 1895 of 2020 Petitioner :- Ram Deo And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Pramod Kumar Dwivedi Counsel for Respondent :- C.S.C.
Hon'ble Dinesh Pathak,J.
1. Heard Sri Pramod Kumar Dwivedi, learned counsel for the petitioners and learned Standing Counsel representing respondents nos.1 to 3.
2. Grievance of the petitioners is that despite repeated requests to the authorities concerned, they are not giving effect to the order dated 25.09.1977, 28.07.1977 and 11.07.1977 passed by the Assistant Consolidation Officer during pendency of the consolidation operation before its cancellation vide notification dated 07.06.2016. It is further submitted that under the provisions of section 6 (2) of the U.P.C.H. Act, the Consolidation Authorities are under legal obligation to implement the final order passed by the Consolidation Courts and give effect thereto in the final consolidation record.
3. It is submitted by learned counsel for the petitioners that Village Oran was notified under section 4 of the U.P. Consolidation of Holdings Act, 1953 (in brevity 'U.P.C.H. Act') vide notification dated 05.05.1972. In paragraphs 5, 6 and 7 of the writ petition, petitioners have given reference of three cases wherein the Assistant Consolidation Officer has passed final orders during consolidation operation, before its cancellation. Paragraphs 5, 6 and 7 of the petition are reproduced below :-
“5. That, the Hon'ble Court of Assistant Consolidation Officer decided in favour of the petitioner vide order dated 25.09.1977 in Case No.6458 to the respect of Gata No.3970, 3971, Bhagwandeen and other vs. Smt. Chunni (widow) and others, and has been mutated in the Khatauni on the basis year Khata no.535. The aforesaid order has not been challenged in any court and has become final.
6. That, the court of Assistant Consolidation Officer has decided finally in favour of the petitioners vide order dated 28.07.1977 in case no.7115 + 7086, Bhagwandeen & others vs. Vidhata & others, in respect of Gata No.4891 and has been mutated in the Khatauni of basis year of Khata no.798.
7. That, the court of Assistant Consolidation Officer, Oran (Manjhiwa Sani) has decided finally in the favour of the petitioners vide order dated 11.07.1977 in respect of Gata No.3936, 3937 in case no.6288 + 6290 and has been mutated in the basic year of Khata no.460.”
4. It is further submitted that earlier notification dated 05.05.1972 was subsequently cancelled by notification under section 6 (1) of the U.P.C.H. Act, promulgated on 07.06.2016 (Annexure-1).
5. Per contra, learned Standing Counsel has placed reliance upon the contents of paragraphs 12, 14 and 15 of the counter affidavit, which are quoted below :-
“12.That the contents of Paragraph nos.5 and 6 of the writ petition are partly admitted hence denied. In reply it is submitted that the Assistant Consolidation Officer, passed the order dated 25.9.1977 in Case No.6458 filed in respect of entry made in Khata No.535 under Section 9A(1) Bhagwandeen and other Vs. Smt. Chunni and others, decided on 25.9.1977, whereby, previous entry made in Gata no.3970/1-5-0 and 3971/1-7-0 of Khata No.535, has been directed to be expunged with the further direction to entry the name of Bhagwandeen, Rameshwar and Ramdeo sons of Shivnath as Sirdar w.e.f. 1360 Fasli under Section 210 of Act. It was also directed that to bifurcate the land amongst the aforesaid persons in 1/3 equal shares. It is further submitted that Section 210 of U.P.Z.A. & L.R. Act provides that “210. Consequence of failure to the suit under Section 209.-If a suit for eviction from any land under Section 209 is not instituted by a bhumidhar or asami, or a decree for eviction obtained in any such suit is not executed within the period of limitation provided for institution of such suit or the execution of such decree, as the case may be, the person taking or retaining possession shall-
(a) where the land forms pail of the holding of a bhumidhar with transferable rights, become a bhumidhar with a transferable rights of such land and the right, title and interest of an assami, if any, in such land shall be extinguished;
(b) where the land forms part of the holding of a bhumidhar with non-transferable rights, become a bhumidhar with non- transferable rights I and the right, title and interest of an assami, if any, in such land shall be I extinguished;
(c) where the land forms part of the holding of an assami on behalf of the Gaon Sabha, become an assami of the holding from year to year.
Provided that the consequences mentioned in Clauses (a) to (c) shall not ensue in respect of any land held by a bhumidhar or asami belonging to a Scheduled Tribe.”
It is further submitted that the Assistant Consolidation Officer, passed the order dated 28.7.1977 in Case No.7115/7086 filed in respect of entry made in Khata No.798 under Section 9A(1) Bhagwandeen and Vidhata decided on 25.9.1977, whereby, previous entry made in Gata No.4891/3-16-0 has been directed to be expunged with the further direction to entry the name of Bhagwandeen, Rameshwar and Ramdeo sons of Shivnath as Sirdar w.e.f. 1373 Fasli under Section 210 of Act. It was also directed that to bifurcate the land amongst the aforesaid persons in 1/3 equal shares.
14. That the contents of Paragraph no.8 of the writ petition are partly admitted hence denied. In reply it is submitted that in Adhar Varsha Khatauni Khata No.820 and 821 of Village-Oran, Tehsil- Attarra, District-Banda, it was directed that the name of Ramdev and Rameshwar sons of Shinath be entered as co-tenant. It was further directed that in respect of Gata No.4923/0-5-0 of Khata No.820, Gata no.41101/2/5-2-0 of Khata No.821 in the name of Rameshwar and Gata no.4923M/0-1-0 and Gata no.4904/0-15-0, Gata no.4929/1/0-9-0, 5124/4-0-0 in the name of Ramdeo and Gata no.4860/2-1-0 of Khata no.821 be recorded in the name of Bhagwandeen alone. It is also directed that Khata no.842, 165, 819ka, 819 Kha shall be bifurcated in three equal parts amongst the Bhagwandeen, Rameshwar and Ramdeo separately. Moreover, Khata no.148 shall be divided in ¼ equal parts amongst the Bhagwandeen, Rameshwar and Ramdeo separately. In Khata no.165 Rameshwar shall be recorded as Adult. Khata no.819, Rakba of Gata No.4927 is double recorded, hence the same shall be recorded as 4927/1-1-0 instead of Gata no.4927/2-2-0 and Rakba of Gata no.4101 of Gata no.821 shall be recorded in accordance with Settlement.
15. That the contents of Paragraph nos.11, 12 and 13 of the writ petition are party admitted hence denied. In reply it is submitted that the judgment and order dated the petitioners are claiming compliance of that orders referred in Para-5, 6, 7 and 8; they have been passed in accordance with Section 210 of the U.P.Z.A.& L.R. Act, 1950, which pertains to illegal transfer because in the said relevant section-210, the authority of the Assistant Consolidation Officer is not mentioned.
It is also pointed that the Hon'ble High Court's Lucknow Bench vide its dictum dated 17 January 2019 rendered in Consolidation Case no.1023 of 2019 (Ramdayal vs. D.D.D. Faizabad) has explicitly observed that merely because some tenure holder makes a statement before the court that he has given or granted the land to some other individual will not amount to lawful and valid transfer.”
6. Carefully considered the rival submissions made by learned counsel for the parties and perused the record.
7. Petitioner wants implementation of the orders dated 25.09.1977, 28.07.1977 and 11.07.1977, as mentioned in paragraphs 5, 6 and 7 of the writ petition, in the land records, inasmuch as, aforesaid orders were final orders relating to the correction of land record passed before the date of cancellation of consolidation operation wherein village/unit in question cease to be under consolidation operation with effect from the date of cancellation i.e. June 07, 2016.
8. In the counter affidavit, sworn by one Mr. Rana Pratap, Consolidation Officer, Banda, prayer of the petitioner has been opposed on the ground that it is a matter of illegal transaction in view of the provisions as enshrined under section 210 of the U.P.Z.A. & L.R. Act 1950 (in brevity 'U.P.Z.A. & L.R. Act') and the order dated 17.01.2019 passed by the Co-ordinate Bench of this Court, sitting at Lucknow, in Writ (Consolidation) No.1023 of 2019 (Ram Dayal vs. Deputy Director of Consolidation and others).
9. Defence of the State as taken in the counter affidavit is not founded under law. This is no more res integra that after notification under section 4 of the U.P.C.H. Act, all the provisions as embodied under the U.P.Z.A. & L.R. Act would ceases. U.P.C.H. Act is a self contained Code to adjudicate upon the right and title of the parties under the provisions of sections 7 to 11. Even otherwise, provision of section 210 of U.P.Z.A. and L.R. Act has no application in the present matter, which operates in different parameters. Learned Standing Counsel failed to justify the averment of counter affidavit qua provision of section 210 of the U.P.Z.A. and L.R. Act and its applicability in the facts and circumstances of the matter in hand.
10. Learned Standing Counsel has tried to misread and misinterpret the judgment dated 17.01.2019 passed by this Court's Bench at Lucknow. Aforesaid case relates to the dispute wherein a labour at the household of the recorded tenure holder was claiming his right and title on the basis of some document in the nature of compromise. The S.O.C. has condoned the delay in filing the appeal against the order passed by the Consolidation Officer doubting the genuineness of the document. In this background, the Co-ordinate Bench has passed a sweeping remark which cannot be treated as a principle for other cases which depends on their exclusive facts and circumstances.
11. Even otherwise, under Rule 25A of the U.P.C.H. Rules, there is no such provision of registration of the order passed on the basis of the compromise as learned Standing Counsel has tried to submit before this Court. Apart from that, provisions as contained under section 51 of the U.P.C.H. Act would also be relevant to be considered.
12. Facts and circumstances of the present case stands on different footing wherein order passed by the Consolidation Officer became final between the parties and the Consolidation Authorities are under legal obligation to implement the aforesaid final orders in the land record in pursuance of the provisions as enshrined under section 6 (2) of the U.P.C.H. Act. The Consolidation Officer, who has filed the counter affidavit, has lost sight of the factor that he is not sitting in the appellate jurisdiction and has got no jurisdiction to question the legality and validity of the orders, as mentioned in paragraphs 5, 6 and 7 of the writ petition. Meaning thereby, Consolidation Authorities have no option but to implement/execute the order of the Consolidation Officer passed in exercise of its judicial power, which became final during the consolidation operations. From perusal of the contents of the counter affidavit, it appears that the concerned Consolidation Officer, who has filed the counter affidavit, pretending himself as an Appellate Authority, has went on to examine the legality and validity of the order passed by the then Consolidation Officer, as mentioned in paragraphs 5, 6 and 7 of the writ petition. Unfortunately, it is beyond the jurisdiction of the deponent of the counter affidavit to examine legality and validity of the final orders passed in judicial side before notification under section 6 (1) of the U.P.C.H. Act. The deponent of the counter affidavit has exceeded its jurisdiction in averting the implementation/execution of the final order passed by competent court. Plea taken at the behest of the State as averred in paragraphs 12 and 15 of the counter affidavit are not sustainable in the eye of law. It is none of his business to comment with respect to the order already passed by the competent Court in judicial side before the cancellation of the consolidation operations.
13. In the case of Shankar Lal vs State of U.P. and others (Writ B No.695 of 2021), after considering several judgments and government notification dated 12.12.2014, this Court has already held that the effect of cancellation of the notification under section 4 of the U.P.C.H. Act is that, subject to the final orders passed regarding correction of the record, the area ceases to be under consolidation operations. Relevant paragraphs i.e.
para no.6, 7, 8 and 14 of the aforesaid judgment are being reproduced below :-
“6. Section 6(1) of U.P.C.H. Act empowers the State Government to cancel the notification issued under Section 4 of U.P.C.H. Act by which particular area or unit brought under the consolidation operation. The consequential effect of the cancellation of notification is enunciated under sub-Section 2 of Section 6 of U.P.C.H. Act which denotes that, from the date of cancellation of the notification area/unit shall ceased to be under consolidation operation subject to final orders passed with regard to correction of records.
7. To avert any complications due to the cancellation of the notification promulgated under Section 4 of U.P.C.H. Act, Legislation has made the provisio under Section 6(2) of U.P.C.H. Act. Phrase "subject to the final orders relating to the correction of land records" as used u/s 6(2) of U.P.C.H. Act explicitly connotes wider effect of notification u/s 6(1) of U.P.C.H. Act. After cancellation of notification, land records, including basic year entries should be corrected in accordance with the orders, passed during the consolidation proceedings, which have attained the finality.
8. Provisions u/s 6(2) of U.P.C.H. Act, left no room for doubt that final orders, if any, passed during the consolidation proceeding, on or before the cancellation of notification as provided u/s 6(1) of U.P.C.H. Act, shall be given effect to the revenue records and, accordingly, final revenue records shall be maintained after cessation of the area to be under consolidation operations.
14. In this view of matter, Consolidation authorities are under legal obligation to correct the revenue record after the cancellation of the notification under Section 4 of U.P.C.H. Act in accordance with the final orders which were passed and attained finality on or before the cancellation of notification as mentioned under Section 6(1) of U.P.C.H. Act. Present matter relates to the consequential effect of the cancellation of the notification wherein final order had already been passed to correct the revenue record. Therefore, petitioner has legal right to get his name recorded under the provisions of Section 6(2) of U.P.C.H. Act.”
14. In the present matter, petitioner has given succinct descriptions of the fact with respect to final order passed by the competent Court as mentioned in paragraph nos.5, 6 and 7 of the writ petition, which deserves to be honoured in pursuance of the provisions as enshrined under section 6 (2) of the U.P.C.H. Act.
15. In this conspectus as above, claim of the petitioners to get their names recorded in the Revenue Record in pursuance of the final orders as mentioned in paragraph nos.5, 6 and 7 of the writ petition, after notification under section 6 (1) of the U.P.C.H. Act, is justified in the eyes of law and the authorities concerned are under legal obligation to implement the said orders passed by the competent Court, which became final between the parties. As such, present writ petition is allowed with a direction to the District Magistrate/District Deputy Director of Consolidation, Banda (respondent no.3) to ensure the implementation of the orders as mentioned in paragraph nos.5, 6 and 7 of this writ petition in the light of the provisions as enunciated under section 6 (2) of the U.P.C.H. Act and, accordingly, issue the extract of fresh Khatauni with respect to the land in question situated in Village-Oran, Tehsil-Artara, District-Banda, expeditiously, preferably within a period of two months from the date of production of a copy of this order along with fresh representation, which shall be moved by the petitioners within a period of three weeks from today.
16. The petitioner shall file a computer generated copy of this order before the authority concerned, after downloading it from the official website of High Court, Allahabad, which shall be supported by an affidavit. The authority concerned shall verify the same from the official website of this Court.
Order date : 29.09.2021 Manish Himwan