Since subject matter of these petitions is the same, they have been heard together and are being decided by the following judgment and order.
Heard Sri Umesh Chandra Pandey, learned counsel for the petitioner, learned Standing Counsel for the State-respondents, Sri Jai Kumar, learned counsel representing the Land Management Committee concerned and Sri Alok Mishra, learned counsel representing some of the private respondents. The dispute in this matter relates to title in respect of gata no.560 having an area of 0.271 hectare, situate in village Shivdaha, Pargana, Tehsil and District Bahraich. The land in question was recorded in the basic year khatauni as naveen parti. The petitioner-Ram Gopal is said to have filed objections under Section 9-A (2) of U.P. Consolidation of Holdings Act (hereinafter referred to as "Act") claiming that the land in question was initially recorded in the name of Ram Pyare, son of Vishehwar and on his death his father-Baur came in possession and after the death of his father, the petitioner is in possession. In the said objections, it was also stated by the petitioner that his father was mentally retarded and as such on account of his retarded mental state, the land in question was earlier got recorded as naveen parti. The petitioner is also said to have filed khatauni pertaining to bandobast soyam (third settlement) where the land in question is said to be recorded in the name of Ram Pyare, son of Visheshwar and he also filed khatauni pertaining to 1356 fasli, according to which, Ram Pyare was found in possession.
The Consolidation Officer vide his order dated 20.09.2013 allowed the objection filed by the petitioner and ordered that the property in question, namely, gata no.560 of khata no.991 be recorded in the name of Ram Gopal-petitioner.
The petitioner also moved application for determination of exchange rate of the said plot and the Consolidation Officer vide order dated 28.09.2013 determined the exchange rate of plot in question.
It is also pertinent to notice that simultaneous with filing of objection under Section 9-A (2) of the Act and objection relating to determination/alteration of exchange rate, the petitioner also moved an application under Section 21 of the Act for giving him a chak by providing valuation of gata no.560 and the said objection was also allowed by means of the order dated 03.02.2014 by the Consolidation Officer.
Against the aforesaid three orders dated 20.09.2013, 28.09.2013 and 03.02.2014, three separate appeals were filed by certain individuals in the village on the ground that the land in question belongs to Gaon Sabha on which the said appellants had constructed certain dwelling spaces and that on the land in question there are a large number of trees, place of worship and hand pump installed by U.P. Jal Nigam. All the three appeals were consolidated and decided by the Settlement Officer, Consolidation by the common order dated 18.11.2016 whereby he allowed the appeals and set-aside the orders dated 20.09.2013, 28.09.2013 and 03.02.2014 passed by the Consolidation Officer, as aforesaid.
The petitioner preferred three revision petitions against the aforesaid orders dated 18.11.2016 passed by the Settlement Officer, Consolidation, which too, have been decided by the common judgment and order dated 07.08.2018 passed by the Deputy Director of Consolidation whereby all the three revision petitions have been dismissed.
It is these two orders dated 07.08.2018 and 18.11.2016 passed by the Deputy Director of Consolidation and the Settlement Officer, Consolidation, respectively which are under challenge herein.
Learned counsel appearing for the petitioner has vehemently argued that the appeals preferred by certain individuals before the Settlement Officer, Consolidation against the three orders passed by the Consolidation Officer were not maintainable for the reason that under Section 11 (1) of the Act, appeal against the order passed by the Consolidation Officer can be preferred only by any party to the proceedings under Section 9-A (2) of the Act and that too only if he is aggrieved.
His submission is that since the individuals who had filed appeals against the orders passed by the Consolidation Officer were neither party to the proceedings under Section 9-A (2) of the Act, nor can they be said to be aggrieved by the orders passed by the Consolidation Officer, as such appeals at their instance were not maintainable.
He has further argued that no appeal against the order passed by the Consolidation Officer was preferred by the Gaon Sabha and thus the Settlement Officer, Consolidation while allowing the appeals vide his order dated 18.11.2016 has explicitly erred in law. He has also submitted that the appeals preferred by the individuals against the orders passed by the Consolidation Officer were not accompanied by any separate application for condonation of delay in preferring the appeals against the orders passed by the Consolidation Officer and in absence of such separate application, delay in filing appeals could not have been condoned by the Settlement Officer, Consolidation.
Sri Umesh Chandra Pandey, learned counsel for the petitioner has lastly submitted that the orders passed by the Settlement Officer, Consolidation as also by the Deputy Director of Consolidation, which are under challenge herein, are contrary to law relating to bar of proceedings under Section 49 of the Act. He has further submitted that since name of ancestor of the petitioner was recorded in 1356 Fasli, as such in view of the presumption contemplated in Section 20 of Uttar Pradesh Zamindari Abolition and Land Reforms Act, the petitioner ought to have been declared to be Adhivasi and later on Aasami or bhumidhar as the case would have been.
On the other hand, Sri Jai Kumar, learned counsel for Gaon Sabha, learned Standing Counsel for the State-respondents as also Sri Alok Mishra, learned counsel representing certain private respondents have opposed the prayers made in the writ petition and have submitted in unison that in fact the orders passed by the Consolidation Officer are manifestly illegal and the same appear to be a result of certain manipulation. It has thus been submitted by learned counsel representing the respondents that as a matter of fact, the order dated 20.09.2013 has been passed by the Consolidation Officer in the second round of consolidation where basic entry in respect of land in dispute was in the name of Gaon Sabha which was recorded as naveen parti and further that neither the petitioner nor his ancestor raised any objection in the earlier consolidation operations.
It has also been submitted by learned counsel for the respondents that in fact the objection said to have been filed by the petitioner under Section 9-A (2) of the Act was undated and appears to have been entertained by the Consolidation Officer stealthily where even the Gaon Sabha was not made a party. Their further submission is that since in the basic year khatauni, the land in question was recorded in the name of Gaon Sabha and as such in any objection filed under Section 9-A (2) of the Act, Gaon Sabha was a necessary party, however without impleading the Gaon Sabha the objection is said to have been filed by the petitioner and that too perhaps only a few days before publication of notification under Section 52 of the Act.
I have given my anxious consideration to the competing arguments made by learned counsel representing the respective parties and have also perused the records which are available on this petition.
So far as the first submission made by learned counsel for the petitioner that the appeals before the Settlement Officer, Consolidation filed by certain individuals against the orders passed by the Consolidation Officer were not maintainable is concerned, it may only be observed at this juncture that consolidation authorities/courts have been cast with a heavy duty to protect the right and interest of the State and the Gaon Sabha if any matter is brought before them.
Section 11-C of the Act specifically provides that in the course of hearing of an objection under Section 9-A or an appeal under Section 11 or revision petition under Section 48, the consolidation authorities may direct that any land which vests in the State Government or Gaon Sabha may be recorded in its name, even though no objection, appeal or revision has been filed by such Government or Gaon Sabha or the local authorities is concerned. Section 11-C is reproduced herein below:-
11C. In the course of hearing of an objection under Section 9-A or an appeal under Section 11, or in proceedings under Section 48, the Consolidation Officer, the Settlement Officer (Consolidation) or the Director of Consolidation, as the case may be, may direct that any land which vests in the State Government or the Gaon Sabha or any other local body or authority may be recorded in its name, even though no objection, appeal or revision has been filed by such Government, Gaon Sabha, body or authority.
Considering the nature of disputes raised during the consolidation operations, the legislature while enacting Section 11-C of the Act was conscious of the functions to be performed by the consolidation courts. Section 11-C was inserted by the legislature in the Act with a purpose and the purpose is apparent.
There may be a situation where many a times, on account of certain misgivings and for certain other reasons, the Land Management Committee or the Gram Pradhan for certain reasons may ignore to protect the interest of Gaon Sabha or the property vested in State Government.
It is for the aforesaid purpose of securing and protecting the land vested in Gaon Sabha or State Government that the legislature has consciously enacted Section 11-C of the Act and has thus cast a duty on the Consolidation Officer, Settlement Officer, Consolidation and the Deputy Director of Consolidation to pass orders recording such land in the name of State or Gaon Sabha even though no objection or appeal or revision under Section 9-A, Section 11 or Section 48 is preferred by the State Government or Gaon Sabha or the local authority concerned.
It is settled law that right to appeal is a statutory right which operates within the four corners of the statute which confers such right in a person or a party, however, so far as the jurisdiction of revisional court is concerned, specifically in the case of revisional court created under U.P. Consolidation of Holdings Act which exercises the revisional jurisdiction under Section 48 of the said Act, it is not a right vested in the party concerned to invoke the revisional jurisdiction; rather Section 48 vests a jurisdiction in the Deputy Director of Consolidation to call for or examine the record of any case decided or proceedings drawn. Thus for exercising of revisional jurisdiction, a party aggrieved may or may not invoke Section 48 and in an appropriate case, the Deputy Director of Consolidation can suo motu exercise his powers of revisional jurisdiction.
However, the same cannot be said to be the legal position in respect of appellate jurisdiction under Section 11 of the Act but what is noticeable at this juncture itself is that though the Settlement Officer, Consolidation while hearing the appeals cannot exercise any suo motu jurisdiction to entertain any appeal against the order passed by the Consolidation Officer, however, in case some interest of Gaon Sabha or the State is found involved, even in absence of any appeal being filed either by the Gaon Sabha or the State Government, Section 11-C of the Act empowers the Settlement Officer, Consolidation to pass appropriate orders recording the name of Gaon Sabha or State as the case may be. Thus, where interest of the Gaon Sabha or the State Government in some land is involved, the Settlement Officer, Consolidation even in absence of any appeal having been filed by the Gaon Sabha or the State Government or local authority may pass appropriate orders even for setting-aside or rescinding the orders passed by the Consolidation Officer.
Thus, in view of the aforesaid discussions, first submission made by learned counsel for the petitioner merits rejection, which is hereby rejected.
The second submission made by learned counsel for the petitioner that appeal was not filed by the Gaon Sabha, as such the same could not have been entertained is also rejected in view of the aforesaid discussions made hereinabove.
Thirdly, learned counsel for the petitioner has submitted that since appeals were not accompanied by a separate application seeking condonation of delay in preferring the appeals, the Settlement Officer, Consolidation has wrongly condoned the delay. In this respect, it may be stated that even if the appeals filed by the individuals against the orders passed by the Consolidation Officer are not to be treated to be maintainable for the reason that the appeals having been filed with some delay, since Section 11-C empowers the Settlement Officer, Consolidation to pass appropriate orders in respect of interest of Gaon Sabha land, the submission made by learned counsel for petitioner is not acceptable. Even otherwise, in the memorandum of appeal itself certain reasons were indicated for condoning the delay and the Settlement Officer, Consolidation was satisfied that delay has sufficiently been explained. It is settled law that this Court could not interfere in a case where delay in filing any appeal or revision or in instituting any proceedings has been condoned by the court concerned.
It is needless to say that approach in such matters by the courts concerned should be justice-oriented and they should be conscious that very edifice of our judicial system rests on the principle of providing opportunity for redressal of grievances and not by shutting the same.
In this view of the matter, I am not inclined to accept the submissions made by learned counsel for the petitioner in this regard.
So far as the submission of learned counsel for the petitioner on the merit of claim is concerned, objection filed by the petitioner under Section 9-A (2) of the Act may or may not be barred by the provision of Section 49 of the Act for the reason that in the earlier consolidation operations, neither the petitioner nor his predecessor-in-interest could get his right decided, however, the claim put forth by the petitioner is not found established for the reason that there does not appear to be any evidence to establish that the petitioner had any claimed over the land in question.
The petitioner has relied upon certain khataunies pertaining to third settlement and khasra pertaining to 1356 fasli, however, the said documents do not provide clinching evidence to establish the right as claimed by the petitioner. The circumstances surrounding this case are also to be taken note of.
It is not in dispute that objection under Section 9-A (2) of the Act by the petitioner was filed just immediately before publication of notification under Section 52 of the Act. No explanation comes forth as to why on publication of notification under Section 9, the said objections were not filed by the petitioner within some reasonable time. The Settlement Officer, Consolidation has recorded a finding that objection filed by the petitioner is undated, the report submitted by the consolidator is also undated, however there is no specific rebuttable even in the writ petition to the said finding.
There is no categorical assertion made by the petitioner in this petition that the objection filed by the petitioner was filed on which date and that the same was dated and further that finding recorded by the Settlement Officer, Consolidation to the effect that report submitted by the consolidator was undated, is wrong. An attempt though has been made in paragraph 16 of the writ petition to state that the Deputy Director of Consolidation while passing the impugned order has wrongly and incorrectly held that neither any evidence was led nor issues were framed by the Consolidation Officer, however contents of paragraph 16 of the writ petition completely lack any positive assertion to the effect that the objection filed by the petitioner was marked with some date and it was filed on a particular date.
It is also very relevant to observe that the Settlement Officer, Consolidation before deciding the appeals had made spot inspection and has based his finding on the said spot inspection as well. He has also stated while allowing the appeals vide order dated 18.11.2016 that the petitioner has been making all possible attempts to delay the proceedings of appeals, though there was already a direction by this Court vide its order dated 13.04.2015 to dispose of the appeals within a period of six months.
The findings recorded by the Settlement Officer, Consolidation in respect of attempt made by the petitioner to unnecessarily drag the proceedings of the appeal are worth being quoted from the judgment dated 18.11.2016 which run as under:-
"vusd volj ikus ds ckotwn mRrjnkrk jkexksiky ds fo)ku vf/koDrk dh rjQ ls cgl izLrqr ugha dh x;h] cfYd fHkUu&fHkUu vk/kkjksa ij muds }kjk volj fy;k tkrk jgk gSA mRrjnkrk dh vuojr~ dksf'k'k gS fd i=koyh esa cgl u gks vkSj vihyksa esa vkisf{kr vkns'k ;su&dsu izdkjs.k cnLrwj jgsaA mRrjnkrk }kjk fnuakd 31-12-2014 dks volj pkgk x;k] fQj fnukad 16-05-2015 dks volj pkgk x;k] ysfdu cgl izLrqr u djds muds }kjk LFkkukUrj.k izkFkZUkk&i= dh iz'uksRrjh izLrqr dh x;hA iqu% fnukad 06-10-2015 dks mudh rjQ ls volj pkgk x;kA iqu% bUgksaus vihy dks viks"k.kh; ekuus lEcU/kh vkosnu izLrqr fd;k x;k] tcfd fnuakd 17-06-2014 ds vkns'k }kjk vihy iks"k.kh; ekurs gq, vihy fuLrkj.k dk funsssZ'k fn;k x;k FkkA iqu% fnukad 25-10-2016] 04-11-2016] 11-11-2016 dks bUgsa volj fn;k x;k] fQj Hkh buds }kjk i=koyh esa cgl izLrqr ugha dh x;hA ,d ubZ fjV ;kfpdk dh iz'uksRrjh nsrs gq, bUgksaus cgl u djds fnuakd 18-11-2016 dks vihy dh dk;Zokgh jksdus dh ;kpuk fd;k] tcfd mRrjnkrk dh gh fjV ;kfpdk ij ekuuh; mPp U;k;ky; }kjk fnuakd 13-04-2015 dks bl vihy dks 6 ekg dh vof/k esa ;Fkkfof/k fuLrkfjr djus dk funsZ'k fn;k x;k gSA bl funsZ'k dk vuqikyu mRrjnkrk }kjk gh ckj&ckj Vky&eVksy djus ds dkj.k ugha gks ldkA vr% ekuuh; mPp U;k;ky; ds mijksDr vkns'k ds dze esas i=kofy;ksa ij miyC/k lk{;ksa ds vk/kkj ij xq.k&nks"k ij fuLrkj.k fd;k tkuk lehphu gS] u fd mRrjnkrk dks cgl gsrq vuUrdky rd volj nsukA
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lexz fopkjksijkUr fu"d"kZ ;g gS fd iz'uxr vihykssa dks 6 ekg esa fuLrkfjr djus dk ekuuh; mPp U;k;ky; dk Li"V vkns'k 13-04-2015 gS] tks mRrjnkrk dh gh fjV ;kfpdk la0 [email protected] esa ikfjr gS] fQj Hkh mRrjnkrk }kjk cgl izLrqr u djds ukuk izdkj ls vkosnu izLrqr djrs gq, volj fy;k tk jgk gS] tks furkar vuqfpr o vkifRr tud gSA bl lEca/k esa iwoZ esa gh i=koyh ij vafdr vkns'k Qyd] fnukad 04-11-2016 }kjk mRrjnkrk dks fyf[kr cgl izLrqr djus gsrq 11-11-2016 rd dk le; fn;k x;k] fdUrq muds }kjk fyf[kr cgl ugha nh x;h] iqu% fnukad 11-11-2016 dks mRrjnkrk }kjk fyf[kr :i ls ekSdk ekWxk x;kA izdj.k esa mRrjnkrk jkexksiky dh gh fjV ;kfpdk ij ekuuh; mPp U;k;ky; }kjk fnuakd 13-04-2015 dks vkns'k ikfjr djrs gq, vihy dks 6 ekg esa ;Fkkfof/k fuLrkfjr djus dk funsZ'k fn;k x;k gS] vkSj orZeku le; esa mDr vof/k O;rhr gks pqdh gS] vr% lqlaxr vihy dk fuLrkj.k i=koyh ij miyC/k lk{k;ksa ds vk/kkj ij gksuk lehphu gSA mRrjnkrk dks viuk fyf[kr rdZ izLrqr djus gsrq iqu% ,d volj nsrs gq, fnuakd 18-11-2016 dks vijkUg 12-00 cts rd volj fn;k x;k] fdUrq muds }kjk dksbZ fyf[kr rdZ ugha fn;k x;kA pwafd mRrjnkrk }kjk Vky&eVksy djds izdj.k dks foyfEcr fd;k tk jgk gS] bl izdkj iz'uxr izdj.k esa ekuuh; mPp U;k;ky; ds vkns'k dh voekuuk dh fLFkfr cu jgh gSaA lquokbZ dk volj fn;k tkuk dkuwuu vko';d gS] [email protected] gsrq fujk/kkj volj fn;k tkuk drbZ xyr gSA nwljh fjV ;kfpdk ds iz'uksRrj] ckor yEcu ¼,Mfe'ku ugha½ ds vk/kkj ij vihy dh dk;Zokgh jksdus dh mRrjnkrk dh ;kpuk vuqfpr o vfof/kd gS] D;ksafd ekuuh; mPp U;k;ky; dk vkns'k 13-04-2015 tks vc Hkh cjdjkj gS] dk vuqikyu gksuk loZFkk mfpr o rdZlaxr gSA mDrkns'k dh fu;r vof/k igys gh lekIr gks pqdh gS] vkSj vihy&dk;Zokgh jksdus ;k vkns'k u djus dk ekuuh; U;k;ky; dk dksbZ funsZ'k ugha gS] vr% ekuuh; mPp U;k;ky; ds vkns'k dh voekuuk ls cpus ds fy, lqlaxr vihy esa esfjV ij fuLrkj.k gksuk mi;qDr o U;k;laxr gSA"
The Deputy Director of Consolidation has decided the revision petition on perusal of the entire record and has given categorical finding that plot no. 560 has been recorded as naveen parti, even from earlier settlements. He has also recorded a finding that the petitioner has attempted to play fraud on the court inasmuch as in Case no. 256 the petitioner was given valuation in lieu of plot no.560 whereas earlier he had already got valuation of plot no.560 in Gata no.182. The Deputy Director of Consolidation has, thus recorded finding that by filing two separate cases, the petitioner had attempted to take valuation of gata no.560 twice which clearly leads to the conclusion that he had not approached the courts with clean hands. He has also given a clear finding in the order dated 07.08.2018 that on both objections filed by the petitioner before the Consolidation Officer, no dates are mentioned and further that the report sent by the consolidator to the Assistant Consolidation Officer does not even bear any signature, however the Consolidation Officer without going into the record of the case passed the orders on 28.09.2013 and 20.09.2013. The Deputy Director of Consolidation has also recorded a finding that objections which are said to have been filed by the petitioner before the Consolidation Officer do not even bear signature of the Presiding Officer. He has also recorded a finding that though some report is said to have been sent by the consolidator to the Assistant Consolidation Officer, however the said report neither bears any date nor the same has been forwarded to the Consolidation Officer. He has, thus, very strongly doubted the manner in which the entire proceedings based on the objections filed by the petitioner, were proceeded with before the court of Consolidation Officer.
Learned counsel for the petitioner has placed reliance on certain judgments to submit that in case in an earlier consolidation operations, the proceedings, which could have been or ought to have been undertaken, were not undertaken, the same would not operate as a bar in terms of the provision of Section 49 of the Act. The judgments cited by learned counsel for the petitioner are; Wali Mohammad vs Ram Surat and others, reported in (1991) (9) LCD, 78, Smt Barfi vs. Board of Revenue and others, reported in (1987) RD 305, Harswaroop and others vs Dy. Director of Consolidation, Bijnore and others, reported in (2015) (128) RD 195, Ramesh and others vs. Dy. Director of Consolidation, Gautam Budh Nagar and others, reported in (2012) (115) RC 543 and the judgment dated 16.05.2017 delivered by this Court in Writ-B No.52717 of 2013; Ram Briksha and another vs. Dy. Director of Consolidation and three others.
As to whether the claim put forth by the petitioner before the Consolidation Officer was barred by the provision of Section 49 of the Act or not, in my considered opinion, is not an issue, in which this Court needs to go into. The manner in which the Consolidation Officer passed the orders and categorical finding recorded by the Settlement Officer, Consolidation and the Deputy Director of Consolidation whereby claim of the petitioner has been rejected and the land in question has been ordered to be recorded in the name of Gaon Sabha persuade this Court not to go into the said issue that the objection filed by the petitioner before the Consolidation Officer was barred by Section 49 of the Act.
Learned counsel for the petitioner has also stated that from a perusal of the order passed by the Consolidation Officer, dated 20.09.2013, it is clear that he had framed issues and the said order is in complete conformity with the requirement of Rule 26 of U.P. Consolidation of Holdings Rules, 1954.
Having perused the said order passed by the Consolidation Officer, it appears that the Consolidation Officer had framed two issues, however the manner in which the Consolidation Officer has dealt with the said issues, that too, without impleading the Gaon Sabha as party, cannot be justified. The order of the Consolidation Officer, thus, cannot be permitted to be sustained only because it was passed after framing of issues. The issues by any court in any proceedings are framed so as to arrive at an appropriate decision of the dispute being brought before the court concerned, however, mere framing of issue in itself cannot justify the order which is finally made by the court. In the instant case, the Settlement Officer, Consolidation as also the Deputy Director of Consolidation in the orders which are under challenge herein have categorically given the finding that the petitioner had clearly failed to establish his case and further that in fact the conduct of the petitioner in claiming his right over the land in question itself was questionable.
Having regard to the facts of this case as noted above, it is difficult for me to fall in agreement with the arguments advanced by learned counsel for the petitioner.
In the result, the writ petitions fail which are hereby dismissed.
Order Date :- 22.1.2019 Renu/-