Heard Sri Manish Deo Singh, learned counsel for the petitioner, Sri Namwar Singh, learned counsel for the respondent no. 3 and learned Standing Counsel for the respondent no. 1.
In this petition, the petitioner has raised three fold submissions. Firstly that the valuation was incorrectly made in respect of Goan Sabha land which was entered as "Navinparti" and secondly, the land is situate in front of the house of the petitioner which is being claimed as a Sahan by him. This claim is being supplemented on the ground that the petitioner is in possession of the land and, therefore, being a Scheduled Caste he has perfected his title over the said land under Section 122-B 4(F) of the Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950. The third submission of the learned counsel for the petitioner is that the Settlement Officer Consolidation having found part of the land to be utilized as a public passage could not have made it a part of the consolidation operations and, therefore, it could not have been allotted to the respondent no. 3.
The submission raised is that the allotments, which have been made in favour of the respondent no. 3, are per se illegal and as such the Deputy Director of Consolidation having failed to record any cogent finding on the said issues, the impugned order is vitiated.
Sri Namwar Singh, on the other hand, contends that it is admitted by the petitioner that the land of the respondent no. 3 was reserved for the purpose of Khalihan in the statement of principles namely plot nos. 369/1 and 369/2 and, therefore, if he has been allotted Gaon Sabha land as against the same then it is the respondent no. 3 who has been subjected to an equitable adjustment and, therefore, the impugned order cannot be faulted with. Sri Namwar Singh further submits that the issue relating to Rasta cannot be raised once the objections have already been finalized up to the stage of the Deputy Director of Consolidation and the claim of the petitioner-Ram Kishore has been rejected as is evident from the order of the Consolidation Officer dated 18.05.1993, the appellate order dated 24.08.2004 and the affirmance thereof by the Deputy Director of Consolidation on 10.09.2008. He submits that apart from this, once the chak allotments have been made and the allotment proceedings have become final, there is no occasion for the petitioner to raise this issue now under the garb of a dispute of valuation. He further submits that in view of the findings recorded and in view of the status having been found after spot inspection, the order of the Deputy Director of Consolidation cannot be faulted with as it is established that part of the area is being cultivated and it is that part which has been allotted to the respondent no. 3. He further submits that the area which has been allotted in the chak of the respondent no. 3 is nowhere concerned with either the public passage or any other Abadi land which has been segregated in the order of the Deputy Director of Consolidation. He, therefore, submits that the claim of the petitioner is neither sustainable on merits nor he has any claim even on behalf of the Gaon Sabha and as such the petition deserves to be dismissed.
The contention, therefore, is that the writ petition filed by the petitioner is bereft of any foundation and there being no possible claim of the petitioner, the order of the Deputy Director of Consolidation does not deserve any interference.
Learned Standing Counsel has been heard for the respondent no. 1. No counter affidavit has been filed on behalf of the Gaon Sabha.
Sri Namwar Singh further contends that the Gaon Sabha has nowhere raised any such objection and in the absence of any such contest, the petitioner cannot be permitted to raise any plea in relation to the alleged claim of a public passage. He, therefore, submits that this objection so taken at this stage of hearing cannot be entertained.
I have heard learned counsel for the parties.
The contention of the respondents that the petitioner has no subsisting right over the land in dispute has to be accepted, inasmuch as, whatever claim the petitioner had stood exhausted with the order of the Deputy Director of Consolidation dated 10.09.2008. The petitioner, therefore, cannot claim any possible right of either allotment or of valuation over the said plots.
The only issue remains in relation to the finding recorded by the Settlement Officer Consolidation that on a spot inspection, it was found that part of the said land namely plot no. 440/3 was found to be occupied by a public passage and was being utilized as such. This finding of fact recorded by the Settlement Officer Consolidation has not been reversed by the Deputy Director of Consolidation.
Sri Namwar Singh submits that the finding recorded is that on a spot inspection the Deputy Director of Consolidation has found that the land alloted in favour of the respondent no. 3 is that part of the land which was being already cultivated and, therefore, it has no concern with the alleged public passage/Rasta. Unfortunately, the Deputy Director of Consolidation while giving the topography of the land has nowhere indicated that the said passage was not concerned with that portion of the land which has been allotted to the respondent no. 3. To this extent, the provisions of Section 11-C of the U.P. Consolidation of Holdings Act, 1953 come into play where it is the duty of the consolidation authorities to protect any Gaon Sabha property or public utility land.
It is equally true that the land of the respondent no. 3 has been taken away for the public purpose of a Khalihan and, therefore, the said respondent is also entitled for allotment as against Navinparti land of the Gaon Sabha. The allotment cannot be faulted with, but while doing so it was the duty of the Consolidation Officer to have segregated that part of the passage which was being used as a public utility land namely as a Rasta as has been observed by the Settlement Officer Consolidation in the order dated 24.08.2004.
The fact of existence of such a public passage over Plot No.440/3 is also evident from the stand of the Gaon Sabha that was taken in the appeal filed by the petitioner decided on 24.08.2004. The said order does indicate that Dayaram Yadav, the then Pradhan had filed objections and had also made a statement to the extent that the land was recorded as Navinparti of the Gaon Sabha and part of the land was being utilized for public convenience.
This aspect has been overlooked by the Deputy Director of Consolidation while passing the impugned order. Accordingly, in my opinion, the petition deserves to be partly allowed to the aforesaid extent.
In view of above, the order dated 9th of January, 2006 passed by the respondent no. 1 insofar as it relates to the rejection of the claim of the petitioner is upheld. The order by which the allotment to the respondent no. 3 has been found to be valid is also upheld subject to the reduction in the area of the passage about which reference has been made in the order of the Settlement Officer Consolidation dated 24.08.2004 and the finding to that effect which has not been reversed by the Deputy Director of Consolidation.
Accordingly, the Deputy Director of Consolidation shall decide this limited issue relating to the public passage over plot no. 440/3 and then proceed to pass an appropriate order in accordance with law within a period of three months from the date of production of a certified copy of this order.
The writ petition is partly allowed.
Order Date :- 21.2.2012 Akv