JUDGMENT Ashok Bhushan, J.
1. These writ petitions raise common questions of law and facts, hence they are being decided by this common judgment. Writ Petition No. 4934 of 1999 is being treated as leading writ petition. Counter and rejoinder-affidavits have been exchanged between the parties in leading writ petition as well as in most of the other writ petitions. Both the parties agree that the writ petition be decided finally at this stage. Consequently, the writ petitions are being decided finally.
2. I have heard Sri N. C. Rajvanshi, Senior Advocate in leading Writ Petition No. 4934 of 1999 and in some other writ petitions as well as M/s. S.C. Verma, Prakash Chandra, N.K. Srivastava, Arjun Singhal, W.H. Khan and Sri H.M.B. Sinha for the petitioners in their respective cases and Chief Standing Counsel Sri Ashok Mehta and Sri Sanjay Goswami, learned standing counsel. Alt these writ petitions arise out of the chak allotment proceedings under Section 20 of the U. P. Consolidation of Holding Act, 1953 (hereinafter referred as the 1953 Act). All the writ petitioners pray for quashing of the order dated 22.9.1998 passed by the District Deputy Director of Consolidation, Muzaffar Nagar, by which chutes allotted to the petitioners have been affected. Although the facts and circumstances in which these writ petitions have been filed are more or less common but to understand the controversy in these cases, the facts of leading Writ Petition No. 4934 of 1999 are being noted in detail. The facts of leading Writ Petition No. 4934 of 1999 will also disclose the nature of controversy and the contents of the order passed by the District Deputy Director of Consolidation with regard to all the petitioners.
3. Consolidation operation started in village Bhura, Pargana and Tahsil Kerana. District Muzaffar Nagar after issuance of the notification under Section 4 (2) of the 1953 Act which was published on 9.7.1979. Along with village Bhura, there were two other villages, namely, Pahar Mazra and Charao with regard to which common consolidation scheme was framed. In Writ Petition No. 4934 of 1999. there are two petitioners namely. Ram Kumar and Kabool. It has been stated that by an order dated 24.1.1995, a reference under Section 48 (3) of the 1953 Act was accepted for giving effect to the order dated 13.11.1995 passed by the Deputy Director of Consolidation in Revision Nos. 144, 148 and 145. It has been stated that by the aforesaid order dated 13.11.1995. partition was directed. While approving reference vide order dated 24.1.1996, it has been stated that the petitioner No. 1 was allotted plot No. 2681/2 area 1 Bigha. 14 Bishwas and 4 Dhoor which was shown to be Bachat plot in chart appended with the order of the Deputy Director of Consolidation. It has been stated that the aforesaid order dated 24.1.1996 became final and no appeal or revision was filed. It has been stated in the writ petition that the District Deputy Director of Consolidation vide impugned judgment dated 22.9.1998 has made changes in the chak allotted to the petitioners and other persons. It has been stated that by the order dated 22.9.1998, the District Deputy Director of Consolidation has taken away several plots allotted to the petitioners by order dated 24.1.1996. It has been stated that there is no discussion in the judgment dated 28.9.1998 nor any reason has been given for taking away the plots allotted to the petitioners vide earlier order dated 24.1.1996. It has been specifically stated in paragraph 7 of the writ petition that before passing the order dated 22.9.1998. petitioners were not given any kind of opportunity of hearing nor any notice was issued to the petitioners. With aforesaid allegations, the writ petition was filed.
4. There counter-affidavits have been filed in the aforesaid case by the respondents, one counter-affidavit has been sworn by Rishipal Singh, Gram Pradhan of village Bhura dated 17.10.2000. The aforesaid counter-affidavit has been filed through the standing counsel of the State. Two more counter-affidavits have been filed by Ram Mangal Singh. Settlement Officer of Consolidation. Muzaffar Nagar, dated 29.9.2000 and 1.12.2000. In the first counter-affidavit of Ram Mangal Singh dated 29.9.2000 (hereinafter referred as the first counter-affidavit). parawise reply to the writ petition have been given. In second counter-affidavit dated 1.12.2000 (hereinafter referred to second counter-affidavit) along with the general facts, chart prepared on the basis of the orders passed by the consolidation authorities at different stages have been filed. In the counter-affidavit of Gram Pradhan, it has been stated that large number of plots whose details have been mentioned in paragraph 11 have been allotted to different tenure holders although the said plots were not included in the consolidation proceedings. In paragraph 7 of the counter-affidavit, it has been slated that number of plots were excluded from the consolidation whose details were published in H. C. Form 2A. It has been mentioned that large number of plots as referred in Section 132 of the U.P. Zamindari Abolition and Land Reforms Act, 1950. were not included in the consolidation and were out of the consolidation within the meaning of Section 3 (2) Explanation of the 1953 Act. The chart given in paragraph 7 shows that large number of plots were mentioned as pasture land, Johar (Talab). 'Rasta', Ushar, Banjan. It has been stated in paragraph 9 of the second counter-affidavit that 27-4-O area of plot No. 230, village Pahar Mazra was recorded as pasture land and plot No. 934 of village Bhura area 164-0-10 was recorded as pasture land, plot No. 2691 area 1-6-0 and plot No. 931 area 13-3-0, Plot No. 1228 area 5-11-1, plot No. 741 area 15-18-0. Plot No. 2645 area 5-2-7 and plol No. 2681 area 14-0-0 were recorded as Ushar. tola! area which was recorded in basic year khatauni in class III, IV and VI was 247-4-18. It has been further slated in the counler-affidavit of the Gaon Sabha that the land which was out of consolidation, has wrongly been allotted in chak of different tenure holders. It has been pleaded that the aforesaid land belonging to Caon Sabha and the same can never become part of the consolidation proceedings nor could have been included in the consolidation. It has been stated that the consolidation authorities in connivance with the petitioners and some powerful land Mafias belonging to the family of Khajana commilted Iraud. It has been stated that the heirs and legal representatives of one Khajana by manipulation got allotment of major share of aforementioned land belonging to Gaon Sabha in connivance with local authorities and consolidation authorities. Paragraph 11 again gives details of various Gaon Sabha land allotted to different tenure holders. Paragraph 12 contains details of allotment of aforesaid Gaon Sabha land to persons, who do not belong to family of Khajana. In paragraph 14 of the counter-affidavit, it has been specifically stated that these land were excluded from the consolidation operation. No one filed any objection on the statement of principles by which the aforesaid land were excluded from the consolidation. It has been pleaded that finally the land was attached under Section 11A of the 1953 Act on the aforesaid statement of principles and no question in respect of claim of land and valuation of the aforesaid, which ought to have been raised under Section 9, could be raised or heard at any subsequent stage of the consolidation proceedings. In counter-affidavit I and II similar allegations have been mentioned. It has been slated in paragraph is of the second counter-affidavit that area 182 Bighas 2 Biswa and 7 Biswansi of public utility land have been illegally allotted in favour of several tenure holders, who are petitioners before this Court. It is stated that the aforesaid land was left out of consolidation without fixing any exchange valuation at the time of preparation of statement of principles. It has been stated that only small fraction of Gata No. 934 was initially fixed by the Consolidation Officer while deciding the objection of one of the lessee as 5 annas or 8 annas value which was subsequently reduced to one anna. The counsel for all the petitioners raised various submissions in support of their writ petitions.
5. In other writ petitions, apart from raising other submissions, various counsel raised submissions basing their right of finality of allotment by some order passed by the Deputy Director of Consolidation or by lower consolidation authorities. The learned chief standing counsel has given detailed chart showing details in various writ petitions pertaining to finality of consolidation proceedings. It has been stated therein :
"In the following writ petitions, the petitioners are claiming that the orders passed by the Deputy Director of Consolidation have become final :
"(1) Deputy Director of Consolidation order dated 30.5.1995 :
1. Writ Petition No. 39460 of 1998
2. Writ Petition No. 83 of 1999
3. Writ Petition No. 85 of 1999
4. Writ Petition No. 45401 of 1999
5. Writ Petition No. 5144 of 1996 (2) Deputy Director of Consolidation order dated 22.5.1994 :
1. Writ Petition No. 43285 of 1998
2. Writ Petition No. 43293 of 1998
3. Writ Petition No. 43296 of 1998 (3) Deputy Director of Consolidation order dated 28.3.1993-
1. Writ Petition No. 39642 of 1998 (4) Deputy Director of Consolidation order dated 24.1.1996 :
1. Writ Petition No. 4934 of 1999 (5) Deputy Director of Consolidation order dated 24.8.1992 :
1. Writ Petition No. 40141 of 1998."
6. In other writ petitions also the submissions raised are that the impugned order dated 22,9.1998 has been passed without notice and opportunity to the petitioners. It has also been contended that the case of different petitioners have neither been considered nor any reason has been given for altering of chaks of the petitioners.
7. Following are the substance of the submissions raised by the petitioners in support of their writ petitions :
(i) no notice or opportunity was given to the petitioners before passing the order dated 22-9.1998.
(ii) impugned order dated 22.9.1998 does not contain any specific discussion with regard to petitioners' cases nor gives reasons for altering the chetk of the petitioners, except general reasons and observations given in the order,
(iii) allotment made in favour of the petitioners had already become final due to the orders passed by the Deputy Director of Consolidation/ Settlement Officer of Consolidation/Consolidation Officer in chak allotment proceedings or in proceedings under Section 48 (3) of the 1953 Act. The finality of chak allotment proceedings have been violated by (he impugned order dated 22.9.1998. In some cases where restoration was allowed to get over the finality the said orders of restoration are illegal and not based on cogent reason.
(iv) During the chak allotment proceedings there is no prohibition in allotment of pasture land or other public utility land. The consolidation authorities have full jurisdiction to allot pasture land or the other public utility land to the tenure holders.
8. Learned Chief Standing Counsel appearing for the respondents have refuted the submissions raised by the counsel for the petitioners. The principal submission on behalf of the respondents is that the land which is out of consolidation within the meaning of Section 3 (2) Explanation of the 1953 Act cannot be taken for allotment or for inclusion in the chak of a tenure holder in any subsequent proceedings. For example, it has been submitted that the pasture land which is public utility land and which was recorded in C.H. Form 2-A could not have been allotted to any tenure holder during the consolidation proceedings. The allotment of pasture land and other public utility land by the consolidation authorities to the tenure holders was without jurisdiction and has rightly been set aside by the impugned order dated 22.9.1998. It has been submitted by the learned Chief Standing Counsel that the earlier orders passed by the Deputy Director of Consolidation or the other consolidation authorises allotting pasture land and other public utility land in favour of the tenure holders were illegal orders and by setting aside the order dated 22.9.1998 the said illegal order cannot be revived. With regard to the provisions of Section 19A learned Chief Standing Counsel has submitted that even if it is accepted that the land belonging to Gaon Sabha or the State can be allotted in the allotment proceedings, the said allotment is hedged by a condition as provided in proviso to Section 19A (2) of the 1953 Act. He has submitted that the land used for public purposes can only be allotted when Assistant Consolidation Officer has declared in writing that it is proposed to transfer the rights of the public as well as of all individuals in or over that land to any other land specified in the declaration and earmarked for that purpose. He has submitted that since there is no declaraiion as contemplated in proviso to Section 19A (2), the allotment of land for public purposes becomes illegal and cannot be sustained. Relying on provision of Section 11C of the 1953 Act it has been further stated that the duty is caste on consolidation authorities to protect the Gaon Sabha land and the power has been exercised by the Deputy Director of Consolidation for setting aside the allotment of public purpose land and exercising the jurisdiction under Section 11C of the 1953 Act.
9. From the arguments of counsel for the parties and pleadings of the parties, following questions emerge for consideration in this bunch of writ petitions :
(i) Whether the land which is not included in the consolidation as referred to in Explanation (ii) of Section 3 (2) of the 1953 Act. can be allotted to tenure holders during the allotment proceedings?
(ii) Whether the land not included in consolidation and kept out of consolidation, can be valued and allotted and bar of Section 1 1A will not be attracted on the said allotment?
(iii) If the land not included in the consolidation can be allotted to a tenure holder, what are the conditions and restraints of such allotment?
(iv) Whether the allotment finalised with regard to tenure holders in proceedings under Sections 20. 48 (1) and 48 (3) of U. P. Consolidation of Holdings Act. can be again subject to change or alteration in revisional power under Section 48 (1) and Section 48 (3)?
(v) Whether the order dated 22.9.1998 has been passed by the District Deputy Director of Consolidation after giving opportunity to all the petitioners on cogent reasons?
10. The first question which arises for consideration is as to whether the land which is not included in the consolidation as referred to in Section 3 (2) of the Act can be made subject of allotment in allotment proceedings. Before considering the aforesaid questions, various provisions of the 1953 Act have to be looked into. Section 3 of the U. P. Consolidation of Holdings Act. 1953. is a definition clause which is quoted below :
"3. Definition.--In this Act. unless there is anything repugnant in the subject or context.
(2) 'Consolidation' means rearrangement of holdings in a unit amongst several tenure holders in such a way as to make their respective holdings more compact.
Explanation,--For the purpose of this clause, holding, shall not include the following :
(i) land which was grove in the agricultural year immediately preceding the year in which the notification under Section 4 was issued ;
(ii) land subject to fluvial action and intensive soil erosion ;
(iii) land mentioned in Section 132 of the U. P. Zamindari Abolition and Land Reforms Act. 1950 :
(iv) such compact areas as are normally subject to prolonged water logging ;
(v) usar, Kallar and rihala plots forming a compact area including cultivated land within such areas ;
(vi) land in use for groving pan. rose, bela. jasmine and kewra ; and
(vii) such other areas as the Director of Consolidation may declare to be unsuitable for the purpose of consolidation."
"(5) 'Land' means land held or occupied for purposes connected with agriculture, horticulture and animal husbandry (including pisciculture and poultry farming, and includes :
(i) the site, being part of a holding, of a house or other similar structure, and
(ii) trees, wells and other improvements existing on the plots forming the holdings :"
3 (11) "Tenure holder" means a bhumidhar with transferable rights or bhumidhar with non-transferable rights) and includes :
(a) an osami.
(b) a Government lessee or Government grantee, or
(c) a co-operative farming society satisfying such conditions as may be prescribed ; and"
11. Section 8A deals with preparation of statement of principles. Section 8A is quoted below :
"8A. Preparation of Statement of Principles.-
(1) The Assistant Consolidation Officer shall, in consultation with the consolidation committee, prepare in respect of each unit under consolidation operation. a statement in the prescribed form (hereinafter called the Statement of Principles) setting forth the principles to be followed in carrying out the consolidation operations in the unit.
(2) The statement of Principles shall also contain,--
(a) details of areas, as far as they can be determined at this stage. to be earmarked for extension of abadi including area for abadi site for Harijans and landless persons in the unit, and for such other public purposes as may be prescribed :
(b) the basis on which the tenure holders will contribute land for extension of abadi and for other public purposes : and
(c) details of land to be earmarked for public purposes out of land vested in Gaon Sabha or a Local Authority under Section 117 or Section 117A of the U. P. Zamindari Abolition and Land Reforms Act, 1950 :
(d) the standard plot for each unit.
(3) The standard plot referred to in Clause (d) of Sub-section (2) shall be determined by the Assistanl Consolidation Officer after ascertaining from the members of the Consolidation Committee and the tenure holders of the units, the best plot of the unit, regard being had to productivity, local and the existing soil class of the plot or plots."
12. Section 9B deals with disposal of objections on the Statement of Principles and Section 11A contains provisions regarding bar of objection. Section 11A is quoted below :
"11A. Bar of objections.--No question in respect of :
(i) claims to land ;
(ii) partition of joint holdings : and
(iii) valuation of plots, trees, well and other improvements, where the question is sought to be raised by a tenure holder of the plot or the owner of the tree, well or other improvements recorded in the annual register under Section 10.
relating to the consolidation area, (which has been raised under Section 9 or which might or ought to have been raised under that Section) but has not been so raised, shall be raised, or heard at any subsequent stage of the consolidation proceedings."
13. Section 19 provides for conditions to be fulfilled by a consolidation scheme. Section 19 is quoted below :
"19. Conditions to be fulfilled by a Consolidation Scheme.--(1) A Consolidation Scheme shall fulfil the following conditions, namely :
(a) the rights and liabilities of a tenure holder, as recorded in the annual register prepared under Section 10. are. subject to the deductions, if any, made on account of contributions to public purposes under this Act. secured in the lands allotted to him ;
(b) the valuation of plots allotted to a tenure holder, subject to deductions, if any, made on account of contributions to public purposes under this Act. is equal to the valuation of plots originally held by him :
Provided that, except with the permission of the Director of Consolidation, the area of the holding or holdings allotted to a tenure holder shall not differ from the area of his original holding or holdings by more than twenty-five per cent of the latter.
(c) the compensation determined under the provisions of this Act or the Rules framed thereunder, is awarded :
(1) to the tenure holder :
(i) for trees, wells and other improvements, originally held by him and allotted to another tenure holder : and
(ii) for land contributed by him for the public purposes ;
(2) to the Gaon Sabha, or any other local authority, as the case may be, for development, if any, effected by it in or over land belonging to it and allotted to a tenure holder ;
(d) the principles laid down in the Statement of Principles are followed ;
(e) every tenure holder is, as far as possible, allotted a compact area at the place where he holds the largest part of his holding :
Provided that no tenure holder may be allotted more chaks than three, except with the approval in writing of the Deputy Director of Consolidation ;
(f) every tenure holder, is, as far as possible, allotted the plot on which exists his private source of irrigation or any other improvement. together with an area in the vicinity equal to the valuation of the plots, originally held by him there ; and
(g) every tenure holder is, as far as possible, allotted chaks in conformity with the process of rectangulation in rectangulation units :
(2) A consolidation scheme before it is made final under Section 23. shall be provisionally drawn up in accordance with the provisions of Section 19A."
14. The most important provision relating to controversy in the present case is Section 19A. Section 19A has been inserted by Section 20 of the Amendment Act No. VIII of 1963. Section 19A as added by the aforesaid Amendment Act is quoted below :
" 19A. Preparation of provisional consolidation scheme by the Assistant Consolidation Officer.--(1) The Assistant Consolidation Officer shall in consultation with the Consolidation Committee, prepare in the form prescribed a provisional consolidation scheme for the unit.
(2) Notwithstanding anything contained in this Act, the U. P.
Zamlndari Abolition and Land Reforms Act, 1950, or any other law for the time being in force, it shall be lawful for the Assistant Consolidation Officer where. In his opinion it is necessary or expedient so to do, to allot to a tenure holder, after determining its valuation, (any land belonging to the State Government or) any land vested in the Gaon Sabha, or any other local authority, as a result of notification issued under Section 117 or 117A of the U. P. Zamlndari Abolition and Land Reforms Act, 1950 (U. P. Act No. 1 of 1951) :
Provided that where any such land is used for a public purpose, it shall be allotted only after the Assistant Consolidation Officer has declared in writing that it is proposed to transfer the rights of the public as well as of all individuals in or over that land to any other land specified in the declaration and earmarked for that purpose in the Provisional Consolidation Scheme."
15. Prior to insertion of Section 19A. the original Scheme 19 contained the provisions, which have relevance with the controversy as Section 19 (3). Section 19 (3) as contained in Section 19 originally enacted was as follows :
"19 (3) Whenever in preparing a statement of proposals, it appears to the Assistant Consolidation Officer that it is necessary to amalgamate any land used for public purposes with any holding in the scheme, he shall make a declaration to that effect stating in such declaration that it is proposed that the rights of the public as well as of all Individuals in or over the said land shall be transferred to any other land earmarked for public purposes in the statement and whenever the rights are so transferred they shall stand extinguished in the land from which they are transferred."
16. Section 19 was further amended by U. P. Act No. 38 of 1958 in which the Sub-sections (5), (6) and (7) were as follows ;
"19 (5) Notwithstanding anything contained in this Act, the U. P. Zamindari Abolition and Land Reforms Act, 1950. or any other law for the time being in force, it shall be lawful for the Assistant Consolidation Officer, where it appears necessary to him so to do, to allot, after determining its valuation any portion of culturable waste land or any other land vested in the Gaon Samaj or any other local authority. as a result of notification issued under Section 117 or 117A of the U. P. Zamindari Abolition and Land Reforms Act, 1950, or any land used for public purpose to any tenure holder so as to form part of his holding.
(6) Where any land vested in the Gaon Samaj or any local authority is allotted to a tenure holder under Sub-section (5), it shall be deemed to have been :
(a) resumed by the State Government under the provisions of Section 117 or 117A, as the case may be, of the U. P. Zamindari Abolition and Land Reforms Act. 1950, for which compensation shall be paid by the State Government to the Gaon Samaj or the local authority, as the case may be. on account of the development, if any. effected by it, in or over that land, in accordance with the provisions of the said Act ; and
b) settled with the tenure holders to whom it has been allotted by the Assistant Consolidation Officer on payment of compensation for the development, if effect in or over that land to be determined in the manner prescribed.
(7) Whenever in preparing a statement of proposals. it appears to be Assistant Consolidation Officer that is necessary to amalgamate with any holding land used for public purpose, he shall make a declaration to that effect stating that it is proposed to transfer the rights of the public as well as of all individuals in or over that land to any other land earmarked for the public purpose in the statement of proposals and whenever the rights are so transferred they shall stand extinguished from the land from which they are transferred and be created in the land to which they are transferred."
17. From the above, it is clear that the part of provision now contained in Section 19A was very much there in Section 19, Reference to Sections 30, 30 (3) and 30 (d) also has same bearing on the controversy. Sections 30 (c) and 30 (d) are extracted below :
"30 (a) land vested in the Gaon Sabha, or any local authority, and allotted to the tenure holder shall be deemed to have been resumed by the State Government under the provisions of Section 117 or Section 117A, as the case may be. of the U. P. Zamindari Abolition and Land Reforms Act, 1950 (U. P. Act No. 1 of 1951), and settled with the tenure holder.
30 (d) the rights of the public as well as all Individuals in or over land included in a chafe following a declaration made under the proviso to Sub-section (2) of Section 19A, shall cease and be created in the land specified for the purpose in the final consolidation scheme ; and"
18. From the definition of "consolidation" as contained in Section 3 (2), it is clear that the land mentioned in Section 132 of the U. P. Zamindari Abolition and Land Reforms Act. does not include in the holding, pasture land, it is the land which is referred to in Section 132.
Section 3 (2] refers to re-arrangement of holdings in a unit amongst several tenure holders. Explanalion provides that the holding shall not include the items mentioned therein. Thus, by strength of Section 3 (2), it is clear that there has not to be rearrangement of holdings in a unit amongst several tenure holders with regard to land mentioned in the Explanation. Thus, if the land as referred to in the Explanation is included in the holdings of a tenure holder, the same shall not be included in the consolidation. However, the definition in Section 3 (2) only refers to non-inclusion of the land detailed in the Explanation from the holdings of the tenure holder, "Tenure holder" is defined in Section 3 (11), From the definition as given in Section 3 (11) it is clear that the Gaon Sabha is not included as tenure holder. This Court has already held in the case of Shiv Narain v. Deputy Director of Consolidation and Ors., 1967 RD 143, that the Gaon Sabha is not tenure holder. Thus, if the land detailed in Explanation of Section 3 (2| is included in Khata of Gaon Sabha, the same is not covered by Section 3 (2). The Explanation clearly mentions that the said Explanation is for the purposes of this clause, i.e., Clause (2) of Section 3. Section 19 (c) also gives an idea that the land belonging to Gaon Sabha or the local authority can be allotted to a tenure holder. Thus, there is no prohibition in allotment of land belonging to Gaon Sabha to a tenure holder. This is clear indication given by Section 19 (1) (c). Further, Section 19A dears all doubts on this aspects. Section 19A (2) gives overriding effect to the aforesaid provision. It clearly slates that it shall be lawful for the Assistant Consolidation Officer, where in his opinion "it is necessary or expedient so to do, to allot to a tenure holder, after determining its valuation. (any land belonging to the State Government, or any land vested in the Gaon Sabha, or any other local authority)." Thus, the Assistant Consolidation Officer has been fully empowered to allot any land belonging to the State Government or any other local authority or the land belonging to the Gaon Sabha (land belonging to the State Government has been inserted by U. P. Act No. 30 of 1991 with effect from 19.2.1991. Prior to it the land only belonging to the Gaon Sabha or any local authority as a result of notification issued under Section 117 or 117A of the U. P. Zamindari Abolition and Land Reforms Act, 1950, could have, been allotted),
19. Section 19A (2) provides "notwithstanding anything contained in this Act", thus this provision will prevail over any other provision contained in U. P. Consolidation of Holdings Act, 1953- Further, Section 19A (2) also provides "notwithstanding anything contained in the U. P, Zamindari Abolition and Land Reforms Act, 1950". Thus, the power under Section 19A (2) is given to the Assistant Consolidation Officer to allot to a tenure holder any land belonging to the State Government or any land vested in the Gaon Sabha or any other local authority. Thus, the counsel for the petitioners is right in his submission that the land belonging to the State Government/ Gaon Sabha, even if it is for public purpose, can be allotted to a tenure holder in the consolidation proceedings and there ts no lack of jurisdiction in the consolidation authorities in allotting the land for public purpose.
20. However, the power given under Section 19A has to be exercised subject to condition and requirements as provided in proviso to Section 19A (2). The proviso requires in mandatory form that where any such land is used for public purpose, it shall be allotted only after the Assistant Consolidation Officer has declared in writing that it is proposed to transfer the rights of the public as well as of all individuals in or over that land to any other land specified in the declaration and earmarked for that purpose in the Provisional Consolidation Scheme. Thus, the public purpose land belonging to Gaon Sabha cannot be allotted to a tenure holder unless any other land is specified in writing by the Assistant Consolidation Officer. The above proviso has been enacted to safeguard the public interest. The intention of the proviso is that the public purpose be not defeated and if a land is earmarked for the public purpose, then it should not be allotted to a tenure holder unless any other land is specified to serve the public purpose. For example. If any pasture land is proposed to be allotted to a tenure holder, the same cannot be done unless any other land is specified in writing to take place of the land sought to be allotted. Thus, for example, on a pasture land, the public has a right to graze its animals, the said right can be taken away then it is proposed that the said rights will be given on some other specified land, if this provision is not there, then there will be loss to public interest and large number of public purpose land can be allotted to tenure holders causing injury Co rights of public. The proviso gives indication that rights of individual tenure holder can be transferred to public in a particular land. Thus, the land belonging to Gaon Sabha can be allotted to tenure holders and land of similar valuation can be given to Gaon Sabha by tenure holders. Proviso does not contemplate allotment of public purpose land to tenure holders without there being specificalion of other land in which the rights of the public have to be conferred.
21. From the above discussion, it is clear that though the allotment of land belonging to Gaon Sabha is permissible but the said atloiment is subject to condition of specification of other land in writing by the Assistant Consolidation Officer while making allotment to tenure holders. Thus, the question Nos. 1 and 3 are decided accordingly.
22. The second question as to whether the land not included in the consolidation can be valued and allotted. As observed above, the land not included in the consolidation belonging to Gaon Sabha can be valued and allotted by strength of Sub-section (2) of Section 19A. Section 19A (2) has overriding effect to any other provision of the U. P.
Consolidation of Holdings Act. 1953. Further. Section 1 1A has no application while invoking the powers under Section 19A (2) for allotment of a land of public purpose belonging to Gaon Sabha. Section 11A (iii) slates valuation of plots where the question is sought to be raised by a tenure holder of the plot relating lo the consolidation area, which has been raised or might or ought to have been raised under Section 9 but has not been so raised. This bar does not apply when a question is sought to be raised by a person other than the tenure holder. The Gaon Sabha not being a tenure holder, there is no impediment in valuing the plot belonging to it. Thus. Section 11A does not come in the way of allotment of land belonging lo Gaon Sabha under Section 19A (2),
23. However, while allotting the land of Gaon Sabha, it has to be kept in mind that the land of Gaon Sabha is basically for public purpose, public in general and the society has interest in the public land. Public land should not be allotted only to serve individual interest, protection of ponds, tanks, mountains have been held to be necessary for environment protection and pollulion control. Thus, the consolidation authorities while allotting the Gaon Sabha land should normally desist from allotting ponds, tanks, mountains, land in nature of forest. The Apex Court in Hinch Lal Tiwari v. Kamala Devi and Ors. 2001 (3) AWC 2398 (SC) : (20O1) 6 SCC 496, had made strong observations with regard to protection and preservation of public interest. Following was held in paragraphs 13 by the Apex Court :
"13. It is important to notice that the material resources of the community like forests, tanks, ponds, hillock, mountain, etc. are nature's bounty. They maintain delicale ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution. The Government. including the Revenue Authorities. i.e., respondent Nos. 1 1 to 13 having noticed that a pond is falling in disuse, should have bestowed their attention to develop the same which would, on one hand, have prevented ecological disaster and on the other, provided better environment for the benefit of the public at large. Such vigil is the best protection against knovish attempts to seek allotment in non-obadi sites,"
24. The next point of controversy between the parties is with regard to finality of the allotment by virtue of orders passed under Sections 20. 48 ID and 48 (3) of the U. P. Consolidation of Holdings Act. In writ Petition No. 4934 of 1999. it is being claimed by the petitioners that an order was passed by the Deputy Director of Consolidation on "24.1,1996 approving the reference under Section 48 (3) and since by the said reference, finality was given lo the chafes, the same cannot be violated by any subsequent order. Similar submissions have been raised by counsel for the petitioners in different wrii petitions basing their rights on the order passed in chak allotment proceedings which according to them had become final. The above submissions completely overlook the scope and the nature of chafe allotment proceedings, Chak allotment proceedings are not like the title proceedings to which finality is attached and the bar comes into operation as provided under Section 11A. The powers of the Deputy Director of Consolidation under Section 48 (1) are very wide powers. The powers under Section 48 (1) can even be suo motu exercised. For example, if the Deputy Director of Consolidation takes the view that a land of Gaon Sabha has been allotted to a tenure holder in violation of Section 19A. he can always invoke his jurisdiction to set aside the wrong allotment. It is true that whenever the power is exercised under Section 48 (1) or Section 48 (3), the parties have to be allowed opportunity of being heard. The Deputy Director of Consolidation cannot exercise jurisdiction without giving opportunity to the parties. The Apex Court while considering the scope of jurisdiction of Deputy Director of Consolidation under Section 48 (1) In Sheo Wand and others v. Deputy Director of Consolidation, Allahabad and others. 20OO (2) AWC 1276 (SC) : (20OO) 3 SCC 103. has held in paragraph 20 as under:
"20, The section gives very wide powers to the Deputy Director. It enables him either suo motu on his own motion or on the application of any person to consider the propriety, legality, regularity and correctness of all the proceedings held under the Act and to pass appropriate orders. These powers have been conferred on the Deputy Director in the widest terms so that the claims of" the parties under the Act may be effectively adjudicated upon and determined so as to confer finality to the rights of the parties and the revenue records may be prepared accordingly,"
25. The Deputy Director of Consolidation while hearing a revision under Section 48 (1) can also issue notice to the persons who are not parlies before him in the case and can pass order affecting chafe of any other person provided opportunity is given to him. Thus, the contention of the counsel for the petitioners that since once chafe allotment with regard to them has attained finality, the Deputy Director of Consolidation has no Jurisdiction to alter their chak, is misconceived. In these cases, one of the issues raised is that the Deputy Director of Consolidation has Illegally allotted the Gaon Sabha land to different tenure holders for unduly benefiting them disregarding the provision of Section 19A (2) proviso. If the Deputy Director of Consolidation takes the view that the allotment of Gaon Sabha land in favour of one tenure holder is erroneous, the same can always be set aside. While considering this question, it has to be kept in mind that for protecting the public property and the interest of the public in general, the bodies who are entrusted with the said duties are often slack and not vigilant. Gaon Sabha who is expected to protect its rights for the public in general occasions abdicates its authority or moves with self interest of persons occupying the office. In this case, serious allegations have been made against the then Pradhan who did not raise objection against allotment of public purpose land to various tenure holders. It has come on the record that in several such allotments, the area of tenure holders have increased upto great extent. According to Section 19. the permissible extent upto which area of a tenure holder can vary is only twenty five per cent but by taking pasture land and other public purpose land, the tenure holders have got area of double, triple and four times which is contrary to the very Object and the Scheme of Act. In such a situation, the Deputy Director of Consolidation has rightly taken cognizance of the matter for looking into the illegality committed by lower consolidation authorities and the earlier Deputy Director of Consolidation. Further, the spirit of Section 1 1C also empowers the consolidation authorities to protect the Gaon Sabha/Slate land. In view of above, I am unable to accept the contention of the petitioners that since the allotment in favour of the petitioners had become final. Ihe same cannot be changed or altered. The Deputy Director of Consolidation can exercise power under Section 48 (1) and 48 (3) to correct any illegality provided the person concerned is given an opportunity of being heard. Furthermore, the Gaon Sabha in several cases has given restoration application to recall the order which had become final and the Deputy Director of Consolidation has also in various cases recalled the orders and revived the proceedings. It is further to be noted that the allotment to various tenure holders qua the Gaon Sabha is inter-related and even by adjusting allotment in favour of few tenure holders, other may be affected as a necessary consequence. In this view of the matter, it cannot be said that the Deputy Director of Consolidation is powerless to effect changes in accordance with law.
26. The last submission raised by the counsel for the petitioners are that no notice or opportunity was given before passing the orders. In leading Writ Petition No. 4934 of 1999. it has been specifically stated in paragraph 7 of the writ petition that no opportunity was given to the petitioners before passing the order dated 22.9.1998. In paragraph 8 of the first counter-affidavit of Ram Mangal Singh. the said paragraph 7 has been replied which is being extracted below :
8. That the contents of paras 6, 7 and 8 of the writ petition as stated, are not admitted. It is wrong to say that the respondent No. 1 has not examined the controversy involved in the case. On the contrary, the District Deputy Director of Consolidation after having received applications from the Gaon Sabha and complaints in general from the public was conscious of the fact thai large scale of bungling has been done in order to extend benefit to a section of people by allotting land of public utility to the individual tenure holders and thus, after the review of each and every order passed by the consolidation authorities at different stages in different proceedings set aside those orders which affected Gaon Sabha adversely. Besides, the orders were found in contravention of the provisions of the Act and Rules framed thereunder."
27. From the aforesaid reply given in paragraph 8. it is clear that there is no specific averment with regard to Issue of any notice to the petitioners and hearing given to the petitioners. To the similar effect are the allegations made in various other writ petitions. From the substance of reply which have come in paragraph 8, it is clear that the order of District Deputy Director of Consolidation is being defended on the ground that the proceeding has been drawn for rectifying large scale of bungling in allotment of public utility land. The Deputy Director of Consolidation could have exercised the Jurisdiction under Section 48 (1) or 48 (3) but the said jurisdiction can be exercised only after giving opportunity of being heard to the concerned parties. Even the person who was benefited by any wrong allotment is also entitled to be heard. Furthermore, the order of the Deputy Director of Consolidation dated 22.9.1998 which has decided 29 cases does not give specific reasons but has only passed decision on general observations that public purpose land/pasture land has been allotted to the tenure holders on throw-away valuation. It is true that even the valuation of pasture land or public utility land which is being made in exercise of powers under Section 19A has to be done in accordance with law. For instance in the present case, a portion of plot No. 934 was initially valued by the Consolidation Officer while deciding objection of one of the persons as five annas and eight annas which was subsequently reduced to one anna wilhout conducting any spot inspection and without giving any cogent reason. Subsequently, one anna valuation was treated as exchange ratio for entire land measuring 139 bigha 3 biswa 5 biswansi which is wholly arbitrary and unreasonable. When the Consolidation Officer had fixed valuation of a portion of land as 5 annas and 8 annas, the same could not be have been reduced without spot inspection and without giving any valid reason. Furthermore, there was no occasion for treating one anna valuation for rest of land. When a valuation has to be fixed of a public purpose land belonging to Gaon Sabha under Section 19A, the same principles will apply for valuation of the land which are adopted while fixing valuation before initially valuing the land of the tenure holders.
28. The contention in several writ petitions is that there is no discussion of the petitioners' case in the body of the order dated 22.9.1998 but in the amendment chart appended to the order, chafes of the petitioners have been affected. The said submission has also been made in Writ Petition No. 4934 of 1999. In Writ Petition No. 85 of 1999. it has also been stated that no discussion has been made regarding the petitioner. In view of the above, the order of the District Deputy Director of Consolidation dated 22.9.1998 has to be set aside on above said submission that order has been passed without affording opportunity to the petitioners and does not contain discussion with regard to the petitioner's case. Even if in some cases opportunity have been given to the petitioners, the said opportunity cannot be treated to be opportunity in all the cases. Since common order has been passed with regard to all cases, it is not reasonable to separate the order since it is with regard to ailotment and there is a chain of allotments affecting all the persons, hence it is necessary to hear all the petitioners again.
29. From the foregoing discussion, it is apparent that there has been irregularity committed in allotment of public purpose land to tenure holders. For allotting public purpose land to tenure holders, there has to be specification of other land as contemplated under Section 19A (2). Furthermore, the valuation of public purpose land has not been validly done. All the matter has to be heard again by the District Deputy Director of Consolidation/Deputy Director of Consolidation but while hearing and deciding the matter again, the District Deputy Director of Consolidation/Deputy Director of Consolidation has to act in accordance with the observations made in this judgment and directions given herein. The District Deputy Director of Consolidation/Deputy Director of Consolidation will decide the matter again in accordance with the following directions :
(1) No public purpose land in Gaon Sabha or State Government can be allotted to tenure holders unless a declaration in writing is made specifying the other land in which rights of public as well as all individuals are to be transferred in accordance with the proviso to Section 19A (2) of the U. P.
Consolidation of Holdings Act, 1953.
(2) If the land belonging to State Government or land vested in Gaon Sabha is proposed to be allotted to tenure holders its valuation shall be determined by the Deputy Director of Consolidation after making spot inspection in accordance with law and while making allotment the provisions of Section 19 (1) (b) has to be adhered to.
(3) While deciding the matter again by the District Deputy Director of Consolidation his jurisdiction will not be fettered ,by any earlier order passed by the consolidation authorities regarding allotment in favour of a particular tenure holder.
(4) While making allotment the District Deputy Director of Consolidation will act in a manner so as to advance public interest and will act in accordance with the observations made by the Apex Court in Hinch Lal Tiwari v. Kamala Deui and Ors., 2001 (3) AWC 2398 (SC) : (2001) 6 SCC 496 (supra), in paragraph 13 as quoted above.
(5) The District Deputy Director of Consolidation is directed to pass fresh order within a period of six months from the date of production of a certified copy of this order before him. The petitioners will submit certified copy of this order within a period of one month from today. The District Deputy Director of Consolidation will not be required to give fresh notice of the proceedings to the petitioners and the petitioners may submit their written objections along with the certified copy of this order before the District Deputy Director of Consolidation or thereafter within the time allowed by the District Deputy Director of Consolidation.
30. The order dated 22.9.1998, passed by the respondent No. 1 is quashed and the matter is remanded to the District Deputy Director of Consolidation for deciding afresh in accordance with observations and the directions as indicated above.
With the aforesaid directions, all the writ petitions are disposed of.