JUDGMENT S.N. Srivastava, J.
1. By way of this writ petition, petitioner challenges the orders dated 8.10,1997 and 5.7.1997, passed by the Deputy Director of Consolidation, Fatehpur (Annexures-1 and 6 to the writ petition) and the order dated 30th September, 1993, passed by the Settlement Officer, Consolidation, Fatehpur Sadar, Annexure-3 to the writ petition.
2. Inspite of repeated orders passed by this Court, no counter affidavit has been filed by any of the party, though by an order dated 12th July, 2004, three weeks and no more time was granted to file counter affidavit, and as such in view of the law laid down by the Apex Court in a judgment reported In , Controller. Court of Ward, Kolhapur and Anr. v. G.N. Ghorpade and Ors., the facts stated in the writ petition shall be treated as undisputed facts.
3. In view of the above, undisputed brief facts of the case are as below:--
The dispute relates to Plot No. 4224, area 1 Bigha 4 Biswa situated in Village Rampur Thairaon, Pargana Haswa, Tehsil and District Fatehpur. This land was allotted to the petitioner through a Patta in a proceedings initiated by the Land Management Committee in accordance with law about 25 years back. This allotment was never challenged by any person and petitioner was recorded in revenue records as a tenure holder since 1380 Fasali. Consolidation proceeding started by notification under Section 4 of the U.P. Consolidation of Holdings Act in the year 1983. As petitioner was a recorded tenure holder in the Basic year and no objection claiming any rights by anybody was filed in the consolidation proceeding also, this entry became final and land in dispute was allotted in the Chak of the petitioner in the allotment proceeding.
4. Trouble started when an application was moved for cancellation of Patta and Additional Collector, Fatehpur cancelled allotment of Patta by an order dated 23rd March, 1990. Said order was challenged before the higher authority and Board of Revenue by an order dated 21.3.1993 set aside the order of cancellation of Patta and remanded the matter back to be decided afresh. On remand, Additional Collector, Fatehpur by an order dated 15.7.1996 dropped cancellation proceedings and records were consigned to the record room. On an application moved by petitioner for excluding land In dispute from consolidation scheme, Consolidation Officer by an order passed in Case No. 3104 excluded land in dispute from consolidation scheme which became Chakout. Against the said order, Appeal filed by Lal Singh-Opp. party No. 5 was allowed by the Settlement Officer, Consolidation on 30th September, 1993 and land in dispute was allotted in the Chak of Opp. party Nos. 3 to 5.
5. It is important to mention here that order for cancellation of Patta dated 23rd March, 1990 was already set aside by the Board of Revenue by the order dated 21st March, 1993, but the order of Board of Revenue was incorporated in the revenue records only on 31.3.1995. The revision preferred by petitioner against the order of allotment before the Deputy Director of Consolidation was allowed by an order dated 15.7.1996, but this order was recalled on the application of Gram Sabha and ultimately by the impugned order dated 8th October, 1997, revision was dismissed.
6. Heard learned counsel for the parties.
7. Learned counsel for the petitioner urged that Plot No. 4224 was allotted to the petitioner who also acquired Bhumidhari rights on the land in dispute under the U.P.Z.A. & LR. Act. The land in dispute is a valuable land situated on the main road. On an application moved by the petitioner to exclude the land in dispute from allotment proceedings, i.e., from the consolidation scheme was rightly allowed by the Consolidation Officer in accordance with law. On an Appeal filed by contesting Opp party No. 5 against said order, land in dispute was illegally allotted to contesting Opp. Parties by including in consolidation scheme. He further urged that contesting Opp. Parties were neither aggrieved parties nor had any locus standi to file any Appeal against the order passed by the Consolidation Officer. The order passed by the Settlement Officer, Consolidation was without jurisdiction and Deputy Director of Consolidation also erred in law dismissing the Revision on the ground that petitioner was required to file objection under Section-9 of the U.P.C.H. Act for declaration of his rights before the Consolidation Officer under the U.P.C.H. Act. It was further urged that as the title of the petitioner over the land in dispute was not disputed, any objection by the petitioner for declaration of his rights or title was not required and the order passed by the Deputy Director of Consolidation dismissing the Revision suffers from error of law apparent on the face of record.
8. Sri H.N. Singh, learned counsel for contesting Opp. Parties No. 3 to 5 and learned counsel for Gaon Sabha urged that the orders of Deputy Director of Consolidation and Settlement Officer, Consolidation were rightly passed in accordance with law. They further urged that petitioner was required to get his title declared by filing an objection under Section-9 of the U.P.C.H. Act. As petitioner did not file any objection, he cannot get any right or title in the land in dispute:
9. I Considered arguments of learned counsel for the parties and carefully perused materials on record.
10. Contesting Opp. Parties filed a Writ Petition No. 34309 of 1996, Sher Singh and Ors. v. The Additional Collector, Fatehpur and Ors. against orders dated 15.7.1996 and 29.7.1991 by which the Plot in dispute was excluded from consolidation scheme by the Consolidation authorities. They got their writ petition dismissed as not pressed by an order dated 4th August, 1997 by moving an application that they do not want to press the writ petition and filed an affidavit in support of the prayer for dismissing the writ petition as not pressed. No reasons have been given in the affidavit for dismissal of the writ petition as not pressed.
11. In view of the undisputed facts which also borne out from the record, it is established that land in dispute was allotted to petitioner by Land Management Committee more than 25 years back of cancellation proceeding. Now the order to cancel allotment has already been set aside and the records were consigned to the record room by dropping proceeding for cancellation of Patta by the Additional Collector on remand, nothing remains to be decided on the question of title. As petitioner was recorded tenureholder in the Basic year, no objection under Section 9 of the U.P.C.H. Act was required to be filed. The clouds on the title created at the instance of Opp. party Nos. 3 to 5 have been removed. This Court is of the view that the Deputy Director of Consolidation wrongly and illegally dismissed revision of petitioner on the ground that he has not filed any objection under Section 9 of the U.P.C.H. Act for declaration of his right before Consolidation Officer. As titled of petitioner was not in dispute at any point of time, the order passed by the Deputy Director of Consolidation dismissing the revision of petitioner suffers from error of law apparent on the face of record.
12. Now the question remains to be considered whether order passed by the Consolidation Officer on application of petitioner to make the land in dispute Chakout was passed in accordance with law and whether the appeal preferred by contesting Opp. party No. 5 for setting aside the order passed by Consolidation Officer was maintainable and order passed by the Appellate court as affirmed by the Deputy Director of Consolidation could be sustained in law.
13. As is borne out from undisputed facts from the record that the land in dispute is situated on the main road and as become land of commercial value and as such land in dispute was rightly made Chakout by Consolidation Officer on the application filed by petitioner. Opp. party Nos. 3 to 5 were neither original tenureholders nor had any concern with the land in dispute and as such appeal filed by Opp. party No. 5 was not maintainable
14. An Appeal lies against an order of Consolidation Officer by a person who is aggrieved by the order of Consolidation Officer. By the order passed by the Consolidation Officer, land in dispute was kept out of consolidation scheme for allotment proceeding. Opp. Parties No. 3 to 5 were not aggrieved by the order of Consolidation Officer and, therefore, Appeal of Opp. Party No. 5, under Section 11 of the U.P.C.H. Act, to include the land in dispute in consolidation scheme was not maintainable as Opp. party No. 5 was neither recorded tenureholder nor he had any concern with the land in dispute. The order passed by the Settlement Officer, Consolidation in the Appeal of contesting Opp. Party No. 5 was without jurisdiction. It Is further clear that the Deputy Director of Consolidation rightly allowed the Revision by the order dated 15th July, 1996, though on an application, of Gaon Sabha, this order was illegally recalled.
15. There is a provision for Appeal under Section 11 of the U.P. C.H. Act in the matter arising out of proceedings under Section 9 of the U.P.C.H. Act which include the proceeding for valuation or non- valuation. Section 11 of the U.P.C.H. Act is being quoted below:--
11. Appeals.- (1) Any party to the proceedings under Section 9-A, aggrieved by an order of the Assistant Consolidation Officer or the Consolidation Officer under that Section, may, within 21 days of the order, file an appeal before the Settlement Officer, Consolidation, who shall after affording opportunity of being heard to the parties concerned, give his decision thereon which, except as otherwise provided by or under this Act, shall be final and not be questioned in any court of law.
(2) The Settlement Officer, Consolidation, hearing an appeal under Sub-section (1) shall be deemed to be a Court of competent jurisdiction, anything to the contrary contained in any law for the time being in force notwithstanding.
16. Section 11 of the U.P.C.H. Act makes it clear that any party to the proceedings under Section 9-A of the U.P.C.H. Act if aggrieved by an order of Assistant Consolidation Officer or Consolidation Officer, as the case may be, may file an appeal before the Settlement Officer, Consolidation. In the present case, Opp. party No. 5 was neither a party to the proceedings under Section 9-A of the U.P.C.H. Act by which Consolidation Officer has passed an order for excluding the land in dispute from the allotment of Chak proceeding and the entry of valuation was already excluded and the land in dispute was made Chak out. As in the proceeding under Section 9-A of the U.P.C.H, Act Opp. party No. 5 was neither a party nor an aggrieved person, appeal filed by him before the Settlement Officer, Consolidation was not maintainable. From perusal of the judgment of the Settlement Officer, Consolidation it is not clear that this Appeal was preferred against which order. Thus, the Appeal preferred by Opp. party No. 5 was not maintainable and order passed by Settlement Officer, Consolidation suffers from error of law apparent on the face of record.
17. Further, Section 21 of the U.P.C.H. Act also makes it clear that any person aggrieved by the order of Consolidation Officer may file an Appeal. Section 21 of the U.P.C.H. Act is being quoted below:--
21. Disposal of objection the statement.-(1) All objections received by the Assistant Consolidation Officer shall, as soon as may be, after the expiry of the period of limitation prescribed therefor, be submitted by him to the Consolidation Officer, who shall dispose of the same, as also the objections received by him, in the manner hereinafter provided after notice to the parties concerned and the Consolidation Committee.
(2) Any person aggrieved by the order of the Consolidation Officer under Sub-section (1) may within (15) days of the date of the order, file an appeal before the Settlement Officer, Consolidation whose decision shall, except as otherwise provided by or under this Act be final.
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18. Land in dispute was never allotted to contesting Opp. party Nos. 3 to 5. Prior to the order dated 29th July, 1991 passed by the Consolidation Officer, land in dispute was allotted in petitioner's Chak and was made Chakout by the order dated 29th July, 1991. As stated above, Opp. party No. 5 was neither aggrieved nor had any concern with the land in dispute and as such the appeal filed by him under Section 21 of the U.P.C.H. Act also for including the land in dispute in consolidation scheme was not competent and order of Settlement Officer, Consolidation, dated 30th September, 1993 for including the land in dispute in the consolidation scheme and allotment off the same in the Chak of contesting Opp. party Nos. 3 to 5 was without jurisdiction. Once the order of cancellation of Patta passed by the Additional Collector was set aside by the Board of Revenue, this order being command of the competent Court shall be deemed to have been mutated/incorporated in law in the revenue records, and on the date on which Settlement Officer, Consolidation passed an order on 30th September, 1993, land in dispute was not land belonging to Gaon Sabha and as such allotment of the land in dispute in the Chak of Opp. party Nos. 3 to 5 treating it to be of Gaon Sabha property was without any authority of law, though from the records, it is blear that order was passed on 30th September, 1993, but it was actually incorporated in revenue record on 31.3.1995.
19. In these circumstances, the impugned orders dated 8th October, 1997 and 5th July, 1997 passed by the Deputy Director of Consolidation and order dated 30th September, 1993, passed by the Settlement Officer, Consolidation are liable to be quashed.
20. In the facts and circumstances of the case, this Court is of the view that District Deputy Director of Consolidation, Fatehpur (District Magistrate, Fatehpur) shall restitute the possession of Plot No. 4224 to petitioner within a month from the date of receipt of a certified copy of this order. This Court is also of the view that petitioner is also entitled to get mesne profit at the market rate which may be determined by the District Deputy Director of Consolidation, Fatehpur/District Magistrate, Fatehpur for the period petitioner was dispossessed from the land in dispute by the Opp. party Nos. 3 to 5 and if any such application is filed, the District Deputy Director of Consolidation/District Magistrate, Fatehpur shall pass appropriate orders in accordance with law after hearing the parties.
21. With the result, writ petition succeeds and is allowed. The impugned orders dated 8th October, 1997 and 5th July, 1997 passed by the Deputy Director of Consolidation and order dated 30th September, 1993, passed by the Settlement Officer, Consolidation are quashed and the order of Consolidation Officer dated 29th July 1991 excluding the plot in question from consolidation scheme is affirmed. The District Deputy Director of Consolidation/District Magistrate, Fatehpur is directed to restore possession of Plot No. 4224, area 1 Bigha, 4 Biswa to the petitioner within a period of one month from the date of presentation of a certified copy of this order. In case any application is filed by the petitioner before the District Magistrate, Fatehpur for awarding mesne profit for the period he was actually dispossessed by the contesting Opp. Parties under order of the Settlement Officer, Consolidation, the District Magistrate, Fatehpur shall determine the damages on the basis of market rate and shall make recovery of the same from contesting Opp. Party Nos. 3 to 5 as arrears of land revenue. As the order dated 30th September, 1993, passed by the Settlement Officer, Consolidation has already been quashed by this order, the contesting Opp. Party Nos. 3 to 5 are entitled to allotment of their Chaks prior to impugned orders.
22. No order as to cost.
23. Registry is directed to send a copy of this order to District Magistrate, Fatehpur for compliance.