Heard Shri Rama Niwas Pathak, learned counsel for the petitioner, learned State Counsel and Shri Vinod Kumar Pandey, learned counsel representing the respondent no.2.
In these proceedings instituted under Article 226 of the Constitution of India, the petitioner assails the validity of an order dated 27.04.2019 passed by the Deputy Director of Consolidation, Ayodhya whereby he has allowed the revision petition filed against the appellate order dated 23.07.2007 passed by the Settlement Officer, Consolidation. By the impugned order, the orders under appeal before the Settlement Officer, Consolidation, namely, the orders dated 17.04.2006 and 05.02.2002 passed by the Consolidation Officer have also been set aside and the matter has been remitted to the Consolidation Officer to decide the issues afresh under section 9-A(2) of U.P. Consolidation of Holdings Act (hereinafter referred to as ' the Act').
Ordinarily in the order of remand, this Court would not have interfered, however, the facts of this case are such that this matter calls for interference by the Court in this petition for the reason (which follows in the judgment at appropriate place) that the case set up by respondent no.2 on the basis of some will deed said to have been executed by the original recorded tenure holder, namely, Ram Karan is barred by statutory prescription available under section 11-A of the Act.
This Court vide its order dated 22.07.2019 had required the Deputy Director of Consolidation to file his counter affidavit on the basis of instructions which were already provided by him to the learned State Counsel. It was further observed in the said order dated 22.07.2019 that respondent no.2 who has had ample opportunity to file counter affidavit had not done so, however, it was also provided that if, he so chooses he may file counter affidavit and no further opportunity shall be given to him to file the counter affidavit.
In compliance of the said order dated 22.07.2019, a counter affidavit has been filed by the Deputy Director of Consolidation. Vide order dated 06.08.2019, on the prayer made by the learned counsel representing the respondent no.2, two weeks further time was granted to file counter affidavit, however, it was observed in the said order that in case the counter affidavit is not filed by the respondent no.2, the matter may proceed ex-parte.
Shri Vinod Kumar Pandey, learned counsel representing the respondent no.2 states that in view of the counter affidavit filed by the Deputy Director of Consolidation in the matter giving details of the different dates of publications under the relevant provisions of the Act, the matter may be decided on the said basis.
Undisputedly, the original recorded tenure holder of the land in question was one Ram Karan. On his death, name of his brother Ram Yagya came to be recorded in the revenue record on the basis of PA-11 entry. A notification under section 4 of the Act declaring the intention of the State Government to bring the village in question, where the land in dispute is situated under consideration operation, was published on 19.05.1990. The publication under section 4-A(2) of the Act in the village was made on 22.08.1991. As per the counter affidavit filed by the Deputy Director of Consolidation, publication of record and statements under section 9 of the Act was made on 28.02.1992. As per the said affidavit, the revised annual registers in form CH-11 prepared on the basis of orders passed under section 9-A(1) and 9-A(2) of the Act was published on 23.09.1998 in terms of the requirement of section 10 of the Act. These different dates of publication under the Act have been extracted from the counter affidavit filed by the Deputy Director of Consolidation which is supported by the relevant documents and are thus not in dispute.
At the time of notification under section 4 of the Act, the name of Ram Yagya was found recorded in the basic year khatauni. Ram Yagya is said to have executed a sale deed on 11.04.2001 in favour of the petitioner-Vinod Bahadur, who on the basis of said sale deed moved an application under section 12 of the Act seeking mutation of his name, which application was allowed on 05.02.2002 whereby the name of the petitioner was ordered to be mutated. The respondent no.2 moved an application seeking recall of the order dated 05.02.2002 passed by the Consolidation Officer and restoration of the case, however, the said restoration application was rejected by the Consolidation Officer vide his order dated 17.04.2006. Against the said orders dated 05.02.2002 and 17.04.2006 passed by the Consolidation Officer, the respondent no.2 filed an appeal which was dismissed by the Settlement Officer, Consolidation vide his order dated 23.07.2007. However, the revision petition filed by the respondent no.2 challenging the orders 23.07.2007 passed by the Settlement Officer, Consolidation and the orders dated 17.04.2006 and 05.02.2002 passed by the Consolidation Officer has been allowed. It is this order dated 27.04.2019 passed by the Deputy Director of Consolidation which is under challenge herein. By the said order, the Deputy Director of Consolidation has set aside the orders dated 23.07.2007, 17.04.2006 and 05.02.2002 and has remitted the matter to the Consolidation Officer for disposal of the issues between the parties under section 9-A(2) of the Act afresh.
There are two issues which need consideration in this case. The first issue as raised by the learned counsel for the respondent no.2 is that the order dated 05.02.2002 passed by the Consolidation Officer was an ex parte order and as a matter of fact his claim based on the will said to have been executed by Ram Karan in favour of the respondent no.2 has nowhere been considered and therefore the order passed by the Deputy Director of Consolidation, dated 27.04.2019 does not suffer from any illegality and irregularity for the reason that by the said order he has only remitted the matter to the Consolidation Officer where the case set up by the petitioner on the basis of sale deed dated 11.04.2001 and case set up by the respondent no.2 on the basis of will deed said to have been executed by Ram Karan in his favour shall be considered afresh and parties will have ample opportunity to lead evidence to establish their cases. His submission, thus, in this regard is that by the order passed by the Deputy Director of Consolidation dated 27.04.2019 no prejudice will be caused to the parties and accordingly this Court need not interfere in the same.
The second issue which needs consideration is as to whether the claim of the respondent no.2 is barred by the statutory prescription available in under section 11-A of the Act and in case it is thus found that his claim is so barred by statutory prescription, the respondent no.2 would be entitled to lay his claim either in the proceedings initiated by the petitioner under section 12 or his objection said to have been filed by him under section 9-A(2) of the Act.
The answer to the first issue as observed above will depend on the findings which may be recorded in this order on the second issue which relates to claim of the respondent no.2 being barred by statutory prescription available under section 11-A of the Act.
There is no dispute to the fact that Ram Karan had died prior to publication of notification under section 4 of the Act in the village by which the village where the land in question is situated was brought under consideration operations.It is also not in dispute that prior to initiation of the consolidation proceedings in the village, name of Ram Yagya was recorded in the relevant revenue records by way of PA-11 entry and further that there is no dispute that basic year entry in the khatauni existed in the name of Ram Yagya.
If the respondent no.2 had any claim based on the alleged will deed executed by Ram Karan in in his favour, he ought to have firstly moved mutation application seeking mutation of his name in place of the deceased tenure holder Ram Karan prior to commencement of the consolidation proceedings under the relevant provisions oflLaw. It is not in dispute that he did not take any steps seeking mutation of his name on the basis of alleged will deed said to have been executed in his favour by Ram Karan. If it was found by the respondent no.2 that name of Ram Yagya was wrongly recorded as the land in question would devolve on the respondent no.2 on the basis of will deed said to have been executed by Ram Karan in his favour, on publication under section 9 of the Act he ought to have filed objections under section 9-A(2) of the Act. It is not in dispute that the respondent no.2 laid his claim on the basis of will deed allegedly executed by Ram Karan in his favour only on 05.05.2001 i.e. the date on which he filed objections under section 9-A(2) of the Act before the Consolidation Officer. As noticed above publication under section 4-A(2) of the Act in the village was made on 22.08.1991, publication under section 9 of the Act was made on 28.02.1992 and thereafter the extracts of annual register in form CH-11 was published under section 10 of the Act on 23.09.1998.
It is relevant to point out that section 10 of the Act mandates the consolidation authorities to publish the annual register after revising the same on the basis of the orders passed under sub sections 1 & 2 of section 9-A of the Act. Thus on preparation and maintenance of revised annual register under section 10 of the Act, the disputes by and large under section 9-A(2) if raised get settled. It is in this view that the scheme under section 11-A of the Act provides that any claim to land or partition of joint holdings or valuation of plots, trees, wells and other improvements relating to consolidation area cannot be raised at a subsequent stage of consolidation proceedings which ought to have been raised under section 9 of the Act or which might have been raised under the said section.
A bare reading of section 11-A of the Act makes it clear that there exists a statutory bar on any claim after publication of annual register under section 10 of the Act. In respect of any claim or partition or valuation of plots, trees, wells and other improvements. As observed above there is a purpose for creating such a bar under section 11-A of the Act by the legislature and the purpose is to ensure that further proceedings relating to carvation of chaks etc. be initiated once the disputes relating to rights and title and claims in respect of the holdings are decided under section 9-A(2) of the Act if raised. In case such a bar as available under section 11-A is not created, determination of rights and claims in the holding shall be an unending process which will make almost impossible for consolidation authorities to undertake further proceedings of consolidation such as carvation of chaks etc. So far as the facts of the instant case as already noted above are concerned, the publication under section 9 of the Act was made on 28.02.1992 and publication of form CH-11 was made under section 10 of the said Act on 23.09.1998, thus, there was ample time of more than 6 and 1/2 years available to the respondent no.2 between the date of publication under section 9 and date of publication under section 10, however, the petitioner kept silent and did not raise any claim based on the alleged will said to have been executed in his favour by the original tenure holder-Ram Karan. As a matter of fact, he woke up to file objection under section 9-A(2) of the Act only on 05.05.2001, that is to say, after the date when Ram Yagya whose name was found entered in the basic year khatauni executed a sale deed in favour of the petitioner on 11.04.2001.
On the basis of the aforementioned undisputed facts, in my considered opinion, bar of section 11-A of the Act in this case will act in its full force as far as the claim of respondent no.2 in the land in question is concerned for the reason that neither he took any action for getting his name mutated prior to commencement of the consolidation proceedings nor did he file any objection as contemplated under section 9-A(2) of the Act prior to publication of form CH-11 under section 10 of the Act. The aforesaid view is supported by a judgment of Hon'ble Supreme Court in the case of Gafoora and another vs. Deputy Director of Consolidation, Meerut and others, reported in [(1975) 2 SCC 568].
At this juncture, learned counsel appearing for the respondent no.2 has relied upon a judgment rendered by this Court on 23.08.2011 in Civil Misc. Writ Petition No.31552 of 2011, Sudhir Kumar Goswami vs. District Director of Consolidation/Deputy Director of Consolidation and others to emphasize that the proceedings under section 12 of the Act cannot be said to be summary proceedings for the reason that the provisions of section 7 to 11 of the Act apply mutatis mutandis in so far as the proceedings under section 12 are concerned.
As far the proposition of law laid down in the said judgment in the case of Sudhir Kumar Goswami (supra), there cannot be any quarrel, however, what is noticeable is the fact that the statutory bar created by section 11-A specifically comes in the way of the claim put forth by the respondent no.2 in the land in question on the basis of the alleged will deed said to have been executed in his favour by Ram Karan-original recorded tenure holder.
In view of the discussions made above, this Court does not have any doubt to observe that any claim of respondent no.2 would thus be barred by operation of the provisions of section 11-A of the Act. Accordingly, even if it is presumed, though it is being disputed by the petitioner, that the order dated 05.02.2002 passed by the Consolidation Officer was an ex-parte order, remitting the matter back to the Consolidation Officer will not serve any purpose for the reason that claim of the respondent no.2 is barred by statutory prescription under section 11-A of the Act.
In view of the discussions made and reasons given above, the writ petition deserves to be allowed. Accordingly, the writ petition is allowed. The order dated 27.04.2019 passed by the Deputy Director of Consolidation, Ayodhya as is contained in annexure no.1 to the writ petition is hereby quashed.
Consequences to follow.
There will be no order as to cost.
Order Date :- 27.8.2019 akhilesh/ [D. K. Upadhyaya, J.]