High Court
Case Details
Court No. - 5 Case :- WRIT - B No. - 3377 of 2022 Petitioner :- Ram Mani And Another Respondent :- The Deputy Director Of Consolidation And 7 Others Counsel for Petitioner :- Prashant Kumar Tripathi Counsel for Respondent :- C.S.C.,Azad Rai,Rakesh Prasad Mishra,Rishikesh Tripathi Hon'ble Dinesh Pathak,J. 1. Supplementary affidavit filed on behalf of the petitioners is taken on record.
Legal Reasoning
2. Heard learned counsel for the petitioners, learned Standing Counsel representing respondent nos. 1 to 4, learned counsel for the Gaon Sabha (respondent no. 7) as well as learned counsel for the private respondent no. 5 (Vijay Shankar). 3. The petitioners have invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India assailing the remand order dated 07.01.2008 passed by the Assistant Settlement Officer of Consolidation in Appeal No. 1441/1114 filed on behalf of respondent no. 5, which was affirmed by the Deputy Director of Consolidation vide impugned order dated 17.09.2021 passed in Revision No. 1499/73/2021 filed on behalf of the petitioners.
Decision
4. Facts culled out from the averment made in the writ petition are that the Assistant Consolidation Officer, vide order dated 18.12.1975, has kept the plot no. 660 area 6 Biswa and plot no. 1119 area 9 Biswa out of consolidation operation and ordered to record the land in question under Clause 6(2) as an Abadi. At a very belated stage a time barred appeal dated 18.01.2007 has been preferred on behalf of respondent no. 5. The Settlement Officer of Consolidation has allowed the appeal, vide order dated 04.01.2008, and remitted the matter before the Assistant Consolidation Officer to reconsider the matter with respect to putting the plot in question out of consolidation operation. Having been aggrieved against the order passed by the Settlement Officer of Consolidation, the petitioners have preferred revision. The Deputy Director of Consolidation, vide impugned order dated 17.09.2021, has dismissed the revision on the ground that the petitioners are not aggrieved party inasmuch as they were not party before the Settlement Officer of Consolidation, therefore, they have no grievance to challenge the order passed by the Settlement Officer of Consolidation. Having been aggrieved, the petitioners have filed instant writ petition. 5. It is submitted by the learned counsel for the petitioners that the petitioners are throughout in possession over the property in question since long even before the consolidation operation and still in possession over there, who have perfected their possessionary right but the same has illegally been ignored by the Deputy Director of Consolidation. It is further submitted that the Deputy Director of Consolidation has miserably filed to consider the possessionary right of the petitioners and illegally dismissed the revision on the ground that the petitioners are not prejudiced with the order passed by the Settlement Officer of Consolidation. It is next submitted that the impugned orders are liable to be quashed, being illegal and unwarranted under the law. 6. Per contra, learned counsel for the contesting respondent has contended that, being third person, who were not party before the court below, the petitioners have no right to challenge the order passed by Settlement Officer of Consolidation and the instant writ petition on behalf of the petitioners, being not aggrieved against the order passed by the consolidation courts, is not maintainable in the eye of law. It is further contended that the Settlement Officer of Consolidation has rightly remitted the matter before the Consolidation Officer to decide it afresh, therefore, the petitioners still have full opportunity to contest the case before the Consolidation Officer inasmuch as nothing has been decided finally with respect to the right and title of the parties over the property in question. In support of his case, learned counsel for the respondent has cited the case of Kamla Shanker and others vs. Dy. Dir. Of Consolidation and others, reported in 1979 R.D. page 78; Triloki Nath vs. Ram Gopal and others, reported in 1974 R.D. page 5 and Jitendra Pratap Singh vs. State of U.P. and others, reported in 2021(1) ALJ 243. 7. Having considered the rival submissions advanced by the learned counsel for the parties and perusal of record, it reveals that the matter in question lies in a narrow compass with respect to the grievance of the petitioners that as to how they are prejudiced with the order passed by the Settlement Officer of Consolidation and how they got right over the property in question. It would not be befitting for this Court to make any observation with respect to the right and title of the parties over the property in question, inasmuch as case has been reopened and remitted before the Consolidation Officer by the order passed by the Settlement Officer of Consolidation, which has been affirmed by the Deputy Director of Consolidation. In memo of revision the petitioners have tried to make out a case that property in question is an abadi on spot and petitioners are in possession over there since long and respondent has no concern with the property in question. Gram Sabha has submitted its version admitting the existence of old Abadi on spot. The Settlement Officer of Consolidation has quashed the order passed by the Assistant Consolidation Officer on the ground that he has got no jurisdiction to record any land as an Abadi, whereas the land in question was Bhoomidhari of the respondent. There is nothing on record to establish that the order passed by the Assistant Consolidation Officer was passed independently or was as per the provision of Statement of Principle as enunciated under Section 8-A of U.P.C.H. Act. 8. Be that as it may, this court declines to interfere with the order passed by the Deputy Director of Consolidation. 9. However, nature of land in question, as on today, is a matter of serious concerned. Petitioners and the Gaon Sabha both have pleaded at the revisional stage that land in question exists in the nature of Abadi. Therefore, Consolidation Officer is hereby directed to personally visit the land in question and conduct the spot inspection in presence of both the parties and chairman of land management committee/village pradhan and members of consolidation committee (if exists). He should prepare a detailed report qua present status and nature of land in question along with sketch map depicting all the improvements, if any, over there and obtain signatures of all the persons concerned as mentioned above, who shall also be given opportunity to file objection, if any. against said report. After satisfying himself as to whether land in question comes within the definition of land/holding or not, as enunciated under the U.P.C.H. Act, the Consolidation Officer may proceed with the matter. While deciding the matter he should consider and discuss the basic year entry, C.H. Form 18, Statement of Principles under Section 8-A of U.P.C.H. Act. 11. In the interest of justice it is provided that the petitioners and Gaon Sabha may also be heard before passing any order in compliance of the order passed by the Settlement Officer of Consolidation. They are at liberty to move a detailed objection before the Consolidation Officer, before whom the matter has been remitted in pursuance of the order passed by the Settlement Officer of Consolidation, to establish their right, title and interest over the property in question. 12. Before parting, learned counsel for the petitioners has orally prayed to protect the property in question during pendency of the proceeding before the Consolidation Officer. Considering the facts and circumstances of the present case, the petitioners are granted liberty to move a stay application before the Consolidation Officer along with a certified copy of this order, who shall consider and decide the same on the merits of the case within a period of two months from the date of filing of the stay application. For a period of 75 days or till the decision on the stay application, whichever is earlier, both the parties are directed to maintain status quo with respect to the nature and possession over the property in question. Order Date :- 17.1.2023 Pkb/ Digitally signed by :- PRAMOD KUMAR BAJPAI High Court of Judicature at Allahabad