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Gaurav v. State Of U.P. & Others - WRIT - B No. 17061 of 2006  RD-AH 5796 (2 April 2007)
1.Civil Misc.Writ Petition no. 17061 of 2006
Gaurav Vs State of U.P.& Others
2.Civil Misc.Writ Petition No.17063 of 2006
Anand Sharma Vs. State of U.P.& Others
3.Civil Misc.Writ Petition no. 17065 of 2006
Manoj Vs State of U.P.& Others
4.Civil Misc.Writ Petition no. 17066 of 2006
Acharya Vachaspati Vs. State of U.P. & Others
5.Civil Misc. Writ Petition No. 17068 of 2006
Padam Nand Vs. State of U.P.& Others
6.Civil Misc.Writ Petition no. 17071 of 2006
Rajeshwar @ Manoj Vs. State of U.P.& Others
7.Civil Misc.Writ Petition no. 17072 of 2006
Ravi Dutt Vs. State of U.P. & Others
8.Civil Misc.Writ Petition no. 17074 of 2006
Radhey Shayam Vs. State of U.P.& Others
9.Civil Misc.Writ Petition no. 17075 of 2006
Anand Sharma Vs. State of U.P.& Others
10.Civil Misc.Writ Petition no. 17076 of 2006
Acnarya Vachaspati Vs. State of U.P.& Others
11.Civil Misc.Writ Petition no. 17078 of 2006
Suresh Chand Vs. State of U.P. & Others
12.Civil Misc.Writ Petition no. 17080 of 2006
Dev Sharma Vs. State of U.P.& Others
13.Civil Misc.Writ Petition no. 17082 of 2006
Santosh Kumar Vs. State of U.P.& Others
14.Civil Misc.Writ Petition no. 17083 of 2006
Suresh Chand Vs. State of U.P. & Others
15.Civil Misc.Writ Petition no. 17085 of 2006
Suresh Chand Vs. State of U.P.& Others
16.Civil Misc.Writ Petition no. 17087 of 2006
Dev Sharma Vs. State of U.P. & Others
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17.Civil Misc.Writ Petition no. 13575 of 2006
Dev Sharma & others Vs. Devendra Singh Raipa & Others
Hon. Janardan Sahai,J
All these writ petitions involve common question and as such are being decided together. In the basic year the petitioners in each of these writ petitions were recorded over the disputed land. Objections under Section 9 of the U.P. Consolidation of Holdings Act were filed by the Gaon Sabha. The objections were belated and an application for condoning the delay was filed by the Gaon Sabha. The Consolidation Officer by his order dated 24.2.06 has condoned the delay and has also allowed the objections of the Gaon Sabha and has directed that the names of the petitioners be expunged. Aggrieved the present petitions have been filed.
I have heard Sri G.N.Verma learned Sr.Counsel assisted by Km.Madhu Tandon counsel for the petitioners, Sri Mahendra Pratap Singh special counsel for the State of U.P and the learned Standing Counsel.
It was submitted by Sr G.N.Verma counsel for the petitioners that the order of the Consolidation Officer has been passed without opportunity to the petitioners to put forth their case. It appears that 4.1.06 was the first date fixed before the Consolidation Officer. On that date an application was filed by the petitioners in each of these petitions seeking 25 days' time to engage counsel and to file objections. The case was adjourned to 7.1.06. On that date another application seeking 25 days' further time to file a vakalatnama was filed. The Consolidation Officer granted 10 days' time and fixed 18.1.06. On 18.1.06 the Consolidation Officer did not sit and consequently the case was adjourned to 1.2.06. On that date too there was no sitting. The case was then adjourned to 10.2.06. On that date the petitioners appeared through their counsel and prayed for time to file a reply. The case was adjourned to 24.2.06. On 24.2.06 the delay was condoned and the objections of the Gaon Sabha were allowed.
The case of the petitioners is that on 24.2.06 the Consolidation Officer again did not sit but a typed order bearing the signatures of the Consolidation Officer was already there in the file. The petitioners case is that the petitioners tried to hand over to the Reader of the court their preliminary objections regarding the maintainability of the case in which they had prayed for the disposal of the preliminary objections but the Reader refused to receive these preliminary objections and therefore an endorsement was made by the petitioners' counsel on the order sheet of these cases of that date viz 24.2.06 that the Consolidation Officer did not hold court and that there was a typed order in the file and the Reader had refused to take the preliminary objections of the petitioners. In the counter affidavit of Sunil Nautiyal Consolidation Officer ( not the Consolidation Officer who had decided the cases) it is stated that the petitioners with the connivance of the Reader had taken the file from him and made the aforesaid false endorsement. According to the petitioners the endorsement made by them was true and that in fact on 24.2.06 there was no sitting. In support of their contention the petitioners have filed the order sheet of 24.2.06 of another case of the same court Smt.Beena Vs. Rupwati which indicates that the Consolidation Officer did not sit as he was on leave / gone out for other duty and therefore another date 28.3.06 was fixed in that other case. These facts indicate that there is serious doubt whether the Consolidation Officer at all held court on 24.2.06. From the dates and facts mentioned above it does appear that proper opportunity was not given to the petitioners. The whole case started with appearance of the petitioners on 4.1.06 and culminated in the final orders of the Consolidation Officer dated 24.2.06. During this period there were about 7-8 dates fixed but the Presiding Officer himself did not sit on about four of these dates. It was only on 10.2.06 that the petitioners had appeared through their counsel and had sought time to file objections. According to the petitioners they sought to file preliminary objections regarding the maintainability of the objections but there was no sitting in the court and there objections were not received by the Reader. The petitioners have filed the copy of these preliminary objections along with the writ petitions. It appears that the case was decided in a very hasty manner and proper opportunity was not given to the petitioners. Counsel for the petitioners has taken me though the order of the Consolidation Officer and submitted that the burden of proof has been wrongly placed upon the petitioners to justify the basic year entry and that there is no evidence in support of the case of the Gaon Sabha. Sri G.N.Verma also submitted that the entries in favour of the petitioners are very old starting from the year 1362F and that the names of the petitioners are also entered in the register Ekrarnama maintained by the State. It is also submitted that an order was passed by the Collector on a particular date in all these cases for expunging the entries in favour of the petitioners from the revenue records and the petitioners challenged the order in writ petition no.3751 of 95 and this court has quashed the order of the Collector expunging the entry on the ground that these were long standing entries and that they could not be expunged in summary proceedings such as under Section 33/39 of the U.P.Land Revenue Act. In reply Sri Mahendra Pratap, special Counsel stated that in fact no patta /certificate was ever granted in favour of the petitioners. It is not necessary to express any opinion upon the merits of the case of the parties as I propose to send the case back to the Consolidation Officer for fresh decision after opportunity to the parties.
Sri Mahendra Pratap Singh has raised a preliminary objections that these writ petitions are not maintainable and that the petitioners have an alternative remedy of filing an application for setting aside the order before the Consolidation Officer himself. It is well settled that the alternative remedy is not an absolute bar to the maintainability of a writ petition. Counter and Rejoinder affidavits have been exchanged in this case and from what has come out I am satisfied that proper opportunity was not given to the petitioners. In the circumstances it is not appropriate that the petitioners should be relegated to the alternative remedy of making an application before the Consolidation Officer for setting aside his order. The writ petitions are accordingly allowed. The order of the Consolidation Officer dated 24.2.06 in all the above noted writ petitions is set aside. Sri G.N.Verma learned Sr. Counsel assisted by Km.Madhu Tandon states that the petitioners will file objections against the application under Section 5 of the Limitation Act as well as on merits within six weeks from today. The Consolidation Officer shall decide the case in accordance with law expeditiously.
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