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SHIVAKANT MISHRA versus DY. DIRECTOR OF CONSOLIDATION, MAU & OTHERS

High Court of Judicature at Allahabad

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Shivakant Mishra v. Dy. Director Of Consolidation, Mau & Others - WRIT - B No. 17219 of 2007 [2007] RD-AH 6031 (3 April 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.40.

Civil Misc. Writ Petition No. 17219 of 2007.

Shivakant Mishra  

Versus

Deputy Director of Consolidation and  others.

Hon'ble Vikram Nath, J.

The petitioner has claimed relief on the basis of a decree obtained by him in the suit under  Section 229-B of U.P. Zamindari Abolition and Land Reforms Act,  (hereinafter referred to as the Act) being Suit No. 47 of 1961. The decree is alleged to have been passed on 15.4.1963.  The name of the petitioner was never recorded over the land in dispute pursuant to the said decree. During consolidation operations, it appears that petitioner filed some objection and the Consolidation Officer passed orders on 30-6-1988 and 5-7-1988 based on the decree in the aforementioned declaratory suit, directing for recording the name of the petitioner over the land in dispute after deleting the name of the Gaon Sabha.  Pursuant to the said order of the Consolidation Officer, the name of the petitioner was recorded in the revenue records. Subsequently, Gaon Sabha filed an application for recalling the order dated 30-6-1988 and 5-7-1988.   During the pendency of the said application,  Gaon  Sabha filed two revisions before the Deputy Director of Consolidation challenging the aforementioned two orders of the Consolidation Officer. The Deputy Director of Consolidation consolidated both the revisions and by the order dated 16.12.2006 has allowed both the revisions and after setting aside order of the Consolidation Officer has directed that Gaon Sabha be recorded over the land in dispute. Against the said order present writ petition has been filed.  

Heard Sri Avdhesh Kumar Rai, learned counsel for the petitioner and  Sri Santosh Srivastava, learned counsel for the caveator.

Learned counsel for the petitioner submitted firstly that Gaon Sabha had engaged private counsel without their being any resolution or the permission from the Collector and therefore, the revisions were not maintainable. In support of the contention, he relied upon Division Bench decision of this Court in the case of Gram Panchayat Pusawali Versus State of U.P. and others, reported in 2007 (102) RD 20.

The next submission of the learned counsel for the petitioner is that Gaon Sabha had filed recall application which was pending before the Consolidation Officer and therefore, during the pendency of the said applications the revisions were not maintainable as under law two remedies in different Courts could not be pursued simultaneously.

The third submission of the learned counsel for the petitioner is that the declaratory suit had been validly decreed and the order passed by the Consolidation Officer did not suffer from any infirmity in directing for recording the name of the petitioner and therefore, the Deputy Director of Consolidation has wrongly allowed the revisions filed by the Gaon Sabha.

On the other hand, learned counsel for the respondents has submitted that the fact that after having obtaining the decree in the year 1963 petitioner did not get his name incorporated in the revenue records, and after a period of 25 years taking advantage of consolidation proceedings got an order in his favour behind the back of the Gaon Sabha. It is further submitted that as of date neither records of declaratory suit are available nor petitioner has been able to file certified copies of the judgement and decree of the declaratory suit and therefore, it could be safely presumed that the decree in fact was never granted.

It is further submitted that initially the objections filed before the Consolidation Officer was of the year 1988 but by over writing it has been changed to 1980, for the reason that Consolidation operation were closed in the year 1982. Notification under Section 52 of the U.P. Consolidation of Holdings Act, 1953 (in short referred to as U.P. C.H. Act) was issued in the year 1982 itself.  The objections and the order of the Consolidation Officer were also not genuine and have been manipulated.

It is further submitted that with regard to the engagement of the private counsel by the Gaon Sabha the petitioner has raised this point in the Writ Petition and further the decision relied upon by the petitioner was with regard to filing of the Writ Petition before High Court.

Lastly, it is submitted by the learned counsel for the respondents that mere pendency of the restoration application before the Consolidation  Officer would not debar the Gaon Sabha from filing revision before the Deputy Director of Consolidation.

Having considered the rival submissions of the learned counsel for the parties and having perused the record and in particular the order passed by the Deputy Director of Consolidation, I find firstly that the petitioner had utterly failed to prove that there was  any valid decree in his favour in the year 1963. In absence of the same order of the Consolidation Officer cannot be said to be justified. Further the finding recorded by the Deputy Director of Consolidation that the objections under Section 9A(2) of the U.P. C. H. Act filed by the petitioner were actually filed after the close of the consolidation operations and after publication of the notification in the year 1983 under Section 52 of the U.P.C.H. Act. It further recorded that the objections were of the year 1988 as is evident from the date initially mentioned in them. Subsequently they have been changed by over writing on the date and mentioning it as of the year 1980. This objection was specifically taken in the ground of revision before the Deputy Director of Consolidation and the Deputy Director of Consolidation after having examined the objections had recorded the said finding.

The Deputy Director of Consolidation has also recorded that the land in dispute was recorded as Banjar and Talab and over the land recorded as Gaon Sabha land, no rights could be given to the petitioner. The petitioner has tried to dispute this fact by stating that only some of the plots were recorded as  'land submerged in the water' (Jalmagn) and since last 40 years petitioner has been using the said land as his abadi and has constructed buildings over it, and some of it has been let out as shop and further the petitioner had obtained orders from Civil Court for ejectment of his tenants, therefore, the petitioner should be allowed to continue to retain the possession of the said land.  

In my opinion the finding of the Deputy Director of Consolidation that land was recorded as Talab, clearly goes to show that no rights could be given over the same. The decree under Section 229-B of the Act was not in accordance with law and petitioner has no right to be given bhumidhari rights over public utility land falling under Section 132 of the Act. Thus the petitioner has utterly failed to establish any right to either continue in possession or get his name recorded in the revenue records over the land in dispute.  

Other objection of the petitioner is that private counsel had been engaged by the Gaon Sabha.  In my opinion, if the interest of the Gaon Sabha was being watched and Pradhan has not taken any fund from the Gaon Sabha for the said purpose and moreover the contest was for the benefit of Gaon Sabha, I am not inclined to go into the technicalities where on merits the petitioner had utterly failed, and therefore reject the said contention of the petitioner.

With regard to the other contention that the Gaon Sabha was pursuing two remedies simultaneously i.e. by filing recall application before the Consolidation Officer and at the same time having filed revisions before the Deputy Director of Consolidation, in my view this submission cannot be sustained for the reason that under law there is no specific bar for pursuing two remedies.  It would only be a matter of procedure that the Courts may not permit the party to create complication by multiplicity of proceedings.  In the said case as the revisions have already been decided, now the applications before the Consolidation Officer have become infructuous can always be dismissed on the said ground.  After the decision in the revisions, the petitioner cannot be permitted to take this plea of dual proceedings in as much as earlier he ought to have raised this objection before the Revisional Court. The said contention is, accordingly, rejected.

Writ Petition fails and is, accordingly, dismissed.

Dated: 3-4-2007

RPS


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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