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KAUSHLENDRA PRATAP SINGH & OTHERS versus GOVT. OF STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Kaushlendra Pratap Singh & Others v. Govt. Of State Of U.P. & Others - WRIT - B No. 19194 of 2007 [2007] RD-AH 8152 (1 May 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                                                   Court No.5.

Civil Misc. Writ Petition No. 19194 of 2007.

Kaushlendra Pratap Singh     Vs.    Government of State of U.P.

and others.                                       and others.

Hon'ble Janardan Sahai, J.

        In the basic year the respondents Surendra Singh, Narendra Singh and Brijesh Singh were recorded over the disputed land. Objections under Section 9 of the U.P. Consolidation of Holdings Act were filed by the petitioners. They claim that the parties are descendants from a common ancestor and that the land in dispute was alloted to the petitioners in partition and the entry in the name of the respondents is liable to be expunged. The objections are still pending before the Consolidation Officer. It appears that during the pendency of these objections the respondent Narendra Singh transferred his share to the respondent no. 8  Durgesh Kumar. Durgesh Kumar moved an application for mutation under Section 12 of the  U.P. Consolidation of Holdings Act. The case was contested by the petitioners. The Consolidation officer by his order dated 9.3.2005 directed mutation of the name of the respondent no. 8 Durgesh Kumar. The petitioners preferred an appeal before the Settlement Officer Consolidation, which was allowed and the order of the Consolidation Officer was set aside and the case was remanded to the Consolidation Officer for fresh decision along with the objections of the petitioners under Section 9-A of the U.P. Consolidation of Holdings Act. This order of the Settlement Officer Consolidation dated 16.5.2005 was challenged by respondent no. 8 before the Deputy Director Consolidation. The Deputy Director Consolidation has set aside the order of the Settlement Officer Consolidation and had up held the order of the Consolidation Officer directing mutation of the name of the respondent no. 8. This order of the Deputy Director Consolidation has been challenged by the petitioners.

I have heard Sri Gajednra Pratap, learned counsel for the petitioners and Sri Rama Nand Pandey, learned counsel for the respondent no. 8. Counsel for the parties agree that the writ petition may be disposed of finally at this stage.

Sri Gajendra Pratap submitted that the order of the Settlement Officer Consolidation that the cases under Section 9-A and Section 12 should go on together was correct and the view taken by the Deputy Director Consolidation is erroneous in law. He submits that otherwise the order of mutation in favour of respondent no. 8 would come in his way even if the objections under Section 9-A are decided in favour of the petitioners. In support of his submission he relied upon the provisions of Section 12 (2) of the U.P. Consolidation of Holdings Act, which provides that the provisions of Sections 7 to 11 shall mutatis mutandis apply to the hearing and decision of any matter raised under Sub Section (1) and submitted that finality is conferred upon decisions taken in a case under Section 12 of the Act. To examine the correctness of the contention it is necessary to refer to the relevant provisions of the U.P. Consolidation of Holdings Act and the Rules framed thereunder.  The consolidation operations begin in the village by a notification under Section 4 (2) of the  U.P. Consolidation of Holdings Act. Under the provisions of the Act it is open to the tenure holder to transfer his land. The requirement under Section 5 (1) (c) of obtaining permission of the Settlement Officer before the transfer has been deleted. In case the transfer is not disputed the Assistant Consolidation Officer is empowered under Section 6-A of the Act to pass orders of mutation before the current khatauni under Section 8 of the Act is revised. After the revision of the current khatauni under Section 8 of the Act the power under Section 6-A to mutate the name of any person on the basis of transfer even in undisputed cases ceases.  The extract of the revised current khatauni and statements prepared under Section 8 of the Act are served upon the tenure holders and other interested persons Section 9 of the Act entitles a person to file objections raising disputes including title disputes against entries in the extract of the record prepared under Section 8 of the Act. These objections are decided under Section 9-A.  After the decision of the objections revised records are prepared under Section 10 of the Act. Rule 27 of the  U.P. Consolidation of Holdings Rules provides that the consolidation Lekhpal shall note the order of the Assistant Consolidation Officer and the Consolidation Officer passed under Section 9-A of the Act in the basic khatauni, khasra, chakbandi and C.H. 11 as soon as it is prepared. C.H. Form11 is the revised annual register prepared by the consolidation Lekhpal under Section 10 read with Rule 28  incorporating all the orders relating to rights in, and liabilities in respect of land passed by the Assistant Consolidation Officer under Sub-section (1) of Section 9-A of the Act. Orders of mutation relating to changes by succession or transfer affecting the interest in the revised records prepared under Section 10 are passed under Section 12.  Rule 16 of the  U.P. Consolidation of Holdings Rules provides that all orders, which are passed under Section 12 shall be recorded in the same C. H. Form 11 in which orders passed in the title cases are also recorded. But if a title dispute is decided against the transferor of the person whose name has been entered in C.H. 11 on the strength of the transfer, the decision under Section 9-A would prevail. Section 12 of the Act provides that all matters relating to changes and transfers affecting any of the rights or interests recorded in the revised records published under sub section (1) of Section 10 for which the cause of action had not arisen when proceedings under Sections 7 to 9 were started or were in progress, may be raised before the Assistant Consolidation Officer as and when they arise, but not later than the date of notification under Section 52, or under sub-section (1) of Section 6.

It is clear from the language of Section 12 that it is only the changes and transfers affecting rights or interests recorded in the revised records (prepared in C.H. 11), which are the subject matter of an application under Section 12 of the Act. Section 12 of the Act does not contemplate any objection against the basic year entires (the revised current khatauni) prepared under Section 8.  It is clear that while the objections under Section 9 are against the basic year entry, the objections filed under Section 12 of the Act relate to the revised records that are prepared under Section 10 of the Act. That being so, any order passed under Section 12 cannot override an order passed under Section 9-A against the transferrer of the applicant under Section 12. No doubt finality is conferred upon orders passed under Section 12 of the Act but such a finality would obviously relate to the scope of the dispute that can be decided under the provisions of Section 12 of the Act. That objections challenging the basic year entry under Section 9-A of the Act is an objection, which cannot be raised at the stage of Section 12 is clear from the provisions of Section 11-A, which creates a bar to such an objection being raised at a subsequent stage. Therefore, the two provisions operate at two different stages. In the present case the petitioners have filed objections challenging the entry of Surendra Singh, Narendra Singh and Brijesh Singh in the basic year (transferor of respondent no.8) and if the objections are decided in favour of the petitioners the order would override any order passed under Section 12 of the Act. Sri Rama Nand Pandey, learned counsel for the respondent no. 8 also fairly concedes that this is the position. Even the Consolidation Officer in his order dated 9.3.2005 has observed that any order passed in the case under Section 9-A of the Act will prevail over the mutation order.  The order passed  by the Deputy Director Consolidation appears to be correct. No ground for interference in writ petition has been made out. The writ petition is disposed of finally.

1.5.2007.

s.


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