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Pyare Mohammad v. A.D.C - WRIT - B No. 25062 of 1991  RD-AH 9047 (11 May 2007)
Civil Misc. Writ Petition No. 25062 of 1991
Pyare Mohammad alias Liley
Assistant Director of Consolidation, Ghaziabad & others
Hon'ble Krishna Murari, J.
Heard learned counsel for the parties.
The facts, giving rise to the dispute, are as under.
During chak allotment proceedings, an objection under Section 20 of the U. P. Consolidation of Holdings Act (for short the ''Act') was filed by contesting respondent no. 3 challenging the allotment of plot no. 586 in the chak of petitioner on the ground that said plot belongs to Gaon Sabha and has wrongly been allotted in the chak of petitioner and taking advantage of the allotment of said plot in his chak he has encroached upon adjoining plots no. 591 and 592 belonging to him which are situate on the road side and were out of consolidation proceedings. Consolidation Officer vide order dated 20.7.1989 dismissed the objection on the ground that proceedings were not maintainable as the dispute relates to measurement of chak and there was chak-road in between the chak of petitioner and contesting respondent and as such there was no question of encroachment. The contesting respondent went up in appeal. Appellate court allowed the appeal and remanded back the case to the Consolidation Officer to decide the dispute on merits. Settlement Officer Consolidation recorded a finding that plot no. 586 which has been allotted in the chak of petitioner is recorded as BANZAR and is Gaon Sabha property and the same could not have been allotted in the chak of tenure holder. Revisional Court vide order dated 5.8.1991 dismissed the revision filed by petitioner.
It has been urged by the learned counsel for the petitioner that plot no. 586 was valued and thereafter allotted in the chak of petitioner and the objection raised by contesting respondent in this regard was barred by Section 11-A of the Act. It has further been alleged that contesting respondent cannot be said to be aggrieved person in as much plot no. 586 did not belong to him but was Gaon Sabha property and as such objection filed by him was not maintainable and was rightly rejected by the Consolidation Officer. Learned counsel for the petitioner has further submitted that there was no occasion for Settlement Officer Consolidation to have remanded the case back and he ought to have decided the dispute himself on merits.
In reply, it has been submitted that since the land in dispute belongs to Gaon Sabha as such any member of Gaon Sabha was well within his rights to have raised objection with regard to allotment of said plot in the chak of petitioner. It has further been urged that taking advantage of illegal allotment of plot no. 586 in his chak, petitioner has encroached upon his adjoining plot and thus, the dispute was rightly remanded back to be decided on merits.
I have considered the arguments advanced by the learned counsel for the parties and perused the record.
It is undisputed that plot no. 586 which was allotted in the chak of petitioner was recorded as BANZAR and was Gaon Sabha property. In view of this fact, it is apparent that the said plot was wrongly valued by the consolidation authorities and allotted in the chak of petitioner. In such a situation bar created by Section 11-A of the Act will not come into play.
Further Section 11-C of the Act gives ample power to the consolidation authorities to protect the interest of State of U. P. or Gaon Sabha and empowers the authority to direct that any land which vests in the State or Gaon Sabha or any other local body or authority may be recorded in their name, even though no objection, appeal or revision may have been filed by such Government, Gaon Sabha or local body. Once it came to the knowledge that disputed plot no. 586 which was BANZAR and Gaon Sabha property came to be allotted in the chak of petitioner, the Consolidation Officer wrongly rejected the objection as not maintainable. In the circumstances, he ought to have exercised powers conferred by Section 11-C of the Act. Settlement Officer Consolidation rightly remanded the case back and directed the Consolidation Officer to decide the dispute on merits.
Since plot no. 586 was wrongly and illegally valued and allotted in the chak of petitioner and in case the same is taken out from his chak it will require re-adjudication which can more appropriately be done by the Consolidation Officer and in this view of the matter, the dispute was rightly remanded back by the Settlement Officer Consolidation instead of deciding the same himself.
The case of Preetam Singh (dead) by L. Rs. and others Vs. Assistant Director of Consolidation and others, reported in AIR 1996 SC 2881 relied upon by the learned counsel for the petitioner in support of the contention that the case ought not to have been remanded back has no application to the facts and circumstances of the present case and the same is clearly distinguishable on facts. In the said case dispute was whether earlier order of remand made by Settlement Officer Consolidation which was not challenged could be looked into at the subsequent stage by the Deputy Director of Consolidation in revision filed challenging the order passed in pursuance to the remand. The Apex Court held that once the matter has been decided at an earlier stage by an interlocutory order and no appeal has been taken therefrom or no appeal did lie, a higher court is not precluded from considering the matter again at a later stage of the same litigation and the Assistant Director Consolidation should not have felt fettered in doing complete justice between the parties when the entire matter was before him again. I do not see how the judgment relied upon by the learned counsel for the petitioner is of any help to him.
In view of the aforesaid discussions, the arguments advanced by the learned counsel for the petitioner is devoid of any force and there is no scope for interference in the impugned order.
Writ petition accordingly fails and is dismissed.
Date : May 11,2007.
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