Ash Bahadur Singh and Others vs Deputy Director of Consolidation and Others

Poonam Srivastav, J.—Heard Sri Triveni Shankar, learned Counsel for the Petitioners and Sri Keshari Nath Trlpathl, senior advocate, assisted by Sri Neeraj Tripathi, advocate appearing on behalf of contesting Respondents.

Counter and rejoinder-affidavits have been exchanged. The writ petition is being decided finally.

The orders challenged in the writ petition are dated 19.2.1982 Annexure-5 to the writ petition passed by the Deputy Director of Consolidation, Gopiganj, Varanasi and 25.9.1981 Annexure-4 to the writ petition, passed by the Settlement Officer Consolidation, Gyanpur, Varanasi.

The dispute relates to plot No. 4 area 22 bigha, 17 btswa, 2 dhoor situated in Mauja Gopiganj Tapkaud, Pargana Bhadohi, Tehsil Gyanpur, District Varanasi, at present District Sant Ravidas Nagar Bhadohi. The land was recorded in the name of Petitioners in the year 1356-1359 Fash''. In the year 1956-57, the Petitioners executed several sale deeds in favour of different persons. Sale deed was executed in favour of Shesh Dhar son of Kashi Prasad of Plot No. 4M area 1 bigha, 11 biswa, 16 dhoor and his name was recorded as a separate khata No. 191. Another sale deed in favour of Gulab Dhar son -of Kashl Prasad of the same plot having an area 2 bigha, 7 biswa which was numbered as separate khata No. 162. According to the Petitioners, after execution of the aforesaid sale deeds, P.W.D. constructed road and the contesting Respondent vendee constructed a cold storage, building of school and residential house etc. over the land which they had purchased by means of aforesaid sale deeds.

Pursuant to the Notification u/s 4(2) of the Consolidation of Holdings Act (hereinafter referred to as the Act) on 26.7.1964, the Assistant Consolidation Officer was of the opinion that the plot No. 4 had less area than what the Petitioners claimed. Instead of area 22 bigha, 7 biswa and 4 dhoor, it was only 21 bigha, 17 biswa, 4 dhoor. Further contention of the Petitioners that according to C.H. Form 2A the area mentioned in favour of Shesh Dhar and Gulab Dhar Respondents was found to be equivalent to the area mentioned in the respective sale deeds. Plot No. 4 was divided Into 10 Khatas on the basis of several sale deeds executed by the Petitioners. An application for correction was filed by Shesh Dhar Respondent No. 4 as well as Gulab Dhar bringing to the notice of the consolidation authorities that their area was wrongly reduced.

The Petitioners preferred an objection to the aforesaid application of the contesting Respondents stating therein that the claim of Respondent Nos. 3 and 4 was barred by Section 11, 27, 28, 48 and 49 of the Act. Since no objection was filed by them u/s 9A(2) of the Act and also that according to the own admission of the contesting Respondents the land has now become abadi, therefore, the application preferred by the contesting Respondents was not maintainable. A report was submitted by the Assistant Consolidation Officer to the Consolidation Officer on 5.2.1981. The Assistant Consolidation Officer submitted his report on 5.2.1981 and Settlement Officer Consolidation on 25.9.1981. The Petitioners submitted that the application on behalf of the contesting Respondents was highly belated and report of the Assistant Consolidation Officer was given without taking into account that the Notification u/s 23 of the Act has already taken place. Besides, the claim of Respondent Nos. 3 and 4 is clearly barred under Sections 11 and 27 of the Act. A report was submitted by the Consolidation Officer on 23.11.1981 forwarding the report in favour of the contesting Respondents. The Deputy Director Consolidation passed the impugned order on 19.2.1982 which is challenged in the instant writ petition.

The application given by Respondent No. 3 is Annexure-1 to the writ petition and that of Respondent No. 4 is Annexure-2 to the writ petition. The Settlement Officer Consolidation made a reference on the basis of report submitted by the Consolidation Officer and Assistant consolidation Officer. Evidence was led by the contesting parties and the Settlement Officer Consolidation came to the conclusion that the contesting Respondents have purchased the land in question after giving appropriate consideration and, therefore, actual area on the spot should not be less than the area mentioned in the sale deed. The order dated 25.9.1987 of the Settlement Officer Consolidation further mentions that the Assistant Consolidation Officer had not passed previous order without informing interested parties and, therefore, there will be no effect of Section 11 of the Act.

The grievance of the Petitioners is that since the contesting Respondents failed to prefer their objections u/s 9 of the Act at the commencement of consolidation proceedings, the application should be rejected and also that the Respondents have made construction and it is now an abadi area and, therefore, cannot be included in the consolidation proceedings. The application was not maintainable and liable to be dismissed. All the orders in favour of contesting Respondents are without jurisdiction.

Sri Triveni Shanker, advocate has cited a number of decisions on the question that in view of bar u/s 11A of the Act, no objection could be raised regarding valuation even by consent of the parties and, therefore, the application was liable to be dismissed. The decisions relied upon are ; Lakhraj Vs. Deputy Director of Consolidation, Assistant Settlement Officer, Consolidation, State of U.P. and Ram Asrey, Gafoora and Another Vs. Deputy Director of Consolidation, Meerut and Others, and Smt. Kiran Devi Vs. Deputy Director of Consolidation and Others,

Sri Keshari Nath Tripathi, senior advocate assisted by Sri Neeraj Tripathi, advocate appears on behalf of contesting Respondents. Counter affidavit has been filed disputing the arguments of the counsel for the Petitioners. While depreciating the arguments of the Petitioners''s counsel, submission is that this was not an objection u/s 11A of the Act but it was only a correction application since certain area was reduced which was less than the area mentioned in their respective sale deeds which were executed prior to the consolidation operation and the sale deeds were acted upon and admittedly for a valid consideration. When the Petitioners approached the consolidation authorities for reducing the area proportionately for all the vendees to whom the Petitioners have sold part of the land since the total area of plot No. 4 was found to be less at a subsequent stage. The contesting, Respondents have emphatically argued that it was only when the area was reduced after the consolidation commenced, they had no other option but to move correction application under Sections 41/42A of the Act and order was passed by the Consolidation Officer u/s 42A of the Act on 27.1.1981. Sri Kesari Nath Tripathi has also pointed out that this order was revisable order u/s 48 of the Act but no revision was preferred and, therefore, it became final. The Petitioners preferred their objections only after the reference was prepared after receipt of the report of the Consolidation Officer on the applications moved at the behest of Respondent Nos. 3 and 4. The Assistant Consolidation Officer submitted his reports on 27.1.1981 copies of which are annexed as Annexures C.A.-l and C.A.-2. Counsel for the Respondents has brought to my notice that though there was an order reducing the area of the Petitioners since the total area was found to be less but there is no order in existence reducing the area from the area purchased by contesting Respondents. No doubt, at the commencement of consolidation '' proceedings, the total area was only 21 bighas, 17 biswas and 4 dhoors instead of 22 bighas 7 biswas 4 dhoors on the spot mentioned in C.H. Form 2A. The Respondent No. 3 had purchased 2 bighas and 7 biswas of land and separate khata was carved out. Respondent No. 4 purchased 1 bigha 11 biswas 16 dhoors and separate khata was carved out in favour of Respondent No. 4 as well. These sale deeds were executed prior to the commencement of consolidation proceedings which admittedly commenced after the notification u/s 4 of the Act on 26.7.1964. Still the Petitioners were left with 3 bighas, 7 biswas 16 dhoors in khata No. 22 and if any adjustment was to be made, it was from the land of original owners or Petitioners themselves. The Respondents claim that they had purchased the land for a valid consideration and, therefore, the area for which the sale deed was executed, could not be reduced in the manner as the Petitioners claim. This fact is also substantiated from Annexures-R.A.-l and R.A.-2 filed by the Petitioners alongwith rejoinder-affidavit. The Petitioners cannot wriggle out at this stage claiming that proportionate area should be reduced from each of the vendees and Petitioners alone are not entitled to incur the loss.

Sri Triveni Shanker has also cited certain decisions in support of his argument that since it is an abadi area, the Court has no jurisdiction to proceed with the matter and pass orders on the correction application/ objection by the Petitioners. The decisions relied upon by counsel are ; Prabhu Nath v. Deputy Director of Consolidation, Azamgarh and Ors. 2003 (95) RD 611 ; Ram Prasad and Another Vs. Deputy Director of Consolidation and Others, and Girija Shankar and Ors. v. Dy. Director of Consolidation, Deoria and Ors. 2002 RJ 163. It is a very peculiar stand taken by the Petitioners. On one hand they claim that the Respondents could not raise any objection even as a correction proceeding since the disputed land is admittedly abadi. On the other hand the Petitioners themselves move the consolidation authorities to reduce area of the vendees proportionately and not alone from the Petitioners'' land.

No doubt, the consolidation proceedings are not applicable in abadi area but I cannot overlook the fact that it was only when the objections were preferred by the Petitioners and the area of the contesting Respondents was reduced and, therefore, he had no option but to file an application for correction. It was only correction proceedings and not an adjudication by any of the consolidation authorities, therefore, the decisions cited by learned Counsel for the Petitioners are of no consequence.

I am of the considered view that since the constructions were already made, the consolidation authorities could not have interfered in the appurtenant land of the contesting Respondents since they were outside the consolidation operation. Since the area was made less, the Respondents had no option but to move a correction application at the instance of contesting Respondents and it was maintainable. Any objection by the Petitioners to the contrary has no legs to stand. The orders impugned are perfectly legal and it does not call for any interference.

In view of what has been stated above, the writ petition lacks merit and is accordingly dismissed.