Kripa Narain and Others vs D.D.C. and Another

Poonam Srivastav, J.—The instant writ petition is preferred challenging the orders dated 13.2.1985, passed by Deputy Director of Consolidation. Gorakhpur and 19.7.1984, passed by Settlement Officer, Consolidation. Gorakhpur and also for a direction in the nature of mandamus restraining respondents to proceed u/s 20 of U. P. Consolidation of Holdings Act (hereinafter referred to as the Act) regarding allotment proceedings unless objection u/s 9 of the Act are determined.

Initially, this Court stayed proceedings u/s 20 of the Act regarding disputed land in village Tikaria, Tappa Gaura, Pargana Haveli, tehsil Sadar, district Gorakhpur. Petitioners raised a dispute with regard to their shares claiming co-tenancy after notification u/s 9 of the Act. A number of objections were filed before Consolidation Officer, which were not decided and proceedings u/s 20 of the Act were initiated by Assistant Consolidation Officer. Proposal of allotment of chaks vis-r-vis various tenure holders of village was initiated.

Petitioners raised their grievance that authority cannot preempt allotment of chaks as title dispute was pending before the authority u/s 9 of the Act. Settlement Officer, Consolidation stopped allotment proceedings at the first instance but subsequently vacated stay order on 19.7.1984. A copy of which is annexe das Annexure1 to the writ petition.

Aggrieved by the aforesaid vacation of interim order, a revision was preferred before Deputy Director of Consolidation, whichwas also dismissed vide order dated 13.2.1985. Thus, the entire controversy revolves whether proceedings u/s 20 of the Act can be commenced without finalisation of proceedings u/s 9 of the Act.

An impleadment application was filed on behalf of one Baij Nath Singh son of late Chitrakoot Singh, who is also tenure holder in village Tikaria, Tappa Gaura, pargana Haveli, tehsil Sadar, district Gorakhpur. Objection filedat the behest of applicant was not decided on account of continuous interim order in the instant writ petition. However, impleadment application is pending and no order was passed.

A clarification application was moved on behalf of petitioners Kripa Narayan and others on 22.4.2010 for clarifying interim order dated 28.2.1985. A.C.O. submitted a report that proceedings of the entire village Tikaria was stayed u/s 20 of the Act by means of interim order, which necessitated clarification of the order.

Sri Ashutosh Shukla and Kamleshwar Singh, advocates appear on behalf petitioners and Sri Ram Niwas Singh appears on behalf of proposed respondents, who filed impleadment application.

The Consolidation Officer declined to decide controversy of village in respect of villagers who were not parties in. The writ petition. Proceedings u/s 20 of the Act was only stayed but authorities declined to decide even objection u/s 9 of the Act on account of continuing interim order of the year 1985.

After hearing learned Counsels for respective parties, I am of the considered view that instead of clarifying interim order, it is better to decide writ petition itself so that no further doubt remains in the mind of consolidation authority.

There is assertion in the affidavit filed by Kailash Nath Yadav in support of Impleadment application No. 37460 of 1996 in the instant writ petition. It is brought to the notice of the Court that statement in the writ petition that objection u/s 9 of the Act is pending and consolidation authorities have commenced proceedings u/s 20 of the Act is erroneous and incorrect. Ex parte interim order was passed in the writ petition. On this statement before the Court, it is asserted that all claims/objections of village in question stands finally resolved and consequently publication u/s 9 of the Act was made on 12.8.1983. Notification u/s 20 of the Act came in existence on 28.2.1984. Thus, objections, appeals and other applications stand finally decided. Photostat copy of questionnaire dated 28.2.1984 and 22.3.1984 are annexed in support of impleadment application though impleadment application has not been allowed since these documents are on record. I have taken judicial notice of the same. Besides, appeals etc. having been decided, proceedings or preparation of jot akar patra-45 also stands finalised by consolidation authorities, which is annexed with the said application. Besides, the aforesaid fact, a Full Bench decision of this Court in the case of Smt. Mewati Devi v. Deputy Director of Consolidation, Gorakhpur and Ors. 1988 ACJ 85 : 1987 (1) AWC 718 (SC), has decided this question. For ready reference, paragraph Nos. 19 and 20 of which are quoted hereinbelow:

This takes us to the last contention urged for the petitioner. Learned Counsel laid considerable stress on Section 19(1)(a) and contended that under that provision there is a reference to the Annual Register prepared u/s 10 which supports the submission that a provisional Consolidation Scheme cannot be prepared unless all the objections u/s 9A has been disposed of. The argument is clearly untenable. There is no reason to suppose that the Annual Register prepared u/s 10(1) is prepared only once and that the entries made therein are immutable. As already observed, the entries in the annual Register prepared u/s 10(1) are subject to correction/modification from time to time both under the present Act as well as under any other law. The same are liable to be corrected as and when objections are disposed of from time to time. After the entries have been corrected, the tenure-holder concerned can be granted necessary relief under the provisions set out herein above.

In conclusion, we hold that the Consolidation Authorities are not required to await the disposal of all the objections filed u/s 9 of the Act before initiating proceedings for preparation and publication of the provisional Consolidation Scheme Under Sections 19A and 20 of the Act. We are in agreement with the opinion expressed by the Division Benches in the cases of Hasan Raza and Ram Charan Singh (supra). The learned single Judge decisions in the cases of Chandrapal Singh and Ganga Prasad (supra) taking a contrary view do not, in our opinion, lay down the correct law and the same are overruled.

It is thus evident that even after confirmation of provisional consolidation scheme, aggrieved tenure holder who claims that his objection is pending, can very well approach consolidation authority who exercises wide powers. Provision of Section 48 of the Act empowers Deputy Director of Consolidation supervisory powers ever after confirmation of the provisional consolidation scheme for effectuating the order passed upon objections filed by tenure holder, whichmay be pending at the time of allotment of chaks. Thus, the entire finalization of the entire scheme of the village has come to a halt on account of ex parte interim order has frustrated very purpose of the Act.

Assertion in the writ petition also stands falsi fied in view of documents which are brought on record. Of course, at the behest of another villager who has filed impleadment application which is not allowed even today. It is thus, evident that the writ petition has no merits and averments made the rein are incorrect. Annexure-5 of clarification application also substantiate this fact that proceedings have come to a standstill, the entire village is effected because of pendency of the present writ petition.

As stated above, a Full Bench has already decided that pendency of objection u/s 9 of the Act will not have effect of staying the proceedings initiated u/s 20of the Act, therefore, the writ petition has no merits and is, accordingly, dismissed. Interim order dated 28.2.1985 stands vacated.