Maharshi Dayanand Bal Mandir vs D.D.C.

@DELETEUPPERDATA

Anjani Kumar Mishra, J.—Heard Sri S.C. Tripathi, learned Counsel for the petitioner, Sri K.C. Kishan Srivastava, who appears for the contesting respondent No. 3 and Sri Manoj Kumar Yadav, who represents the Gaon Sabha. By means of this writ petition, the petitioner has challenged the order dated 26.6.2014 passed by the Deputy Director of Consolidation, Jaunpur and 14.2.2014 passed by the Consolidation Officer, Sadar, Jaunpur on a restoration application filed by the respondent No. 3.

The instant writ petition arises out of an objection under section 9B of the U.P.C.H. Act filed by the petitioner, which was registered as Case No. 70 and related to plot No. 1273 area 0.93 decimals. This objection was belated and since no counter-affidavit was filed in support of the delay condonation application, the Consolidation Officer proceeded to condone the delay and, thereafter, allowed the objection and directed that an area of 0.93 decimals of plot No. 1273, which was recorded as pasture land be reserved in favour of the petitioner, namely, Maharshi Dayanand Bal Mandir. This order was passed only on the ground that a nearby area of plot No. 1273 was already reserved in the name of the petitioner.

The respondent No. 3, Pradhan of Village Manikalan, Pargana Anguli, Tehsil Shahganj, District Jaunpur filed an application for restoration on 28.4.2012 on the ground that the order dated 17.9.1996 was an ex-parte order. The petitioner filed this objection thereto and also prayed that the question of maintainability of the restoration application be decided first. The Consolidation Officer by his order dated 14.2.2014 allowed the restoration application, which order has been affirmed by the Deputy Director of Consolidation, Jaunpur by the order dated 26.6.2014 passed in Revision No. 1253/13-14. Hence this writ petition.

Learned Counsel for the petitioner has submitted that the Consolidation Officer allowed the restoration application although the original record was not before him. It is, therefore, submitted that in the absence of the original record, the Consolidation Officer was not competent to decide the restoration application and the order passed by him deserves to be set aside. The second ground urged is that the restoration application was filed through a private Counsel and there was no resolution of the Land Management Committee for filing the same. In view of the provisions contained in paragraphs 128 and 131 of the Gaon Sabha and Bhumi Prabandhak Samiti Manual, such a restoration application was not maintainable and was liable to be dismissed. It has lastly been submitted that the signature of D.G.C. (Revenue) as also that of the erstwhile Gram Pradhan was available on the order sheet of 17.9.1996 and, therefore, the order passed on that date was not ex-parte and could not be recalled.

As regards the first submission made by learned Counsel for the petitioner that the Consolidation Officer was not competent to decide the restoration application in the absence of the original record, it would suffice to say that it is clear from the record that initially a report was submitted that the record of case No. 70 was sent to the Court of C.O. Machlishahar on 3.6.2000 and such Court having been abolished the record was not traceable. The C.O. on 1.8.2013 directed the parties to file their documents to reconstitute the record. Whereupon the petitioner appears to have filed photocopy of the order in his favour on 20.1.2014. It is only thereafter that the C.O. passed the impugned order on 14.2.2014 and I see no illegality in such approach.

The second submission made by learned Counsel for the petitioner relying upon the provisions of paras 128 and 131 of the Gaon Sabha and Bhumi Prabandhak Samiti Manual that the recall application was filed without there being resolution of Land Management Committee and through a private Counsel is concerned, it is clear from the document filed as Annexure-9 to the writ petition that the Collector, Jaunpur by his order dated 5.1.2013 had authorized the Pradhan, respondent No. 3, to engage a private Counsel in the matter.

Learned Counsel for the petitioner has relied upon the Division Bench decision of this Court Gram Panchayat Pusawali v. State of U.P. Through Its Secretary, Food and Civil Supply, Lucknow and others 2007 (102) RD 201, in support of his contention. He has relied upon paragraphs 12 to 16 of the judgment, wherein it has been held that "In absence of appropriate resolution to file a writ petition and permission of the concerned District Magistrate, as required under the provisions, Sri Sushil Kumar has no authority to represent the Gram Sabha. It has no doubt been held that litigation on behalf of Gaon Sabha has to be prosecuted by the panel lawyer." Paragraph 13 of the Division Bench judgment relied by the Counsel for the petitioner in this regard would be relevant to be referred to. In this paragraph, it has been stated that the object of the provisions of paragraphs 128 and 131 of the Gaon Sabha and Bhumi Prabandhak Samiti Manual is to ensure that the Gram Sabha being a public body, its funds may not be dissipated in initiating litigation on frivolous matters or personal whims of Gram Pradhan and that State should have control over it.

In the instant case, the Collector has permitted the respondent No. 3 to engage a private Counsel at his own expense as is clear from a perusal of Annexure-9 referred to above. In this regard, learned Counsel for the petitioner submitted that since the permission to engage a private Counsel was granted on 5.1.2013, the restoration application, which has been filed prior in time, namely, on 28.4.2012 would still be defective, as the permission granted by the Collector is not retrospective and is only prospective. This submission of learned Counsel for the petitioner is misconceived.

This Court in the judgment Gaon Sabha v. Board of Revenue 1984 R.D. 291, has been held that the initial defect in the filing of an objection/application etc. through a private Counsel is a curable defect. In any case, since the object of the provision is to ensure a financial transparency, the same is wholly taken care of by the direction contained in the permission, which requires the respondent No. 3 to prosecute the litigation on his own expenses and not on the expense of Gram Sabha funds. For the same reason, the absence of resolution of the Land Management Committee authorizing filing of the restoration application loses its significance.

Moreover, the Deputy Director of Consolidation has further recorded in the order that the land in question was recorded as pasture land and was therefore covered by the provisions of section 132 of the U.P. Zamindari Abolition and Land Reforms Act and, therefore, the impugned order passed by the Consolidation Officer has been passed with a view to protect the interest of the Gram Sabha. There is no dispute that it is the duty of the Courts to safeguard the interest of Gram Sabha and for this reason, this Court is not inclined to interfere in this writ petition.

As regards the submission of learned Counsel for the petitioner that the order sheet bears the signature of the D.G.C. (Revenue) and the erstwhile Pradhan, and that the order that has been recalled was passed after hearing them and therefore could have been challenged only by means of an appeal, in my considered opinion, this Court can refuse to interfere with an illegal order, if such interference would result in reviving another illegal order. The order in favour of the petitioner is prima facie illegal as there is nothing to indicate that it was passed after consultation with the Consolidation Committee as was mandatory under law in view of section 8A of the Act. Also, by the order dated 17.9.1996, Gaon Sabha land has been reserved in favour of a private school. Gaon Sabha property can be leased to individuals but there is no provision in law for settling it in favour of a school only on the ground that the said school is possessed of land nearby.

In my considered opinion, substantial justice has been done by the impugned orders and only a preliminary objection has been rejected. The actual controversy on its merits is still to be decided by the Consolidation Officer. I therefore find no merit in the writ petition and the same is accordingly dismissed.