Rama Shankar and Others vs Deputy Director of Consolidation and Others

Prakash Krishna, J.—By means of the present petition, the Petitioners have sought the quashing of the three orders passed by the Respondent Nos. 1, 2 and 3. During consolidation operation, the Petitioners and the Respondents III Set came out with the case that they had taken the disputed property from the then Zamindar before 1946 and they continued to be in possession till date and they have acquired bhumidhari right. The Consolidation Officer partly accepted the objection of the Petitioners and ordered that on some of plots as set out in the order, recorded in the name of Gram Samaj, the name of Gram Samaj be struck and in its place the names of Ramayan S/o Thakur and Rama Shankar S/o Rajaram be recorded. In respect of other plot No. 1537/5 the objection was rejected and it was held that the said land is public utility land is being utilized by the villagers.

Both the Gram Samaj and the Petitioners preferred appeals before the Assistant Settlement Officer, Consolidation (the A.S.O.C.) who vide order dated 15th July, 1975 allowed the appeal of Gram Samaj and dismissed the appeal of the Petitioners. The order of the A.S.O.C. has been confirmed in revisions by the impugned order.

Shri H.S.N. Tripathi, learned Counsel appearing on behalf of the Petitioners submits that the Petitioners have become bhumidharas they are in occupation of the land in dispute since before 1946 with the consent of the land owner. Trees planted by the Petitioners are standing on the spot.

In reply, Shri Satya Narain, learned Counsel for the Gaon Sabha submits that there is no evidence on record to show that the Petitioners were given the plot in dispute by the land-holder before 8th August, 1946. Any grant after the said appointed date is void in view of Section 8 of the U.P.Z.A. & L.R. Act. Moreover, the plots are public utility land and as such no sirdarior bhumidhariright can accrue in favour of the Petitioners. It was further argued that the land in dispute was never cultivated by the Petitioners and as such no bhumidhari or sirdariright can be accrued in their favour. The bamboo clumps, scattered trees, shrubs and bushes are self grown on the land in dispute and are Gaon Sabha property. The proceedings u/s 212 of the U.P.Z.A.& L.R. Act was initiated which were dropped and ultimately the suit u/s 229-B of the U.P.Z.A. & L.R. Act was filed by the Gaon Sabha. The suit was decreed on 8th August, 1965. The said decree was carried in appeal by the Petitioners and the appeal was abated due to commencement of the consolidation operation in the village. Submission is that the findings recorded by the Revenue Court after full fledged trial in the suit and the evidence produced therein can be relied upon in the present case. Reliance has been placed upon a judgment of the Apex Court in Ram Prasad (dead) by LRs. and others Vs. Assistant Director of Consolidation and others, in particular.

Considered the respective submissions of the learned Counsel for the parties and perused the record.

It may be noted that the Petitioners could not produce any evidence to support their plea that the plots in question were allotted to them by the then Zamindar prior 8th August, 1946. It is also worth-while to note that the said plea was also put in the suit instituted by Gaon Sabha u/s 229-B of the U.P.Z.A. & L.R. Act and was negatived by the trial court, namely, Assistant Collector Ist Class, Deoria vide judgment dated 18th August, 1965. It is also true that the said judgment was carried in appeal and the proceedings were abated u/s 5 of the U.P.C.H. Act on account of commencement of consolidation operation in the village. A copy of the order dated 18th August, 1965 has been filed as annexure-CA-1 to the counter affidavit. It has been found therein that the Defendants therein, who are the Petitioners herein neither pleaded any contract of tenancy nor they have proved the same. There is no entry showing their cultivation in the pre-zamindari abolition period. The bamboo clumps were planted by Rajaram but it was held that it does not confer any right on him. The revenue entries in favour of the Rajaram and Ramayan in the pre-abolition time were made wrongly. (The relevancy of the above findings shall be considered at a later stage.).

It is apt to notice the state of evidence given by the parties in the present case. It may be noted that the land in dispute was recorded as abadi land till 1352 F. For the first time, names of Rajaram and Ramayan were recorded in 1356 F and 1359 F with 5-7 years tenancy. On spot inspection, it was found that there are shrubs, bushes etc. and the villagers throw garbage there. It is being used by the ladies of the village for their ingress and egress. Finding is that the Petitioners got their names recorded wrongly in the revenue record for the period before abolition of zamindari. The Deputy Director of Consolidation on appraisal of evidence reached to the conclusion that the disputed land is abadiland on which the Petitioners cannot acquire any independent title. No attempt was made before this Court to show that the findings recorded by the authorities below are in any manner perverse or illegal. It may be stated that along with the writ petition, the Petitioners have not annexed even single evidence which might have been ignored by the authorities below.

After noticing the above state of affairs, now I may revert back to the question raised by the parties with regard to the relevancy of the findings which were recorded by the revenue Court in regular suit proceedings u/s 229-B of the U.P.Z.A. & L.R. Act. Learned Counsel for the contesting Respondents has placed reliance upon para-8 of Ram Prasad (supra), which is reproduced below:

Undoubtedly no fresh evidence was adduced in the proceedings before Consolidation Officer except the judgments and decrees of the Civil Court and the appellate Court. The authorities under the Act held that though the civil suit stood abated, the evidence considered by the civil court and the findings recorded therein would be available for consideration and can be relied upon. We find that the view taken by the authorities is well justified. Though the suit stood abated, yet the evidence recorded in the suit or appeal and the findings recorded by civil courts do not get wiped out; are entitled to be considered and that, therefore, it being the relevant evident the authorities under the Consolidation Act, unless contrary evidence is established, could go into the evidence and were entitled to rely upon the findings recorded by the Civil Court in support of its conclusions. Undoubtedly the tribunals below had gone into the question and held that the decree obtained by the Respondent was collusive and fraudulent decree and that, therefore, it does not bind the Appellants.

In reply, learned Counsel for the Petitioners referred para-7 thereof and submits that as soon as notification u/s 4 of U.P.C.H. Act was issued, the Civil Court and Revenue Court loose jurisdiction over the subject matter covered by U.P.C.H. Act. I see no relevancy of the said proposition of law here looking to the controversy at hand. It is not out of place to mention here that the reference to proceedings u/s 229-B of the U.P.Z.A. & L.R. Act was made by the learned Counsel for the contesting Respondents as an additional ground to dismiss the writ petition.

Ultimate finding in the revenue suit is as follows:

In view of all these things it held that the Defendants are neither bhumidharnor sirdarof the disputed land and the same vests in the Gaon Sabha of the village.

The aforesaid finding does not get wiped out as held by the Apex Court in Ram Prasad (supra). The said finding is entitled to be considered and is relevant material under the Consolidation Act. There being no contrary evidence, the finding recorded by the authorities below deserves acceptance.

All the three authorities considered the evidence led by the parties and reached to particular conclusion. An inference drawn by them is based on appraisal of evidence and no illegality or perversity in the appraisal of evidence could be pointed out by the Petitioners. High Court while dealing with the matter under Article 226 of the Constitution of India, as in the present case is, not an Appellate Court. Only on restricted ground, it can interfere with a finding of fact recorded by the Court, Authority or Tribunal below to it. The view taken by the authorities below is perfectly justified and plausible one, no interference is called for in the present writ petition.

Besides the above, the recent judicial trend is to protect the public utility land.

The object of Gochar or grazing land is to provide to villagers to graze their cattle free of cost and without any money. Grazing land provides economic support to indigent villagers and it is a very source and means of livelihood for such persons. Grazing land is part of our ecology and helps a lot in maintaining our ecological balance by providing domestic animals of the villagers, their natural habitation, natural home and natural environment and natural vegetation.

Recently, the Apex Court in the case of Jag Pal Singh and Ors. v. State of Punjab and Ors. JT 2011 (1) SC 617 examined the dispute with regard to the public utility land in the villages. It has taken a very serious view of one such public utility land namely pond and has provided that the land recorded as pond must not be allowed to be allotted to anybody for construction of house or any like purpose. Hinch Lal Tiwari v. Kamla Devi JT 2001 (6) SC 88, is an authority for the above proposition. In para 20 of the judgment in the case of Jag Pal Singh, the Apex Court has observed that "The time has now come to review all these orders by which the common village land has been grabbed by such fraudulent practices." In para 22 of the judgment the following general direction has been given:

Before parting with the case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/Poramboke/Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land.

In view of the above discussions, there is no merit in the present writ petition. The writ petition is dismissed with cost of Rs. 5000/-