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2010 Supreme(All) 2427
[2010(8) ADJ 260]
ALLAHABAD HIGH COURT
BEFORE : MRS. POONAM SRIVASTAV, J.
KISHAN SAHAI AND OTHERS ....Petitioners
Versus
DEPUTY DIRECTOR OF CONSOLIDATION, BULANDSHAHR AND OTHERS ....Respondents
(Civil Misc. Writ Petition No. 27980 of 2004, decided on 28th July, 2010)
Counsel :
R.B. Singhal, Aditya Bhushan Singhal for the Petitoners; M.D. Singh Shekhar, Satyawan Sahi, I.N. Singh, Anuj Kumar, Sunil Kumar, V.K. Singh, A.K. Tiwari, M.C. Singh and M.K. Gupta, C.S.C. for the Respondents.
Headnote:U.P. Zamindari Abolition and Land Reforms Act, 1950—Sections 186 and 52—Land dispute—Rightful claimant—Determination of—Land in dispute recorded in name of Gaon Sabha—Tehsildar by impugned order dated 27.6.1963 expunged names of bhumidhars 'A' and 'B' and name of Gaon Sabha was recorded—Respondent No. 4 claimed himself to be descendant of 'A' and 'B' objections of respondent No. 4 dismissed by Consolidation Officer—Appeal against allowed by S.O.C. by holding that Tehsildar had no jurisdiction to pass order under Section 186—Instant petitioners who were allotted patta by Gaon Sabha preferred revision against order of S.O.C. which was dismissed—Challenge against—Undisputedly, contesting respondents are heirs of recorded tenure holder—Authorities below have unanimously expressed their doubt about the impugned order passed by Tehsildar—Revenue records altered only on the basis of an order which appears to be not in existence—Suspicion expressed by authorities below is well founded—Petitioners who are claiming their rights through Gaon Sabha, cannot get any benefit whatsoever when Gaon Sabha itself was not able to substantiate 'its' claim—Since it is Gaon Sabha who claims that impugned order 27.6.1963 has been passed, it had to substantiate that there was an abandonment on the part of its original owners—Contesting respondents are direct descendants of original owners 'A' and 'B' remained undisputed—Petitioners' claim held without any basis—Respondents liable to be recorded as rightful owners of land in dispute. [Paras 10 to 16]
Result; Petition Dismissed.
Hon’ble Mrs. Poonam Srivastav, J.—Heard Sri R.B. Singhal, Senior Advocate, assisted by Sri Aditya Bhushan Singhal, counsels for the petitioners, Sri M.D. Singh Sekhar, Senior Advocate, assisted by Sri Satyawan Shahi Advocate on behalf of respondent Nos. 8 and 9, Sri I.N. Singh Advocate on behalf of respondent Nos. 4, 6 and 7 and Sri Anuj Kumar Advocate on behalf of respondent Nos. 10 and 11.
2. Counter and rejoinder affidavits have been exchanged and as agreed between counsels for parties this writ petition is finally heard.
3. The instant writ petition is preferred challenging the orders dated 31.1.1996 passed by the Consolidation Officer, Annexure-6 to the writ petition, 28.2.2003 passed by the Settlement Officer Consolidation, Annexure-8 to the writ petition and 9.6.2004 passed by the Deputy Director of Consolidation, Annexure-10 to the writ petition.
4. The land in dispute was recorded in the name of Gaon Sabha of village Mohammadpur Gurjar in the basic year. Undisputed fact is that name of Anis Shah and Bashir were recorded as Bhumidhar but it appears that there was some order passed on 27.6.1963 by Tehsildar expunging name of Anis Shah and Bashir and name of Gaon Sabha of village Mohammadpur Gurjar was recorded. On perusal of report of the Assistant Consolidation Officer dated 19.3.1986 Annexure-1 to the writ petition, it transpires that report was submitted detailing therein that Khatauni of 1374 Fasli shows that by an order of Tehsildar under Section 186 of U.P.Z.A. & L.R. Act (hereinafter referred to as the Act) in case No. 46/27-6-66, names of Ali Shah and Bashir have been struck of and name of Gram Samaj was entered. This report was submitted on an objection of contesting respondents who filed their objections when the village was notified under Section 9 of the Act. Respondent Yaseen Khan preferred an objection on 5.3.1986 before the Consolidation Officer, Dankaur claiming himself to be descendant of Anis Shah and Bashir. He stated in his objection that he is not aware that how and when the name of Gaon Sabha was entered and the order dated 27.6.1963 is nowhere in existence, to the best of his knowledge. The Consolidation Officer dismissed the objection of Yaseen Khan vide order dated 10.11.1986, Annexure-3 to the writ petition. Reliance was placed by the Consolidation Officer on the order dated 27.6.1963 which was the basis of change of entries in the revenue records. It appears that an application was given by Yaseen Khan to summon record but the Consolidation Officer adopted an adverse view because though the application was allowed, he made no effort to summon the record. Aggrieved by order dated 10.11.1986, contesting respondents preferred an appeal on 7.3.1987. However, village was denotified under Section 52 of the Act on 21.2.1987.
5. Submission of learned counsel is that since village stood denotified, the appeal could not be heard. During pendency of appeal before the Settlement Officer Consolidation. It appears that Land Management Committee passed a resolution whereby the disputed land was allotted to the petitioner vide order dated 20.7.1994. The S.D.M. approved allotment on 30.8.1994 and patta was issued in favour of the petitioners on 21.9.1994. Mutation was allowed and name of the petitioners came to be recorded in Khatauni on 21.10.1994. All these procedures were carried out during pendency of appeal in which Gaon Sabha was also arrayed as a party.
6. Notices were issued to the opposite parties but they failed to appear. The appeal was heard ex parte. However, the Settlement Officer Consolidation was of the view that the Tehsildar has no jurisdiction to pass order under Section 186 of the Act. The appeal was allowed and matter was remanded to the Consolidation Officer to decide objection in the light of observations made in the appeal. The appellate order was passed on 28.7.1995. After the matter was remanded to the Consolidation Officer, he heard the parties at length and framed following
