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2011 Supreme(All) 2339
[2011(7) ADJ 895]
ALLAHABAD HIGH COURT
BEFORE : A.P. SAHI, J.
SUDHIR KUMAR GOSWAMI ….Petitioner
Versus
DISTRICT DIRECTOR OF CONSOLIDATION AND OTHERS ….Respondents
(Civil Misc. Writ Petition No. 31552 of 2011, decided on 23rd August, 2011)
Counsel :
H.M.B. Sinha for the Petitioner; C.S.C., Chandan Sharma and Chandan Srivastava for the Respondents.
Headnote:U.P. Consolidation of Holdings Act, 1953—Sections 12, 11, 9, 9-A(2), 7, 10 and 49—U.P. Zamindari Abolition and Land Reforms Act, 1950—Section 331—Alienation—Sale-deed—Agricultural holding—Mutation—Objection—On ground that land in dispute was held in representative capacity by respondent No. 2 on behalf of entire joint family—No individual authority of alienation—Particularly with regard to share of petitioner—Vendee moved application for mutation under Section 12—Village under consolidation operations—Such transfer of rights are to be recorded under provisions of Act, 1953—Petitioner filed impleadment application before C.O.—Rejection of—Revision against—Dismissal of—Writ petition—Dismissal of—Review application—Contending that Section 12 is not summary in nature—And in view of provisions of Section 12(2), objector has a right to raise his claim—Which can be decided in same manner as if it was an objection under Section 9-A (2)—Said application allowed—Publication under Section 9 gives first opportunity to file objections—If an aggrieved person fails to file an objection then a bar comes to operate under Section 11-A—No record to demonstrate that petitioner and his father were on cross terms—When notification under Section 9 came to be issued in 1995—No material to show that petitioner had any cause of action—However, petitioner promptly moved his impleadment application as well as his objection which is on record—Filing of civil suit will not bar right of petitioner to file an objection—So long as consolidation operations had not come to an end—On date when respondent No. 4 moved an application under Section 12 of Act—Or date on which petitioner filed his impleadment application—Bar of Section 11-A or Section 49 would not operate—Petitioner will have a right to move an application—In view of ratio of decision petitioner's impleadment application coupled with objection filed by petitioner had to be entertained—Proceedings under Section 12 is not a mere summary mutation jurisdiction—Objections have to be tried in the same manner—As if it was an objection under Section 9-A (2). [Paras 1, 2, 3, 4, 9, 14, 15 and 16]
Hon’ble A.P. Sahi, J.—This is a contest between the petitioner, who is son of the respondent No. 2 and brother of Respondent No. 3. The contest is with regard to an agricultural holding recorded in the name of the father, respondent No. 2 which has been alienated by him through a sale-deed in favour of Respondent No. 4. The petitioner, objects to the same on the ground that the land in dispute was held in representative capacity by respondent No. 2 on behalf of the entire joint family and, therefore, he had no individual authority of alienation particularly with regard to the share of the petitioner.
2. The legal battle commenced when the vendee - respondent No. 4 moved an application for mutation under Section 12 of The Uttar Pradesh Consolidation of Holdings Act, 1953. Needless to mention that the village was under consolidation operations and, therefore, such transfer of rights are to be recorded under the provisions of the said Act. The application was accompanied by the sale-deed and on coming to know of the said proceedings, an application was filed by the petitioner before the Consolidation Officer, who is the competent authority, praying for being impleaded as a party to the proceedings to allow him to lodge his objections. The Consolidation Officer vide order dated 11.11.2009 called upon the petitioner - applicant to file his evidence in support of his claim for impleadment and only then he would be allowed to be impleaded. The petitioner claims to have moved his Affidavit in support of the said objection on 20.11.2009 alongwith an another detailed objection who has also been noticed by the Consolidation Officer, who passed the order on the same day rejecting the impleadment of the petitioner.
3. The petitioner also prayed for time to file a revision before the Consolidation Officer which was rejected. Accordingly, the petitioner moved a revision which has been dismissed by the impugned order dated 19.5.2011 holding that the petitioner was neither a proper nor a necessary party in the proceedings under Section 12 of The Uttar Pradesh Consolidation of Holdings Act. It was held by the revising authority that since the revision was against an interlocutory order, therefore, it was not maintainable.
4. Sri H.M.B. Sinha, learned counsel for the petitioner, had advanced his submissions earlier and this Court summarily dismissed the writ petition on 4.7.2011 on the ground that the petitioner could have filed a regular objection under the provisions of the Act under Section 9-A (2) for declaration of his rights if any independently and, therefore, the impleadment application had been rightly rejected. Aggrieved by the dismissal of the writ petition, the petitioner filed a review application on 7.7.2011 contending that Section 12 of The Uttar Pradesh Consolidation of Holdings Act, 1953 is not summary in nature and in view of the provisions of sub-section (2) of Section 12 of the said Act, the objector has a right to raise his claim which can be decided in the same manner as if it was an objection under Section 9-A (2) of the Act. This Court examined the review application and after considering all the authorities on the question came to the conclusion that the judgment dated 7.7.2011 had proceeded on an error apparent on the face of record without noticing the impact of sub-section (2) of Section 12 of the Act and the decisions in that regard and, accordingly, the review application was allowed on 27.7.2011 and the judgment dated 4.7.2011 was recalled restoring the writ petition to it’s original number and calling upon the respondents to put forth their stand through a counter-affidavit.
5. Sri Chandan Sharma put in appearance on behalf of the respondent No. 4 and filed an counter-affidavit. Notices were issued to respondent Nos. 2 and 3, who received the same and an Affidavit-of-Service has been filed which is dated 14.8.2011 stating therein that the said respondents have been personally served in the presence of two
