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2015 Supreme(All) 3924
ALLAHABAD HIGH COURT
Ram Surat Ram (Maurya), J.
Purushottam Rai and 5 Others - Appellant
Versus
State of U.P. and 63 Others - Respondent
Writ - B No. - 53738 of 2015
Decided On : 06-10-2015
For the Petitioner:- R.P. Mishra, S.K. Pandey
For the Respondent:-C.S.C.,R.C. Upadhyay, Manoj Kumar Yadav
The court emphasized that the reservation of land as khalihan must be justified by exceptional circumstances under Section 19-A(2) of the Act, and the rights protected under Section 7(aa) are limited to easements that are more beneficial for the enjoyment of the land.
Headnote:
Khalihan - U.P. Consolidation Act, 1953 - Section 9-A - Section 3(2), Section 19-A(2), Section 7(aa) - Section 4(1) of U.P. Act No. 1 of 1951
Fact of the Case:
The petitioners filed objections for reserving plot 141 and 161 of village Godaur as khalihan along with delay condonation application. The land was recorded as banjar land during consolidation operation, and the objections were dismissed by the Consolidation Officer, Settlement Officer Consolidation, and Deputy Director of Consolidation.
Finding of the Court:
The court found that the land reserved as khalihan during consolidation operation was being used by the villagers for that purpose, and there was no exceptional circumstance to justify reserving the land in dispute as khalihan.
Issues: The main issue was whether the land in dispute should be reserved as khalihan under Section 19-A(2) of the Act.
Ratio Decidendi: The court interpreted the provisions of U.P. Act No. 1 of 1951, Section 3(2), Section 19-A(2), and Section 7(aa) to determine the rights of the petitioners to reserve the land as khalihan. It also considered the definition of 'estate' and the consequences of vesting of an estate in the State under Section 4(1) of U.P. Act No. 1 of 1951.
Final Decision: The writ petition was dismissed as the court found no merit in the petitioners' claims.
Ram Surat Ram (Maurya),J.
1. Heard Sri R.P. Mishra, for the petitioner, Standing Counsel for State of U.P. and Sri Manoj Kumar Yadav, Standing Counsel for Gram Panchayat.
2. The writ petition has been filed against the orders of Consolidation Officer dated 04.01.2010, Settlement Officer Consolidation dated 19.08.2011 and Deputy Director of Consolidation, dated 04.09.2015, passed in the proceeding under Section 9-A of U.P. Consolidation Act, 1953 (hereinafter referred to as the Act).
3. The petitioners and others villagers filed time barred objections, for reserving plot 141 and 161 of village Godaur, tahsil Mohammadabad, district Ghazipur, as khalihan along with delay condonation application on 30.06.1990. It has been stated that land in dispute was falling in mohal of the ancestors of the petitioners and it were used as khalihan, from the time of immemorial. After date of vesting it was illegally recorded as banjar land. The petitioners could not know about the aforesaid entries earlier. It is only when notice for publication of village under Section 52 of the Act was served then they could know about it. The land reserved for khalihan during consolidation operation was either in illegal occupation or in other public use and some of the plots are not suitable for khalihan as it were lying at low level area.
4. It may be mentioned that in view of Section 3 (2) of the Act, banjar land is not included in consolidation area. However, under Section 19-A (2), of the Act, Assistant Consolidation Officer has been authorized to allot such land in the chak of a tenure holder or use it for the purposes of carving out sector road, chak road or chak nali, after determination of its valuation in exceptional circumstances. Initially Consolidation Committee did not demand for reserving the land in dispute as khalihan at the time of preparation of Statement of Principles under Section 8-A nor any tenure holder of the village filed any objection under Section 9 of the Act, in this respect. After finalization of consolidation operation, this objection was filed.
5. Assistant Consolidation Officer submitted his report dated 27.07.1990, mentioning therein that plots 141 (area 6-9-3 bigha), 161 (area 1-6-16 bigha) and 313 (area 3-14-4 bigha) were recorded as banjar land in basic consolidation year. At the time of framing of Statement of Principles, during consolidation operation plots 166 (area 0-6-8 bigha), 459 (area 0-13-15 bigha), 516 (area 0-6-0 bigha), 575 (area 0-2-2 bigha), 576 (area 0-4-14 bigha), 577 (area 0-4-14 bigha), 578 (area 0-4-17 bigha) and 581 (area 0-10-16 bigha) total area 2-15-6 bigha were reserved as khalihan. The village was notified under Section 9 on 01.04.1967, Section 20 on 30.05.1973. It may be mentioned that during pendency of the objection the village was notified under Section 52 of the Act on 02.07.1996.
6. The objection was heard by Consolidation Officer, who by his order dated 04.01.2010 held that plots 141, 161 and 313 were recorded as banjar land and found as such on the spot during spot inspection. During consolidation operation plots 166 (area 0-6-8 bigha), 459 (area 0-13-15 bigha), 516 (area 0-6-0 bigha), 575 (area 0-2-2 bigha), 576 (area 0-4-14 bigha), 577 (area 0-4-14 bigha), 578 (area 0-4-17 bigha) and 581 (area 0-10-16 bigha) total area 2-15-6 bigha were reserved as khalihan and are being used as such by the villagers. The village was notified under Section 52 of the Act on 02.07.1996 and after close of consolidation operation, it would not be proper to determine valuation of banjar land and reserve it as khalihan. Now a days, the villagers use to keep his khalihan on their plot itself. On these findings he dismissed the objections.
7. The petitioners filed an appeal (registered as Appeal No. 1357) from the aforesaid order. The appeal was heard by Settlement Officer Consolidation, who by his order dated 19.08.2011, upheld the findings of Consolidation Officer and dismissed the appeal. The peittione
