Ram Sanehi Maurya and 2 Others v. State of U.P. and 2 Others

Reserved -: 23/11/2023 Delivered -: 29/11/2023 Court No. - 48 Case :- WRIT - B No. - 3890 of 2023 Petitioner :- Ram Sanehi Maurya And 2 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Bhagwan Dutt Pandey Counsel for Respondent :- C.S.C. Hon'ble Saurabh Shyam Shamshery,J.

¶1This is second round of litigation. The petitioners have earlier approached this Court by way of filing a Writ B No. 795 of 2023 which was disposed of by an order dated 25.08.2023 having Neutral Citation No. 2023:AHC:172269 and same is reproduced in entirety in order to indicate facts of present case. "1. Heard Sri Bhagwan Dutt Pandey, learned counsel for the petitioners and Sri Shailendra Kumar Singh, learned counsel for the respondent.

¶2The petitioners have approached this Court being aggrieved by order dated 24.01.2023, passed by the Deputy Director of Consolidation, Maharajganj, whereby the Settlement Officer Consolidation has been directed to conduct measurement for remaining chaks of 03 sectors.

¶3Sri B.D. Pandey, learned counsel for the petitioners submits that since the consolidation proceedings has already been over and notification under Section 52 of U.P. Consolidation of Holdings Act, 1953 was notified on 05.11.2004 therefore Consolidation Officer or Authorities under the Consolidation Act, has no power. This Court by an order dated 15.03.2023 has directed to stay the effect and operation of the order dated

24.01.2023 as well as consequential orders thereof passed on 27.01.2023 and 08.02.2023 by the Settlement Officer Consolidation. Undisputedly no objection or any application was filed by the petitioners before approaching this Court. An application purportedly was filed to point out the legal issues as referred above before the District Magistrate/ Deputy Director of Consolidation on 04.02.2023. However, the receipt thereafter is not on record.

¶4Taking note of the above submissions and considering the legal issues, there is no justification to keep this matter pending before this Court and it is disposed of that the District Collector/Consolidation Officer will consider the objection of the application if filed fresh by the petitioners within a period of two weeks disclosing all the averments and the legal position and if necessary a copy of this writ petition may also be annexed. The concerned authority will decide the same within a four weeks thereafter.

¶5Since this Court has already passed an interim order, the same will be remain in operation till six weeks from today or till the decision of District Magistrate/Deputy Director of Consolidation, whichever is earlier."

¶2In pursuance of above order, petitioners have filed a fresh representation dated 12.09.2023 and relevant part is quoted below -: "यह कि डी.डी.सी. ने व्ቧ 1997-1998 मे किवला किसी किववाद े चबन्दी ाय वाही फाईनल र किदया। तत्प्ቐात व्ቧ 1998 मे धारा 24 व 48 ा ्ቚाशन हुआ तथा चदारो ो चो पर ब्जा किदया गया अऩ्ततः किदनां 05.11.04 ो गांव मे उ० ्ቚ० जो० चबन्दी अधिध० ी धारा 52{1} ा ्ቚाशन होने े बाद सारे ागजात तहसील ो भेजे गये। इस ्ቚार किदनां 05.11.2004 े प्ቐात चबन्दी किवभाग े समस्त ागजात व अधिधार तहसील फरेन्दा ो हस्तांतरिरत होने े प्ቐात चबन्दी किवभाग ो पुनः चो ी पैमाईश राने ा ोई अधिधार नही रह गया था। यह‌वि क‌गांव‌के ‌रामपलट‌के ‌दरखास् त‌पर‌डी.डी.सी. महोदय‌ने‌वि दनांक

24.01.2023 को‌तीन‌सेक् टरो‌के ‌चको‌के ‌सीमांकन‌हेतु‌एस.ओखी‌को पतቔ ‌लि लखा‌पुनः‌डी.डी.सी. ने‌वि दनांक‌27.01.2023 को‌एस.ओखी‌को एक‌पतቔ ‌सेक् टर‌तीन‌के ‌सीमांकन‌हेतु‌भेजा‌जि जस‌पर‌यस०ओ०सी० महाराजगंज‌स् थान‌फरन्े दा‌ने‌वि दनांक‌08.02.2023 को‌एक‌संयकሹ ‌टीमु गवि ठत‌कर‌तीन‌सेक् टरो‌के ‌चको‌का‌सीमांकन‌करने‌हेतु‌आदेश‌पारि रत वि कया‌जि जसके ‌वि वरू दቍ ‌याचीगण‌ने‌माननीय‌उचሴ ‌न् यायालय‌इलाहाबाद‌मे सी०एम.डब् लू. पी०‌?रि रट‌वी? नं०‌795/2023 रामसनेही‌व‌अन् य‌बनाम उ०‌पቚ ०‌सरकार‌व‌अन् य‌दालि खल‌वि कया‌जि जसमे‌माननीय‌न् यायालय‌ने‌आप को‌पቚ त् यावेदन‌देने‌हेतु‌व‌उसकी‌वि नस् तारण‌हेतु‌आदेणि शत‌वि कया‌ह।ै ‌ यह‌वि क‌चूंवि क‌मौजा‌मे‌धारा‌52 ?1? का‌पቚ काशन‌लगभग‌19 वषቧ j‌पूवर‌हो चुका‌है‌तथा‌तीन‌सेक् टरो‌के ‌चकदार‌या‌अन् य‌लोगो‌मे‌से‌वि कसी‌की‌चक आपलि ्, अपील, वि नगरानी‌वि कसी‌न् यायालय‌मे‌लसኌ मबत‌नही‌है‌और‌ना‌ही वि कसी‌अदालत‌का‌आदेश‌ही‌है‌जि जसके ‌तहत‌पुनः‌सीमांकन‌कराया‌जाए तो‌आप‌शቦ ीमान‌जी‌दቛ ारा‌वि वला‌अधि धकार‌के ‌सेक् टर-3 का‌पुनः‌सीमांकन करने‌का‌आदेश‌कै से‌पारि रत‌वि कया‌गया‌यह‌आशቐ यर‌का‌वि वषቧ य‌ह।ै ‌ यह‌वि क‌मौजा‌वरातगाडा‌मे‌चकबन् दी‌पቚ वि ቅया‌समा् ‌हो‌चुकी‌है‌और‌धारा 52 ?1? का‌पቚ काशन‌वि दनांक‌05.11.2004 को‌हो‌चुका‌है‌ऐसे‌मे‌पुनः गजट‌के ‌वि बना‌चकबन् दी‌पቚ वि ቅया‌शुरू ‌नही‌हो‌सकती‌है‌और‌ना‌ही‌चको का‌सीमांकन‌चकबन् दी‌वि वभाग‌दቛ ारा‌कराया‌जा‌सकता‌है‌यवि द‌वि कसी‌पकቌ को‌परशे ानी‌हो‌तो‌वह‌राजस् व‌संवि हता‌की‌धारा‌24 के ‌तहत‌अपने‌गाटा नमबर‌का‌सीमांकन‌करा‌सकते‌ह।ै यह‌वि क‌तथ् यों ‌एवं‌परि रसኌ स् थधि तयों ‌के ‌दृ वि षगत‌मौजा‌वरातगाड़ ा‌मे‌पुनः चकबन् दी‌वि वभाग‌दቛ ारा‌सीमांकन‌की‌पቚ वि ቅया‌को‌समा् ‌वि कया‌जाना‌न् याय सगं त‌ह।ै "

¶3Above referred representation dated 12.09.2023 was decided by   District   Collector/Deputy   Director   of   Consolidation, Maharajganj by an order 04.11.2023 whereby representation of petitioners was rejected with specific reasons. Relevant part of order dated 04.11.2023 is quoted below -: "उपरोकሹ ‌ के ‌ आलोक ‌ में‌ बन् दोबस् त ‌ अधि धकारी ‌ चकबन् दी ‌ एवं ‌ अपर जि जलाधि धकारी‌(वि व०/रा०)/ उप‌संचालक‌चकबन् दी‌से‌पቚ ा् ‌आख् या‌का अवलोन एवं दोनो प्ቌों े थनों े परिरशीलन े उपरान्त मेरा किनष््ቧ है कि मौजा बरातगाडा, तहसील फरेन्दा, जिजला महाराजगंज में ई चदारों े चों ा च सीमांन/ब्जा परिरवत न नहीं हुआ है, जिजस ारण ाश्तारों ्ቛारा ृकि्ቧ ाय रने में असुकिवधा हो रही है। ्ቚायः चों े सHबन्ध में ्ቇाम मे आपस में किववाद बना रहता है, तथा ाश्तारों े किहतों ो दृकिSगत रखते हुये ्ቇाम में अवशे्ቧ चों ा च सीमांन/ ब्जा परिरवत न राया जाना किवधिधसHमत है। जहां त ्ቚाथ\ ्ቦी रामसनेही ्ቛारा थन किया गया है कि ्ቇाम मं च सीमांन न किया जाय। यकिद ्ቚाथ\्ቛ ारा किये गये थन े आधार पर ्ቇाम में च सीमांन ाय नहीं किया जायेगा, तो ्ቇाम े ई ाश्तार इससे ्ቚभाकिवत रहेंगे, जो जनता े किहत में नही है। उ्ቤेखनीय है कि ्ቦी रामपलट पु्ቔ किवपत आकिद किनवासी्ቇ ाम ्ቛारा ्ቚाथ ना-प्ቔ ्ቚस्तुत रते हुये ्ቇाम े अवशे्ቧ चों े च सीमांन/व्जा परिरवत न राये जाने ा थन किया गया है। जोत चबन्दी अधिधकिनयम ी धारा - 2(3) में किवधिध व्यवस्था भी है। तत्Lम में उपरो्ሹ किववेचना े आधार पर ्ቇाम बरातगाडा, तप्पा सुHहाखोर, परगना हवेली, तहसील फरेन्दा, जनपद महराजगंज े अवशे्ቧ चों ा सीमांन/व्जा परिरवत न राया जाना किवधिध सHमत है। त्቎ुसार उपरो्ሹ किववेचना े आधार पर ्ቦी रामसनेही आकिद ा ्ቚत्यावेदन किनस्तारिरत किया जाता है।"

¶4Sri Bhagwan Dutt Pandey, learned counsel for petitioners has submitted that issue raised in representation filed by petitioners was not considered and it was rejected in a cursory manner. He has also referred some grounds taken in writ petition which are reproduced hereinafter -: "III. Because, no other tenure holder except the complainant Ram Palat had ever made any complaint/request for getting paimise / delivery of possession of their chaks allotted during consolidation proceeding which came to be an end in the year 2004 and all the tenure holders are satisfied with their chaks but the respondent no. 2 without making any spot inspection and without making any enquiry as required under the law to be done and without getting response of any other tenure holder of the village concerned and because of illegal gratification offered by Mr. Ram Palat and to provided undue advantage, the respondent no. 2 has passed the order impugned directing to get paimise/ demarcation & delivery of possession illegally under the order impugned. IV. Because, the question was before the respondent no. 2, whether after notification under section 52 of U.P.C.H. Act in the village concerned, the consolidation authorities has got power to make any changes in the possession or any chak or to entertain any application for making paimise / delivery of possession, but without deciding the issue involved the respondent no. 2 has passed the order impugned without recording any finding and committed gross illegality. V. Because, in the objection dated 12.09.2023 the petitioner has categorically stated that the publication under section 24 & 48 of U.P.C.H. Act was made in the year 1998 and the delivery of possession was given to the respective chak holders but without recording any finding in this regard the respondent no. 2 has passed the order Impugned and committed gross illegality. VI. Because, in the objection dated 12.09.2023 the petitioner has also stated the fact that there is no objection in regard to the chak allotment proceeding either the chak holder of section -3 or of any village concerned and no appeal, objection or revision is pending as such the palmise was not permissible under the law, but while passing the order impugned the Deputy Director of Consolidation failed to record any finding and by cryptic and unreasoned order the application of the petitioners has been rejected vide order dated 04.11.2023."

¶5Per contra, Sri A.K. Rai, learned Additional Chief Standing Counsel for State has supported the impugned order that in order to give effect of orders passed in consolidation proceedings and that on basis of reports that number of chak holders have not been allotted their proposed chaks as well as in light of provisions of Section 27 of U.P. Consolidation of Holdings Act, 1953, Authorities have right to measure even after proclamation of notification under Section 52 of the Act, 1953.

¶6Heard learned counsel for parties and perused the records.

¶7The Consolidation Authorities are under legal obligation to measure allotted chak and give possession thereof to respective chak-holders who have been allotted chaks under Consolidation Act and for that Section 27 and 28 of the Act would be relevant which provide power to implement orders passed under consolidation proceedings. Section 28 provides delivery of possession after new revenue records were prepared i.e. even after notification under Section 52 of the Act was issued. For reference, both Sections are reproduced below -: "27. New revenue records. - (1) As soon as may be, after the final Consolidation Scheme has come into force, the District Deputy Director of Consolidation shall cause to be prepared for each village, a new map, field-book and record of rights in respect of the consolidation area, on the basis of the entries in the map, as corrected under Section 7, the Khasra chakbandi, the annual register prepared under Section 10 and the allotment orders as finally made and issued in accordance with the provisions of this Act. The provisions of the Uttar Pradesh Land Revenue Act, 1901, shall, subject to such modifications and alterations as may be prescribed, be followed in the preparation of the said map and records.] [(2) All entries in the record of rights prepared in accordance with the provisions of sub-section (1) shall be presumed to be true until the contrary is proved.(3) After the issue of notification under Section 52, the Collector shall, instead of the map, field-book and record-of-rights previously maintained by him, maintain the map, field-book and record of rights prepared in accordance with the provisions of sub-section (1)] [and the provisions of the U.P. Land Revenue Act, 1901, relating to the maintenance and correction of such map, field-book and record-of-rights shall mutatis mutandis apply]. [28. Delivery of possession. - (1) The Assistant Consolidation Officer, on the application of the tenure-holder or the Land Management Committee, to whom chak or lands have been allotted under the final Consolidation Scheme,] [may, and where any land has been allotted to the State Government shall, without any application of the State Government, within six months of the date on which the said Scheme has come into force, put the tenure-holder or the Land Management Committee or the State Government, as the case may be, in actual physical possession of the allotted chak or lands,]; and for so doing shall have all the powers, including powers as regards contempt, resistance and the like as are exercisable by a Civil Court in execution of a decree for delivery of possession of immovable property : Provided that the delivery of possession as aforesaid shall not affect the right of the person from whom possession is transferred to tend and gather the crops standing on such chaks or land or part thereof, on the date of the delivery, unless the Assistant Consolidation Officer decides, for reasons to be recorded, that the possession over the crop also shall be delivered : Provided further that the person tending and gathering the standing crop, in accordance with the first proviso, shall be liable to pay to the persons who have been allotted the chak, or lands, compensation for the use of the land at such rate and in such manner as may be prescribed.

(2) On the expiry of six months from the date on which a tenure-holder or Land Management Committee [or the State Government] became entitled to enter into possession of the chak or lands allotted, whether before or after the coming into force of the Uttar Pradesh Consolidation of Holdings (Amendment) Act, 1962, or on the expiry of six months from the date of the coming into force of that Act, whichever is later, the tenure-holder or the Land Management Committee [or the State Government] as the case may be, shall, unless possession has been obtained earlier, be deemed to have entered into actual physical possession of the allotted chak or lands ; Provided that the fact that a tenure-holder or Land Management Committee [or the State Government] has thus entered into possession shall not affect the right of the person from whom possession is deemed to have been transferred to tend and gather the crop standing on the chak or lands, or part thereof, on the date of the expiry of the period of six months aforesaid."

¶8The crux of argument of learned counsel for petitioners is that there is no dispute pending in regard to allotment of chak as well as no villager has come forward in regard to any complaint about measurement and exercise of measurement was proposed only on basis of a complaint made by one person.

¶9In order to consider above submissions, I have carefully perused the impugned order whereby the representation of petitioners was considered and was rejected. It is evident that order was passed on basis of report submitted by Settlement Officer of Consolidation and Additional District Magistrate (Revenue) that in Mauja Baratgada, Tehsil Pharenda, District Maharajganj, number of chaks allotted to number of chak holders were not measured and possession were not handed over.

¶10In absence of any substantial material, the aforesaid observation based on report made by a senior officer in the department could not be put under clouds of doubt.

¶11Therefore, in aforesaid circumstances and that there is no absolute power rather above referred Sections 27 and 28 of the Act provide a legal obligation upon the Authorities to implement the orders passed in consolidation proceedings including the measurement of allotted chaks and possession thereof as well as to handover possession to their respective chak-holders.

¶12In these circumstances, I do not find any illegality of perversity in the impugned order.

¶13However, in order to remove any apprehension of any malafide or any other circumstances, this writ petition is finally disposed of with an observation that -:

(i) Proposed team at first instance shall ensure by villagers/chakdars about any dispute of measurement and only thereafter will proceed.

(ii) The process of measurement should be with an object of resolve any dispute, if any, and not to create any further dispute which could be avoided.

(iii) All proceedings should be recorded in writing duly signed by concerned chakdars.

¶14In view of above observations, this writ petition is disposed of. Order Date :- November 29, 2023 Nirmal Sinha [Saurabh Shyam Shamshery, J.] High Court of Judicature at Allahabad