ROHIT Vs. DEPUTY DIRECTOR OF CONSOLIDATION HARIDWAR

JUDGEMENT

(1.) PRESENT writ petition has been filed by the petitioners for quashing of the orders dated 24.05.1999, 6.06.2002 and 16.08.2003, contained as annexure nos. 5, 6 & 8 to the writ petition)

(2.) BRIEF facts of the case, as narrated in the writ petition, are that one Smt. Bugli W/o late Kewal Ram executed a WILL in favour of the petitioners in respect of chak no.271 gata no.13/1, gata no.136/1, gata no.139 and gata no.140/1 situated in village Kothwal Alampur, Paragana Maglour, Tehsil Roorkee, District Haridwar. Smt. Bugli was the Bhumidhar with transferable rights. After her death, the land was transferred in the name of petitioners. It is stated in the petition that during the lifetime of Smt. Bugli, consolidation proceeding was started and her name was recorded by the Assistant Consolidation Officer, Roorkee (for brevity ACO) in Form No.23 on 13.12.1993.

(3.) A counter affidavit has been filed by the State and denying the contents made in the petition in which it has been asserted that the consolidation proceedings in the village in question came to an end in the year 1963, but the petitioners did not file any objection in the said consolidation proceedings, as such the contention raised by the petitioners after a long period of 40 years, stating that the area of their land is shown or became less, is not tenable. Furthermore, the said demand can not be raised in this consolidation proceedings as it is purely barred by Section 49 of the Act i.e. this very demand could have been raised by the petitioners or by their legal guardian at the time of consolidation proceedings going on in their village and no right can accrue to any one over the road land which is the public utility land and purely falls within the ambit of Section 132 of U.P.Z.A. & L.R. Act, hence no right can accrue to any one over the land of public utility. The Consolidation Officer while not admitting the report of Assistant Consolidation Officer dated 13.01.1998, has entered the area of Khasra No. 136 as per the settlement. It is further asserted that the map which has been filed by the petitioners (annexure 13), the same is of previous consolidation relating to 1370 Fasly year, i.e. relating to year 1963. The said map is not prepared soon after the consolidation proceedings. Further, merely due to issuance of the copy of said Pedigree/Sajra on 30.05.2003, the same cannot be treated as new map of consolidation. It is further stated that the Pukhta road is located over the plot nos. 13/2 and 136/3 and plot nos. 13/1, 13/2 are recorded in the name of the petitioners but the Pukhta road is located on the plot no. 13/2 at the spot which is kept out of the consolidation proceedings and road is also situated on plot no. 136/3 at the spot and is recorded as `road' in revenue records and the plot nos. 136/1, 136/2 are recorded in the name of cultivators. It is further stated in the counter affidavit that the Pukhta road which situated on the plot no. 13/2 is continuously being used by the villagers and the Pukhta road is also located on the plot no. 136/2 at the spot, hence contention of the petitioners saying that their maternal grandfather was in possession over the area of 0.4100 hectares of land of the plot no. 13/2 is incorrect. The plot no. 13/1 is located in the north of Pukhta road which is recorded in the name of the petitioners and they are cultivating over it and the plot no. 136/1 is located in the south of the Pukhta road and the area measuring 0.1024 hectares of land of this plot is recorded in the name of the petitioners in revenue records over which the petitioners are cultivating at the spot i.e. the petitioners are in possession over the plot nos. 13/1 and 136/2 located on the both sides of said Pukhta road. It is further asserted in the counter affidavit that the plot no. 136/1 measuring 0.1024 hectares of land was recorded as Bhumidhar with transferable rights in the name of the petitioners in revenue records but 0.1453 hectares of land of this plot was recorded in consolidation proceedings. A room without roof is situated over the area measuring 0.06000 hectares of land of plot no. 136/1 on the spot which is proposed in the chak of the petitioners in proposed `Chak' and in the north of it the Pukhta road is located on the spot.