JHURAI Vs. DEPUTY DIRECTOR OF CONSOLIDATION ALLAHABAD

JUDGEMENT

(1.) Heard the learned Counsel for the Petitioner Sri. Sakha Ram Singh for Gaon Sabha and Sri. Krishna Prasad for the State.

(2.) The proceedings in the present petition arise out of consolidation operations under the U.P. Consolidation of Holdings Act, 1953. Jhurai, Petitioner No. 1 was recorded as Bhumidhar in the basic year. He had executed a sale deed in favour of Petitioners Nos. 2, 3 and 4 prior to commencement of the proceedings. The Petitioners nos 2, 3 and 4 claimed mutation in place of the Petitioner No. 1. On commencement of consolidation operations, objection was filed by the Respondents Nos. 2 to 4 for mutation in their favour. Another set of objections was filed by Respondents Nos. 4 to 7 claiming that the real tenure -holier, Jhurai, had expired about 25 years back and Petitioner No. 1 was an impostor and the sale -deed obtained by the Petitioners Nos. 2, 3 and 4 from him was fraudulent and illegal. They claimed that they were the collaterals of the deceased Jhurai who was the real tenure holder and were, thus, entitled to be mutated in his place.

(3.) The Consolidation Officer and the Settlement Officer (Consolidation) decided the case in favour of the Petitioners Nos. 2, 3 and 4 and held that the Petitioner No. 1 was the real tenure -holder of the land and the Respondents Nos. 4 to 7 had no concern with the same. Before the Deputy Director (Consolidation) in revision Under Sec. 48 of the Consolidation of Holdings Act, the same argument was made again. Though there was no objection or revision on behalf of the Gaon Sabha or the State of U.P., the Deputy Director Consolidation held that the revisionists i.e. the Respondents Nos. 4 to 7 had no concern with the land. He further gave a finding that the Petitioners Nos. 2 to 4 had also no right as according to him the Petitioner No. 1 was not the real tenure -holder and the real tenure -holder had expired 25 years ago. He consequently ordered the land to be recorded in the name of Gaon Sabha by his order dated 23 -5 -1972. The present petition has been filed against the same. Gaon Sabha has been impleaded as Respondent No. 8 and subsequently the State of U.P. has also been impleaded as Respondent No. 9. Respondent Nos. 4 to 7 did not file any counter affidavit. Gaon Sabha and the State of U.P. filed separate counter affidavits. Rejoinder affidavits have been filed by the Petitioners. Learned Counsel for the Petitioners raised two questions before me. The first argument of the learned Counsel was that in view of Sec. 11 -A of the U.P. Consolidation of Holdings Act Gaon Sabha and the State Government were debarred from filing any objection or from contending that the land had vested in them on account of death of Jhurai who has been held to have died long ago according to the judgment of the Deputy Director (Consolidation). The second limb of his argument is that the Petitioner No. 1 was the real tenure -holder and the finding of the Deputy Director (Consolidation) that the Petitioner No. I was not the real tenure -holder, but an impostor, was not correct. The argument of the learned Counsel for the Gaon Sabha is that the Petitioners could not object to the order of the Deputy Director (Consolidation) passed in favour of Gaon Sabha. Sec. 11 -C of the Consolidation of Holdings Act gave ample powers to consolidation authorities to pass orders in favour of Gaon Sabha as and when the occasion arose. The other argument of the learned Counsel was that even ignoring Sec. 11 -C of the Act, the proceedings Under Sec. 9 continued upto the stage of Sec. 48 and in those proceedings, the consolidation authorities had every right to pass orders in favour of Gaon Sabha notwithstanding Sec. 11 -A. The learned Counsel argued that the proceedings that were before the Deputy Director (Consolidation) Under Sec. 48 were a continuance of proceedings Under Sec. 9 and 9 -A and consequently Sec. 11 -A could not bar the jurisdiction of the Deputy Director (Consolidation). In reply, the learned Counsel for the Petitioner argued that the Deputy Director Consolidation came into picture only at the stage of Sec. 48 which was much later than the stage of Sec. 11 -A. The second argument was that Sec. 11 -C was brought on the statute by Act No. 34 of 1974 and that the aforesaid Sec. was not retrospective. The other argument of the learned Counsel was that the rights Under Sec. 194 of the U.P. Zamindari Abolition and Land Reforms Act were not the tenancy rights, but they were right to take possession of the land and unless that right was exercised by the Gaon Sabha, the Gaon Sabha did not have any right to have its name recorded over the land. The learned Counsel for the Petitioner relied upon a case reported in Gram Sabha Kudra v/s. Noor Mohammod Khan, 1975 RD 61 a Division Bench case of this Court. It was held in that case that in case Gaon Sabha did not file any objection Under Sec. 9 it was debarred from raising any objection Under Sec. 11 -A or at any subsequent stage. It appears that the aforesaid case has been impliedly over -ruled by a Full Bench decision of our Court, in Amir Husain v/s. Deputy Director Consolidation : 1977 AWC 1 (FB). It was held in that case that the case of Noor Mohammad and other cases were not approved by the Full Bench. That case consequently looses its weight. The other case relied upon by the learned Counsel for the Petitioner was Brij Lal v/s. State of U.P., 1977 RD 318. In that case a learned Single Judge of our Court held that Sec. 11 -C was not retrospective. The matter about the retrospectivity of the aforesaid Sec. was also before the Full Bench of Amir Hussain (supra) but the Full Bench did not decide the question as the matter was decided on the first question referred to it. In the instant case, however, none of these cases are of much help to us. The rights of Gaon Sabha, if any, flow from Sec. 194 of the U.P. Zamindari Abolition and Land Reforms Act which reads as under: