HAVALDAR SINGH Vs. DISTRICT DEPUTY DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) Heard Mr. R.C. Singh, learned Senior Counsel assisted by Mr. Narayan Dutt Shukla, learned Counsel for the petitioners, learned Standing Counsel for the State-respondents and Mr. Rameshwar Prasad Shukla for respondent No.3, Gaon Sabha.

(2.) Brief facts of the case are that predecessors-in-interest of the petitioners namely Shri Laxmi Singh was recorded owner of disputed plot no. 362 situated in village-Kishundurpur, Tappa-Attaisi, Pergana-Nizamabad, Tahasil- Sadar, District-Azamgarh. Copy of Khewat of 1356 fasli to 1359 fasli of the Village Kishundaspur, Tappa Attaisi, Pargana Nizamabad Tehsil Sadar District Azamgarh has been annexed as Annexure No. 1 to the writ petition in order to demonstrate the ownership of petitioners' predecessors-in-interest. Copy of khatauni of 1356 fasli, 1359 fasli as well as khasra of 1359 fasli have been annexed as Annexure Nos. 2, 3 and 4 to the writ petition to demonstrate the ownership of the petitioners' predecessors-in-interest. Village was brought under consolidation operation on 30/10/1955 by way of notification issued under Sec. 4 of the U.P.C.H. Act. In the khatauni of 1362 fasli, plot no. 362 was recorded in the name of petitioners' predecessors-in-interest, the copy of khatauni of 1362 fasli has been annexed as Annexure No. 6 to the writ petition. During consolidation operation, petitioners filed an objection under Sec. 8 of U.P.C.H. Act to rectify the revenue entry. New plot nos. 213 ka and kha were carved out from old plot no. 362. The order dtd. 30/10/1955 passed by Consolidation Officer in a proceeding under Sec. 8 of the U.P.C.H. Act to record the plot as brick klin became final as nobody challenged the order in first consolidation operation. The first consolidation operation came to an end in the year 1962. Village was again brought under consolidation operation in the year 1981. Basic year entry remained in the name of petitioners and no objections were filed against the basic year entry which remained in the name of petitioners. Final records were accordingly prepared in the name of petitioners. New plot no. 311 ka and kha carved out from old plot no. 213. According to petitioners, new plot no. 213 ka and kha have never been pond and bhita. A four lane road is being constructed by National Highway Authority of India across the aforesaid plots, as such, there is no question that pond and bhita exist in the plot. The land in dispute was never recorded as pond either before the abolition of zamindari or after abolition of zamindari. According to petitioners their predecessors had established a brick klin in the year 1940 and the business continued till 1950. The portion of the plot in question was acquired by National Highway Authority of India by way of notification published in Hindi newspaper dtd. 30/6/2017. No dispute was raised by any person before the competent authority appointed under the National Highway Act 1956 accordingly award dtd. 31/5/2018 was made by competent authority under Sec. 3G of the National Highways Act. Copy of the award dtd. 31/5/2018 has been annexed as Annexure No. 12 to the writ petition. At the time of disbursement of the amount determined under the award, a complaint has been made by the Pradhan that old plot no. 213, new plot no. 311 is a pond and bhita therefore compensation in respect of the aforementioned plot should not be disbursed. Competent Authority accordingly issued order dtd. 22/7/2020 that payment of compensation be deferred. Pradhan filed revision under Sec. 48(1) of the U.P.C.H. Act on 16/7/2020 before the Deputy Director of Consolidation to set aside the order dtd. 30/10/1955 in respect to plot no. 362 and record the same as pokhari and bhita. On the basis of the complaint made by Pradhan, a case no. D202015060001018 has been registered under Sec. 38(1) of U.P. Revenue Code, 2006 for correction of revenue entry in respect to old plot no. 362 of Village Kishundaspur. Raj Narayan and Others also filed revision under Sec. 48(3) of the U.P.C.H. Act, Vijay Prakash and Others also filed separate revisions challenging the order of Assistant Consolidation Officer dtd. 30/10/1955 in the aforementioned proceeding, the reports were submitted by the authorities. Petitioners challenged the proceeding initiated under Sec. 48(1) of the U.P.C.H. Act as well as the proceeding initiated under Sec. 38(1) of the U.P. Revenue Code, 2006 through writ-B no. 3 of 2021. This Court vide order dtd. 7/9/2021 disposed of the writ petition filed by petitioners with direction that petitioners can file objection in the pending proceeding which shall be decided in accordance with law within period of two weeks. Proceedings under Sec. 48(1) of the U.P.C.H. Act as well as the proceeding under Sec. 38(1) of the U.P. Revenue Code, 2006 were heard together by District Deputy Director of Consolidation/ Collector and the same were decided vide separate order dtd. 6/12/2021 expunging the petitioners' entry and directing that? plot in dispute be recorded as pokhari, bhita and banjar. Hence this writ petition.

(3.) This Court vide order dtd. 1/4/2022 directed the learned Standing Counsel as well as the Counsel for the Gaon Sabha to file counter-affidavit within three weeks. In pursuance of the order of this Court dtd. 1/4/2022, learned Standing Counsel has filed his counter-affidavit. Petitioners have filed rejoinder-affidavit also.