AUTAR KRISHNA Vs. GAON SABHA

JUDGEMENT

(1.) THE Petitioners in consolidation proceedings claimed Bhumidhari rights and in the alternative sirdari rights over some plots of land. The claim of the Petitioners was accepted by the Gaon Samaj. No evidence was adduced on behalf of the Gaon Samaj to controvert the Petitioners' case. Inspite of this circumstance, the consolidation authorities awarded the land to the Gaon Samaj. It appears that after the issue of the notification under Section 4 of the U.P. Consolidation of Holdings Act which took place sometime in 1965, a notification No. 4507/XI -A -762 -49 dated 9 -6 -1966 was published in the U.P. Gazette on 1 -4 -1967, whereby the area in which the disputed plot was situated was taken wider the Municipal limit of Moradabad with effect from 10 -4 -1967.

(2.) AN amendment application was filed in this Court which was allowed on 17 -9 -1971 seeking permission to raise the ground that after the notification, the consolidation authorities had no jurisdiction to decide the dispute. Counsel for the Petitioners apart from attacking the orders on merit, urged that after the promulgation of this notification, the consolidation authorities lost jurisdiction to decide the dispute. This contention does not appear to be sound. Section 1 Sub -section (2) of the U.P. Zamindari Abolition & Land Reforms Act extends the provisions of the U.P. Zamindari Abolition & Land Reforms Act to entire U.P. save such areas as are set out therein. The exception contained in Section 1(2) extends only to such areas as were included in a municipality on the 7th July 1949. In the present case, the disputed area came to be included in a Municipality in 1967. This being so, even though the area was included in a Municipality, the provisions of the U.P. Zamindari Abolition & Land Reforms Act were applicable to the disputed plots too. Once this position is reached the provision of the U.P. Consolidation to Holdings Act continue to apply for after the issue of the notification under Section 4 in view of Section 3(1) and (2 -A), all areas comprised therein formed part of the consolidation, save only such areas to which the provisions of the U.P. Zamindari Abolition & Land Reforms Act did not apply. This contention must, therefore, fail.

(3.) IT is, however, also necessary to point certain other defects in the order passed by the consolidation authorities. The Petitioners had led oral evidence regarding their possession and cultivation of the land. There is not even an indirect reference to this evidence in the final order of the Deputy Director of Consolidation, who had confined his attention only to the documentary evidence led by the Petitioners. Oral evidence is also evidence, and cannot be unceremoniously left unnoticed when it is relevant to the matter in dispute. Possession and cultivation of the land could be proved by the Petitioners not only on the basis of documentary evidence, but also on the basis of oral evidence. This being so, it was a clear error on the part of the Deputy Director of Consolidation to have dismissed the revision of the Petitioners merely on finding flaws in the documentery evidence led by the Petitioners. Another lacuna in the approach of the consolidation authorities is that even though evidence led by the Petitioners was uncontroverted, they set about in a crusader's spirit to find flaws in that evidence, although no evidence had been led on behalf of the Gaon Sabha. It may be true that the basic year entry carries an initial presumption of correctness, but in a case where the party in whose favour the entries stand, does not lead other evidence at all, and as in the present case, supports the objector's claim, it is highly injudicious for the consolidation authorities to reject an objection, when the objector had led admissible evidence in support of his claim. Consolidation authorities while deciding objections perform judicial functions and when evidence is led by a party in support of his objection, it can be rejected only in case there is material on the record to hold that the evidence does not prove the claim; for example, the consolidation authorities may find that the evidence is short of establishing the claim put in by the objector or that the evidence led is unworthy of credence. Such a conclusion, however, is possible only in case the adversary supplied material by way of cross -examination or otherwise to disprove the claim. Where the opposite -party does not contest the claim at all, it would be only in rare cases where the objector does not lead any evidence worth the name, that the claim can be rejected. It must always be borne in mind that consolidation authorities exercise judicial functions while deciding an objection, and are not to act as watch dogs of the interest of any party, whether it be the Gaon Sabha or the State Government. Decision of objection is something entirely different from the correct maintenance of records. Once the duty of deciding objections is taken up by consolidation authorities, they have to disengage themselves from the duty of maintaining correct records, which is admittedly a ministerial function. Once such proceedings begin, all the limitation of objectivity and fairness, which bind a court of law are equally applicable to proceedings before them. In the present case, these authorities have, inspite of there being no factual contest by the Gaon Sabha by way of leading evidence etc, dismissed the Petitioners claim on reasons which appear to be arbitrary.