MANGTU Vs. D.D.C.

JUDGEMENT

(1.) Heard Sri Vineet Kumar Singh, the counsel for the petitioner and Sri A.K. Mehrotra, Advocate representing respondent no. 4 as well as the Standing Counsel representing respondent nos. 1 and 2.

(2.) The dispute in the present writ petition relates to Plot No. 576/6 (area 7 Biswa) included in Khata No. 138. During the consolidation proceedings in the village, the plot was recorded as Banjar in C.H. Form-2A prepared during the partaal. However, the petitioner alleging that he was in occupation of the plot filed objections under Section 9- A(2) of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act, 1953') claiming that the plot should be recorded as Abadi and not as Banjar. On the objections of the petitioner, Case No. 743 under Section 9-A(2) of the Act, 1953 was registered in the court of Consolidation Officer. It appears that in Case No. 743, certain reports were filed by the Assistant Consolidation Officer which ostensibly showed that the petitioner was in occupation of the disputed plot and was using it as an Abadi. It is also evident from the report dated 24th December, 1986 submitted by the Assistant Consolidation Officer that the plot of the petitioner, i.e. Plot No. 577 (area 8 Biswa) which was adjacent to Plot No. 576 was his abadi and the disputed plot was being used by the petitioner for his cattles. The claim of the petitioner was not opposed by the counsel for the State Government and on the concession given by the counsel for the State Government, the Consolidation Officer vide his order dated 7.10.1988 directed that the plot be recorded as 'Abadi Gram Samaj, Class-6(ii)' as categorised in the U.P. Land Records Manual. Against the order dated 7.10.1988 passed by the Consolidation Officer, respondent no. 4 who was the Up-pradhan of the village filed an appeal under Section 11(1) of the Act, 1953 before the Settlement Officer of Consolidation (hereinafter referred to as, 'S.O.C.'). The said appeal was filed on 3rd August, 1990, i.e., almost two years after the order dated 7.10.1988 passed by the Consolidation Officer. It has been stated in the writ petition that no delay condonation application was filed with the appeal. On the appeal of the Up-pradhan, i.e., respondent no. 4, Appeal No. 927 under Section 11(1) of the Act, 1953 was registered before the S.O.C. The petitioner was not impleaded as an opposite party and therefore no notices were issued to the petitioner in the appeal. The S.O.C. vide his order dated 18.4.1991 condoned the delay in filing the appeal, allowed the appeal and set-aside the order dated 7.10.1988 passed by the Consolidation Officer. Aggrieved by the order dated 18.4.1991, the petitioner filed Revision No. 744 of 1991 under Section 48 of the Act, 1953 before the Assistant Director of Consolidation, Ghaziabad which was dismissed by the Assistant Director of Consolidation vide his order dated 6.8.1991. In their orders dated 6.8.1991 and 18.4.1991, the Assistant Director of Consolidation and the S.O.C. have held that once the plot was recorded as Banjar in C.H. Form-2A prepared during the partaal, the entries could not have been changed in proceedings under Section 9-A(2) of the Act, 1953 at the instance of a person whose only claim over the plot was that he was in occupation of it and therefore the order dated 7.10.1988 passed by the Consolidation Officer was contrary to law. In his order dated 6.8.1991, the Assistant Director of Consolidation has given an additional reason that the entries of a plot which vested in the Gaon Sabha cannot be changed from Banjar to Abadi merely because somebody was in possession of it without any right and using it as Abadi. The orders dated 18.4.1991 and 6.8.1991 have been challenged in the present writ petition.

(3.) Challenging the impugned orders dated 18.4.1991 and 6.8.1991 passed by the S.O.C. and the Assistant Director of Consolidation, the counsel for the petitioner has argued that the order dated 18.4.1991 passed by the S.O.C. was passed without giving him any opportunity of hearing as no notices were issued to him in Appeal No. 927 because he was not impleaded as an opposite party in the said appeal. It was further argued by the counsel for the petitioner that the S.O.C. had exceeded his jurisdiction in condoning the delay in filing the appeal even though no delay condonation application was filed along with the memorandum of appeal instituting Appeal No. 927. It was argued that for the aforesaid reasons, the order dated 18.4.1991 passed by the S.O.C. has been passed without following the procedure prescribed in law and in violation of the audi alteram partem rule and is therefore liable to be set-aside. It was argued by the counsel for the petitioner that the order dated 7.10.1988 was passed by the Consolidation Officer in Case No. 743 registered on the objections of the petitioner and therefore the petitioner was a necessary party in appeal and was entitled to be heard in opposition to the appeal. It was also argued by the counsel for the petitioner that the appeal was not filed by the Gaon Sabha but by respondent no. 4 who had no right to file an appeal against the order dated 7.10.1988 passed by the Consolidation Officer and therefore the appeal itself was not maintainable. It was further argued by the counsel for the petitioner that recitals in the order dated 18.4.1991 passed by the S.O.C. shows that the delay in filing the appeal was never condoned and the appeal was heard without condoning the delay in filing the same. Rebutting the arguments of the counsel for the petitioner, the counsel for respondent no. 4 has supported the judgments and orders dated 18.4.1991 and 6.8.1991 passed by the S.O.C. and the Assistant Director of Consolidation and has argued that the petitioner has no locus standi to challenge the impugned orders and therefore the writ petition is not maintainable and is liable to be dismissed as such. I have considered the submissions of the counsel for the parties and also perused the records.