A.F.R. Court No. - 19 Case :- MISC. SINGLE No. - 4199 of 2010 Petitioner :- Ram Achal S/O Radhey Shyam & Anr. Respondent :- Board Of Revenue, U.P.,Lucknow & Ors. Petitioner Counsel :- Radhey Shyam Tiwari Respondent Counsel :- C.S.C.,M.K. Tiwari,R.K. Upadhyay,R.N. Gupta Hon'ble S.C. Chaurasia,J.
1. Heard learned counsel for petitioners, learned Standing Counsel, Sri R. N.
Gupta, learned counsel for opposite party no.2, Sri S. A. Jamal, learned
counsel for opposite parties nos. 3 to 5 and perused the record.
2. This writ petition under Article 226 of the Constitution of India has been
filed with the prayer that a writ, order or direction in the nature of Certiorari
may be issued quashing the impugned order dated 02.06.2010 passed in
revision no. 882/08-09 by opposite party no.1, contained as Annexure No.1 to
the writ petition and the opposite parties may be directed not to disturb the
peaceful possession of the petitioners over the disputed land.
3. The learned counsel for petitioners has submitted that the application for
mutation under Section 34 of the U.P. Land Revenue Act was moved on
behalf of petitioners on 28.04.1998 in the Court of Tahsildar, Milkipur,
Faizabad, on the basis of sale deed dated 17.09.1990 executed by Sri Sahab
Saran in favour of the petitioners and their names were ordered to be mutated
by Tahsildar, Milkipur, Faizabad vide order dated 12.06.1998. His contention
is that the revision preferred against the said order dated 12.06.1998, has been
disposed of, setting aside the said order vide order dated 02.06.2010 illegally
and the opposite parties nos. 3 to 5 were declared co-tenants illegally and
hence, the impugned order dated 02.06.2010 deserves to be set aside.
4. Learned counsel for the opposite parties nos. 3 to 5 has submitted that the
proceedings under Section 9-A of the U.P. Consolidation of Holdings Act
were pending in the Court of Consolidation Officer for determination of rights
and title of the parties and hence, the application for mutation moved on
behalf of the petitioners was not maintainable and the orders passed by the
Courts below are without jurisdiction.
5. It is not disputed that the Notification under Section 4 (2) of the U.P.
Consolidation of Holdings Act was issued on 23.11.1991 and the
consolidation operations were commenced in the concerned village. It is also
not disputed that the opposite parties nos. 3 to 5 filed objection under Section
9-A of the U.P. Consolidation of Holdings Act on 25.07.1993 in the Court of
Consolidation Officer for determination of their co-tenancy rights and the
petitioners filed objection under Section 9-A of the said Act on 19.06.1993
for declaration of their rights and mutation on the basis of sale deed dated
17.09.1990 executed by Sri Sahab Saran in their favour. It is also not disputed
that the said proceedings are still pending before the Consolidation Officer.
6. Learned counsel for both the parties have not been able to disclose the
exact date of Notification issued under Section 52 of the U.P. Consolidation
of Holdings Act, but, they have admitted that the application for mutation
under Section 34 of the U.P. Land Revenue Act was moved on 28.04.1998
and the said Notification under Section 52 of the said Act was issued prior to
moving of the said application. It has been contended by learned counsel for
the opposite parties that since the proceedings under Section 9-A of the U.P.
Consolidation of Holdings Act were pending prior to issuance of Notification
under Section 52 of the said Act, the said proceedings shall continue in
accordance with the provisions of said Act, even after issuance of Notification
under Section 52 of the said Act. His contention is that during pendency of the
said proceedings, the petitioners were not entitled to move an application
under Section 34 of the U.P. Land Revenue Act for mutation of their names
on the basis of sale deed in question and hence, the orders passed there on by
Tahsildar as well as the revisional Court are without jurisdiction.
7. Section 52 of U.P. Consolidation of Holdings Act, 1953 may be quoted as
under:
“52. Close of consolidation operations.–(1) As soon as may be after fresh
maps and records have been prepared (under sub-section (1) of Section 27),
the State Government shall issue a notification in the official Gazette that the
consolidation operation have been closed in the unit and village or villages
forming part of the unit shall then cease to be under consolidation
operations:
[Provided that the issue of the notification under this section shall not affect
the powers of the State Government to fix, distribute and recover the cost of
operations under this Act.]
[(1-A) The notification issued under sub-section (1) shall be published also in
a daily newspaper having circulation in the area and in such other manner as
may be considered proper].
[(2) Notwithstanding anything contained in sub-section (1), any order passed
by a Court of competent jurisdiction in cases of writs filed under the
provisions of the Constitution of India, or in cases of proceedings pending
under this Act on the date of issue of the notification under sub-section (1),
shall be given effect to by such authorities as may be prescribed and the
consolidation operation shall, for that purpose, be deemed to have not been
closed.]
[(3) Where the allotment or lease of any land made before the consolidation
scheme becomes final under Section 23, is cancelled by an order under sub-
section (4) of Section 198 of the Uttar Pradesh Zamindari Abolition and Land
Reforms Act, 1950 and such order becomes final, then notwithstanding
anything contained in the provisions of this Act, such order shall be given
effect to any such authorities as may be prescribed, in the following manner
and the consolidation operation shall, for the purpose, be deemed to have not
closed, namely,–
(a) the value of the land which was the subject-matter of such allotment or
lease shall first be ascertained in the manner prescribed;
(b) the value referred to in clause (a) shall be deducted from the total value of
land allotted to the tenure-holder concerned during consolidation
proceedings;
(c) the tenure-holder shall be entitled, during consolidation proceeding, to
land equivalent in valuation to the said land.]”
8. Since the proceedings under Section 9-A of U.P. Consolidation of Holdings
Act were pending prior to issuance of Notification under Section 52 (1) of the
said Act, the said proceedings shall be continued in accordance with the
provisions of the said Act and for that purpose, the Consolidation operation
shall not be deemed to have been closed in accordance with sub-section (2) of
Section-52 of the U.P. Consolidation of Holdings Act. Under the
circumstances, until and unless, the rights and title of the concerned parties
are determined by the competent Court, the petitioners had no right to move
an application under Section 34 of the U.P. Land Revenue Act for mutation
of their names on the basis of sale deed in question. Consequently, the orders
passed by Tahsildar as well as the revisional Court with reference to said
application for mutation during the pendency of the proceedings under
Section 9-A of U.P. Consolidation of Holdings Act, which are still pending,
are without jurisdiction. Hence, the orders passed by Tahsildar as well as the
revisional Court deserve to be quashed.
9. The petitioners were not expected to challenge the order dated 12.06.1998
passed by Tahsildar in their favour. Since the said order dated 12.06.1998 is
also without jurisdiction, it deserves to be quashed.
10. A writ of Certiorari is issued quashing the impugned order dated
02.06.2010 passed by opposite party no.1, contained as Annexure No.1 to the
writ petition and the order dated 12.06.1998 passed by Tahsildar, Milkipur,
Faizabad, contained as Annexure No.5 to the writ petition. The Consolidation
Officer, Kuchera, District Faizabad is directed to dispose of the proceedings
under Section 9-A of U.P. Consolidation of Holdings Act expeditiously, in
accordance with law, preferably within a period of six months from the date a
certified copy of the order of this Court is filed in the said Court.
11. Parties are directed to maintain status-quo as exists today, till the disposal
of said proceedings.
12. With these observations/directions, the writ petition stands disposed of
finally.
Order Date :- 29.7.2010
psd