Iqbal Ahmad vs D.D.C. and Others

Hon''ble Amreshwar Pratap Sahi, J.—Issue notice to the respondent Nos. 2 to 7.

Learned standing counsel has accepted notice for the respondent No. 1 and Sri M.N.Singh for the respondent No. 8 Gaon Sabha.

The dispute relates to old plot Nos. 1206, 1239 and 1241 of Khata No. 578 as it was then existing and has now been re-numbered as Plot Nos. 912, 913 and 915.

The petitioner Iqbal Ahmad has purchased half share of Khata No. 578 from Mukhtar Ahmad and Abdul Qadir. The vendors of the petitioner had filed civil suit No. 685 of 1957 seeking a declaration in respect of the said land which was purchased by the petitioner referred to herein above. The said suit was decreed on 7.3.1960. There after the first round of consolidation operations ntervened where the entry in favour of the vendors of the petitioner were referred by the Consolidation Officers as suspicious and a report to that effect was accepted by the Settlement Officer Consolidation for expunging their names. Two revisions were filed one by the petitioner and the other by the vendor Mukhtar Ahmad. The revision filed by Mukhtar Ahmad was allowed but the revision filed by the petitioner was dismissed.

The petitioner then filed Writ Petition No. 237 of 1970 and after exchange of affidavits the writ petition same was allowed relating to Khata No. 578 to the extent of the share purchased by the petitioner vide judgment dated 23.11.1971. A copy of the judgment has been brought on record as Annexure 4 to the writ petition.The petitioner sought his mutation on the strength thereof when a second round of consolidation operation intervened. The Consolidation Officer passed an order in terms of the order of the High Court on 30.1.2003 which is Annexure 6 to the writ petition.

After a lapse of almost 8 years, a revision was filed by the respondent Nos. 2 to 7 Jamshed Ahmad and others contending that they are villagers and the land which was recorded as Banjar in favour of Gaon Sabha has been wrongly entered in the name of the petitioner as such, the order passed by the Consolidation Officer dated 30.1.2003 deserves to be set aside. The said revision has been entertained by the Deputy Director of Consolidation and an order came to be passed on 23.5.2011. The revision was found to be maintainable and accordingly the matter proceeded before him. The District Deputy Director of Consolidation passed an order on 12.9.2011 holding that in view of the provisions of Section 11-C of the 1953 Act the bar of limitation would not apply and therefore admissibility of the revision does not in any way prejudice the right of the petitioner.

What has to be seen by the District Deputy Director of Consolidation is firstly the locus of the revision vis a vis Section 11-C of the 1953 Act but what was more iimportant is the order passed by the High Court dated 3.11.1971. A perusal of the said judgment demonstrates that it was delivered after hearing the contention of the learned counsel for the Gaon Sabha and upon exchange of affidavits. Not only this the High Court also noticed that the declaratory decree dated 7.3.1960 was binding on the Gaon Sabha in view of then provisions existing u/s 5 of the U.P.Consolidation of Land Holding Act 1953. It was therefore held that the judgment and decree of the civil court cannot be said to be without jurisdiction.

In the opinion of the Court once there is a judgment and decree of the civil court affirmed by the High Court then the first issue which has to be seen by the District Deputy Director of Consolidation is the impact of the said judgment which appears to have been rendered after contest put forth by the parties but at the same time the authorities are equally under a mandate not to violate the order passed by the judicial authorities particularly the order passed by the High Court in proceedings arising out of the first consolidation proceedings. The impact of the said judgment therefore cannot be nullified merely because the rights of the Gaon Sabha are involved. No doubt Section 11-C obligates the consolidation authorities to protect the interest of the Gaon Sabha yet they cannot over look final judgments.

The second round of consolidation also brings into play the provisions of Section 49 of the U.P.C.H.Act, 1953. The District Deputy Director of Consolidation therefore has not only prima facie to see the interest of the gaon Sabha but also the impact of the judgment and the provisions of Section 49 of the U.P.C.H.Act, 1953. It is not a case where the claim of the petitioner is founded on any ingenuine or fake documents. It is therefore not a case of fraud. This cannot be reopened in veiw of the procicles of bar of limitation and also the issues relating to resjudicata, constructive resjudicata and the provisions of Section 49 of U.P.C.H. Act, 1953.

In view of this the District Deputy Director of Consolidation shall not proceed further in this matter.

The respondents shall file their counter affidavits within 3 weeks. One week is granted to file a rejoinder affidavit. List thereafter.