Shiksha Samiti Moti Mahal vs D.D.C.

@DELETEUPPERDATA

Ram Surat Ram (Maurya), J.—Heard Sri S.K. Kalia, Senior Advocate and Sri Mohd. Arif Khan, Senior Advocate, assisted by Sri R.A. Upadhyaya, for the petitioners and Sri H.K. Bhatt, Additional Chief Standing Counsel, for State of U.P., for the respondents. W.P. No. 436 (Consolidation) of 2009 has been filed against the orders of Consolidation Officer dated 8.2.2008, dismissing objection of the petitioners for recording its name over land in dispute, situated in village Rampur Deorai, tahsil Bakshi Ka Talab, district Lucknow, Settlement Officer Consolidation dated 17.7.2009, dismissing the appeal of the petitioner and letter of Deputy Collector dated 21.7.2009, to comply aforesaid orders. In this writ petition, an interim order dated 27.7.2009 staying the ejectment of the petitioners was passed. In the meantime, the revision filed by the petitioners was dismissed by Deputy Director of Consolidation, by order dated 28.8.2010. Hence W.P. No. 659 (Consolidation) of 2010, has been filed, challenging aforesaid three orders, passed in title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act).

The dispute relates to plots 322 to 326, 329, 330, 498 to 499, 512, 522-C and 525 (old plots 474, 475, 698, 699, 711 to 714, 716 to 736, 744 to 749) of village Rampur Deorai, tahsil Bakshi Ka Talab, district Lucknow. In basic consolidation records, the land in dispute was recorded in the name of Gram Sewak Prashikshan Kendra, Kshetriya Gram Vikas Sansthan, Bakshi Ka Talab, Lucknow (respondent-4), which is a department of State of U.P. The petitioners filed an objection (registered as Case No. 61 of 2007-08) under section 9-A of the Act for recording its name over the land in dispute. It has been stated by the petitioners that land in dispute was previously holdings of private tenure holders and acquired by State of U.P. under the provisions of Land Acquisition Act, 1894. On possession being taken over the acquired land, it was vested in State of U.P. free from all encumbrances. Hon''ble Governor, State of U.P. created a grant of the land in dispute in favour of the petitioners through registered deed dated 26.4.1965 under the provisions of Government Grants Act, 1895. The petitioner occupied the land in dispute in term of the grant dated 26.4.1965 and is continuing in possession of it. It has been illegally recorded in the name of Gram Sewak Prashikshan Kendra, Kshetriya Gram Vikas Sansthan without any order of competent authority and without giving opportunity of hearing to the petitioners. The objection of the petitioners was contested by respondent-4, who stated that the land in dispute was recorded in the name of Gram Sewak Prashikshan Kendra, Kshetriya Gram Vikas Sansthan, since before the date of vesting. Land in dispute was granted to the petitioner for a period of three years and grant was never renewed after three years as such, right if any, of the petitioner has already came to an end. The petitioner filed the copy of grant dated 26.4.1965 and examined Uma Kant Mishra and Bhagwati Singh as their witnesses. On behalf of respondent-4, A.B. Srivastava was examined. The Consolidation Officer, after hearing the parties, by order dated 8.2.2008 held that grant dated 26.4.1965 was given to the petitioners with condition to develop the land for the purposes, for which it was granted, within three years. There is nothing on record to prove that grant was ever renewed. Period of three years has already come to an end as such at present the petitioners have no right over the land in dispute and their names cannot be recorded over it. According to section 3(2-a), provisions of the Act are not applicable to the land in dispute. Although the petitioners are in possession of the land in dispute but on the basis of possession, no right can be granted over Government land. Land in dispute was recorded as Government land in last consolidation and there is no illegality in the entry. On these findings objection of the petitioners was dismissed.

The petitioners filed an appeal (registered as Appeal No. 987/726) from the aforesaid order. The appeal was heard by Settlement Officer Consolidation, who by dated 17.7.2008, confirmed the findings of Consolidation Officer and dismissed the appeal. The petitioners filed a revision (registered as Revision No. 388) from aforesaid order, which was dismissed by Deputy Director of Consolidation, by order dated 28.8.2010. Hence W.P. No. 659 (Consolidation) of 2010 has been filed.

I have considered the arguments of the Counsel for the parties and examined the record. According to the petitioners land in dispute was previously holdings of private tenure holders and was acquired by State of U.P. under the provisions of Land Acquisition Act, 1894. On the possession being taken over the acquired land, it was vested in State of U.P. free from all encumbrances. Hon''ble Governor, State of U.P., through registered deed dated 26.4.1965, created a grant of the land in dispute in favour of the petitioners under the provisions of Government Grants Act, 1895. The petitioner occupied the land in dispute in terms of the grant dated 26.4.1965 and is continuing in possession of it. The petitioners became ''Government lessee'' under Section 133-A of U.P. Act No. 1 of 1951. In previous consolidation, the land in dispute was wrongly recorded in the name of respondents. While case of respondent-4 is that land in dispute was recorded in the name of "Gram Sewak Prashikshan Farm" in previous consolidation record, corresponding to the year 1371 F. Previous consolidation came to an end by notification under Section 52 of the Act dated 8.2.1964. The village was again placed under consolidation operation in the year 1994, while objection of the petitioner was filed in 2002 for the first time for recording their names on the basis of grant dated 26.4.1965. As the petitioners could not comply with the terms of the grant within period of three years as such right of the petitioners, if any, came to an end. Learned Additional Chief Standing Counsel placed reliance over the judgments of Supreme Court in Sri Nath Singh v. Board of Revenue U.P., 1968 RD 325 and Hira Lal v. Gajjan, 1990 RD 55 (SC) in which it has been held that a sub-tenant in possession of the land in dispute acquired adhivasi right under section 20 of the U.P. Act No. 1 of 1951. As in this case, it has been found by the consolidation authorities that the petitioners had been in possession over the land in dispute as such the case law relied upon by Additional Chief Standing Counsel does not help the respondents. Otherwise also no one claimed adhivasi right under section 20.

Previous consolidation operation was finalized by notification dated 8.2.1964, under section 52 of the Act. Respondent-4 is a department of State of U.P. as such is bound by act of the Government as well as the grant dated 26.4.1965. Respondent-4 has failed to prove as to how the land in dispute was recorded in its name. Even if, it is found that name of respondent-4 was rightly recorded in previous consolidation record, then also subsequent grant created by Hon''ble Governor of State of U.P. in favour of the petitioners will prevail. Respondent-4 could not deny execution of grant dated 26.4.1965, execution of which has been otherwise proved by the petitioners. Admittedly, the petitioners are in possession over the land in dispute, on its basis. Thus there is absolutely no basis for recording the land in dispute in the name of respondent-4.

The consolidation authorities held that according to the terms of the grant, the petitioners were required to develop the land for the purposes, for which it was granted to the petitioners within a period of three years but they failed to develop it and the grant was never renewed after three years as such it had expired after three years. Findings of the consolidation authorities in this respect are incorrect. The grant is not for a period of three years. In clause-1 of the grant, it has been mentioned that grant is for ever from 26.4.1965, which is quoted below:--

"1. In consideration of the sum of Rs. 8069.16 (Rs. Eight thousand sixty nine + paisa sixteen only) paid by second party to the first party, the receipt of which the first party hereby acknowledges, the first party as owner hereby transfers to the second party all that land described in Schedule I hereto and for greater clearance delineated or shown on the plan hereto annexed and thereon shown with its boundary coloured in red to held the same unto the second party forever from the 26th day of April, 1965 subject to the conditions herein contained."

Under clause 2(b) of the grant, the second party was required to develop and use the land for the purposes for which it was granted within three years (with right of one year extension and maximum three years). Under clause 2(e) first party was given right of re-entry in breach of any conditions. Admittedly grant was not revoked for breach of any condition by State Government, in exercise of powers under clause 2(e). Thus although the grant was a permanent grant but consolidation authorities have illegally held that it was only for a period of three years.

So far as the arguments that under section 3(2-a) of the Act, the land cannot be included in consolidation area, is concerned, this Court in Munendra Vishwas v. State of U.P., 2009 (108) RD 549 held in case, village has been placed under consolidation operation, then even if a particular the land in not included in consolidation area, consolidation authorities have right to decide the title of the land. On the one hand, respondent-4 is relying upon the consolidation papers for the purposes of its title but at the same time for the purposes of deciding title of the petitioners over the land in dispute it was held that it has no jurisdiction. In view of aforesaid discussion, it is held that grant dated 26.4.1965 executed by Hon''ble Governor of State of U.P. in favour of the petitioners is permanent grant and the petitioners name is liable to be recorded over the land in dispute as Government Lessee. In the result writ petition succeeds and is allowed. The orders of Consolidation Officer (respondent-3) dated 8.2.2008, Settlement Officer Consolidation (respondent-2) dated 17.7.2009, and Deputy Director of Consolidation (respondent-1) dated 28.8.2010 are set aside. The respondents are directed to record the name of the petitioners over the land in dispute as ''Government Lessee'', within a period of two months.