Zinda (Deceased) And Others vs Deputy Director Of Consolidation/Addl. Collector, Haridwar & others

Sudhanshu Dhulia, J

This writ petition has been filed by the petitioners challenging the two orders. First is the order dated 04.03.2004 passed by Consolidation Officer, Roorkee Sadar, District Haridwar and the second is order dated 10.08.2004 passed by the Deputy Director of Consolidation/Additional Collector, Haridwar respectively, by which the exchange rates fixed by the Consolidation Officer vide its order dated 10.06.1992 has been set aside.

Consolidation proceedings were initiated for the Village Paluni (presently in Tehsil Bhagwanpur), District Haridwar under Section 14 of the Uttar Pradesh Consolidation of Holdings Act, 1953 (from hereinafter referred to as the "Act") in the year 1980 or so. Subsequently "chaks" were allotted and possession was given to the tenure holders. Meanwhile, when the consolidation proceedings were on, respondent no.3 moved an application under Section 9-A of the Act making certain claims regarding the holdings.

Section 9-A of the Act reads as under:-

"[9-A. Disposal of Cases relating to claims to land and partition of joint holdings. - (1) The Assistant Consolidation Officer shall -

(i) where objections in respect of claims to land or partition of joint holdings are filed, after hearing the parties concerned, and

(ii) where no objections are filed after making such enquiry as he may deem necessary, settle the disputes, correct the mistakes and effect partition as far as may be by conciliation between the parties appearing before him and pass orders on the basis of such conciliation.

[Provided that where the Assistant Consolidation Officer, after making such enquiry as he may deem necessary, is satisfied that a case of succession is undisputed, he shall dispose of the case on the basis of such enquiry.]

(2) All cases which are not disposed of by the Assistant Consolidation Officer under sub-section (1), all cases relating to valuation of plots and all cases relating to valuation of trees, wells or other improvements, for calculating compensation therefor, and its apportionment amongst co-owners, if there be more owners than one, shall be forwarded by the Assistant Consolidation Officer to the Consolidation Officer, who shall dispose of the same in the manner prescribed.

(3) The Assistant Consolidation Officer, while acting under sub-section (1) and the Consolidation Officer, while acting under sub-section (2), shall be deemed to be a Court of competent jurisdiction, anything to the contrary contained in any other law for the time being in force notwithstanding."

Section 9 of the Act is an important provision given under the Uttar Pradesh Consolidation of Holdings Act, 1953, by which corrections can be made only after hearing the objections and claims of all the concerned parties. This was, however, not done by the Consolidation Officer on the objection of the petitioner while passing the order dated 10.06.1992 as the other side were not heard. The category of land of the petitioner shown in Gata Nos.61/102/546/547/548 was fixed at the exchange rate of 50 paisa. Admitted case is that earlier the exchange rate of this land was 20 paisa.

The other affected parties were not aware of the order dated 10.06.1992 and on the basis of which subsequent entries were made. Thereafter as soon as the private respondent no.3 was aware of this order, he moved a restoration application for recalling the ex-parte order dated 10.06.1992 which was allowed by the Consolidation Officer vide order dated 04.03.2004 on ground that the private respondent no.3 was not heard. Against this order, the petitioner moved a revision before the revisional authority which was also dismissed vide order dated 10.08.2004. Aggrieved the petitioner has filed the present writ petition challenging the orders dated 04.03.2004 and 10.08.2004.

From the perusal of the orders dated 04.03.2004 and 10.08.2004 which are detailed orders, it is absolutely clear that what goes to the root of the matter is that the private respondent no.3 who was adversely affected by this change of the value of the land was not given any opportunity of hearing. The net consequence of the value of the land which has now been fixed (without giving any opportunity of hearing to the private respondent), is that whereas for the same nature of the land, the value has apparently increased (in case of the present petitioner) in the case of the private respondent, it has remained the same. This seems to be a fact. Private respondent was not heard by the Authority concerned while passing the order on 10.06.1992. The main concern of the two authorities which have passed the orders dated 04.03.2004 and 10.08.2004 respectively, which are under challenge before this Court, was also that the private respondent was not heard while order dated 10.06.1992 was passed.

Learned counsel for the petitioner has relied upon the full Bench decision of the Allahabad High Court in the case of Smt. Shivraji & others Vs Dy. Director of Consolidation, Allahabad & others passed in C.M.W.P No.4393 of 1980, where it has been held that consolidation authorities cannot recall their final orders. Learned counsel for the petitioner has further relied upon the fact that consolidation proceedings have now come to an end in the concerned area and has relied upon Section 52 of the Act which reads 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 operations have been closed in the [unit and the village or villages forming a 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 record 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 by such authorities, as may be prescribed, in the following manner, and the consolidation operation shall, for that 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.]"

Learned counsel for the petitioner would argue that in consequence of the said section, the proceedings now cannot be drawn before the consolidation officer.

Learned counsel for the private respondent, on the other hand, would argue that rights have to be decided in this matter which has not been done, and in support of his claim has relied upon the two decisions of the Allahabad High Court passed in the case of Kishan Sahai & others Vs. Dy. Director of Consolidation, Bulandshahr & others passed in C.M.W.P. No.27980 of 2004 and Ramanuj Tewari & others Vs. Deputy Director of Consolidation, Deoria and Others passed in C.M.W.P. No.21343 of 1990.

The fact, however, remains that this is not a case of review or recall. It is a simple case where the order has been passed without giving an opportunity of hearing to the private respondent. Under the law an opportunity of hearing has to be given to the private respondents, which they were denied. When the law gives an opportunity under Section 9-A of the Act to the private respondent that means an effective opportunity where the private respondent was liable to be heard. Therefore it is not a case for review or recall of the order.

Consequently, the writ petition stands dismissed.

Parties have a liberty to approach the relevant authority who will decide the matter after hearing all the stake holders.