# Assurance company, Shimla v. Kamla 2001

- **Citation:** (2014) 3 ILRA 1465
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-12-23
- **Case number:** Civil Misc. Writ Petition No. 6429 of 1983
- **Bench:** Bala Krishna Narayan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/assurance-company-shimla-v-kamla-2001-43045
- **Pages:** 10

## Headnote

Addl. C.S.C., Sri Manoj Kumar Yadav, Sri
Ajay Shankar
U.P. Consolidation of Land Holdings ActSection-9-A-Jurisdiction
of
consolidation
authorities-plot in question being recorded
as Talab and Bhita-not covered within the
definition of agricultural land-consolidation
authorities-have no jurisdiction to decide
any
claim-C.O.-directed
the
name
of
petitioner be struck down and record with
name of Gaon Sabha SOC-set-a-side the
order
being
without
jurisdiction-DDC
wrongly interfered with the order of ASOC
and restoring the order of consolidation
officer-petition allowed.
Held: Para-16
Thus the Division Bench of this Court in
Triloki Nath (supra) after examining the
relevant provisions of U. P. C. H. Act and
the law on the issue has clearly held that
area which is put to a different use other
than agriculture would not be covered by
the definition of the word 'land' and
therefore, the provisions of U. P. C. H.
Act would not apply and the land not
covered by the provisions of U. P. C. H.
Act cannot be the subject matter of a
dispute before the Consolidation Courts
and such Courts will have no jurisdiction
to decide the question of title between
the parties thereto. The Division Bench
further
held
that
the
consolidation
Courts will have no power to adjudicate
upon any claim for correction of record
of rights pertaining to an area not
coming within the circumscribed limit
over which the consolidation courts have
been given jurisdiction to adjudicate
upon.
Case Law discussed:
1982 All. L.J. 1113; 1977 AWC 1 FB; 2000 (91)
RD 531 (SC); 2001 (92) RD 689; 2009 (107)
RD 695; 2009 (108) RD 29.

## Text

3 All]. Chhote Lal alias Chhattoo Ram & Anr. Vs. D.D.C. Varanasi & Ors.
1465
exercise of its power under Article 142 of
the Constitution of India does not
constitute a binding precedent as they are
directions for the proper administration of
justice so as to do the complete justice
between the parties but the question is
whether the directions of the Supreme
Court to pay and recover given to the
insurer are under Article 141 or 142 of the
Constitution of India.
7.
The Supreme Court in New India
Assurance company, Shimla Vs. Kamla 2001
(2) TAC 243 (SC) probably for the first time
while considering the liability of the insurer
vis-a-vis the owner of the vehicle considering
the various provisions of the Act held that
when there is a valid insurance policy in
connection with a particular vehicle, the
burden is upon the insurer to compensate the
third party irrespective of any breach or
violation of the conditions of the policy but
may recover the said amount from the insured
policy holder. The court therefore directed the
insurer to first pay and then to recover the
amount from the owner of the vehicle. The
aforesaid direction of the Supreme Court was
under Article 141 of the Constitution of India
and not by way of doing complete justice
between the parties under Article 142 of the
Constitution of India.
8. The aforesaid decision has the
approval of the three Judges Bench of the
Supreme Court in National Insurance
Company Limited Vs. Swarn Singh and
others 2004 (1) TAC 321.
9. Recently, the Supreme Court in
Manager National Insurance Company
Limited Vs. Saju P. Paul and another
2013 (1) TAC 414 (SC) irrespective of the
fact that the Division Bench of the Supreme
Court in some matter has referred the
question regarding liability of the insurance
company to first pay the compensation and
then to recover it from the owner held that
the principal which has been followed for
long regarding first pay and then recover, can
not be held to be unjustified.
10. It is settled law that mere
reference of any question of law to a
larger bench would not have the effect of
disturbing the law which has been settled
by the court until and unless the reference
is answered to the contrary.
11. The principle where the vehicle is
covered by insurance policy, the insurer is
liable to compensate the loss in the first
instance and then may recover the amount
from the owner of the vehicle in case of
breach of any conditions of the policy, as
such is binding precedent laid down under
Article 141 of the Constitution of India and is
not by way of special circumstances to do the
complete justice under Article 142 of the
Constitution of India.
12. Accordingly, the above principle is
a binding principle. I am therefore of the
view that the appellant insurance company is
not a party aggrieved by the impugned award
so as to maintain the appeal.
13. Accordingly, the appeal is
dismissed as not maintainable.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.12.2014
BEFORE
THE HON'BLE BALA KRISHNA NARAYAN, J.
Civil Misc. Writ Petition No. 6429 of 1983
Chhote Lal alias Chhattoo Ram & Anr.
 ...Petitioners
Versus
1466
 INDIAN LAW REPORTS ALLAHABAD SERIES
D.D.C., Varanasi & Ors.
...Respondents
Counsel for the Petitioners:
Sri N.C. Rajvanshi, Sri V.C. Shukla
Counsel for the Respondents:
Addl. C.S.C., Sri Manoj Kumar Yadav, Sri
Ajay Shankar
U.P. Consolidation of Land Holdings ActSection-9-A-Jurisdiction
of
consolidation
authorities-plot in question being recorded
as Talab and Bhita-not covered within the
definition of agricultural land-consolidation
authorities-have no jurisdiction to decide
any
claim-C.O.-directed
the
name
of
petitioner be struck down and record with
name of Gaon Sabha SOC-set-a-side the
order
being
without
jurisdiction-DDC
wrongly interfered with the order of ASOC
and restoring the order of consolidation
officer-petition allowed.
Held: Para-16
Thus the Division Bench of this Court in
Triloki Nath (supra) after examining the
relevant provisions of U. P. C. H. Act and
the law on the issue has clearly held that
area which is put to a different use other
than agriculture would not be covered by
the definition of the word 'land' and
therefore, the provisions of U. P. C. H.
Act would not apply and the land not
covered by the provisions of U. P. C. H.
Act cannot be the subject matter of a
dispute before the Consolidation Courts
and such Courts will have no jurisdiction
to decide the question of title between
the parties thereto. The Division Bench
further
held
that
the
consolidation
Courts will have no power to adjudicate
upon any claim for correction of record
of rights pertaining to an area not
coming within the circumscribed limit
over which the consolidation courts have
been given jurisdiction to adjudicate
upon.
Case Law discussed:
1982 All. L.J. 1113; 1977 AWC 1 FB; 2000 (91)
RD 531 (SC); 2001 (92) RD 689; 2009 (107)
RD 695; 2009 (108) RD 29.
(Delivered by Hon'ble Bala Krishna
Narayan, J.)
1. Heard Sri N. C. Rajvanshi, Senior
Advocate assisted by Sri V. C. Shukla,
learned counsel for the petitioner, Sri
Manoj Kumar Yadav, learned counsel for
the Gaon Sabha and Sri Ajay Shankar,
learned counsel for the respondent no. 5
and
Sri
Sanjay
Goswami,
learned
Additional Chief Standing counsel for
respondent nos. 1, 2 and 3.
2. The dispute involved in the present
writ petition relates to Plot Nos. 101/1 area
1.69 acres and plot No. 102, area 1.23 acres
situated
in
village-Barsara,
parganaKatehar,
district-Varanasi
(hereinafter
referred to as 'the disputed plots').
3. In the basic year khatauni the
disputed plot No. 101/1 was recorded in
the names of the petitioners in Zaman 4
(occupant without title) and plot No. 102
was recorded as Talab in Zaman 6. Upon
commencement
of
consolidation
operations in the village where the
disputed plots are situate, the petitioners
filed
two
objections
before
the
Consolidation Officer under Section-9 (A)
(2) of the U. P. Consolidation of Holdings
Act (hereinafter referred to as the 'C. H.
Act') in respect of the disputed plots. With
regard to the disputed plot no. 101/1 the
petitioners' claim before the Consolidation
Officer was that out of the total area of
1.69 acres of the aforesaid plot, 10
decimal area was being used by them as
Abadi. They prayed that after demarcating
10 decimal area from plot no. 101/1,
petitioners be declared as bhumidhars of
the remaining area of the aforesaid plot.
Vis-a-vis plot no. 102, which was
admittedly recorded as talab, they alleged
that they were owners thereof on the
3 All]. Chhote Lal alias Chhattoo Ram & Anr. Vs. D.D.C. Varanasi & Ors.
1467
strength of a sale-deed dated 18.1.1960
executed in their favour by its erstwhile
zamindars Vishwanath, Nand Lal and
Purushottam. Respondent nos. 5 and 6
also
filed
objections
before
the
Consolidation Officer with the prayer that
the names of the petitioners recorded in
the basic year khatauni in Zaman 4 be
expunged and disputed plots which were
in the nature of bhita and talab, be
recorded as property of Gaon Sabha. All
the objections were considered and
decided by the Consolidation Officer by
his common judgement and order dated
21.8.1978 (Annexure 5 to the writ
petition). The Consolidation Officer after
taking into consideration the entire
evidence adduced by the parties before
him held that no bhumidhari rights could
accrue in favour of the petitioners in the
disputed plot No. 101/1 which was in the
nature of bhita and talab and directed for
expunging the entry of occupier of the
disputed plot existing in favour of the
petitioners in the basic year khatauni for
recording the same as property of Gaon
Sabha.
The
consolidation
Officer
maintained the basic year entry in respect
to plot no. 102. The Consolidation Officer
however, found that the petitioner were
the owners of the old trees existing on the
disputed plots.
4. Against the order dated 21.8.1978
the petitioners filed an appeal under
Section 11 (1) of the C. H. Act which was
numbered as Appeal No. 3084 before the
Assistant
Settlement
Officer
of
Consolidation-respondent
no.
2
and
allowed by him by his order dated
28.8.1981 (Annexure 7 to the writ
petition).
The
Assistant
Settlement
Officer of Consolidation held that once
the Consolidation Officer had come to the
conclusion that the disputed plots were in
the nature of bhita and talab, he should
have refrained from passing any order for
correction of record of rights pertaining
thereto as the area comprised in the
disputed plots did not come within the
circumscribed limit over which the
Consolidation courts had jurisdiction to
adjudicate. The respondent no. 2 by his
order, after setting aside the order of the
Assistant
Settlement
Officer
of
Consolidation, restored the basic year
entries, with liberty to the parties to get
their rights in respect of the disputed plots
declared by a competent court. The order
dated 28.8.1981 was assailed by the
respondent nos. 5 and 6 by filing a
revision under Section 48 (1) of the C. H.
Act before the respondent no. 1 which
was numbered as Revision No. 3110 and
allowed by him by his order dated
6.4.1983 (Annexure 9 to the writ
petition). The respondent no. 1 while
allowing the revision No. 3110 set aside
the order of the Assistant Settlement
Officer of Consolidation and restored that
of the Consolidation Officer.
5. The petitioners by means of this
writ petition have prayed for issuing a
writ, order or direction in the nature of
certiorari
quashing
the
order
dated
6.4.1983 passed by the Deputy Director of
Consolidation, Varanasi (Annexure 9 to
the writ petition).
6. Sri N. C. Rajvanshi, learned
counsel appearing for the petitioners
submitted that the Revision No. 3110
preferred by the respondent nos. 5 and 6
in their capacity as members of the Gaon
Sabha claiming themselves to be the
members of Ramleela committee of the
village, which itself was an un-registered
body, without any authority of Land
Management Committee as contemplated
1468
 INDIAN LAW REPORTS ALLAHABAD SERIES
under Rule 110 A of U. P. Z. A. & L. R.
Rules, 1952 and para 128 of Gaon Sabha
Manual was not maintainable and wholly
incompetent. They had no locus standi to
challenge the order of the Assistant
Settlement Officer of Consolidation and
hence the impugned order passed by the
respondent no. 1 allowing the revision of
the respondent nos. 5 and 6 is totally
without jurisdiction.
7. He next submitted that the
Assistant
Settlement
Officer
of
Consolidation had rightly allowed the
appeal preferred by the petitioners against
the order of the Consolidation Officer
rejecting their claim to be recorded as
bhumidhars of the disputed plots for the
reason that the disputed plots were in the
nature of bhita and talab in which no
bhumidhari rights could accrue on the
ground that the Consolidation Officer had
no jurisdiction to make an order for
expunging the entry of occupier of the
disputed plot no. 101/1 existing in
petitioners' favour in the basic year
khatauni and for correction of record of
rights, relating to land unconnected with
agriculture. He next submitted that the
respondent no. 2 while allowing the
petitioners' appeal had rightly restored the
basic year entries with liberty to the
parties to get their rights in respect of
disputed plots declared by a competent
court,
the
revisional
court
clearly
exceeded its jurisdiction in interfering
with the order of the Assistant Settlement
Officer of Consolidation and restoring
that of the Consolidation Officer by the
impugned order passed by him in a totally
incompetent
revision
preferred
by
respondent nos. 5 and 6 against the order
of the Assistant Settlement Officer of
Consolidation. In support of his aforesaid
contention, learned counsel for the
petitioners has relied upon a Division
Bench of this Court reported in 1974 RD;
Triloki Nath Versus Ram Gopal and
others, 1982 All. L. J. 1113.
8. Per contra, Sri Ajay Shankar,
learned
counsel
appearing
for
the
respondent no. 5 submitted that the
respondent nos. 5 and 6 were fully
competent to file Revision No. 3110
against the order of the Assistant
Settlement Officer Consolidation in their
capacity as the members of the Gaon
Sabha and the submissions to the contrary
made
by
learned
counsel
for
the
petitioners are totally misconceived.
9. He further submitted that even if
it is assumed, though without admitting,
that the revision preferred before the
Deputy
Director
of
Consolidationrespondent no. 1 was not maintainable at
the behest of respondent nos. 5 and 6, the
same was not liable to be dismissed on the
aforesaid ground in view of the settled
law on the issue as propounded by a Full
Bench of this Court in the case of Amir
Hussain Versus D. D. C., Moradabad and
others reported in 1977 AWC 1 FB that
the Consolidation Authorities can validly
direct the name of Gaon Sabha or State
Government to be recorded when they
find that there is no valid title holder and
that under the law the land had vested in
the State Government and then in the
Gaon Sabha even though Government or
Gaon Sabha has not filed any objection.
Advancing his arguments further, Sri
Ajay Shankar submitted that since the
disputed plots were concurrently found by
the respondent nos. 3, 2 and 1 to be in the
nature of bhita and talab and the
petitioners had failed to establish that they
were
entitled
to
be
recorded
as
bhumidhars of the disputed plots, neither
3 All]. Chhote Lal alias Chhattoo Ram & Anr. Vs. D.D.C. Varanasi & Ors.
1469
the Consolidation Officer nor the Deputy
Director of Consolidation can be said to
have committed any error in holding that
the names of the petitioners recorded in
Zaman 4 in the basic year khatauni, were
liable to be expunged and the disputed
plots were liable to be recorded as navin
parti and talab in zaman 6 respectively.
The impugned order which is based upon
relevant considerations and supported by
cogent reasons requires no interference by
this Court.
10. I have very carefully considered
the submissions made by learned counsel
for the parties and perused the material
brought on record and the law reports
cited on behalf of learned counsel for the
parties in support of their respective
contentions.
11. There is no dispute about the
fact that in the basic year khatauni both
the plots were recorded in Zaman 6 which
has been defined in para A-124, sub-para
(6) of U. P. Land Records Manual as
barren land (i) covered with water; (ii)
sites, roads, railways, buildings and other
lands put to non-agricultural uses; (iii)
grave-yards and cremation grounds other
than those included in land held by
tenure-holders or in the abadi area; (iv)
otherwise barren including the land which
cannot be brought under cultivation
without incurring high cost. Barren land
also includes the land held by the Union
of India, State Government, Gaon Sabha
or any other local authority entered under
Class (5) or class (6) shall be recorded in
the name of respective departments of the
Union
of
India
or
of
the
State
Government, or the Gaon Sabha or local
authority as the case may be, to denote the
administrative control and management.
Upon coming into force of U. P. Z. A. &
L. R. Act the land vested in the State and
thereafter in the Gaon Sabha.
12. In my opinion, without going
into the issue whether the respondent nos.
5 and 6 had any locus to file a revision
against the order of the Assistant
Settlement Officer of Consolidation by
which he had allowed the appeal preferred
by the petitioners against the order of the
Consolidation Officer, this writ petition is
liable to be allowed on the second ground
on which the petitioners have challenged
the impugned order passed by the
respondent no. 1.
13. There is no dispute that in the
basic year petitioners were recorded as
occupiers of plot No. 101/1 in Zaman 4
while plot No. 102 was recorded in
Zaman 6 as talab.
14. The Division Bench of this
Court in the case of Triloki Nath (supra)
had an occasion of dealing with the
question of jurisdiction of consolidation
authorities and courts to decide the
question of title between the parties
relating to land or a holding used for the
purposes unconnected with agricultural
and to adjudicate upon the claims for
correction of the record of rights relating
to
areas
not
coming
within
the
circumscribed
limit over which the
consolidation courts have been given
jurisdiction to adjudicate.
15. The Division Bench in paras 9
and 13 of aforesaid judgement has held as
hereunder:
"9. From the perusal of the aforesaid
definitions there can be no doubt that the
provisions of Consolidation of Holdings
Act can be made applicable only to that
1470
 INDIAN LAW REPORTS ALLAHABAD SERIES
area which is covered by the definition of
the word 'land' and with respect to which
a Notification may subsequently be issued
under Section 5 of the Consolidation of
Holdings Act. The land as defined above
is narrow in its application and refers to
that area alone which is used for
agricultural purposes etc. If any area is
used for purposes other than agriculture,
horticulture etc. it would not be covered
by the definition of the word 'land' and as
such the provisions of the Consolidation
of Holdings Act cannot apply to that area.
Section 5 (1) of the Consolidation of
Holdings Act speaks of the consequences
which would ensure on publication of
Notification under Section 4 (2) of the
Act. Under Sub-section (C) (i) of Section
5 (1) of the Consolidation of Holdings
Act, a tenure holder is forbidden from
using his holding or any part thereof for
purposes not connected with agriculture,
horticulture
or
animal
husbandry
including
pisciculture
and
poultry
farming. If the tenure-holder desires to
use it for non-agriculture purposes, he can
only do so with the permission of the
Settlement Officer (Consolidation), that is
to say that so long as the holding is
utilised by a tenure holder for agricultural
purposes etc. the provisions of the
Consolidation of Holdings Act would
apply, but once the tenure holder decides
otherwise he has got to apply to
Settlement Officer (Consolidation) for
obtaining permission for the user of his
holding in the manner permitted under the
provisions
of
this
Act.
Once
the
Settlement Officer grants that permission,
that area will cease to be holding within
the definition of that term as laid down
above. As soon as it ceases to be holding
by virtue of its use for the purpose other
than contemplated under this Act, the
Settlement Officer will have no further
jurisdiction to deal with that specified
area which would thereafter be emanable
to his jurisdiction of the Revenue or the
Civil Courts as the case may be. That area
in our opinion, would thence forward be
excluded from consolidation operations.
Counsel for the applicant in support of his
submission referred to above relied upon
a Single Judge decision of this Court
reported in Alauddin alias Makki Versus
Hamid Khan (1) In that case, the learned
Single
Judge
was
considering
the
provisions of Section 143 of the Z. A. Act
when a Bhumidhar uses holding for the
purpose not connected with agriculture,
horticulture etc. He has to make an
application to the Assistant Collector who
after making an enquiry makes a
declaration to that effect. After making of
the declaration, that area is demarcated.
On the making of the declaration as
aforesaid, the provisions of Ch. 8 of the Z.
A. Act ceases to apply the Bhumidhar and
under sub-section (2) of Section 143
devolution of such land of the Bhumidhar
which has been demarcated is governed
by the personal law to which he is subject.
The learned Single Judge has taken the
view that unless the declaration has been
granted by the Assistant Collector, the
holding of Bhumidhar would continue to
remain his holding even though a part of
it is used for non-agricultural purposes.
The result in effect of this decision is that
even though a part of the holding of a
Bhumidhar is used for non-agricultural
purposes,
its
devolution
would
be
governed by the provisions of the Z. A.
Act. It is only when the declaration has
been granted, as mentioned above, and
demarcated, that the course of the
devolution is changed and the devolution
of land not used for agricultural purpose
is governed by the personal law to which
the Bhumidhar may be subject. The ruling
3 All]. Chhote Lal alias Chhattoo Ram & Anr. Vs. D.D.C. Varanasi & Ors.
1471
relied upon by the acceptable so far as
provisions of Z. A. Act are concerned but
it cannot apply to the provisions contained
in the Consolidation of Holdings Act. As
mentioned above the Consolidation of
Holdings Act merely permits the use of a
holding by tenure holder for purposes
unconnected with agriculture etc. subject
to permission being granted by the
Settlement Officer. It may also be noted
that the proviso to Section 5 also lays
down that a tenure holder may continue to
use his holding or any part thereof for any
purpose for which it was in use prior to
the date prescribed in the Notification
under the said Act. Thus from a reading
of this proviso also it is clear that this Act
contemplates user of the holding or part
thereof for purposes not connected with
agriculture provided it was under such
case before the notification issued under
Consolidation of Holdings Act or was
permitted such use under the provisions of
the Act. In our opinion the use of the
holding for purposes unconnected with
agriculture whether permitted under the
Act or whether commenced before the
enforcement of this Act, in either case that
area which is put to a different use other
than agriculture etc. would not be covered
by the definition of the word 'land' and
therefore, the provisions of this Act would
not apply. In our opinion, therefore, land
not covered by the provisions of the
Consolidation of Holdings Act cannot be
the subject matter of a dispute before the
Consolidation Courts and the said Courts
will have no jurisdiction to decide the
question of title between the parties
thereto. In the case before use the facts
clearly demonstrate that both parties were
claiming title to the disputed plots on the
basis of different deeds of transfer. One
party Ramgopal claimed title on the basis
of deeds executed between the years 1951
and 1956 while Triloki Nath claimed title
on the basis of a transfer deeds of 1963
after the publication of the Notification
under Section 4 (2) of the Consolidation
Act with respect to the Area. In the
circumstances such a dispute was not
justifiable by the consolidation courts."
10. .................
11. .................
12. ................
13. It cannot be doubted that the
provisions of Section 9 to Section 11 of
the Consolidation of Holdings Act refer to
the correction of records of rights. In our
opinion,
the
procedure
prescribed
thereunder can only apply provided the
area which is the subject matter of dispute
fulfills the requirements of the definition
of the word 'land' as envisaged in the Act.
We do not find anything in these sections
which would empower the consolidation
courts to correct their records of rights
even with respect to those areas which do
not come within the purview of the
definition of land as contemplated by the
Consolidation of Holdings Act. Needless
to repeat that, the object of the Act is rearrangement of the holdings which in
terms means the arrangement of land, that
is an area used for purpose of agriculture,
horticulture, pisciculture etc. If the area
does not come within the circumscribed
limit over which the consolidation courts
have been given jurisdiction to adjudicate,
in our view they will have no power to
adjudicate
upon
such
claims
for
correction of their records. Such a
correction can only be effected by
consolidation courts or by District Deputy
Director of Consolidation as mentioned in
Section 5 (a) after the rights of the parties
have been decided by a competent court.
In this view of the matter, we are not
inclined to agree with the submission
made by counsel for the appellant that
1472
 INDIAN LAW REPORTS ALLAHABAD SERIES
because a duty is cast upon the Deputy
Director of Consolidation to maintain the
records of rights, he should be presumed
to have jurisdiction to decide disputes and
questions of title with respect to those
areas which are not covered by the
provisions of this Act."
16. Thus the Division Bench of this
Court in Triloki Nath (supra) after
examining the relevant provisions of U. P.
C. H. Act and the law on the issue has
clearly held that area which is put to a
different use other than agriculture would
not be covered by the definition of the
word 'land' and therefore, the provisions
of U. P. C. H. Act would not apply and
the land not covered by the provisions of
U. P. C. H. Act cannot be the subject
matter
of
a
dispute
before
the
Consolidation Courts and such Courts
will have no jurisdiction to decide the
question of title between the parties
thereto. The Division Bench further held
that the consolidation Courts will have no
power to adjudicate upon any claim for
correction of record of rights pertaining to
an
area
not
coming
within
the
circumscribed limit over which the
consolidation courts have been given
jurisdiction to adjudicate upon.
17. Sri Ajay Shankar, learned
counsel for the respondent no. 5 relying
upon the Full Bench decision of this
Court rendered in the case of Amir
Hussain supra) has tried to submit that the
consolidation
authorities
can
validly
direct the name of gaon sabha or State
Government to be recorded when they
find that there is no valid title holder and
that under the law the land had vested in
the State Government and then in the
Gaon Sabha even though Government or
Gaon Sabha has not filed any objection.
18. Learned counsel for the respondent
nos. 5 and 6 has tried to impress upon the
Court that since the disputed plots were in
the
nature
of
talab
and
bhita,
the
Consolidation Officer had rightly expunged
the entry of occupant recorded in favour of
the petitioners in the basic year and directed
the disputed land to be recorded as talab and
bhita and the Assistant Settlement Officer of
Consolidation had clearly exceeded his
jurisdiction in allowing the appeal of the
petitioners preferred by them against the
order of the Consolidation officer and in
restoring the basic year entries and the
revisional court rightly corrected the mistake
committed by the Assistant Settlement
Officer Consolidation by his order by which
he had allowed the revision of the respondent
nos. 4 and 5 filed by them against the
appellate order.
19.
The Full Bench decision of this
Court rendered in the case of Amir Hussain
(supra), in my opinion, cannot be said to be
an authority on the issue, for the simple
reason that the question referred to the Full
Bench was whether the consolidation
authorities can validity direct the name of
the gaon sabha or the State Government to
be recorded when they find that there is no
valid title holder and under the law the land
had vested in the State Government and
then in the Gaon Sabha even though the
Government or the Gaon Sabha has not
filed any objection. The other question
referred to the Full Bench is not relevant for
our purposes. The Full Bench was not
dealing with the issue regarding the
jurisdiction of the consolidation authorities
to decide a dispute between the parties
relating to a land which was not being used
for any non-agricultural purpose.
20. The other decision relied upon
by Sri Ajay Shankar reported in 2000 (91)
3 All]. Chhote Lal alias Chhattoo Ram & Anr. Vs. D.D.C. Varanasi & Ors.
1473
RD 531 (SC); Ram Murat Versus DDC
and others, is also of no help to the
answering respondents for the simple
reason that in the case of Ram Murat
(supra) the objection filed by Ram Murat
under Section 9A (2) of U. P. C. H. Act
claiming sirdari rights over the land which
was recorded as talab and pasture land,
was allowed by the Consolidation Officer.
Although the order of the Consolidation
Officer had attained finality but when the
aforesaid fact was brought to the notice of
the Deputy Director of Consolidation on
the application of the members of the land
management committee, he directed for
expunging the name of Ram Murat and
restored the basic year entries. The order
of the Deputy Director of Consolidation
was confirmed by the High Court. On
appeal, the Apex Court held that the
consolidation authorities have a duty to
protect the interest of gaon sabha. In the
aforesaid case the issue of jurisdiction of
consolidation authorities to decide title
dispute in respect of land not covered by
the ambit of the definition of land given in
the U. P. C. H. Act, was not being
examined by the Apex Court.
21. The third case relied upon by
learned counsel for the respondent no. 4 is
Hinch Lal Tiwari Versus Kamla Devi
reported in 2001 (92) RD 689, is also of
help no to the answering respondents. The
issue before the Apex court in the case of
Hinch Lal Tiwari (supra) was whether the
cancellation of allotment of land made for
the purpose of use of building which
formed part of pond by the Additional
Collector by his order dated 25.2.1999
which was set aside in appeal by the
Divisional Commissioner but maintained
in part by this Court in writ petition
preferred by the aggrieved allottees, could
be sustained. The apex court allowed the
appeal of the State Government holding that
no part of pond could be allotted to anybody
for construction of house and confirmed the
order of the Divisional Commissioner and
directed the respondents-allottes to vacate the
land within six months and a further
direction was given to the State government
to restore the pond and develop and maintain
the same.
22. Learned counsel for the
respondent no. 4 also placed reliance
upon Dheeraj Versus D. D. C. and others
reported in 2009 (107) RD 695 as well as
Mohan and another Versus D. M. /
Collector and others reported 2009 (108)
RD 29.
23. None of the aforesaid decisions
have dealt with the issue involved in this
writ petition.
24. For the aforesaid reasons and in
view the settled law on the issue as
propounded by the Division Bench of this
Court in the case of Triloki Nath (supra)
the impugned order dated 6.4.1983 cannot
be sustained and is liable to be quashed.
The respondent no. 1 exercised his
jurisdiction with material irregularity in
interfering with the order passed by the
Assistant
Settlement
Officer
of
Consolidation dated 28.8.1981 which is
based upon the sound principles of law
and supported by cogent reasons and in
restoring the absolutely illegal order
passed by the Consolidation Officer.
25. Accordingly, this writ petition
succeeds and is allowed. The impugned
order dated 6.4.1983 passed by the
Deputy Director of Consolidation in
Revision No. 3110 (Annexure 9 to the
writ petition) is quashed and the order
dated 28.8.1981 passed by the Assistant
1474
 INDIAN LAW REPORTS ALLAHABAD SERIES
Settlement Officer of Consolidation is
restored.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.12.2014
BEFORE
THE HON'BLE RAJAN ROY, J.
Civil Misc. Writ Petition No. 7143 of 2012
Rama Shanker Pandey
...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Manoj Kumar Upadhyay, Sri Anand
Mohan Pandey, Sri Prabha Shanker Pandey
Counsel for the Respondents:
C.S.C., Sri A.K. Srivastava, Sri Ranjan
Srivastava, Sri Yashwant Verma, Sri Sameer
Sharma
Constitution
of
India,
Art.-226Promotion on post of Sadar Munsarimcriteria for promotion-whether as per
provision of Rules 20(3) of subordinate
Civil Court Ministerial Establishment Rule
1947
or
U.P.
Government
Servant
Service
Criteria
for
Recruitment
or
promotion Rules 1994-applicable-heldas per law developed by Apex Court in
Om Prakash Shukla Case-rule framed by
government under Art. 309-provision of
U.P. Government Servant Seniority Rules
1991-would
cover
the
controversyobjection that in absence of pleadingabout such fundamental question-court
can not shut its eyes-nor omission on
part of petitioner can validate act of
respondent-selection
on
basis
of
seniority subject to rejection of unfitnot sustainable-petition allowed with
consequential direction.
Held: Para-23,24,27,28
23. A Division Bench of this Court in
the case of Omvir Sharma (Supra) was
seized with a similar issue i.e. whether
the criteria for determination of seniority
as laid down in 'Rules 1947' would be
applicable or the criteria laid down in the
U.P.
Government
Servants
Seniority
Rules, 1991 would apply to the cadre of
service in the District Courts and after
considering the relevant provisions and
relying
upon
the
judgment
of
the
Supreme Court in Om Prakash Shukla's
case AIR 1986 (SC) 1043, it also came to
the conclusion that seniority will have to
be determined as per the Seniority Rules
of 1991 framed under the Rule making
power of the Governor under Article 309
and not 'Rules of 1947, made under the
Government of India Act, 1935, in view
of the inconsistency, therefore, the view
taken in this case is supported by the
said Division Bench judgment also.
24.
In this context, I am not able to
accept the submissions of Sri Sameer
Sharma for the reason, firstly, the terms
and conditions of service including the
criteria of promotion is to be governed by
the rules made by the competent authority
and not by the consent of the parties nor by
alleged acquiescence of any party. The
issue of criteria for promotion goes to the
root of the matter. It was incumbent upon
the
selecting
authority,
as
also
the
appointing authority, to first of all, ascertain
the criteria of promotion and the Rule
relevant in this context, especially, when a
Division Bench of this Court in Omvir
Sharma
case
(Supra)
had
already
considered a similar issue relating to
seniority
and
vide
judgment
dated
13.07.2010 had already held that it is the
Seniority
Rules,
1991
issued
by
the
Governor, which would apply and not the
'Rules 1947' made under the Government
of India Act, 1935. Merely because this plea
has not been raised in the pleadings, the
Court cannot shut its eyes to such a
fundamental question nor can this omission
on the part of the petitioner, validate an
apparently
unsustainable
act
of
the
respondents.
27. The selection was based on
comparative assessment of merit of the
candidates by holding an interview and