# Basdev v. State of U.P. & Ors

- **Citation:** (2023) 9 ILRA 260
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-29
- **Case number:** Writ B No. 947 of 2023
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/basdev-v-state-of-u-p-ors-50757
- **Pages:** 22

## Headnote

Sri M.C. Chaturvedi (Addl. A.G.) assisted by
Sri Tejaswi Mishra (Brief Holder), Sri
Rameshwar Prasad Shukla, Sri Om Prakash
Pandey

Civil
Law
-
U.P.
Consolidation
of
Holdings Act, 1953 - Section 19-A(2) -
U.P.
Zamindari
Abolition
and
Land
Reforms Act, 1950 - Sections 117, 117-A
& 132 - U.P. Consolidation of Holdings
Rules, 1954 - Rule 24-A - Allotment -
Public use - Land in question was
earmarked
as
'pasture
land'
during
second
consolidation
proceedings
-
Under Section 19-A(2) of Act, 1953, such
land, earmarked for public purposes can
only
be
allotted
upon
recorded
satisfaction by Assistant Consolidation
Officer that such allotment is necessary
or expedient in circumstances - In
present case, neither any order of
allotment nor any document evidencing
such satisfaction has been brought on
record - Process of allotment cannot be
treated as mere formality, especially
when large area reserved for public use
has been distributed among several
petitioners - In absence of compliance
with
statutory
mandate,
allotments
made are vitiated due to procedural
irregularity and legal infirmity. Thus,
allotment orders set aside - Authority
may reconsider matter, status quo on
disputed land shall continue for three
months for fresh decision, if warranted.
(Para 28, 31)

Writ Petitions disposed of. (E-13)

List of Cases cited:

## Text

_Characters 0–39,854 of 74,724. This is a partial read: ask again with offset=39854 for what follows._

260 INDIAN LAW REPORTS ALLAHABAD SERIES
(2023) 9 ILRA 260
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.08.2023

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ B No. 947 of 2023
along with other connected cases

Basdev ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Jitendra Yadav

Counsel for the Respondents:
Sri M.C. Chaturvedi (Addl. A.G.) assisted by
Sri Tejaswi Mishra (Brief Holder), Sri
Rameshwar Prasad Shukla, Sri Om Prakash
Pandey

Civil
Law
-
U.P.
Consolidation
of
Holdings Act, 1953 - Section 19-A(2) -
U.P.
Zamindari
Abolition
and
Land
Reforms Act, 1950 - Sections 117, 117-A
& 132 - U.P. Consolidation of Holdings
Rules, 1954 - Rule 24-A - Allotment -
Public use - Land in question was
earmarked
as
'pasture
land'
during
second
consolidation
proceedings
-
Under Section 19-A(2) of Act, 1953, such
land, earmarked for public purposes can
only
be
allotted
upon
recorded
satisfaction by Assistant Consolidation
Officer that such allotment is necessary
or expedient in circumstances - In
present case, neither any order of
allotment nor any document evidencing
such satisfaction has been brought on
record - Process of allotment cannot be
treated as mere formality, especially
when large area reserved for public use
has been distributed among several
petitioners - In absence of compliance
with
statutory
mandate,
allotments
made are vitiated due to procedural
irregularity and legal infirmity. Thus,
allotment orders set aside - Authority
may reconsider matter, status quo on
disputed land shall continue for three
months for fresh decision, if warranted.
(Para 28, 31)

Writ Petitions disposed of. (E-13)

List of Cases cited:

1.
Shri
Ram
Vs
St.
of
U.P.
&
ors.,
2018:AHC:148669

2. Sita Ram Vs Deputy Director of Consolidation
& ors., 1982 All L.J. 76, (Para 18, 21)

3. Hari Ram Vs D.D.C., Azamgarh, 1989 RD 281

4. Gafoora Vs Deputy Director of Consolidation,
Meerut, (1975) 2 SCC 568, (Para 3)

5. Ram Bahadur Vs D.D.C. & ors., AIR 1973 ALL
414, (Para 2, 3)

6. Iqbal Ahamad & ors. Vs D.D.C. & ors., 2005
(3) AWC 2423 ALL, (Para 5, 7, 8 to 10)

7. Palakdhari Vs Gaon Sabha Devara, 2011 (3)
ADJ 251, (Para 8 to 11)

8. Ram Nihor Vs Additional Commissioner
(Admin.)
Vindhyanchal
Division,
2014:AHC:183012

9. Sheo Nand & ors. Vs D.D.C., Allahabad & ors.,
(2000) 3 SCC 103, (Para 5, 20, 21)

10. Babu Lal Vs D.D.C., Allahabad & ors., 1985
RD 236

11. Hinchlal Tiwari Vs Kamala Devi & ors.,
(2001) 6 SCC 496

12. Jagpal Singh & ors. Vs St. of Punj. & ors.,
(2011) 11 SCC 396

13. Smriti Madan Kansagra Vs Perry Kansagra,
2021 SCC Online SC 909, (Para 23)

(Delivered by Hon'ble Saurabh Shyam
Shamshery J.)
9 All. Basdev Vs. State of U.P. & Ors.
261

1. The fact which is not in dispute is
that nature of land in dispute, in the present
case, was not on record during first
consolidation
proceedings.
However,
during second consolidation proceedings,
the land in dispute was earmarked for
charagah/pasture land (hereinafter referred
to
as
'pasture
land').
The
second
consolidation proceedings got over and a
notification under Section 52(1) of U.P.
Consolidation of Holdings Act, 1953
(hereinafter referred to as "Act, 1953") was
issued on 04.12.1993. Later on, land in
dispute
was
valued
and
allotted
to
petitioners on valuation and present status
of land allotted to petitioners are on record
i.e. some parts of land are still vacant and
on some parts of land constructions of
different nature are raised. Details of
allotment of land in dispute to petitioners
such
as
respective
allotment
orders
specifying respective allotted areas, dates
of such allotmentare not on record.

2. Further, it is also not disputed that
after 24 years of a notification being issued
under Section 52 of the Act, 1953, the private
contesting respondent (Raj Narayan) has
submitted an application dated 17.07.2017,
before the District Magistrate, Azamgarh,
making a specific allegation that about 4.42
aire of land i.e. land in dispute was recorded
under the category of 'pasture land' in revenue
records, however, it was allotted illegally to
the petitioners and at present only 3.48 aire
land is available being 'pasture land' and it
was also alleged that petitioners are powerful
persons and officials are in hand in glove
with them. The allotment was devoid of any
due process and thus being illegal are
obtained by fraud and, therefore, order be set
aside and appropriate action be taken.

3. It appears that the said complaint
was referred to Deputy Director of
Consolidation, Azamgarh, who sought a
report from the Consolidation Officer by
order dated 05.09.2017 and it was further
directed that all concerned parties shall be
put on notice. Later on, on basis of a report
received,
the
Settlement
Officer
of
Consolidation,
Azamgarh,
by
a
communication
dated
07.01.2023,
addressed to District Magistrate, has
prepared a chart mentioning all details such
as, new Gata numbers and old Gata
Numbers and respective area thereof as
well as names of tenure holders mentioned
in Form 45 and present status of land in
dispute with relevant naksha-nazri (spot
map). The details thereof have not been
seriously disputed by any petitioner. A spot
map was also prepared which apparently
indicates that all petitioners were allotted
abutting land i.e. adjacent to main road,
which also indicates that land has potential
value.

4.

The
Deputy
Director
of
Consolidation heard the parties (petitioners
in different writ petitions) and passed the
impugned order dated 28.02.2023. Issue of
compliance of principles of natural justice
has not been seriously argued.

5. The District Magistrate/Deputy
Director of Consolidation, Azamgarh, has
placed reliance on report, revenue records
as well as considered arguments of rival
parties and held that since the land in
dispute was earmarked for 'pasture land'
which could not be allotted to petitioners
being contrary to provisions of Section 132
of U.P. Zamindari Abolition and Land
Reforms
Act,
1950
and,
therefore,
allotments so made were cancelled and it
was directed that land in dispute be
restored/recorded back as 'pasture land' in
revenue record. In the impugned order,
Revisional Authority has taken note of
262 INDIAN LAW REPORTS ALLAHABAD SERIES
procedure, nature of land which could be
valued and allotted and that if the allotment
was beyond jurisdiction, it would be void
and in such case, limitation would be of no
consideration. It also referred judgments
passed by the Supreme Court. The relevant
part of impugned order is mentioned
hereinafter -:

"जिला शासकीय अजिवक्ता रािस्व द्वारा जलजित
बहस प्रस्तुत कर तकक प्रस्तुत जकया गया जक पत्रावली में संलग्न आख्या
व संदर्क जदनॉक 26.08.2017 व 07.01.2023 से स्पष्ट है जक
चारागाह के िाते में अंजकत र्ूजम को दौरान चकबंदी माजलयत लगाकर
जवजर्न्न चकों व मदों में प्रस्ताजवत व आरजित जकया गया है, िो
जवजिजवरुद्ध व शून्य है, क्योंजक चकबंदी अजिकाररयों को केवल
कास्तकारों की र्ूजम का ही मूलयांकन लगाकर चकों में प्रजवष्ट जकये
िाने व अन्य मद में आरजित जकये िाने का अजिकार प्राप्त है,
गााँवसर्ा र्ूजम तथा सावकिजनक उपयोग में अंजकत र्ूजम का मूलयांकन
लगाकर चकों में प्रस्ताजवत करने का कोई प्राजविान नही है। यजद ऐसा
जकया गया हो तो र्ी ऐसे आदेश को संज्ञान में आने के उपरान्त कर्ी
र्ी जनरस्त जकया िा सकता है। इसमें कालबाजिता तथा पोषणीयता का
जबन्दु बािक नही है। मा० सुप्रीम कोर्क द्वारा िगपाल जसंह व अन्य
बनाम पंिाब राज्य व अन्य में जदनााँक 28.01.2011 को आदेश
पाररत करते हुये तालाब, चारागाह, िजलहान आजद की र्ूजम को िो
1359 फ0 के अजर्लेि में अंजकत हैं, को पूवकवत कायम जकये िाने
का जनदेश जदया गया है। इस क्रम में आयुक्त एवं सजचव रािस्व पररषद,
लिनऊ उ0प्र0 द्वारा जदनॉक 10.07.2020 को समस्त
जिलाजिकारी, उ0प्र0 को जनदेश िारी जकया गया है। उक्त जनदेश के
क्रम में र्ी पशुचर र्ूजम को पूवकवत पशुचर िाते में अंजकत जकया िाना
आवश्यक है।

उपरोक्त जववेचना से स्पष्ट है की िमींदारी जवनाश
अजिजनयम की िारा 132 सावकिजनक प्रयोग की वादीय र्ूजम के
रकबे में माजलयत लगाकर चक जनमाकण एवं जवजर्न्न मदों में आरिण
की कायकवाही िेत्राजिकार से परे िाकर की गयी है। इस जस्थजत में
संदर्क जदनांक 26.08.2017 स्वीकार योग्य है।
आदेश

संदर्क जदनांक 26.08.2017 स्वीकार जकया िाता
है। तदनुसार अजर्लेिों में संशोिन जकया िाय। आदेश की प्रजत
संदर्क पत्रावली के साथ उप संचालक चकबन्दी आिमगढ को
अनुपालनाथक प्रेजषत की िाय। इस न्यायालय की पत्रावली आवश्यक
कायकवाही के उपरान्त अजर्लेिागार में संजचत की िाय।"
(Emphasis Supplied)

6. S/Sri Jitendra Yadav, Awadhesh
Kumar Singh, Rajendra Rai and Prahlad
Kumar Bhardwaj, learned counsel for their
respective writ petitioners have argued at
length and their arguments in brief are
being culled out as follows -:

(a) The entire exercise undertaken
by District Magistrate/Deputy Director of
Consolidation, Azamgarh on the basis of
complaint of private respondent being after
the notification issued under Section 52(1)
of Act, 1953 was beyond jurisdiction since
it was barred by the provisions of said
section. For ready reference, Section 52 is
as follows -:

"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.]

[(1A) 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 subsection (1), shall be given effect to by such
authorities, as may be prescribed and the
9 All. Basdev Vs. State of U.P. & Ors.
263
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.]"

(b) Section 8-A(2)(c) of the Act,
1953 provides that during consolidation
proceedings,
details
of
land
to
be
earmarked for public purpose out of land
vested in Gaon Sabha has to be prepared
and Section 19-A(2) of the Act, 1953
provides that such lands which are
earmarked for public purposes shall only be
allotted after the Assistant Consolidation
Officer has declared in writing i.e. there is
no bar for allotment of a land earmarked in
consolidation
proceedings
for
'public
purpose', which would also include 'pasture
land'.

(c) No objection was raised at the
stage when the land was earmarked as a
'pasture land' or it was allotted in parts to
the petitioners of writ petitions many years
ago. Even no objections were filed at the
stage of Section 9(A)(2) of the Act, 1953,
therefore, at belated stage, when much
water has flown, since constructions or
other
activity
has
already
been
commenced/completed on land in dispute,
therefore, it could not be disturbed by an
order passed without jurisdiction. The
Gram Sabha being the aggrieved party has
not come forward, therefore, complainant
has no locus to initiate any proceedings qua
to land in dispute. The impugned order
being passed without jurisdiction could not
be interfered by the Court under writ
jurisdiction. Learned counsel also referred
Section 11-A of the Act, 1953 and stated
that it imposes a bar for raising such
dispute which could have been raised at the
time of filing of objections under Section
9A(2) of the Act, 1953.

7. Learned counsel for petitioners
have placed reliance upon judgments of
Supreme Court and this Court passed in the
cases of Shri Ram vs. State of U.P. and 4
others, 2018:AHC:148669; Sita Ram vs.
Deputy Director of Consolidation and
others, 1982 All L.J. 76; Hari Ram vs.
D.D.C.,
Azamgarh,
1989
RD
281;
Gafoora
vs.
Deputy
Director
of
Consolidation, Meerut, (1975) 2 SCC
568. Relevant paragraphs thereof are
quoted hereinafter -:

Hari Ram (supra):

".........The position of law is well
settled.
The
Deputy
Director
of
Consolidation has no jurisdiction to
exercise power under Section 48(3) of the
Act if a de-notification has already taken
place under Section 52 of the Act. The
264 INDIAN LAW REPORTS ALLAHABAD SERIES
Deputy
Director
of
Consolidation,
therefore, will first record a finding as to
whether a Notification under Section 52 of
the Act had, in fact, been issued on
February 13, 1982. If he finds that such a
notification exists and if he also finds that
the land which is the subject matter of
dispute is covered by the said Notification,
he shall desist from exercising any power
under Section 48 (3) of the Act. With this
direction the petition is disposed of
finally."

Sita Ram (supra):

"18. A person cannot initiate
legal proceedings on behalf of or for the
benefit of another without any authority
from that other. Para 128 of the Gaon
Sabha Manual provides the procedure and
the manner in which suits or proceedings
can be filed and conducted on behalf of the
Gaon Sabha and the same has got to be
done in that particular manner.
xxxx
xxxx

21. The Gaon Sabha is a body
corporate and the Land Management
Committee is an executive body of the
Gaon Sabha charged with the functions to
supervise and protect the property vested in
the Gaon Sabha and it has to function in
the manner sanctioned under law. The
provisions contained in para 128 of the
Gaon Sabha Manual and Rule 110A of the
U. P. Zamindari Abolition and Land
Reforms Rules prescribed the manner in
which the litigation is to be conducted by
and on behalf of the Gaon Sabha. These
provisions, which are mandatory, would
govern the litigation to be conducted on
behalf
of
the
Gaon
Sabha
in
all
proceedings under the provisions of the U.
P. Consolidation of Holdings Act.

Gafoora (supra):

"3. The short question that arises
for consideration is whether the High
Court is correct in not interfering with the
order
of
the
Deputy
Director
(Consolidation) under Article 226 of the
Constitution. Jurisdiction under Article 226
is well settled. The High Court will
interfere only if some order is passed bv an
authority in excess of jurisdiction or there
is a manifest error of law, apparent on the
face of the records. The principal question
that was canvassed before the Deputy
Director (Consolidation) was whether
failure to prefer objection within the time
limit prescribed under Section 9(2) of the
Act would en title an aggrieved party to
agitate the matter beyond the prescribed
period without any explaining the cause of
delay in preferring the objection and
obtaining a proper order of condonation of
delay from the appropriate authority. It is
clear from the records that no objection
was preferred within the prescribed time.
The
Deputy
Director
(Consolidation)
refused, if we may say so, rightly to accept
that the appellants had earlier lodged any
objection on November 21, 1966. The being
the position, there was no material
whatsoever before the Settlement Officer
(Consolidation)
for
exercising
his
jurisdiction to condone the delay in lodging
objection under Section 9(2) of the Act.
Section 11A bars all objections in respect
of claim to land, partition of joint holdings
and valuation of plots etc. relating to the
consolidation area which have been raised
under Section 9 or which might or ought to
have been raised under that section but
have not been so raised. These questions
under Section 11A cannot be raised or
heard at any subsequent stage of the
consolidation proceedings. That being the
position there is no error of law in the
order of Deputy Director (Consolidation)
nor is there any excess of jurisdiction
9 All. Basdev Vs. State of U.P. & Ors.
265
committed by him in disposing of the matter
as he did in exercise of his revisional
power under Section 48."
(Emphasis Supplied)

8. Learned counsel for petitioners
on basis of above referred judgments
have
submitted
that
in
certain
circumstances, the Land Management
Committee could grant lease with sirdari
rights in respect of land preserved for
public purposes including 'pasture land'
and
that
Deputy
Director
of
Consolidation has no jurisdiction to
exercise power under Section 48(3) of the
Act, 1953, if a de-notification has already
taken place under Section 52 of the Act,
1953.
Learned
counsel
prayed
that
impugned order, being illegal, be set
aside.

9. Per contra, Sri M.C. Chaturvedi,
Additional Advocate General assisted by
Sri Tejaswi Mishra, Brief Holder for the
State of U.P., Sri Rameshwar Prasad
Shukla, learned counsel for Gaon Sabha,
and Sri Om Prakash Pandey, learned
counsel
for
respondent
no.
6/complainant (in Writ B No. 947 of
2023) have vehemently urged that
procedure undertaken by Revisional
Authority was within its jurisdiction and
since there is a specific bar under
Section 132 of U.P. Zamindari Abolition
and Land Reforms Act, 1950 that
bhoomidhari right shall not accrue on
certain land which includes a 'pasture
land' also.

10. Learned A.A.G. for State has also
referred
scheme of Consolidation as
prescribed under Section 3(2)(iii) i.e. for
rearrangement
for
the
purpose
of
consolidation, a holding shall not include
land mentioned in Section 132 of U.P.Z.A.
and L.R. Act which includes the land
reserved for 'pasture land'.

11. Learned A.A.G. for State has
further referred Section 8(A)(c) of the Act,
1953 and submitted that when preparation
of Statement of Principles is done, details
of land to be earmarked for public purposes
out of land vested in a Gaon Sabha or a
Local Authority under Section 117 or
Section 117-A of the U.P.Z.A. and L.R.
Act, if any, has to be specifically
mentioned therein.

12. Learned A.A.G. for State has
further submitted that concerned Authority
made allotment from land earmarked for
'pasture land' to private persons, which was
nothing but a 'fraud on statute' and on
'statutory obligation'.

13. Learned A.A.G., to buttress his
argements, has placed reliance upon
judgments of this Court as well as of
Supreme Court passed in Ram Bahadur
vs. D.D.C. and others, AIR 1973 ALL
414; Iqbal Ahamad and others vs.
D.D.C. and others, 2005 (3) AWC 2423
ALL;
Palakdhari
vs.
Gaon
Sabha
Devara, 2011 (3) ADJ 251; Ram Nihor
vs. Additional Commissioner (Admin.)
Vindhyanchal
Division,
2014:AHC:183012
and
relevant
paragraphs of above referred judgments are
mentioned below -:

Ram Bahadur (supra):

"2.
The
issuance
of
the
Notification does not, however affect the
orders passed by the High Court or the
Supreme Court under the provisions of the
Constitution of India or in cases or
proceedings pending under this Act on the
date of issue of notification under subsection (1) and orders passed will have to
be given effect to notwithstanding anything
266 INDIAN LAW REPORTS ALLAHABAD SERIES
contained in the Notification. In Dilawar
Singh's case, 1972 All WR (HC) 557: (AIR
1973 All 411) the Division Bench observed
that the term "proceedings" in Section 52

(2)
has
been
used
in
the
comprehensive
sense
of
proceedings
commencing from the one which is initiated
before the Consolidation Officer and
including that taken in the appeal Court. It
was held that an appeal does not initiate a
fresh proceeding. On the institution of the
appeal the proceedings, which had become
dormant on the decision of the trial Court
revive and remain pending, the only
difference being that they are now pending
in a different Court, namely, the Court of
appeal.
It
was also
held
that
the
notification under Section 52 (1) does not
have the effect of destroying vested rights
of the litigants. For instance, if a litigant
has a right of appeal against a particular
order he can exercise it notwithstanding
the publication of the notification under
Section 52 (1) and the moment an appeal is
filed the effect in law is that the original
proceedings stand revived.

3. In our opinion the principle
laid down in this case is applicable to an
application for setting aside an ex parte
order. Section 41 of the Consolidation of
Holdings Act makes the provisions of
Chapters IX and X of the U. P. Land
Revenue Act applicable to all proceedings
under the Consolidation of Holdings Act.
Sections 200 and 201 of the U. P. Land
Revenue Act are in Chapter IX. Section 200
provides that whenever any party to such
proceeding neglects to attend on the day
specified in the summons, or on any day to
which the case may have been postponed,
the Court may dismiss the case for default
or may hear and determine it ex parte.
Section 201 says that no appeal shall lie
from an order passed under Section 200 ex
parte or by default. That section provides
for re-hearing on proof of good cause for
non-appearance. The petitioner had made
an application under this provision for the
re-hearing of the case on showing good
cause for non-appearance. Actually his
case was that he was all along present but
he was informed that the case would be
heard on some other date. The proceedings
are thus for the re-hearing of the matter.
The petitioner had a statutory right to make
such an application. This right accrued to
him on 23-12-1968 the date when the
Consolidation Officer disposed of the
objection.
That
right
could
not
be
extinguished by the issuance of the
notification under Section 52 (1). The effect
of the exercise of that right was to invoke
the revival of the proceedings before the
Consolidation Officer. In our opinion, such
proceedings are on the same footing as an
appeal because they have the effect of
reviving the original proceedings."

Iqbal
Ahamad
and
others
(supra):

"5. I duly considered arguments
of learned counsel for the petitioners and I
am of the view that none of the arguments
pressed by the learned counsel for the
petitioners could be sustained in law.
Under the U.P.C.H. Act 'consolidation' is
defined under Section 3 (2). Explanation
(iii) of Section 3(2) of the U.P.C.H. Act
makes it clear that land mentioned under
Section 132 of U.P. Zamindari Abolition &
Land Reforms Act (in short hereinafter
referred to as the U.P.Z.A. & L.R. Act)
shall not be included in consolidation
Scheme.
xxx
xxx

7. From perusal of the above
provisions, it is clear that if any land is
mentioned under Section 132 of the
U.P.Z.A. & L.R. Act it shall not be included
9 All. Basdev Vs. State of U.P. & Ors.
267
in the consolidation scheme for the
purposes of consolidation.

8. Section 132 of the U.P.Z.A. &
L.R.
Act
makes
it
clear
that
notwithstanding any thing contained in this
Section, but without prejudice to Section 19
of the U.P.Z.A. & L.R. Act, Bhumidhari
rights shall not accrue to any land covered
by water. As plot in question is Garhi it
cannot be part of consolidation scheme for
allotment proceeding in the unit and as
such it was rightly excluded by the Deputy
Director
of
Consolidation
from
the
consolidation scheme.

9. From the material on record it
transpires that the land in dispute was
recorded as Gaen Sabha property, as
mentioned under Section 132 of the
U.P.Z.A. & L.R. Act and as SUC at the time
of revision of Field Book, Determination of
valuation etc. and preparation of Statement
of Principles, as required under Sections-8
and 8-A of the U.P.C.H. Act on the date of
publication of the record under Section-9
of the U.P.C.H. Act in the unit, this land
was not included in the consolidation
scheme, and that is why valuation of this
land was not determined with the result the
matter relating to valuation of the plot
became final under Section-11-A of the
U.P.C.H. Act, which runs as follows:-

"11-A. Bar on objection.- No
question in respect of-

(i) claims to land,

(ii) partition of joint holdings,
and

(iii) valuation of plots, trees,
wells and other improvements, where the
question is sought to be raised by a tenureholder of the plot or the owner of the tree,
well or other improvements recorded in the
annual register under Section 10,

relating to the consolidation
area, (which has been raised under Section
9 or which might or ought to have been
raised under that section), but has not been
so raised, shall be raised or heard at any
subsequent stage of the consolidation
proceedings."

10. From perusal of record it is
also clear that in correction proceeding,
the valuation of the plot in dispute was
determined and was illegally included in
the consolidation Scheme and allotted in
the petitioners' Chak. The Deputy Director
of
Consolidation
rightly
passed
the
impugned order in accordance with law.
There is no illegality in the order of the
Deputy Director of Consolidation and does
not call for any interference."

Palakdhari (supra):

"8. The reference to section 117
and 117-A of the U.P. Zamindari Abolition
& Land Reforms Act, 1950 has been
specifically made in Section 8-A of the U.P.
Consolidation of Holdings Act, 1953.
Section 117 of the U.P. Zamindari
Abolition & Land Reforms Act, 1950clearly
provides with respect to vesting of land in
the State Government and its subsequent
vesting in the Gaon Sabha by a declaration
to be made by publication of notification by
the State Government. Section 117(6) of the
U.P. Zamindari Abolition & Land Reforms
Act, 1950 clearly provides that the State
Government may, at any time, order for
resuming such land vested in Gaon Sabha
back to the State Government. The
aforesaid provision clearly indicates that
when on the date of vesting the land is
vested in the State Government and a
notification under section117(1) of the U.P.
Zamindari Abolition & Land Reforms Act,
1950 has been issued by the State
Government, the land would vest in Gaon
Sabha. Such vesting of land in Gaon Sabha
only provided the power of use of the land
by the Gaon Sabha. Land which was vested
in the Gaon Sabha by virtue of a
notification under section 117(1) was
268 INDIAN LAW REPORTS ALLAHABAD SERIES
clearly not a complete vesting of right, title
and interest. The vesting was for specified
purpose as given in Section 117(1) of the
U.P. Zamindari Abolition & Land Reforms
Act, 1950 particularly when under section
117(6) of the Act the State could resume the
land from the Gaon Sabha. Hence it was
not a vesting of right, title and interest but
the State continues to have power to
resume it. Therefore, to state that the land
so vested in Gaon Sabha was subject
matter of allotment by the Consolidation
Officer to a private institution, would be
against the very provision of vesting such
land in the Gaon Sabha by the State
Government. Clearly the consolidation
officer could only earmark the land for
public purpose, but it could not pass order
with respect to specific use of such land. It
is only the Gaon Sabha which can allot the
land vested in it by the State Government
under section 117(1) of the U.P. Zamindari
Abolition & Land Reforms Act, 1950. The
consolidation authorities can only earmark
such land of the Gaon Sabha for public
purpose in consolidation proceedings.

9. Therefore, the first appellate
court
has
rightly
held
that
the
consolidation officer has acted beyond his
jurisdiction in directing entry in the
revenue record to be made of a land
earmarked for a public purpose in the
name of the institution of which the
appellant claims to be the manager. Such
function of use of public land vested in
Gaon Sabha could have been performed
only by the Gaon Sabha. There is no error
in the view taken by the first appellate
court. The suit of the Gaon Sabha has been
rightly allowed. The first substantial
question of law so argued by learned
counsel is decided against the appellant
and in favour of the plaintiff-Gaon Sabha.

10.
Insofar
as
submission
regarding bar of Section 49 of the U.P.
Consolidation of Holdings Act, 1953 is
concerned, the submission of learned
counsel is that even if the consolidation
officer has passed an order which is illegal
or beyond jurisdiction, it cannot be
interfered with in a civil suit in view of the
bar under section 49 of The U.P.
Consolidation of Holdings Act, 1953.

11. Such submission of learned
counsel for the appellant appears to be
quite mis-conceived. Section 49 relates to
declaration and adjudication of rights of a
tenure holder. Definitely these courts are
courts which can adjudicate and declare
the rights of tenure holder. Even the
appellant who claims to be in possession of
the land by order of the consolidation
officer is not claiming rights of a tenure
holder or bhumidhar of the land in
question. He is claiming rights over the
land as play ground on the basis of an
order of the consolidation officer upon land
earmarked as land for public purpose. He
does not dispute that the land was
earmarked by the consolidation officer for
public purpose. When the appellant is not a
tenure holder and has no title over the land
in question his possession can, at the most,
be by virtue of an allotment of public land.
Since the order of the Consolidation
Officer in allotting public land belonging to
and earmarked for the Gaon Sabha was not
within his power, clearly the Consolidation
Officer had no jurisdiction to allot the land
earmarked for public purpose to a private
body or person. Consequently the bar
under section 49 of the U.P. Consolidation
of Holdings Act, 1953 does not apply. The
submission
is
mis-conceived
and
is
accordingly rejected."

Ram Nihor (supra):

"The
U.P.
Consolidation
of
Holdings Act, 1953 Provides that when
scheme of Consolidation in a village is
finalised, land shall be ear-marked for
9 All. Basdev Vs. State of U.P. & Ors.
269
public purpose. Under Section 8-A of the
U.P. Consolidation of Holdings Act,
statement of principles is required to
contain details of the areas ear-marked for
extension of abadi site for Harijans and
landless persons in the unit, and for such
other
public
purposes
as
may
be
prescribed. Under Rule 24-A of the U.P.
Consolidation of Holdings Rules, framed
under section 54 of the Act, public
purposes for which the area should be eramarked are prescribed. According to this
rule in addition to the reservation of land
for extension of Abadi including the areas
for abadi sites for Harijans and landless
persons, land may be earmarked according
to the local requirements for the public
purposes, viz: manure pits, roads, 'pasture
land' land, thrashing floor, play grounds,
primary and other schools, hospitals,
panchayat
ghars,
cremation
and
graveyards, water channels etc. Under
section 19 of the Act, tenure holders are
required to contribute land for their
holdings towards the land which is
earmarked for a public purpose as required
by the Act and the Rules. The land so set
out by the consolidation authorities for the
public purposes mentioned in the Act and
the Rules, vests in the Gaon Sabha under
Section 29-C of the Act and such land can
not be utilised for any other purpose.
xxxx
xxxx
Thus from a conjoint reading of above
mentioned provisions, it is evident that the
land so set out for public purpose
mentioned in the Consolidation of Holdings
Act and the Rules, vests in the Goan Sabha
under section 29-C of the Act and such
land can be utilised for any other purpose
set out in Rule 24-A of the U.P.
Consolidation of Holdings Rules.
xxxx
xxxx
In the case in hand, the allotment was not
cancelled on the ground that there was any
irregularity in procedure. It was found that
the land which was allotted to the
petitioner was a public utility land, thus
allotment was void abnitio. It was a
fraudulent exercise by Goan Sabha in
passing the resolution proposing the
change of purpose for which the land has
been earmarked in consolidation. The
Goan Sabha had no power to do so."
(Emphasis Supplied)

14. Sri Rameshwar Prasad Shukla,
learned counsel for respondent/complainant
has adopted the argument of learned
A.A.G. and has placed reliance upon Ram
Bahadur (supra); Sheo Nand and others
vs. D.D.C., Allahabad and others, (2000)
3 SCC 103, and Babu Lal vs. D.D.C.,
Allahabad and others, 1985 RD 236,
relevant paragraphs of above judgments are
quoted hereinafter -:

Babu Lal (supra):

".........The statutory provisions
of Section 11-C of the Act are reproduced
below for the sake of convenience:-

11-C. In the course of hearing of
an objection under Section 9-A or an
appeal under Section 11 or in proceedings
under Section
48,
the
Consolidation
Officer,
the
Settlement
Officer
(Consolidation)
or
the
Director
of
Consolidation, as the case may be, may
direct that any land which vests in the State
Government or the Gaon Sabha or any
other local body or authority may be
recorded in its name even though no
objection, appeal or revision has been filed
by such Government, Gaon Sabha, body or
authority."

In view of the aforesaid section it
is that even though in respect of the clear
land of the Gaon Sabha no objection.
270 INDIAN LAW REPORTS ALLAHABAD SERIES
appeal or revision could have been filed the
Court can protect the interest of the Gaon
Sabha in case it has been found that the
land has actually vested in the Gaon
Sabha. It is thus abundantly clear that even
though no appeal could have been filed on
behalf of the Gaon Sabha. nor the revision
could have been preferred the interest of
the Gaon Sabha could have been protected.
In this view of the matter, with profound
resnect to the view taken in the case of Sita
Ram v. Dy. Dir. of Consolidation (supra)
the case is not indistinguishable."

Sheo Nand and others (supra):

"5. The Deputy Director of
Consolidation on a consideration of the
oral and documentary evidence on record
had come to the conclusion that Jethu who
was not heard of for more than 7 years and
had consequently died a civil death, had
not left any heir who could be recorded as
tenure-holders of those plots in his place.
The property would, therefore, vest in the
Gaon Sabha by Escheat. The decision of
the Deputy Director was challenged before
the High Court and during the pendency of
the Writ Petition, the provisions of Section
11-C were introduced in the principal Act.
Consequently, it was the duty of the High
Court to give effect to those provisions at
the time of the final decision of the Writ
Petition. As pointed out above, it is the
statutory duty of all the authorities
functioning under the Act to give effect to
the provisions of Section 11-C of the Act
and to record the property as having vested
in the Gaon Sabha even if no claim was
laid by the Gaon Sabha nor was any
petition filed by the Gaon Sabha under the
Act. Even though the provisions of Section
11-C were not available to the Deputy
Director at the time of the decision of the
revision filed by the appellants before him,
his order that the property should be
recorded in the name of the Gaon Sabha
could be sustained on the basis of the
provisions of Section 11-C at the time of
hearing of the writ petition and the High
Court was, therefore, justified in upholding
his order. There is, thus, no error in the
judgment of the High Court.

20. The Section gives very wide
powers to the Deputy Director. It enables
him either suo motu on his own motion or
on the application of any person to
consider the propriety, legality, regularity
and correctness of all the proceedings held
under the Act and to pass appropriate
orders. These powers have been conferred
on the Deputy Director in the widest terms
so that the claims of the parties under the
Act may be effectively adjudicated upon
and determined so as to confer finality to
the rights of the parties and the Revenue
Records may be prepared accordingly.

21.
Normally,
the
Deputy
Director, in exercise of his powers, is not
expected to disturb the findings of fact
recorded concurrently by the Consolidation
Officer
and
the
Settlement
Officer
(Consolidation), but where the findings are
perverse, in the sense that they are not
supported by the evidence brought on
record by the parties or that they are
against the weight of evidence, it would be
the duty of the Deputy Director to
scrutinise the whole case again so as to
determine the correctness, legality or
propriety of the orders passed by the
authorities subordinate to him. In a case,
like the present, where the entries in the
Revenue record are fictitious or forged or
they were recorded in contravention of the
statutory provisions contained in the U.P.
Land Records Manual or other allied
statutory provisions, the Deputy Director
would have full power under Section 48 to
re-appraise or re-evaluate the evidence on
record so as to finally determine the rights
of the parties by excluding forged and
9 All. Basdev Vs. State of U.P. & Ors.
271
fictitious revenue entries or entries not
made in accordance with law."
(Emphasis Supplied)

15. In the background of above
referred factual and legal aspects and
rival submissions, the issue before this
Court which requires consideration is,
Whether the land which is either
referred as a 'pasture land' in revenue
record
or
earmarked
during
consolidation proceedings as 'pasture
land' i.e. for a public purpose, could be
allotted to petitioners on valuation, and
if the answer is in affirmative, then
whether in the facts and circumstances
of present case, the land was allotted
after due process or not?, and whether
such allotment could be scrutinized
after
24
years
of
publication
of
notification issued under Section 52 of
the Act, 1953?

16. It is a case of petitioners that
nature of land was not specified during
first consolidation proceedings, however,
admittedly during second consolidation
proceedings, entire land in dispute was
earmarked as ''pasture land'' and it is also
not in dispute that it was allotted in parts
to the petitioners on valuation and on
some part of land certain constructions
have been erected, whereas, some parts of
land are still vacant and there is no
dispute in regard to present status of land
as provided in the Inspection Report
dated 07.01.2023.

17. Further, in order to consider the
rival submissions, relevant provisions of
U.P. Consolidation of Holdings Act, 1953
and U.P. Zamindari Abolition and Land
Reforms Act, 1950 which have been
referred by learned counsel for parties are
mentioned hereinafter -:
"U.P. CONSOLIDATION OF
HOLDINGS ACT, 1953

Section 3(2) "Consolidation'' means
re-arrangement of holdings in a unit
amongst several tenure-holders in such a
way as to make their respective holdings
more compact;
xxxx
xxxx

(iii) land mentioned in Section
132 of the U.P. Zamindari Abolition and
Land Reforms Act, 1950 (U.P Act no. 1 of
1951);

8-A.