# Jitendra Singh v. Deputy Director Of Consolidation & Ors

- **Citation:** (2016) 3 ILRA 784
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-02-24
- **Bench:** Anjani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jitendra-singh-v-deputy-director-of-consolidation-ors-43603
- **Pages:** 6

## Text

784 INDIAN LAW REPORTS ALLAHABAD SERIES

(xii) The adjustment/accommodation directed herein above shall be made by (a)
drawing the select list on merit of each category i.e. OC, OBC, and SC; (ii) drawing the list
of special category candidates to be accommodated category wise. Both the lists and the
order passed by the Board as directed at (x) shall be published/notified on the official
website.

(xiii) The directions to be complied within three weeks from today.

56. The State and the Board have not only failed to comply the statutory provisions
contained in Act, 1993 and their own Government Orders which was binding upon them
being law under Article 162, but have deliberately and willfully deviated from applying the
principles of horizontal reservation, which was admittedly followed by the Board in
previous selection. Further, the Advocate General has taken a stand not in defense of the
Act, 1993 and the Government Orders, but also against the Constitution of India and the
binding precedents which, therefore, substantiates the allegation of the petitioners that a
deliberate and blatant fraud was played by the members of the Board. The Court, therefore,
is constrained to hold that the conduct of the members of the Board is unbecoming of a civil
servant, further, they have exposed themselves to civil and criminal consequence. The
petitioners are entitled to cost, which is assessed at 10,000/- rupees each. The cost shall be
deposited by the first respondent, Principal Secretary, Home with the Registrar General of
this Court within four weeks from today, which shall thereafter be released in favour of the
petitioners upon usual verification. This is being necessitated for the reason that the
petitioners who may be appointed police officers would not be in a position to recover the
cost either from the State or the Board. The Public Exchequer cannot be burdened for the
deliberate and willful misconduct of its servant, therefore, it is provided that the cost shall be
recovered from the salary of the members of the Board and other officials involved in the
present selections.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.2.2016

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.

Writ B No. - 34490 Of 2015

Jitendra Singh ...Petitioner
Versus
Deputy Director Of Consolidation & Ors. ...Respondents

Counsel for Petitioner
Sasmita Srivastava, M.C. Chaturvedi

Counsel for Respondents
C.S.C., Krishna Kr.Chaurasia, Ratnesh Nandan Singh
3 All. Jitendra Singh Vs Deputy Director Of Consolidation & Ors.
785

The present petition has been filed challenging the orders dated 27.10.2014 and 15.05.2015 passed
by the Consolidation Officer, Rambagh, Mirzapur in Case No. 64 under Rule 109-A of the U.P.
Consolidation of Holding Rules. The tprimary issue between the parties is as to whether or not the
plots in question were allotted by the Gaon Sabha to the petitioner vide resolution dated 16.09.1979.

Court held that petitioner's claim to the land in dispute is an alleged allotment made in his favour in
1979. It is also established on record that no record of any such allotment proceedings is to be found
in the record room. The petitioner has not been able to produce any documentary evidence to show
that a valid allotment was made in his favour. it is clear that the petitioner, though claiming an alleged
allotment by the Gaon Sabha in his favour, he has not been able to even prima facie, establish such
an allotment. In the absence of any cogent evidence which may even prima facie lead to the
conclusion that there was an allotment in favour of the petitioner, the impugned orders which direct
that his name be expunged from the land in dispute and the same be recorded as Naveen Parli are
eminently justified and for the same reason, I do not find any ground for interference.

The writ petition is found to be wholly devoid of merits. It is therefore, dismissed.

(Delivered by Hon'ble Anjani Kumar Mishra, J.)

1. Heard Sri M.C. Chaturvedi, learned Senior Advocate for the petitioner, Sri K.K.
Chaurasia, learned counsel for the respondent no. 5, Sri Brij Kumar Yadav for the Gaon
Sabha, the respondent no. 6 and also Sri Ratnesh Nandan Singh, learned counsel for the
respondent no. 7 and learned Standing Counsel for the State-respondents.

2. The instant writ petition has been filed challenging the orders dated 27.10.2014 and
15.05.2015 passed by the Consolidation Officer, Rambagh, Mirzapur in Case No. 64 under
Rule 109-A of the U.P. Consolidation of Holding Rules.

3. The facts of the case briefly stated are that the petitioner claims on the basis of an
allotment of the land in question by the Gaon Sabha in his favour on 16.09.1979. Since, at
the time of allotment, the unit was under consolidation operations, the petitioner was
ordered to be recorded over the land in question of the order of the Consolidation Officer
dated 04.05.1983 under Section 12 of the Act. A copy of this order is filed on record as
Annexure 2 and its perusal reveals that the petitioner was ordered to be recorded as
Bhumidhar on the basis of the patta in his favour.

4. It is also alleged that pursuant to this order, the name of the petitioner was entered in
the Register Malikan but not in the khatauni.

5. The petitioner therefore filed writ petition no. 13291 of 2007, which was disposed of
vide order dated 13.03.2007, observing that the petitioner may apply under Rule 109-A of
the U.P. Consolidation of Holding Rules, 1954 for getting his name recorded on the basis of
the order dated 04.05.1983. It was also provided that in case such an application was made,
the concerned authority was to pass orders after verifying from the record and after
obtaining necessary reports with regard to the correctness of the order dated 04.05.1983,
which was the basis of the petitioner's claim.
786 INDIAN LAW REPORTS ALLAHABAD SERIES

6. It is alleged, that thereafter, the name of the petitioner was also incorporated in the
khatauni. The khatauni of 1422 Fasli has been filed on record as Annexure 6, in support of
this submission.

7. It is stated that on 09.06.2014 an application was filed by the respondent no. 5 for
recall of the order dated 04.05.1983. This restoration application was accompanied by an
application for condonation of delay. The recall application was filed alleging therein that
the applicant was member of the scheduled caste and also a member of the Gaon Sabha in
question and, therefore, entitled to file the same. It was also alleged that the land in question
was reserved for a play ground and, therefore, the order passed in favour of the petitioner on
04.05.1983, was liable to be set aside.

8. It is contended that the Consolidation Officer by his order dated 27.10.2014
condoned the delay in filing of the restoration application, allowed the same and set aside
the order dated 04.05.1983, on the basis of a letter by the local legislator and, therefore, the
same was passed under political pressure. Moreover, this order was passed without hearing
the petitioner and, therefore, it was ex-parte. This order also directed that the land in
question be recorded as Naveen Parti. A parwana was issued on 15.05.2015 to correct the
revenue entries in pursuance of the orders dated 27.10.2014 and 12.02.2015 as regards khata
no. 1044, plot no. 1431 area 1.4440 hectares and 1571M area 0.190 hectares.

9. It is these two orders dated 27.10.2014 and 15.05.2015, passed by the Consolidation
Officer, which are impugned in the writ petition.

10. The contention of learned counsel for the petitioner is that the restoration
application was filed after issuance of notification under Section 52 of the Act, closing
consolidation operations in the unit and, therefore, the Consolidation Officer has no
jurisdiction to entertain or pass orders on the restoration application.

11. The next submission is that the order has been passed upon a letter of the local
legislator and is therefore the product of political interference.

12 Apart from being exparte, as the same was passed without any notice or information
to the petitioner and without affording him any opportunity of hearing, it is also submitted
that since the orders impugned are exparte, the existence of an alternative remedy is not a
bar and this court can entertain the writ petition. It is further be submitted that the order
impugned had been passed relying upon an affidavit of the Ex. Pradhan who has
subsequently filed an affidavit denying having filed the affidavit in support of the restoration
application and that his alleged affidavit filed before the Consolidation Officer was a forged
and fabricated one.

13. It is next contended that allowing the restoration application and setting aside the
order dated 04.05.1983 passed in favour of the petitioner amounts to cancelling the lease in
favour of the petitioner, which power the consolidation courts do not possess. It is lastly
3 All. Jitendra Singh Vs Deputy Director Of Consolidation & Ors.
787
contended that the plot in question namely plot no. 1431 and 1571, are not reserved for a
play ground but are agricultural plots being cultivated by the petitioner right from 1983. The
land reserved for play ground is on plot no. 1074.

14. Sri K.K. Chaurasia, learned counsel for the respondent no. 5, who had filed recall
application before the Consolidation Officer had submitted that it is not correct to say that
the order of the Consolidation Officer, is ex-parte. He submits that the Consolidation Officer
had issued notice on the restoration application, which was served upon the petitioner by
affixation on 30.06.2014 in the presence of two witnesses. A notice was also sent to him by
Registered Post. It is further submitted that the order dated 04.05.1983, is a forged and
fabricated order.

15. Relying upon paragraph 14 of the counter affidavit, he has submitted that the
allegation that the order of the Consolidation Officer was passed on the basis of a letter of
the local M.L.A. is incorrect as no such letter is to be found on the record of the proceedings
before the Consolidation Officer. A question answer in this regard has also been filed as
Annexure CA-7 to the counter affidavit. He submits that the order dated 27.10.2014, has
been passed on the basis of reports which indicate that no record of any allotment by the
Gaon Sabha in favour of the petitioner exists. A report of the Revenue Record Keeper to this
effect is available on the record in the proceedings. He lastly submits that the question
answer filed by the petitioner is also a got up document and that the petitioner has not
annexed any document which would show that any lease was granted in his favour.

16. Sri Ratnesh Nandan Singh, who appears for the respondent no. 7 has contended that
the respondent no. 5 had resorted to forgery. He filed an affidavit, purporting to be one
sworn by the respondent no. 7 in support of the recall application. When the respondent no.
7 came to know of this fact, he has sworn an affidavit denying his alleged affidavit and this
clarificatory affidavit is Annexure 1 to the affidavit filed in support of theimpleadment
application. It has been alleged in this affidavit that the respondent no. 7 was, at the relevant
time, a member of the Land Management Committee and that the Gaon Sabha, had passed a
resolution for allotment of the land in question in favour of the petitioner. Thus, the
respondent no. 7 is supporting the petitioner.

17. Since, the primary issue between the parties is as to whether or not the plots in
question were allotted by the Gaon Sabha to the petitioner vide resolution dated 16.09.1979,
the Court, after hearing the parties on 13.01.2016, passed an order directing the respondents
to obtain instructions in the matter and to produce the original record of the allotment, in
case, the same was in existence.

18. In pursuance of the order dated 13.01.2016, instructions received by the learned
Standing Counsel were produced for perusal of this court and were taken on record. The
instructions are to the effect that no file of any allotment regarding plot no. 1341 and 1571
of Village Khaira, Tappa-96, Pargana Kantit, Tehsil Sadar, District Mirzapur is found to be
consigned to the record room.
788 INDIAN LAW REPORTS ALLAHABAD SERIES

19. After perusing the instructions, this court, vide order dated 25.01.2016, granted
time to the petitioner to produce documentary evidence "which may prima facie indicate that
there was a valid allotment made by the Gaon Sabha in favour of the petitioner." It would be
relevant to note that no further documentary evidence has been filed by the petitioner despite
several opportunities having been granted.

20. I have considered the submissions made, as also the facts and circumstances noticed
above and have perused the record.

21. The basis of the petitioner's claim to the land in dispute is an alleged allotment
made in his favour in 1979. It is also established on record that no record of any such
allotment proceedings is to be found in the record room. The petitioner has not been able to
produce any documentary evidence to show that a valid allotment was made in his favour.
The only document filed by him on record, is an alleged resolution of the Gaon Sabha in this
regard. It would be relevant to note that a resolution by itself is not enough to show that a
valid allotment was, in fact, made. A resolution of the Gaon Sabha is forwarded to the SubDivisional Officer, who must approve the same before any allotment can be said to have
been made. There is no evidence to show that any approval was granted by the SubDivisional Officer, nor the petitioner has been able to produce the original document of
allotment in his favour. In the absence of these relevant documents and also on account of
the fact that no file on any allotment proceeding regarding the plot in question is found to
exist, the order passed by the Consolidation Officer, cannot be faulted with.

22. In this connection another glaring fact is that although the petitioner claims on the
basis of an allotment made in his favour in 1979, the order of the Consolidation Officer
allegedly passed in his favour on 04.08.1983 directs that he be recorded as a bhumidhar. The
petitioner could not have been ordered to be recorded as a bhumidhar on the basis of
allotment of the Gaon Sabha in his favour. He could, at best, have been recorded as a
bhumidhar with non transferable rights. The order dated 04.05.1983 passed by the
Consolidation Officer, is therefore, manifestly illegal and has rightly been set aside.

23. It would also relevant to note that initially the Gaon Sabha was not impleaded as a
party in the writ petition. When this observation was made in the course of an earlier
hearing, an impleadment application was filed for impleading the Gaon Sabha. This
impleadment application was allowed and the counsel representing the Gaon Sabha, Sri Brij
Kumar Yadav, was required to obtain instructions in the matter. His instructions are also to
the effect that no record of any allotment proceedings in favour of the petitioner is in
existence.

24. From the above, it is clear that the petitioner, though claiming an alleged allotment
by the Gaon Sabha in his favour, he has not been able to even prima facie, establish such an
allotment. In the absence of any cogent evidence which may even prima facie lead to the
conclusion that there was an allotment in favour of the petitioner, the impugned orders
which direct that his name be expunged from the land in dispute and the same be recorded
3 All. Arun Kumar & Ors. Vs State Of U.P.
789
as Naveen Parli are eminently justified and for the same reason, I do not find any ground for
interference.

25. Although, against the impugned order, the petitioner had an alternative remedy by
means of an appeal before the Settlement Officer Consolidation and thereafter a revision
before the Deputy Director of Consolidation, yet these alternative remedies were not availed
on the ground that existence of such alternative remedy is not a complete bar as regards an
order which has been passed without affording opportunity of hearing. The submission of
learned counsel for the petitioner in this regard is in consonance with the law well settled in
this regard. However, once this court finds that despite opportunity, learned counsel for the
petitioner has not been able to even prima facie established an allotment in his favour by the
Gaon Sabha. I also do not see any justification for remanding the matter for orders being
passed after affording the petitioner opportunity of hearing and evidence.

26. The only other contention which requires consideration is as to whether a recall
application, filed after the close of consolidation operations by issuance of notification under
Section 52 of the U.P. Consolidation of Holdings Act, could be entertained. In this regard it
may be noted that the restoration application, filed after the issuance of notification under
Section 52, was accompanied by an application under Section 5 of the Limitation Act, for
condonation of delay. Once, the Consolidation Officer condoned the delay, it would
necessarily mean that the restoration application was filed within time and during the
currency of consolidation operations. The submission of learned counsel for the petitioner in
this regard is therefore without any merits.

27. Besides as already held herein above, the order dated 04.05.1983 passed by the
Consolidation Officer was a patently illegal order granting bhumidhari rights to the
petitioner when in fact he called only have been ordered to be recorded as a bhumidhar with
non transferable rights, if the case setup by him was accepted. However, the case setup by
the petitioner has been discarded for the reasons given above.

28. Accordingly and for the reasons given above, the writ petition is found to be wholly
devoid of merits. It is therefore, dismissed.
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APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.02.2016

BEFORE

THE HON'BLE RAMESH SINHA, J.

Criminal Appeal No. - 143 of 2012

Arun Kumar & Ors. ...Appellants
Versus
State of U.P. ...Respondent