# Shiv Mangal Singh v. D.D.C., Banda and others

- **Citation:** (2009) 2 ILRA 646
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-05-29
- **Case number:** Civil Misc. Writ Petition No. 16767 of 2001
- **Bench:** Rajes Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-mangal-singh-v-d-d-c-banda-and-others-41400
- **Pages:** 4

## Headnote

Sri Siya Ram Sahu
Sri V.K. Singh
S.C.
2 All] Shiv Mangal Singh V. D.D.C., Banda and others
647
U.P. Consolidation of Holdings ActsSection-19-A(2)-Allotment of Chak-land
reserved for Cattle purpose-unless such
declarations made by A.C.O.-Gaon Sabha
land can not be allotted to individuals.

Held: Para 10:

There is no dispute that the land of Gaon
Sabha or the State Government can be
allotted in the consolidation proceeding,
but it is possible only on a declaration
being
made
by
the
Assistant
Consolidation Officer in writing to the
effect that it is proposed to transfer the
rights of the petitioner in or over that
land to any other land specified in the
declaration and earmarked for that
purpose in the provisional Consolidation
Scheme. It is not the case of the
petitioner that any such declaration as
required under the proviso has been
made in respect of Gata No. 6362. In this
view of the matter, I am of the view that
the Settlement Officer, Consolidation
was not justified in allotting plot which
was
reserved
for
Rahoni
(cattle
purposes) to the petitioner. The decision
cited by the learned counsel for the
petitioner in the case of Ram Kumar and
another
Vs.
Zila
Adhikari/D.D.C.,
Muzaffarnagar and another (supra) does
not say that in the absence of any
declaration under the proviso to Section
19 A (2) of the Act, the land of the Gaon
Sabha or State Government can be
allotted. Therefore, the decision cited by
the learned counsel for the petitioner is
not applicable to the facts of the present
case.
Case law discussed:
2002 (93) R.D. 403.

## Text

646 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
and duties fully comply with the tests laid
down by the Supreme Court in the
decision of State of Gugarat vs. Raman
Lal Keshav Lal Soni (1983) SCC 33 in
which a Constitution Bench held that the
panchayat
service
constituted
under
Section 203 of the Gujarat Panchayats
Acts, 1962 was a civil service of the State
and the members of the service were
government servants. It was found that
the right of appointment; the right to
terminate the employment; the right to
take other disciplinary action; the right to
prescribe conditions of service; the nature
of duties performed by the employees; the
right to control the employees; manner
and
method
of
work;
for
issuing
directions and the right to determine the
source from which wages or salary are
paid and a host of such circumstances,
have to be considered to determine the
exigency of the relationship of master and
servant.

10. The issue, as to whether a
Cooperative Kurk Amin is a government
servant holding a civil post, is thus no
longer res-integra. This court and Apex
Court have held that the Cooperative
Kurk Amins are government servants.
The petitioner, appointed as Copperative
Kurk Amin of the collectorate on the
regular pay scale on 28.7.1975; working
continuously thereafter in the capacities
of the Sahkari Kurk Amins, and Junior
Clerk , continued to serve as a
government servant throughout on regular
basis from the date of his initial
appointment on 28.7.1975 to the date he
attained superannuation and retired at the
age of 60 years as a member of service of
whose service conditions are regulated by
the Rules of 2002. He is thus entitled to
club his entire services together for the
purposes of retirement dues and pension.
11. The writ petition is allowed with
directions to respondents to allow the
petitioner to complete the pension papers
and thereafter to sanction the pension,
gratuity,
leave
encashment,
group
insurance and all over service retiral
benefits which are due to a government
servant. The petitioner has retired has
retired on 31.10.2006. The delay in award
of pension cannot be attributed to him at
all.

12. The petitioner as such is also
entitled and shall be paid 8 % interest per
annum on the delayed payment of the
retiral dues and the arrears of pension. If
the petitioner completes and submits all
the documents within one month, the
respondents shall settle and sanction the
pension papers both for payment of
pension and retiral dues within next three
months.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.05.2009

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition No. 16767 of 2001

Shiv Mangal Singh

...Petitioner
Versus
Deputy Director of Consolidation, Banda
and others

 ...Respondents

Counsel for the Petitioner:
Sri Faujdar Rai,
Sri Ram Swaroop Singh
Sri C.K. Rai

Counsel for the Respondents:
Sri Siya Ram Sahu
Sri V.K. Singh
S.C.
2 All] Shiv Mangal Singh V. D.D.C., Banda and others
647
U.P. Consolidation of Holdings ActsSection-19-A(2)-Allotment of Chak-land
reserved for Cattle purpose-unless such
declarations made by A.C.O.-Gaon Sabha
land can not be allotted to individuals.

Held: Para 10:

There is no dispute that the land of Gaon
Sabha or the State Government can be
allotted in the consolidation proceeding,
but it is possible only on a declaration
being
made
by
the
Assistant
Consolidation Officer in writing to the
effect that it is proposed to transfer the
rights of the petitioner in or over that
land to any other land specified in the
declaration and earmarked for that
purpose in the provisional Consolidation
Scheme. It is not the case of the
petitioner that any such declaration as
required under the proviso has been
made in respect of Gata No. 6362. In this
view of the matter, I am of the view that
the Settlement Officer, Consolidation
was not justified in allotting plot which
was
reserved
for
Rahoni
(cattle
purposes) to the petitioner. The decision
cited by the learned counsel for the
petitioner in the case of Ram Kumar and
another
Vs.
Zila
Adhikari/D.D.C.,
Muzaffarnagar and another (supra) does
not say that in the absence of any
declaration under the proviso to Section
19 A (2) of the Act, the land of the Gaon
Sabha or State Government can be
allotted. Therefore, the decision cited by
the learned counsel for the petitioner is
not applicable to the facts of the present
case.
Case law discussed:
2002 (93) R.D. 403.

(Delivered by Hon'ble Rajes Kumar J.)

1. By means of present petition, the
petitioner is challenging the order of the
Deputy Director of consolidation, Banda
dated 21.3.2001 by which the revision no.
17 filed by the Gaon Sabha has been
allowed.
2. The brief facts giving rise to the
present petition are that gata no. 6362 was
reserved or Rahoni (cattle purposes). In
the consolidation proceeding, objection
filed by the petitioner has been rejected
by the Consolidation Officer, Banda. It
appears that the petitioner was claiming
allotment of gata no. 6362 in his favour
which has been rejected. Against the
order of the Consolidation Officer,
petitioner
filed
appeal
before
the
Settlement Officer Consolidation, Banda.
In appeal, the petitioner contended that in
gata no. 6362, the petitioner was in
possession
before
the
Zamindari
Abolition Act and the same was the
property of his ancestral. The Settlement
Officer Consolidation has accepted the
plea of the petitioner that said gata no.
6362 was in possession of the petitioner
and was continuing in his name and for
some period due to mistake of Patwari,
the name of the petitioner was not
recorded in Khatuni and in case if the
same land would be reserved for Rahoni
purposes, the petitioner will suffer
irreparable loss. The Settlement Officer
Consolidation accordingly directed to
allot gata no. 6362 of the value of Rs.8.52
paisa and the area of the same value of
gata nos. 6414 and 6425 be reserved for
Rahoni purposes.

3. Being aggrieved by the order,
Gaon Sabha filed revision before the
Deputy Director of Consolidation. The
Deputy Director of Consolidation allowed
the revision and set aside the order of the
Settlement Officer Consolidation. The
revisional authority held that gata no.
6362 is reserved for Rahoni purposes if is
for public use and there is no reason to
allot the said gata no. 6362 to the
petitioner. A necessary direction has been
issued in this regard. Being aggrieved by
648 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
the revisional order, the present writ
petition has been filed.

4. Heard Sri Faujdar Rai, assisted by
Sri R.S. Singh, learned counsel for the
petitioner and learned Standing Counsel
appearing on behalf of respondent nos. 1
to 3. No one appears on behalf of Gaon
Sabha.

5. Learned counsel for the petitioner
submitted that under Section 19-A (2) of
the U.P. Consolidation of Holdings Act,
1953 (hereinafter referred to as the Act)
the land of the State and the Gaon Sabha
can also be allotted and in case if the
Settlement Officer Consolidation has
allotted the land of the Gaon Sabha it
cannot be said to be illegal. In support of
the contention he relied upon the decision
in the case of Ram Kumar and another
Vs.
Zila
Adhikari/
D.D.C.,
Muzaffarnagar and another, reported
in [2002(93) R.D. 403).

6. Learned Standing Counsel
submitted that under Section 19-A(2) of
the Act the land of Gaon Sabha and State
can be allotted only on the condition
mentioned therein. He submitted that the
proviso to Section 19-A(2) of the Act
provides that such land can be allotted
only after the Assistant Consolidation
Officer has declared in writing that it is
proposed to transfer the rights of the
public as well as of all individuals in or
over that land to any other land specified
in the declaration and earmarked for that
purpose in the provisional Scheme. He
submitted that in the present case, no such
declaration has been made and, therefore,
Settlement Officer Consolidation was not
justified in allotting the land of the Gaon
Sabha to the petitioner.

7. Having heard learned counsel for
the parties, I have perused the impugned
order and the material on record.

8. Learned counsel for the petitioner
has not disputed that plot no. 6362 belong
to Gaon Sabha and is reserved for Rahoni.

9.
Section 3(2) of the Act
defines "consolidation" which means
rearrangement of holdings in a unit
amongst several tenure holders in such a
way as to make their respective holdings
more compact. The Explanation of subsection (2) of the Act says that for the
purpose of this clause, holding shall not
include the land mentioned in Section 132
of the U.P. Zamindari Abolition & Land
Reforms Act, 1950 (hereinafter referred to
as the "Act"). Therefore, the land which is
reserved for the public purpose is out side
the purview of th consolidation. Section
19-A (2) of the Act reads as follows:-

"(2)
Notwithstanding
anything
contained in this Act, the Uttar Pradesh
Zamindari
Abolition
and
Land
Reforms Act, 1950, or any other law for
the time being in force, it shall be
lawful for the Assistant Consolidation
Officer, where in his opinion it is
necessary or expedient so to do, to allot
to a tenure-holder, after determining its
valuation any land vested in the Gaon
Sabha, or any other local authority, as
a result of notification issued under
Section 117 or 117-A of the Uttar
Pradesh Zamindari Abolition and Land
Reforms Act, 1950.
Provided that where any such land
is used for a public purposes, it shall be
allotted
only
after
the
Assistant
Consolidation Officer has declared in
writing that it is proposed to transfer
the rights of the public as well as of all
2 All] Smt. Maya Devi and others V. State of U.P. and another
649
individuals in or over that land to any
other land specified in the declaration
and earmarked for that purposes in the
provisional Consolidation Scheme."

10. There is no dispute that the land
of Gaon Sabha or the State Government
can be allotted in the consolidation
proceeding, but it is possible only on a
declaration being made by the Assistant
Consolidation Officer in writing to the
effect that it is proposed to transfer the
rights of the petitioner in or over that land
to any other land specified in the
declaration
and
earmarked
for
that
purpose in the provisional Consolidation
Scheme. It is not the case of the petitioner
that any such declaration as required
under the proviso has been made in
respect of Gata No. 6362. In this view of
the matter, I am of the view that the
Settlement Officer, Consolidation was not
justified in allotting plot which was
reserved for Rahoni (cattle purposes) to
the petitioner. The decision cited by the
learned counsel for the petitioner in the
case of Ram Kumar and another Vs. Zila
Adhikari / D.D.C., Muzaffarnagar and
another (supra) does not say that in the
absence of any declaration under the
proviso to Section 19 A (2) of the Act, the
land of the Gaon Sabha or State
Government can be allotted. Therefore,
the decision cited by the learned counsel
for the petitioner is not applicable to the
facts of the present case.

11. In the result, writ petition fails
and is, accordingly dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.07.2009

BEFORE
THE HON'BLE SURENDRA SINGH, J.

Criminal Misc. Application No. 24498 of
2007

Smt. Maya Devi and others ...Applicants
Versus
State of U.P. & another ...Opposite Parties

Counsel for the Applicants:
Sri V. Singh
Sri D. Tiwari

Counsel for the Opposite Parties:
A.G.A.

Code of Criminal Procedure-Section 482Quashing of charge sheet-offence under
Section 323-challenged on ground-being
non-cognizable offence- Police lacks of
jurisdiction-held-charge sheet be treated
as
complaint
in
accordance
with
procedure laid down under chapter XV of
the Code-offence being trivial in natureapplicant
be
permitted
to
appear
through counsel under section 205 of the
code.

Held: Para 8:

With the reasons mentioned above, the
charge sheet submitted by the police in
the present case under Section 323 I.P.C.
Shall be treated as complaint and it is to
be decided as a complaint in accordance
with procedure laid down under Chapter
XV of the Code of Criminal Procedure.
Learned Magistrate fell in legal error by
taking cognizance in the said case. In
view of the above discussion, the order
of the Magistrate is only required to be
modified and not to be quashed as a
whole.