# Vijay Narayan v. Dy. Director of Consolidation, Basti & Ors

- **Citation:** (2023) 6 ILRA 899
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-03
- **Case number:** Writ-B No. 218 of 2022
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-narayan-v-dy-director-of-consolidation-basti-ors-50472
- **Pages:** 7

## Headnote

A. Civil Law - U.P. Consolidation of
Holdings Act, 1953-Sections 11, 12 & 52The appeal u/s 11 of the Act filed by
contesting
respondents
cannot
be
entertained as contesting respondents
being private persons were not parties to
the
proceeding
before
Consolidation
officer nor contesting respondents have
title in respect to disputed plot rather
their stand is that they are protecting the
State/Gaon Sabha property, as such, there
was no question of condonation of delay
in filing the appeal and fixing the same for
decision on merit-The continuance of the
appellate proceeding at the instance of
contesting respondents on the ground
that by impugned order only delay in filing
appeal has been condoned and rest matter
will be decided later on will be abuse of
process of law-an objection u/s 9-A(2) of
the Act cannot be filed by private person
as procedure has been prescribed under
para -128 of Gaon Sabha Manual for
conducting or initiating proceeding in
respect of Gaon Sabha Property.-Hence
the impugned order is liable to be set
aside.(Para 1 to 16)

The writ petition is allowed. (E-6)

List of Cases cited:

## Text

6 All. Vijay Narayan Vs. Dy. Director of Consolidation, Basti & Ors.
899
for taxation on transport and commercial
vehicles.

14. Therefore, since the scope and
subject matter of both the aforesaid laws
deal with entirely separate subjects, it
would not be proper to borrow definition
while the same is already provided under
the Act. In case Legislature so desired, it
would not have provided a separate
definition of the word 'transport vehicle'
under the Taxation Act of 1997. Therefore,
the said submission of learned counsel for
petitioner also does not have any force.

15. In view of aforesaid, there is no
force in present writ petition. It is
accordingly dismissed.
----------
(2023) 6 ILRA 899
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.05.2023

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ-B No. 218 of 2022

Vijay Narayan ...Petitioner
Versus
Dy. Director of Consolidation, Basti & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Anand Kumar Srivastava

Counsel for the Respondents:
C.S.C., Sri Ashutosh Pandey, Sri Pankaj
Kumar Gupta

A. Civil Law - U.P. Consolidation of
Holdings Act, 1953-Sections 11, 12 & 52The appeal u/s 11 of the Act filed by
contesting
respondents
cannot
be
entertained as contesting respondents
being private persons were not parties to
the
proceeding
before
Consolidation
officer nor contesting respondents have
title in respect to disputed plot rather
their stand is that they are protecting the
State/Gaon Sabha property, as such, there
was no question of condonation of delay
in filing the appeal and fixing the same for
decision on merit-The continuance of the
appellate proceeding at the instance of
contesting respondents on the ground
that by impugned order only delay in filing
appeal has been condoned and rest matter
will be decided later on will be abuse of
process of law-an objection u/s 9-A(2) of
the Act cannot be filed by private person
as procedure has been prescribed under
para -128 of Gaon Sabha Manual for
conducting or initiating proceeding in
respect of Gaon Sabha Property.-Hence
the impugned order is liable to be set
aside.(Para 1 to 16)

The writ petition is allowed. (E-6)

List of Cases cited:
1. Dodram Vs Collector Peelibheet (2014) 125
RD 333

2. Tripal Singh S/o Sone Lal Vs St. of U.P. & ors.
(2006) Vol. 1 AWC 205

3. Ram Jiavan & Addl Commr. Vindhyachal
Mandal Mirzapur & ors.. (2014) 124 RD 2019

4. Smt. Sukhjinder Jeet Kaur & ors. Vs DDC,
Rampur & ors. (2003) 94 RD 79

(Delivered by Hon'ble Chandra Kumar
Rai, J.)

1. Heard Mr. Anand Kumar Srivastava,
Counsel for the petitioner, Mr. Ashutosh
Pandey, Counsel for respondent no. 3,
learned Standing Counsel for the Staterespondents and Mr. Pankaj Kumar Gupta,
Counsel for respondent no. 7, Gaon Sabha.

2. Brief facts of the case are that name
of the petitioner was ordered to be recorded
900 INDIAN LAW REPORTS ALLAHABAD SERIES
in the revenue records vide order dated
4.9.1976
passed
by
the
Assistant
Consolidation Officer in case No. 425
under Section 12 of the U.P.C.H. Act in
respect to plot No. 60, New Nos. 176, 177,
302, 303 and 304 situated in Village
Marvat Tappa Puraina Pargana Amroha,
Tehsil Harraiya, District-Basti. On the basis
of the order dated 4.9.1976, the name of the
petitioner was recorded in revenue records.
C.H. Form 45 has been annexed along with
the writ petition as Annexure No. 1.
Petitioner remained in possession of the
plot in dispute on the basis of the order
dated 4.9.1976. Notification under Section
52 of U.P.C.H. Act took place on 8.2.1978
in respect to Village in question. Against
the
order
dated
4.9.1976,
private-
respondent nos. 3 to 5 filed an appeal under
Section 11(1) of the U.P.C.H. Act along
with the delay condonation application.
The appeal was registered as appeal No.
512 on 26.4.2017. Petitioner filed his
objection
dated
18.12.2017
in
aforementioned appeal No. 512 stating
specifically that Village has been denotified
under Section 52 of the U.P.C.H. Act on
8.2.1978. Therefore the appeal is liable to
be rejected on the ground of limitation, the
ground has also been taken in the objection
that respondent nos. 3 to 5 have no locus to
file an appeal against the order dated
4.9.1976. Settlement Officer Consolidation
vide order dated 19.9.2019 allowed the
delay condonation application vide order
dated 19.9.2019 and fixed the appeal for
disposal on merit. Against the order dated
19.9.2019, petitioner filed a revision under
Section 48 of the U.P.C.H. Act which was
dismissed vide order dated 12.10.2021 on
the ground of maintainability. Against the
order dated 12.10.2021, petitioner filed a
restoration application which was also
dismissed on 21.12.2021. Hence this writ
petition.

3.

Counsel
for
the
petitioner
submitted that appeal filed under Section
11(1) of the U.P.C.H. Act along with
application under Section 5 of Limitation
Act after 41 years on behalf of respondent
nos. 3,4 and 5 who has no locus to file the
application has been illegally entertained
by Settlement Officer Consolidation. He
further submitted that delay of 41 years has
been arbitrarily condoned by the Settlement
Officer Consolidation. He further submitted
that Village has also been denotified long
back, as such, the appeal filed by
respondent nos. 3 to 5 under Section 11(1)
of the U.P.C.H. Act was not maintainable
before the Consolidation Court. He further
submitted that respondent nos. 3 to 5 have
no locus to file the appeal against the order
dated 4.9.1976 but the Settlement Officer
Consolidation has illegally granted benefit
of Section 5 of Limitation Act in filing
appeal which was delayed by 41 years. He
further submitted that Revisional Court has
dismissed the revision as well as the
restoration application in arbitrary manner
on the ground that revision is no
maintainable against the order passed
condoning the delay in filing the appeal. He
submitted that impugned orders be set aside
as the filing of appeal after 41 years by the
respondent nos. 3,4 and 5 is a abuse of
process of law.

4. On the other hand, Mr. Ashutosh
Pandey appearing for respondent nos. 3,4
and 5 submitted that respondent nos. 3,4
and 5 are residents of Village Maravat and
Village Maravat is within the Gram
Panchayat Gobhiya. He further submitted
that petitioner Vijay Narayan was posted as
Lekhpal in the year 1975-1976 and he
misused his position. He further submitted
that the order dated 4.9.1976 is the
fraudulent act of the petitioner, Vijay
Narayan. He further submitted that no lease
6 All. Vijay Narayan Vs. Dy. Director of Consolidation, Basti & Ors.
901
was executed by the Land Management
Committee in respect to the plot in dispute
in favour of the petitioner, Vijay Narayan
and land in dispute was a bachat land of the
Gaon Sabha accordingly, the appeal under
Section 11(1) of the U.P.C.H. Act was
rightly filed against the order of Assistant
Consolidation Officer dated 4.9.1976 along
with the prayer for condonation of delay.
He further submitted that by the impugned
order only delay in filing the appeal has
been condoned, as such, no interference is
required against the impugned order passed
by Appellate Court condoning the delay in
filing the appeal. He further submitted that
appeal will be decided on merit in
accordance with law and petitioner can
appear before the Appellate Court for
decision of appeal under Section 11(1) of
the U.P.C.H. Act filed by the respondent
nos. 3,4 and 5. He further submitted that
Revisional Court has rightly decided the
revision in accordance with law by placing
the certified copy of the orders of
Revisional Court dated 4.11.2020, 7.9.2011
and 14.9.2021 in order to demonstrate that
proper opportunity of hearing was afforded
to the parties before deciding the revision
under Section 48 of the U.P.C.H. Act by
the petitioner. Counsel for the respondent
nos. 3 to 5 placed reliance upon the
judgment of this Court reported in 2014
(125) RD 333 Dodram vs. Collector
Peelibheet, 2006 Volume 1 AWC 205
Tripal Singh s/o Sone Lal Vs. State of
U.P. and Others, 2014 (124) RD 2019
Ram
Jiavan
and
Additional
Commissioner
Vindhyachal
Mandal
Mirzapur
and
Others
in order
to
demonstrate that matter should be decided
on merit rather on technical grounds.

5. I have considered the arguments
advanced by Counsel for the parties and
perused the records.

6. There is no dispute about the fact
that Assistant Consolidation Officer in case
No. 425 passed an order dated 4.9.1976
under Section 12 of the U.P.C.H. Act in
respect to the plot in dispute. There is also
no dispute about the fact that respondent
nos. 3 to 5 filed an appeal No. 512 under
Section 11(1) of the U.P.C.H. Act on
26.4.2017 along with the delay condonation
application. There is also no dispute about
the
fact
that
Settlement
Officer
Consolidation has condoned the delay in
filing the aforementioned appeal vide order
dated 19.9.2019 and fixed the appeal for
disposal on merit. There is also no dispute
about the fact that revision under Section
48 of the U.P.C.H. Act filed by petitioner
as well as the restoration application filed
in revisions have been dismissed by the
Deputy Director Consolidation.

7. In order to appreciate the
controversy, the perusal of Section 11 of
the U.P.C.H. Act will be relevant which is
as under:-

"(1) Any party to the proceedings
under Section 9-A, aggrieved by an order of
the Assistant Consolidation Officer or the
Consolidation Officer under that section,
may, within 21 days of the date of the order,
file an appeal before the Settlement Officer,
Consolidation, who shall after affording
opportunity of being heard to the parties
concerned, give his decision thereon which,
except as otherwise provided by or under
this Act, shall be final and not be questioned
in any Court of law.

(2)
The
Settlement
Officer,
Consolidation, hearing an appeal under
subsection (1) shall be deemed to be a
Court of competent jurisdiction, anything
to the contrary contained in any law for
the time being in force notwithstanding."
902 INDIAN LAW REPORTS ALLAHABAD SERIES

8. The perusal of Section 11 of the
U.P.C.H. Act reveals that appeal can be
filed by any party to the proceeding under
Section 9-A of U.P.C.H. Act can file appeal
under Section 11 of the U.P.C.H. Act.

9. This Court in the case reported in
(2003) 94 RD 79 Smt. Sukhjinder Jeet
Kaur and others Vs. Deputy Director of
Consolidation, Rampur and Others has
considered the scope of Section 11 of
U.P.C.H. Act and has held that only party
to the proceeding can file appeal under
Section 11 of U.P.C.H. Act. Paragraph
Nos. 9,10,11 and 12 of the judgement are
relevant which are as under:-

"9. So far as the question of
maintainability of the appeals filed by the
State
Government
is
concerned,
as
admitted by learned standing counsel, the
State Government was not a party to the
proceedings
before
the
Assistant
Consolidation Officer. It, therefore, had
no right to file the appeals in view of the
amended provisions of Section 11(1) of
the Act, which reads as under:

?11. Appeals.?(1) Any party to
the
proceedings
under
Section
9A,
aggrieved by an order of the Assistant
Consolidation
Officer
or
the
Consolidation Officer under that section,
may, within 21 days of the order, file an
appeal before the Settlement Officer,
Consolidation, who shall after affording
opportunity of being heard to the parties,
concerned, give his decision thereon
which, except as otherwise provided by or
under this Act, shall be final and not be
questioned in any court of law.?

10.
The
aforesaid
statutory
provision came up for interpretation
before this Court in Writ Petition No.
36233 of 1991, Gaon Sabha through its
Pradhan
v.
Deputy
Director
of
Consolidation,
Basti,
decided
on
3.12.2002. This Court after referring to
the provisions of Section 11, held as
under:

?A reading of the aforesaid
statutory provision reveals that an appeal
can be filed only by a party to the
proceedings. It is well settled in law that
right of appeal, revision or review are the
statutory rights. They are conferred by the
statutes and unless conferred, they can not
be availed of by any person and no
authority can entertain an appeal, revision
or review unless the said authority is
authorized by the statute to entertain the
same.
The
Deputy
Director
of
Consolidation was, thus, right in holding
that the aforesaid petitioners were not the

party to the proceedings and they
had no right to file an appeal. The appeal
filed
by
them
was
legally
not
maintainable.?

11. Further, Section 47 of the
Act provides as under:

?47. Appeals, etc., to be allowed
by Act.?No appeal and no application for
revision shall lie from any order passed
under the provisions of this Act except as
provided by or under this Act.?

12. The aforesaid section clearly
provides that no appeal and no application
for revision shall lie from any order
passed under the Act except as provided by
or under the Act. Thus, all the appeals
filed by the State Government, in which
the State Government, admittedly, was not
a party to the proceedings before the
Assistant Consolidation Officer, after six
6 All. Vijay Narayan Vs. Dy. Director of Consolidation, Basti & Ors.
903
years against the order passed by the
Assistant
Consolidation
Officer,
the
Settlement Officer, Consolidation acted
illegally and in excess of his jurisdiction
in entertaining the said appeals. Further,
having refused to grant any relief to the
State
Government,
there
was
no
justification for the Settlement Officer,
Consolidation to grant relief in favour of
the petitioners in the connected case. He
could at the best remand the case to the
Assistant
Consolidation
Officer
for
referring the matter to the Consolidation
Officer for decision. The order passed by
the Settlement Officer, Consolidation
dated 12.1.2001 is, thus, illegal and liable
to be quashed. Learned counsel for the
petitioners in the leading case attempted to
say that the order passed by the Settlement
Officer, Consolidation which was in
favour of his clients, was valid and lawful.
He referred to and relied upon the
decision in the case of Palakdhari v.
Deputy Director of Consolidation, Basti,
1992 (1) AWC 228 : 1992 RD 111. In the
said decision, question of maintainability
of an appeal under Section 11 of the Act
by a person who was not a party to the
proceeding
was
neither
raised
nor
considered by the Court. Therefore, no
advantage can be claimed by learned
counsel for the petitioners on the basis of
the said case. What was decided by the
Court in the said case was to the effect
that the petitioner, who was a member of
the Gaon Sabha could file an objection on
behalf of the Gaon Sabha. It may be noted
that Section 11 of the Act was amended by
the U.P. Act No. VIII of 1963. Before
amendment, the words used were ?any
person aggrieved by the order of the
Assistant Consolidation Officer under
Section 9 or the Consolidation Officer
under
Section
10?,
but
after
the
amendment, the words ?person aggrieved?
have been deleted and in the place the
words ?any party to the proceedings under
Section 9A aggrieved by an order of the
Assistant
Consolidation
Officer
or
Consolidation Officer under that section?
have been substituted. In view of the
provisions of Section 11 of the Act,
referred to above, the appeals filed by the
State
Government
were
legally
not
maintainable. The Settlement Officer,
Consolidation as well as the Deputy
Director of Consolidation have acted
illegally and in excess of their jurisdiction
in entertaining the appeals and revisions
filed by the State Government, as the State
Government was not a party to the said
proceedings
before
the
Assistant
Consolidation Officer and in allowing the
same. Impugned orders passed by the
authorities below are, thus, wholly illegal
and without jurisdiction."

10. The order passed by the
Settlement Officer Consolidation dated
19.9.2019 will be relevant for perusal
which is as follows:-

"मैंने पक्षों की ओर से तकक कषों सुना तथा
पत्रावली कष अवलषकन ककया। प्रस्तुत अपील अनन्त
कुमार आकि के द्वारा कवजय नरायन आकि कष
पक्कार बनाते हुए सहायक चकबन्दी अकिकारी के
आिेश किनाोंक 04.9.76 के कवरुद्ध किनाोंक 26.4.17
के शपथ पत्र के साथ प्रस्तुत ककया गया। पत्रावली के
अवलषकन से प्रथम दृष्टया यह कवकित हषता है कक
प्रकरण ग्राम समाज से सम्बन्धित है, कजसका पररक्ण
करने के उपरान्तज कनणकय ककया जाना कवकि कवकि
सोंगत हषगा। ऐसी न्धस्तकथ में पषषणीयता एवों कमयाि के
कबन्िु पर अपील कनरस्त ककया जाना उकचत नहीों है।
आिेश
अतः उपरषक्त कववेचना के आिार पर आिेश हुआ
कक प्रस्तुत अपील पषषणीय है तथा अपील में प्रस्तुत
शपथ पत्र कवश्वास करते िफा-5 कमयाि कानून का
लाभ प्रिान ककया जाता है। पत्रावली वास्ते गुण-िषष
पर बहस हेतु किनाोंक 29.9.19 कष पेश हष।
904 INDIAN LAW REPORTS ALLAHABAD SERIES
ह० अपठनीय
19.09.19
किनाोंक 19.9.19 (अकनल कुमार)

बोंिषबस्त अकिकारी चकबन्दी,
बस्ती।"

11. The perusal of the order passed by
the Settlement Officer Consolidation dated
19.9.2019 reveals that delay in filing the
appeal under Section 11(1) of the U.P.C.H.
Act has been condoned and the appeal has
also held to be maintainable.

12. This Court in the case reported in
1982 ALJ76 Sita Ram Versus Deputy
Director of Consolidation and others has
held that an objection under Section 9-A(2)
of the U.P.C.H. Act cannot be filed by
private person as procedure has been
prescribed under Para-128 of Gaon Sabha
Manual
for
conducting
or
initiating
proceeding in respect of Gaon Sabha
property. Paragraph Nos. 21 and 22 of the
judgement are relevant which are as under:-

"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.

22. Thus, in view of the above I
am of the opinion that the objection filed
by opposite party No.3 Sheo Prasad
cannot be treated to be a valid objection
on behalf of the Gaon Sabha under
Section 9-A(2) of the U.P. Consolidation
of Holdings Act, on the ground that he
was himself an interested person under
Section 9-A(2) of the Act, as admittedly
the Land Management Committee of the
Gaon
Sabha
had
not
passed
any
resolution taking decision to file objection,
appeal and revision nor opposite party No.
3 was authorized to file those on behalf of
the Gaon Sabha. It is also not disputed
that the action of opposite party No.3, in
filing objections, appeal and revision on
behalf of the Gaon Sabha, was not ratified
by the Land Management Committee in its
meetings. Thus, the objections, appeal and
revision filed by opposite party No.3 Sheo
Prasad on behalf of the Gaon Sabha were
wholly incompetent and opposite party
Nos. 1 and 2 acted illegally and without
jurisdiction in passing the impugned
orders."

13. In view of ratio of law laid down
in Smt. Sukhinder Jeet Kaur (Supra) as
well as in Sita Ram (Supra), the appeal
under Section 11 of U.P.C.H. Act filed by
contesting
respondents
cannot
be
entertained as contesting respondents were
not parties to the proceeding before
Consolidation
Officer
nor
contesting
respondents have title in respect to dispute
plot rather their stand is that they are
protecting the State/ Gaon Sabha property,
as such, there was no question of
condonation of delay in filing the appeal
and fixing the same for decision on merit.
The
continuance
of
the
appellate
proceeding at the instance of contesting
respondents
on
the
ground
that
by
impugned order only delay in filing appeal
has been condoned and rest matter will be
decided later on will be abuse of process of
6 All. M/S AL Haq Food Pvt. Ltd. Vs. State of U.P. & Ors.
905
law. In the case of Sita Ram (Supra), it
has been held that Gaon Sabha litigation
initiated/ conducted in violation of Para128 of Gaon Sabha Manual is illegal.

14. It is also relevant that appeal
under Section 11(1) of U.P.C.H. Act has
been filed by contesting respondents on
26.4.2017 against the order of Assistant
Consolidation Officer dated 4.9.1976 and
Village has been denotified under Section
52 of U.P.C.H. Act on 8.2.1978, as such,
entertaining the appeal after 41 years will
be abuse of process of law.

15. Case laws cited by learned
counsel for the contesting respondent no.3
are not applicable in the dispute arising out
of U.P.C.H. Act where procedure has been
provided for filing objection / appeal /
revision
at
proper
stage
by
person
authorized to initiate the proceeding.

16. Considering the entire facts and
circumstances as well as ratio of law laid
down in Smt. Sukhjinder Jeet Kaur
(Supra) and Sita Ram (Supra) the
impugned order dated 19.9.2019 passed
by Settlement Officer Consolidation as
well
orders
dated
21.12.2021
and
12.10.2021
passed
by
the
Deputy
Director Consolidation are liable to be set
aside and are hereby set aside. The writ
petition stands allowed. No order as to
cost.
----------
(2023) 6 ILRA 905
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.05.2023

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE OM PRAKASH SHUKLA, J.
Writ C No. 4368 of 2022

M/S AL Haq Food Pvt. Ltd. ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Salil Kumar Srivastava, Abhinav Singh,
Lalta Prasad Misra, Rahul Kapoor, Rahul
Srivastava, Shobhit Mohan Shukla, Vinod
Kumar

Counsel for the Respondents:
C.S.C., A.S.G.I., Ashok Kumar Verma

A. Civil Law - The Water (Prevention &
Control of Pollution) Act, 1974 - Sections
25/26 - The Air (Prevention & Control of
Pollution) Act, 1981 - Sections 21/22 -
impugned
order-
consent
to
operate
slaughterhouse refused by UPPCB- - NOC
given to petitioner by District Magistratethe
slaughterhouse
not
operation-
meanwhile
GO
dated
07.07.2017
containing 24-point compendium came in
vogue-compliance mandatory in light of
the directions given by the Supreme
Court.

B. Preliminary objection-maintainability of
writ
petition-
alternative
remedy
available-Section 28 of the Water Act-
Section 31 of the Air Act- objection
rejected-existence of alternative remedy
is not an absolute bar-writ petition held to
be maintainable. (Paras 15, 16 and 17)

HELD:
Having heard the learned Counsels on the issue
of preliminary hearing, this Court is of the view
that the existence of alternative remedy is not
an absolute bar, is a legal proposition, which
does not require any detailed discussion. It is
settled law that while a High Court would
normally not exercise its writ jurisdiction under
Article 226 of the Constitution of India, if an
effective and efficacious alternative remedy is
available and the existence of an alternate
remedy does not by itself per se bar the High
Court from exercising its jurisdiction in certain
contingencies.
This
principle
has
been