# Vinod Bahadur v. D.D.C. Ayodhya & Ors

- **Citation:** (2019) 1 ILRA 1030
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-27
- **Case number:** Consolidation No. 13301 of 2019
- **Bench:** Devendra Kumar Upadhyaya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinod-bahadur-v-d-d-c-ayodhya-ors-44395
- **Pages:** 6

## Headnote

A. U.P. Consolidation of Holdings Act,
1953: Sections 4, 9-A, 11-A, 10, 12. If a
claim
is
not
raised
at
the
given
opportunities prescribed by the Act-the
claim stands barred by Section 11-A.

Revision petition (of Respondent No.2) against
the
appellate
order
was
allowed.
Consequently, the matter has been remitted to
the Consolidation Officer to decide the issues
afresh under Section 9-A (2). No action was
taken
for
mutation
of
name
prior
to
commencement of consolidation proceedings.
No objection filed prior to publication of form
CH-11 under Section 10 of the Act. Claim
barred by provisions of Section 11 - A of the
Act. (Para 17)

Precedent followed: -
Gafoora & anr Vs. DDC, & ors [(1975) 2 SCC
568] (Para 17)

Precedent distinguished: -

Sudhir Kumar Goswami Vs. District Director of
Consolidation/ Deputy Director of Consolidation
and others, Civil Misc. Writ Petition No. 31552 of
2011 (Para 19) (E-4)

## Text

1030 INDIAN LAW REPORTS ALLAHABAD SERIES
is also on a different set of facts and in
light of the later decision of the Apex
Court in the case of Sharda Devi, it would
be seen that the same clearly covers the
field whereas the decision of Mohammad
Hasnuddin (Supra) is on the different
footing.

56. The reliance placed by learned
counsel for the respondent no. 3 in the
case of Shahid Zamal (supra) wherein it
has been held by the Apex Court that an
application which contains the grounds
for reference should be taken to be the
proper application. Since the provisions of
the C.P.C. do not apply and from the
perusal of the record it indicates that the
applications made by the writ petitioners
did contain the facts which gave rise to
the grounds upon which they were
agitating their claims, therefore, it cannot
be said that the application moved by
them was completely devoid of the
necessary facts which gave rise to the
grounds upon which they were agitating
their
claims,
therefore,
also
the
submissions as well as the said judgment
of Shahid Zamal is not applicable in the
present facts and circumstances of the
case.

57. Thus, this Court finds that the
matter required to be adjudicated on
merits and so in view of the detailed
discussions as made above, this Court is
of the considered view that the respondent
no. 2 while passing the impugned order
has committed an error in deciding the
dispute, whereas it ought to have referred
the matter for adjudication before the
appropriate
Court.
Another
error
committed by the respondent no. 2 was
that while passing the order dated
28.09.2015
it
only
considered
the
application before it dated 13.06.2014 and
did not take note of the subsequent
applications and documents which were
filed by the parties including upon the
notice issued by the respondent no. 2
himself and as such the application under
Section 18 of the old Act, though, filed
after passing of the award, yet the same
has not been considered and for this
reason as well the impugned order is bad.

58. As a consequence of the detailed
discussion, the order impugned dated
28.09.2015 is liable to be quashed.
Accordingly a writ of certiorari is issued
and the order dated 28.09.2015 passed by
respondent no. 2 is quashed.

59. The respondent no. 2 is directed
to make the reference and relegate the
parties to the appropriate Court for
disposal of their disputes in accordance
with law.

60. With the aforesaid, the writ petition
stands allowed and the order dated 28.9.2015
passed by the respondent no. 2 is quashed/set
aside, however, there shall be no order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.08.2019

BEFORE
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.

Consolidation No. 13301 of 2019

Vinod Bahadur ...Petitioner
Versus
D.D.C. Ayodhya & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rama Niwas Pathak

Counsel
for
the
Respondents:
1 All. Vinod Bahadur Vs. D.D.C. Ayodhya & Ors.
1031
C.S.C., Azad Khan, Vonod Kumar

A. U.P. Consolidation of Holdings Act,
1953: Sections 4, 9-A, 11-A, 10, 12. If a
claim
is
not
raised
at
the
given
opportunities prescribed by the Act-the
claim stands barred by Section 11-A.

Revision petition (of Respondent No.2) against
the
appellate
order
was
allowed.
Consequently, the matter has been remitted to
the Consolidation Officer to decide the issues
afresh under Section 9-A (2). No action was
taken
for
mutation
of
name
prior
to
commencement of consolidation proceedings.
No objection filed prior to publication of form
CH-11 under Section 10 of the Act. Claim
barred by provisions of Section 11 - A of the
Act. (Para 17)

Precedent followed: -
Gafoora & anr Vs. DDC, & ors [(1975) 2 SCC
568] (Para 17)

Precedent distinguished: -

Sudhir Kumar Goswami Vs. District Director of
Consolidation/ Deputy Director of Consolidation
and others, Civil Misc. Writ Petition No. 31552 of
2011 (Para 19) (E-4)

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.)

1. Heard Shri Rama Niwas Pathak,
learned counsel for the petitioner, learned
State Counsel and Shri Vinod Kumar
Pandey, learned counsel representing the
respondent no.2.

2. In these proceedings instituted
under Article 226 of the Constitution of
India, the petitioner assails the validity of
an order dated 27.04.2019 passed by the
Deputy
Director
of
Consolidation,
Ayodhya whereby he has allowed the
revision
petition
filed
against
the
appellate order dated 23.07.2007 passed
by the Settlement Officer, Consolidation.
By the impugned order, the orders under
appeal before the Settlement Officer,
Consolidation, namely, the orders dated
17.04.2006 and 05.02.2002 passed by the
Consolidation Officer have also been set
aside and the matter has been remitted to
the Consolidation Officer to decide the
issues afresh under section 9-A(2) of U.P.
Consolidation
of
Holdings
Act
(hereinafter referred to as ' the Act').

3. Ordinarily in the order of remand,
this Court would not have interfered,
however, the facts of this case are such
that this matter calls for interference by
the Court in this petition for the reason
(which follows in the judgment at
appropriate place) that the case set up by
respondent no.2 on the basis of some will
deed said to have been executed by the
original recorded tenure holder, namely,
Ram Karan is barred by statutory
prescription available under section 11-A
of the Act.

4. This Court vide its order dated
22.07.2019 had required the Deputy
Director of Consolidation to file his
counter
affidavit
on
the
basis
of
instructions which were already provided
by him to the learned State Counsel. It
was further observed in the said order
dated 22.07.2019 that respondent no.2
who has had ample opportunity to file
counter affidavit had not done so,
however, it was also provided that if, he
so chooses he may file counter affidavit
and no further opportunity shall be given
to him to file the counter affidavit.

5. In compliance of the said order
dated 22.07.2019, a counter affidavit has
been filed by the Deputy Director of
Consolidation.
Vide
order
dated
1032 INDIAN LAW REPORTS ALLAHABAD SERIES
06.08.2019, on the prayer made by the
learned
counsel
representing
the
respondent no.2, two weeks further time
was granted to file counter affidavit,
however, it was observed in the said order
that in case the counter affidavit is not
filed by the respondent no.2, the matter
may proceed ex-parte.

6. Shri Vinod Kumar Pandey, learned
counsel representing the respondent no.2
states that in view of the counter affidavit
filed
by
the
Deputy
Director
of
Consolidation in the matter giving details of
the different dates of publications under the
relevant provisions of the Act, the matter
may be decided on the said basis.

7.

Undisputedly,
the
original
recorded tenure holder of the land in
question was one Ram Karan. On his
death, name of his brother Ram Yagya
came to be recorded in the revenue record
on
the
basis
of
PA-11
entry.
A
notification under section 4 of the Act
declaring the intention of the State
Government to bring the village in
question, where the land in dispute is
situated under consideration operation,
was
published
on
19.05.1990.
The
publication under section 4-A(2) of the
Act in the village was made on
22.08.1991. As per the counter affidavit
filed
by
the
Deputy
Director
of
Consolidation, publication of record and
statements under section 9 of the Act was
made on 28.02.1992. As per the said
affidavit, the revised annual registers in
form CH-11 prepared on the basis of
orders passed under section 9-A(1) and 9A(2) of the Act was published on
23.09.1998 in terms of the requirement of
section 10 of the Act. These different
dates of publication under the Act have
been extracted from the counter affidavit
filed
by
the
Deputy
Director
of
Consolidation which is supported by the
relevant documents and are thus not in
dispute.

8. At the time of notification under
section 4 of the Act, the name of Ram
Yagya was found recorded in the basic
year khatauni. Ram Yagya is said to have
executed a sale deed on 11.04.2001 in
favour of the petitioner-Vinod Bahadur,
who on the basis of said sale deed moved
an application under section 12 of the Act
seeking mutation of his name, which
application was allowed on 05.02.2002
whereby the name of the petitioner was
ordered to be mutated. The respondent
no.2 moved an application seeking recall
of the order dated 05.02.2002 passed by
the Consolidation Officer and restoration
of the case, however, the said restoration
application
was
rejected
by
the
Consolidation Officer vide his order dated
17.04.2006. Against the said orders dated
05.02.2002 and 17.04.2006 passed by the
Consolidation Officer, the respondent
no.2 filed an appeal which was dismissed
by the Settlement Officer, Consolidation
vide
his
order
dated
23.07.2007.
However, the revision petition filed by the
respondent no.2 challenging the orders
23.07.2007 passed by the Settlement
Officer, Consolidation and the orders
dated 17.04.2006 and 05.02.2002 passed
by the Consolidation Officer has been
allowed. It is this order dated 27.04.2019
passed by the Deputy Director of
Consolidation which is under challenge
herein. By the said order, the Deputy
Director of Consolidation has set aside the
orders dated 23.07.2007, 17.04.2006 and
05.02.2002 and has remitted the matter to
the Consolidation Officer for disposal of
the issues between the parties under
section 9-A(2) of the Act afresh.
1 All. Vinod Bahadur Vs. D.D.C. Ayodhya & Ors.
1033

9. There are two issues which need
consideration in this case. The first issue
as raised by the learned counsel for the
respondent no.2 is that the order dated
05.02.2002 passed by the Consolidation
Officer was an ex parte order and as a
matter of fact his claim based on the will
said to have been executed by Ram Karan
in favour of the respondent no.2 has
nowhere been considered and therefore
the order passed by the Deputy Director
of Consolidation, dated 27.04.2019 does
not suffer from any illegality and
irregularity for the reason that by the said
order he has only remitted the matter to
the Consolidation Officer where the case
set up by the petitioner on the basis of
sale deed dated 11.04.2001 and case set
up by the respondent no.2 on the basis of
will deed said to have been executed by
Ram Karan in his favour shall be
considered afresh and parties will have
ample opportunity to lead evidence to
establish their cases. His submission, thus,
in this regard is that by the order passed
by the Deputy Director of Consolidation
dated 27.04.2019 no prejudice will be
caused to the parties and accordingly this
Court need not interfere in the same.

10. The second issue which needs
consideration is as to whether the claim of
the respondent no.2 is barred by the
statutory prescription available in under
section 11-A of the Act and in case it is
thus found that his claim is so barred by
statutory prescription, the respondent no.2
would be entitled to lay his claim either in
the proceedings initiated by the petitioner
under section 12 or his objection said to
have been filed by him under section 9A(2) of the Act.

11. The answer to the first issue as
observed above will depend on the
findings which may be recorded in this
order on the second issue which relates to
claim of the respondent no.2 being barred
by statutory prescription available under
section 11-A of the Act.

12. There is no dispute to the fact that
Ram Karan had died prior to publication of
notification under section 4 of the Act in the
village by which the village where the land in
question is situated was brought under
consideration operations.It is also not in
dispute that prior to initiation of the
consolidation proceedings in the village, name
of Ram Yagya was recorded in the relevant
revenue records by way of PA-11 entry and
further that there is no dispute that basic year
entry in the khatauni existed in the name of
Ram Yagya.

13. If the respondent no.2 had any claim
based on the alleged will deed executed by
Ram Karan in in his favour, he ought to have
firstly moved mutation application seeking
mutation of his name in place of the deceased
tenure
holder
Ram
Karan
prior
to
commencement
of
the
consolidation
proceedings under the relevant provisions
oflLaw. It is not in dispute that he did not take
any steps seeking mutation of his name on the
basis of alleged will deed said to have been
executed in his favour by Ram Karan. If it
was found by the respondent no.2 that name
of Ram Yagya was wrongly recorded as the
land in question would devolve on the
respondent no.2 on the basis of will deed said
to have been executed by Ram Karan in his
favour, on publication under section 9 of the
Act he ought to have filed objections under
section 9-A(2) of the Act. It is not in dispute
that the respondent no.2 laid his claim on the
basis of will deed allegedly executed by Ram
Karan in his favour only on 05.05.2001 i.e. the
date on which he filed objections under
section 9-A(2) of the Act before the
1034 INDIAN LAW REPORTS ALLAHABAD SERIES
Consolidation Officer. As noticed above
publication under section 4-A(2) of the Act in
the village was made on 22.08.1991,
publication under section 9 of the Act was
made on 28.02.1992 and thereafter the
extracts of annual register in form CH-11 was
published under section 10 of the Act on
23.09.1998.

14. It is relevant to point out that
section 10 of the Act mandates the
consolidation authorities to publish the
annual register after revising the same on
the basis of the orders passed under sub
sections 1 & 2 of section 9-A of the Act.
Thus on preparation and maintenance of
revised annual register under section 10 of
the Act, the disputes by and large under
section 9-A(2) if raised get settled. It is in
this view that the scheme under section
11-A of the Act provides that any claim to
land or partition of joint holdings or
valuation of plots, trees, wells and other
improvements relating to consolidation
area cannot be raised at a subsequent
stage of consolidation proceedings which
ought to have been raised under section 9
of the Act or which might have been
raised under the said section.

15. A bare reading of section 11-A
of the Act makes it clear that there exists
a statutory bar on any claim after
publication of annual register under
section 10 of the Act. In respect of any
claim or partition or valuation of plots,
trees, wells and other improvements. As
observed above there is a purpose for
creating such a bar under section 11-A of
the Act by the legislature and the purpose
is to ensure that further proceedings
relating to carvation of chaks etc. be
initiated once the disputes relating to
rights and title and claims in respect of the
holdings are decided under section 9-A(2)
of the Act if raised. In case such a bar as
available under section 11-A is not
created, determination of rights and
claims in the holding shall be an unending
process
which
will
make
almost
impossible for consolidation authorities to
undertake
further
proceedings
of
consolidation such as carvation of chaks
etc.

16. So far as the facts of the instant
case
as
already
noted
above
are
concerned, the publication under section 9
of the Act was made on 28.02.1992 and
publication of form CH-11 was made
under section 10 of the said Act on
23.09.1998, thus, there was ample time of
more than 6 and 1/2 years available to the
respondent no.2 between the date of
publication under section 9 and date of
publication under section 10, however,
the petitioner kept silent and did not raise
any claim based on the alleged will said to
have been executed in his favour by the
original tenure holder-Ram Karan. As a
matter of fact, he woke up to file
objection under section 9-A(2) of the Act
only on 05.05.2001, that is to say, after
the date when Ram Yagya whose name
was found entered in the basic year
khatauni executed a sale deed in favour of
the petitioner on 11.04.2001.

17.

On
the
basis
of
the
aforementioned undisputed facts, in my
considered opinion, bar of section 11-A of
the Act in this case will act in its full force
as far as the claim of respondent no.2 in
the land in question is concerned for the
reason that neither he took any action for
getting his name mutated prior to
commencement
of
the
consolidation
proceedings nor did he file any objection
as contemplated under section 9-A(2) of
the Act prior to publication of form CH-
1 All. Smt. Kusum Vs. State of U.P. And Others
1035
11 under section 10 of the Act. The
aforesaid view is supported by a judgment
of Hon'ble Supreme Court in the case of
Gafoora
and
another
vs.
Deputy
Director of Consolidation, Meerut and
others, reported in [(1975) 2 SCC 568].

18. At this juncture, learned counsel
appearing for the respondent no.2 has
relied upon a judgment rendered by this
Court on 23.08.2011 in Civil Misc. Writ
Petition No.31552 of 2011, Sudhir
Kumar Goswami vs. District Director
of Consolidation/Deputy Director of
Consolidation and others to emphasize
that the proceedings under section 12 of
the Act cannot be said to be summary
proceedings for the reason that the
provisions of section 7 to 11 of the Act
apply mutatis mutandis in so far as the
proceedings
under
section
12
are
concerned.

19. As far the proposition of law laid
down in the said judgment in the case of
Sudhir Kumar Goswami (supra), there
cannot be any quarrel, however, what is
noticeable is the fact that the statutory bar
created by section 11-A specifically
comes in the way of the claim put forth by
the respondent no.2 in the land in question
on the basis of the alleged will deed said
to have been executed in his favour by
Ram
Karan-original
recorded
tenure
holder.

20. In view of the discussions made
above, this Court does not have any doubt
to observe that any claim of respondent
no.2 would thus be barred by operation of
the provisions of section 11-A of the Act.
Accordingly, even if it is presumed,
though it is being disputed by the
petitioner, that the order dated 05.02.2002
passed by the Consolidation Officer was
an ex-parte order, remitting the matter
back to the Consolidation Officer will not
serve any purpose for the reason that
claim of the respondent no.2 is barred by
statutory prescription under section 11-A
of the Act.

21. In view of the discussions made
and reasons given above, the writ petition
deserves to be allowed. Accordingly, the
writ petition is allowed. The order dated
27.04.2019 passed by the Deputy Director
of Consolidation, Ayodhya as is contained
in annexure no.1 to the writ petition is
hereby quashed.

22. Consequences to follow.

23. There will be no order as to cost.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.05.2019

BEFORE
THE HON'BLE RAJIV JOSHI, J.

Writ - B No. 14209 of 2012 connected with
Writ C No. 20580, 20578, 20579 of 2012

Smt. Kusum ...Petitioner
Versus
State of U.P. And Others ...Respondents

Counsel for the Petitioner:
Sri Deepak Kaushik

Counsel for the Respondents:
C.S.C., Sri Anuj Kumar, Sri A.K. Umrao,
Sri M.N. Singh.

A. U.P Zamindari Abolition and Land
Reforms Act, 1951 - Sections 157 AA and
131 B- Transfer under section 157 AA -
the permission of Assistant Collector is
required when transfer is made by a
person belonging to Scheduled Caste
who
has
become
bhumidhar
with