GRAM SABHA KACHNAL GUSAIN Vs. ADDITIONAL COLLECTOR
LAWS(UTN)-2012-10-17
HIGH COURT OF UTTARAKHAND
Decided on October 19,2012

Gram Sabha Kachnal Gusain Appellant
VERSUS
The Additional Collector (Nazul)/Deputy Director Respondents

JUDGEMENT

B.S. Verma, J. - (1.) BY means of this petition the petitioner has sought a writ in the nature of certiorari for quashing the impugned order dated 29 -1 -2000, passed by respondent No. 1 Additional Collector (Nazul)/Deputy Director of Consolidation, Udham Singh Nagar, in Revision No. 51/281 of 1996 -97.
(2.) BRIEF facts of the case giving rise to this petition are that in the year 1970 the Village Kachnal Gusain, Tehsil Kashipur District Nainital, was notified under section 4(1)(a) of U.P. Consolidation of Holdings Act, 1953, under consolidation proceedings. In the basic year the land in dispute was recorded in the name of Gaon sabha Village Kachnal Gusain. The respondent No. 2 L.R. Sugar Factory filed two separate objections before the Consolidation Officer U/S. 9 -A(2) of the U.P. Consolidation of Holding Act (hereinafter referred as the Act), for declaration of Sudan rights over the land in dispute. Some other persons, Chhotey Lal, Mahesh Chandra, Subhash Chandra, Sukh Dev also filed objections to declare their rights over some of the land in dispute. The petitioner, Gram Sabha Kachnal Gusain, also contested all the said objections filed before the Consolidation Officer and alleged that the respondent No. 2 and other objectors have no right and title over the land in dispute nor they are in possession over the land in dispute. It was further stated that neither they were found in possession on the date of vesting of abolition of the zamindari in the State. The Consolidation Officer had consolidated all the said objections and heard together and has partly allowed the objection of respondent No. 2 and partly rejected. The objection of Chhotey Lal was also partly allowed and partly rejected and the objections of Mahesh Chand and Sukhdev were rejected vide order dated 17 -4 -1971. Aggrieved by the judgment and order passed by Consolidation Officer the petitioner Gaon Sabha filed an appeal No. 861, before the Settlement Officer Consolidation, Nainital and the respondent No. 2 also filed appeal No. 831 and one Billu had also filed appeal No. 866. The other persons Mahesh Chand, Subhash Chand, Sukhdev and Chhotey who had filed objections before the Consolidation Officer did not prefer any appeal against the order dated 17 -4 -1971. The Assistant Settlement Officer Consolidation, Allahabad, Camp at Kashipur heard all the said appeals together and vide order dated 18 -6 -1971 dismissed the appeal No. 831 of respondent No. 2 and also dismissed the appeal No. 861 filed by petitioner and partly allowed the appeal filed by Billu modifying the order dated 17 -4 -1971. Aggrieved further the respondent No. 2 filed revision No. 183 of 1971 before the Deputy Director of Consolidation, Nainital. The revision was heard by Assistant Director of Consolidation Lucknow Camp at Kashipur and vide judgment and order dated 11 -5 -1973, dismissed the revision. Thereafter the respondent No. 2 filed W.P. No. 5398 of 1973. The said petition was allowed by Allahabad High Court vide judgment dated 17 -11 -1978 and remanded the matter to Assistant Director of Consolidation for deciding the revision afresh in accordance with law. Thereafter the revision was heard by Additional Collector (Nazul)/Deputy Director of Consolidation U.S. Nagar and vide judgment and order dated 19 -1 -2000 the revision filed by respondent No. 2 was allowed vide order dated 19 -1 -2000. Now feeling aggrieved, the petitioner has preferred this writ petition before this Court and it was alleged that the respondent No. 2 L.H. Sugar Factor and Oil Mills Private Ltd. has not filed any documentary evidence to prove that it was in possession of the land in dispute on the 1st day of May, 1950 and as such in absence of such evidence the respondent No. 2 cannot claim any right over the land in dispute. It was further alleged that the respondent No. 2 cannot claim any right over the land in dispute on the basis of Thekanama dated 4 -11 -1939 as the Tehkanama was not granted by the then Zamindar exclusive for purpose of personal cultivation to respondent No. 2 and as such the impugned order passed by revisional court is wholly illegal and without jurisdiction.
(3.) THE respondent No. 2 filed counter affidavit and denied the averments made in the writ petition. It was alleged in the counter affidavit that the respondent No. 2 has successfully discharged its burden through documentary as well as oral evidence to prove its continuous possession over the land in dispute since 1939. The judgment passed by respondent No. 1 is absolutely legal and based on proper appreciation of evidence on record.;


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