Decided on May 01,2012

Alpha Industries Appellant


V.K.BIST, J. - (1.) INSTANT writ petition has been filed by the petitioner challenging the order dated 12.09.1991. passed by Consolidation Officer, Kicheha, order dated 21.05.1992 passed by Settlement Officer (Consolidation), Kichcha and order dated 27.01.1993 passed by Deputy Director of Consolidation/ Addl. District Magistrate (Nazul), Rudrapur.
(2.) BRIEF facts as asserted in the petition, shorn of unnecessary details, are that petitioner purchased the land Gata No. 182/4 measuring about 0.1181 acres situate within village Siraulikalan, Tehsil Kichcha, District Udham Singh Nagar from Jain -ud -din/ respondent no -4 (now deceased) through a registered sale deed dated 10.02.1983 for establishing an industry and since then the petitioner is in continuous possession over the land in dispute. On the said land two rooms and boundary wall were constructed. It is further asserted in the petition that as the plots purchased by the petitioner were situated in industrial area, therefore, no valuation was determined, and accordingly, the consolidation authorities declared said land beyond the purview of consolidation proceedings. On 20.09.1986, the said village carne into consolidation proceedings and no exchange rate was fixed on the land purchased by the petitioner. The land in Khata no. 182/1, 182/2 and 182/4 has been held out of consolidation, whereas land of Khata No. 182/3, being the road ofNH74, was held out for consolidation. It has been further asserted in the petition that the Consolidation Officer in cobriivance with respondent nos. 4 & .5 passed an order on 12.09.1991 by determining the valuation of said property in 'favour of respondent nOA, as his name was found entered in the revenue record, without giving any opportunity of hearing to the petitioner or impleading him as a party. Against the order of Consolidation Officer, the petitioner filed an appeal before the Settlement Officer (Consolidation), who vide order dated 21.05.1992 dismissed the appeal as not maintainable holding that .the petitioner was not a party before the consolidation authorities, therefore, he cannot file an appeal. Feeling aggrieved with the order of Settlement Officer, the petitioner filed revision before the District Magistrate, which was lateron transferred to the Deputy Director of Consolidation/ Addl. District Magistrate (Nazul) , Rudrapur, who vide order dated rejected the same.
(3.) I have heard Mr. Sarvesh Agarwal and Mr. Lalit Belwal, Advocates for the petitioner, Mr. N.P. Sah, Standing Counsel for the State/respondent nos. 1 to 3, Mr. Sharad Sharma, Senior Advocate with Mrs. Krishi Shukla, Advocate for respondent no.6 and perused the record. Learned counsel for the petitioner submitted that the petitioner purchased the land of Gata No. 182/4 (earlier known as No. 182/1 and 182 min.) on 10.02.1983 and was in possession since 1976. He denied that Niamuddin and Raisuddin were or are in possession of the land at any point of time. He argued that at the time of starting of consolidation proceedings it was ABADI of the petitioner, which was duly purchased in the name of Alpha industries and was in possession of the petitioner, even then no notice was sent or served upon it. He contended that order of fixing exchange rate has been passed in a very haste manner. The petitioner was in possession of the land No. 182/4 since 1976, therefore at the time of PARTAL in CH -2A was mentioned as ABADI and industrial area, thus the order fixing exchange rate of the land of the petitioner is wholly illegal. He submitted that Jain -ud -din and his brothers admitted the possession of the petitioner since 1976 and have made statement before the consolidating authority that they have no objection on giving this land to the petitioner. He submitted that only, Gata No. ,143 measuring 0.0250 hectares was declared non -agriculture and not the land of 820 min., 821 min. and 822 min. He also submitted that land of Gata No. 376 and 377 together were made from Gata No. 182/4 and this land never remained either in ownership or in possession of Rais Ahmad and his brothers. He further submitted that the petitioner is owner and in possession of the land of Gata No. 182/4, which was mentioned in PARTAL. This land of Gata No. 182/4 was recorded in the name of Jain -ud -din, and thus, the petitioner became the owner and was in possession since 1976 over the land and Rais Ahmed got passed order in his favour of the land, which was not under consolidation proc7ed~Ilgs and cannot be under the consolidation proceedings due to ABADI and industrial area belonging to the petitioner. He contended that the application for fixing exchange value was not in respect of Gata No. 182/4, but was only in respect of Gata No. 182, as Jain -ud -din and ,his brothers knew that the land was sold out to the petitioner and was in its possession since 1976 i.e. much before the initiation of the consolidation proceedings, but the Consolidation Officer wrongly and arbitrarily fixed the rate of Gata No. 182/4, which was out of consolidation proceedings and was in ownership and possession of the petitioner and that too without serving any notice or providing opportunity of hearing the petitioner, as such the order fixing the rate of land of Gata No. 182/4'is totally void ab -initio and is no order in the eye of law. He denied that Jain -ud -din was Bhumidhar with non -transferable right. Learned counsel for the petitioner lastly submitted on 09.09.1991 notice was issued only to Jain -ud -din andno notice was issued to his brothers or to the petitioner, whose ABADI was recorded in the first PARTAL. He contended that land of Gata No. 182/4 was in possession of the petitioner since 1976, and was thereafter sold out to the petitioner. This land was an industrial area and ABADI of the petitioner at the time of PARTAL and initiation of consolidation proceedings, as such, was chak -out and was out of consolidation proceedings.;

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