- (1.) This matter was adjourned on 25.5.2011 in order to enable the learned Standing counsel to file appropriate affidavits indicating therein as to in what manner the Petitioner's land could be restored. In order to cut short the narration of facts, the order passed on 25.5.2011 is extracted hereinbelow: Heard learned Counsel for the Petitioner and learned Standing Counsel for the Respondent. This matter arises out of a brazen act of executive haste for dislodging the Petitioner from the land which according to the Petitioner has been validly allotted to him in exchange of his original holding under the order of the Settlement Officer Consolidation dated 16th of July, 1987, a copy whereof has been filed as annexure-4 to the supplementary affidavit alongwith the amendment application dated 15.4.2011. A perusal of the said order demonstrates that on an application moved by the then village Pradhan, the original holding of the Petitioner over plot Nos. 362, 365 and 366 were taken out and the Petitioner was accordingly allotted the disputed land. This was done in order to facilitate the construction of a public road in public interest on the demand of the villagers. This demand was accepted by the Petitioner subject to land being allotted in lieu thereof. This arrangement was made in proceedings which have been described as a proceeding under Section 42-A of the U.P.C.H. Act, 1953, but which in effect amounts to an exercise of powers under Section 19-A(2) of the U.P.C.H. Act, 1953 read with Section 44-A of the Act. The Settlement Officer Consolidation passed the order keeping in view the larger public interest, but at the same time technically proceeded to make an allotment of land that fell within the definition of Section 132 of the U.P.Z.A. & L.R. Act. The said provision of Z.A. Act makes it clear that land defined therein cannot be subject matter of accrual of Bhumidhari rights. In the instant case, the Petitioner never claimed accrual of Bhumidhari rights over pasture land, rather he was allotted land in lieu of his Bhumidhari, which was his own original holding and was subject matter of the order dated 16th of July, 1987. The said order passed by the Settlement Officer Consolidation became final and accordingly the Settlement records were corrected whereafter the Petitioner has continued in possession over the land. It appears that recently the Petitioner proceeded to utilize the said land by making improvements thereon by raising constructions, which was objected to by the Respondent authorities on the ground that the land is recorded as pasture land, and being public utility holding, the Petitioner cannot be permitted to raise any constructions thereon. The Petitioner upon inquiry came to know that the Respondents were implementing a scheme known as Kanshi Ram Shahari Garib Awas Yojna over contiguous land and while proceeding to do so, they started interfering with the possession of the Petitioner. Consequently, the Petitioner filed writ petition No. 3538 of 2009, which was disposed of on 27th of January, 2009 directing the Sub-Divisional Officer, Shahganj to dispose of the representation of the Petitioner. As a consequence of the said direction the Sub-Divisional Officer, Shahganj passed an order on 12th of March, 2009 holding that the land is recorded in the name of the Petitioner yet the said land belongs to the category of pasture land and this entry made during consolidation operations does not appear to have been correctly made. It is further observed that in case the Petitioner is aggrieved he can apply for demarcation of the said land. The Petitioner thereafter approached the prescribed authority under the provisions of the Regulation of Building Operations Act, as the said land falls within the regulated area, for permission to raise constructions. The Prescribed Authority vide order dated 21st of December, 2010 granted permission and a copy thereof has been filed as Annexure-8 to the writ petition. When the Petitioner proceeded to raise constructions, the Respondents again interfered with the same and as such the present writ petition came to be filed praying for a mandamus that the Respondent authorities be directed not to interfere with the same. The writ petition was reported on 29th of March, 2011 and presented on 30th of March, 2011 before a Division Bench of this Court. The Division Bench of this Court allowed one week time to the learned Standing Counsel appearing on behalf of the State-authorities to seek instructions on 1st of April, 2011. After the filing of the writ petition two orders came to be passed which have been assailed through an amendment application being orders dated 6.4.2011 and 8.4.2011 by the Settlement Officer Consolidation and the Consolidation Officer respectively. These two orders were passed on an application moved by the State whereby the original order passed in favour of the Petitioner in the year 1987 has been recalled. The amendment application was allowed and the relief prayed for was incorporated. The Division Bench vide order dated 15th of April, 2011 observed that in view of the subsequent orders having been passed the writ petition became cognizable by a learned Single Judge dealing with the jurisdiction of consolidation matters whereafter the matter was placed before this Court. The petition was heard and thereafter an order was passed on 16.4.2011, which is to the effect: "Learned standing counsel has accepted notice on behalf of the Respondent Nos. 1 to 5, 8 and 9. Issue notice to the Respondent Nos. 6 and 7. Steps be taken within a week. The contention raised by the learned Counsel for the Petitioner is that the order passed on 16.7.1987 has been recalled on 6.4.2011 ex parte after filing of the present writ petition. It is also contended that the officers have acted hastily and mala fidely to non-suit the Petitioner and according to the orders passed by them the Petitioner has now been relegated to the position way back in 1987. Prima facie the contention of the learned Counsel for the Petitioner appears to be correct as the proceedings are apparently in violation of principles of natural justice. Until further orders of this Court the operation of the orders dated 6.4.2011 and 8.4.2011 shall remain stayed. The Respondents are further restrained from interfering with the possession of the Petitioner over the plot in dispute or demolishing any constructions standing thereon. The Respondent Nos. 5 and 6 shall file their personal affidavits explaining as to why they have proceeded to issue directions to the Consolidation Officer for annulling the order passed in 1987 without adopting the due process of law. They shall be personally present in Court on 25.5.2011 alongwith the entire records relating to the case. A copy of this order may be given to the learned standing counsel today free of cost for communicating to the officers concerned." In response to the said interim order the Sub-Divisional Officer and the Tehsildar of the area concerned are present in Court alongwith their personal affidavits. The affidavit recites that the Consolidation Authority had wrongly passed the said order in the year 1987, but so far as the raising of constructions is concerned the Petitioner has no vested right over the land as it is pasture land. The Sub-Divisional Officer in paragraph 9 of his affidavit has also stated that the Petitioner got his name recorded over the land in dispute collusion with the consolidation authorities. He has also stated that he has not exercised any pressure on the Consolidation Officer or the Settlement Officer Consolidation to pass the orders dated 6.4.2011 and 8.4.2011. Further in paragraph 10 it has been stated that several other persons have been alloted pasture land in a similar fashion. The aforesaid affidavits of the SDM and Tehsildar are absolutely silent about the fact that the Petitioner is not an encroacher and that he had been lawfully and validly alloted land under the UP. Consolidation of Holdings Act, 1953 in lieu of his original holding. The affidavits are silent as to how the Petitioner would be compensated if his holding is being taken away in the manner narrated herein-above. In the opinion of the Court, the affidavits are simply designed to escape the liability and responsibility of the officers in restoring the land of the Petitioner and have instead after the filing of the writ petition, hastily obtained the orders dated 6.4.2011 and 8.4.2011. It is also admitted by the learned Standing Counsel on instructions that the said orders have been passed without notice or opportunity to the Petitioner itself, therefore it is writ large that the executive in their arbitrary exercise of powers instead of providing a solution to this episode have proceeded to dislodge the Petitioner on all fronts in complete violation of the principles of natural justice and without compensating the Petitioner which also violates Article 300-A of the Constitution of India. The Sub-Divisional Officer and Tehsildar who are present in Court shall within 24 hours file an affidavit in response to the aforesaid observations and explain as to how would the Petitioner be compensated in terms of equal land if at all the land already alloted to the Petitioner can be taken away in the manner in which it has been done under the impugned orders. Failure to file an affidavit or come out with a solution shall be seriously viewed as a misconduct and failure to discharge their duty vested in them under the statutory provisions. This will also amount to interference with the cause of justice. Put up day after tomorrow for filing of the affidavits.
(2.) Today three affidavits have been filed by Sri Raj Kumar, the Settlement Officer Consolidation, Jaunpur, Sri Brij Mohan, the Tehsildar, Tehsil Shahganj, District Jaunpur and Sri A.K. Upadhayay, the Sub-Divisional Magistrate concerned which contain almost similar recitals in contents. In paragraph 7 of all the three affidavits, it has been stated that the Petitioners according to the equivalent valuation of the land as claimed by the Petitioner can be restituted by allotment of land over Plot No. 293 M Area 0.055 Hectares. The said land is recorded as Navin Parti, the proposal, therefore, is to restitute the Petitioner over the said land. Further the stand taken by the learned Standing Counsel is that since the land which was allotted to the Petitioner in the year 1987 is of the category as described under Section 132 of the U.P. Z.A. & L.R. Act, therefore the same cannot be retained by the Petitioner. Sri A.L. Tripathi, learned Standing Counsel has relied on the judgment of this Court in the case of Iqbal Ahmad and Ors. v. Deputy Director of Consolidation, Deoria and Ors.,2005 98 RevDec 580.
(3.) The stand of the State, therefore, in short is that if the Petitioner is being dislodged, he is being offered equivalent land to which he is entitled in law and, therefore, an order can be passed to that effect. The allotment which was made in the year 1987 vide order dated 16.7.1987 has been recalled on 6.4.2011 and a consequential order has been passed on 8.4.2011 which has been challenged by way of amendment as noted in the order dated 25.5.2011.;