Janardan Sahai - (1.) -The facts of this case lie in a narrow compass. Plot No. 991 was recorded as banjar land of the Gaon Sabha. Brijendra Singh the petitioner's father filed an application before the Consolidation Officer alleging that this plot lies in the midst of his plots and therefore after determining its valuation it may be allotted in his chak. The Consolidation Officer accepted his prayer and made the allotment on 16.4.1989. According to the respondent No. 4 the Gram Sabha and the respondent No. 5, Badley Singh, the inhabitants of the village had a right of passage over the said plot No. 991 but the petitioner's father who happened to be the Pradhan of the village and also the Chairman of the Consolidation Committee misused his position and got the valuation of this plot of the Gaon Sabha fixed at 40 paisa only in contrast to the valuation of 100 paisa of the adjoining plots. He then obtained its allotment to himself. This fraud was not noticed by the inhabitants until the petitioner recently started making constructions over the plot, blocking the passage. The respondent No. 5 Badley Singh then rushed to the Consolidation Officer and filed objections under Section 20 of the U. P. Consolidation of Holdings Act on 28.2.2001 claiming a right of passage of the inhabitants of the village over the plot. In the circumstances, the objections were delayed. The Consolidation Officer by his order, dated 30.5.2002 condoned the delay. On merits the objections are still pending adjudication before the Consolidation Officer. The appeal before the Settlement Officer, Consolidation by the petitioner was dismissed on 25.11.2002 and the revision too was dismissed by the Deputy Director of Consolidation on 16.1.2003 giving rise to Writ Petition No. 5083 of 2003. In addition to the objections, the respondent No. 5 also preferred an appeal before the Settlement Officer of Consolidation directly against the order of the Consolidation Officer dated 16.4.1989. In the appeal too a prayer for condoning the delay was made. The appeals were allowed by the Settlement Officer, Consolidation by his order dated 25.11.2002. Revision by the petitioner was unsuccessful and was dismissed by the Deputy Director of Consolidation on 16.1.2003. These orders are the subject matter of challenge in Writ Petition No. 5082 of 2003. Both the writ petitions raise common questions of law and facts and are being decided by a common judgment.
(2.) I have heard Sri G. N. Verma, counsel for the petitioner and Sri S. N. Singh counsel for the respondents. A wide range of submissions have been made by Sri G. N. Verma counsel for the petitioner. It is contended that the appeal filed by the respondent No. 5 Badley Singh was not maintainable firstly because an appeal can be filed only by a party and the respondent No. 5 was not a party before the Consolidation Officer and secondly because he is also not aggrieved because the order of the Consolidation Officer, dated 16.4.1989 brought about a change of the valuation of the plot of the Gaon Sabha with which the respondent No. 5 has no concern. He relied upon certain authorities. They are : Sukhinder Jeet Kaur v. Deputy Director of Consolidation, Rampur and others, 2003 (2) AWC 943 : 2003 (94) RD 79 ; Radhey Shyam v. Kamla Shanker and others, 2003 (94) RD 227 and Bala Prasad v. Dy. Director of Consolidation, District Banda and others, 2003 (94) RD 405. It has been held in these decision that under Section 11 of the U. P. Consolidation of Holdings Act it is only a party who can prefer an appeal. The decisions cited really have no application to this case. The appeal against the order of the Consolidation Officer dated 16.4.1989 was filed under Section 9B (3) of the Act. That provision does not confine the right of appeal to a party. Rather the remedy is made available to a "person aggrieved" . Section 9B (3) of the Act provides for appeal against the statement of principles. In the appeal the respondent Badley Singh did not challenge any provision for reservation of land for road or for other public utility nor the position of any existing road nor any other provision in the statement of principles. What was challenged was an allotment order of a land of the Gaon Sabha on the ground that there was a public passage over it. Section 9B (3) therefore, has no application. The petitioner was allotted land of the Gaon Sabha under the provisional consolidation scheme in respect of which objections under Section 20 and appeal under Section 21 (2) could be filed. Under Section 21 (2) of the Act also the right of filing an appeal has been given to a 'person aggrieved'. The appeal of Badley Singh although filed under Section 9B (3) is maintainable not under that provision but under Section 21 (2) of the Act. The fact that it is was filed under a wrong provision does not however affect its maintainability. It is in any case not necessary for a person to be a party for the purpose of an appeal either under Section 9B (3) or under Section 21 sub-section (2) of the Act. The decisions, cited by counsel for the petitioner have therefore, no application. Coming now to the question whether respondent No. 5 was a person aggrieved. The right which the respondent No. 5 claimed over the disputed plot No. 991 was that the inhabitants of the village had a right of passage over it. This right he claimed in common with the other inhabitants of the village. Any person who was using such a passage would be directly aggrieved by the allotment of the land into the chak of a private tenure holder as it would affect his right of passage over the land. The respondent No. 5 was therefore, a person certainly aggrieved by the allotment of the plot No. 991 into the chak of the petitioner. The meaning of the expression 'a person aggrieved' can also be gathered from the provisions of Section 20 sub-section (3) of the U. P. Consolidation of Holdings Act, which provides a right to file objection to any person affected or any person having any interest or right over any public land or a right substantially prejudiced by a declaration under Section 19A (2). As the right which the respondent No. 5 claimed was a right of passage over public land, he was a person aggrieved. In Major Rameshwar Sahai v. Deputy Director of Consolidation, 1973 AWR 238, the expression 'interested person' used in Section 9 of the Act was interpreted. It was held that every adult member in the village was entitled to raise objection in respect of Gaon Sabha property especially when it was alleged that the Gaon Sabha had colluded in the allotment of land or in the creation of leases. Usurption of public land can be open or subtle. It is open, such as in the case of a rank trespass but it is in a far more dangerous and subtle form, difficult to perceive when it is made as a settlement or allotment in collusion with persons who under the law are its very custodians. In such cases the act of allotment provides a legal cover to what really is an act of usurption. The definition of 'a person aggrieved' in the context of public land cannot therefore, be narrowed down as the effect of that would be to shield trespassers over public property. The decision in Kanhaiya Lal v. District Deputy Director of Consolidation, 1974 ALJ 552, that a stranger cannot file objections as he is not an interested person is distinguishable. That was not a case of a pubic land. However, even if two interpretations are possible one of which would safeguard public rights while the other would favour private rights, the interpretation that would safeguard public rights must be adopted.
(3.) THE maintainability of the appeal of respondent No. 5 was questioned on yet another ground that it was filed after the publication of the notification under Section 52 of the U. P. Consolidation of Holdings Act and therefore, not maintainable. THE learned counsel placed reliance upon the language employed in that section and contended that only pending cases are saved. Section 53B of the Act makes applicable the provisions of Section 5 of the Limitation Act to consolidation proceedings. In Shyam Narain Rai v. Director of Consolidation, 1981 RD 307, it was held relying on a large number of cases that an application for restoration with an application under Section 5, Limitation Act can be filed after the issuance of a notification under Section 52. In Hans Raj v. Deputy Director of Consolidation, 1975 RD 5, which was relied upon in Shyam Narain Rai (supra), it was held that if an appeal or revision is filed after the notification under Section 52 along with an application under Section 5, Limitation Act consolidation authorities would have jurisdiction. Counsel for the petitioner relied upon a decision of this Court in Ram Niwaz v. Consolidation Officer, 1989 AWC 559. This decision does not take into notice the provisions of Section 53B of the U. P. Consolidation of Holdings Act. The effect of an order condoning the delay in the filing of an application or appeal after a notification under Section 52 was not under consideration in this case. It is therefore, distinguishable. It has also not considered the case of Shyam Narain Rai and other decisions cited in that case. If the decision in Ram Niwaz is interpreted to mean that no restoration application, appeal or revision can at all be filed after the notification under Section 52, it would be directly in conflict with the ratio of the Division Bench decision in Ram Bahadur v. Deputy Director of Consolidation, AIR 1973 All 414. The Division Bench relied upon a previous Division Bench in Dilawar Singh's case, AIR 1973 All 411, in which it was held that "an appeal does not initiate a fresh proceeding. On the institution of the appeal the proceedings which had become dormant on the decision of the trial court revive and remain pending and that the notification under Section 52 (1) does not have the effect of destroying vested rights of the litigants. For instance if a litigant has a right of appeal against a particular order, he can exercise it notwithstanding the publication of the notification under Section 52 (1) and the moment an appeal is filed the effect in law is that the original proceedings stand revived". In view of the fact that the right of appeal is a vested right and the U. P. Consolidation of Holdings Act makes applicable the provisions of Section 5 of the Limitation Act thereto, I am of the opinion that if an application for condoning the delay is allowed the difference in status between an appeal filed within time and that filed after the expiry of limitation would be obliterated and the appeal would be taken as a pending case on the date of the notification under Section 52 (1) although in actual fact it may have been filed after the notification.;