- (1.) R. K. Mahajan, J. This writ petition has been filed under Article 226 of the Constitution of India for issuing a writ, order or direction in the nature of certiorari quashing the order dated 9- 2-1978, passed by Opposite Party No. 1 (Annexure III) and to issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and cir cumstances of the case.
(2.) IN this petition dispute started from 1963 over a question of grove which is under Bhumidhari of opposite party Nos. 4 and 5 as alleged by them which should not have the matter of consolidation proceed ings started in the village when it was shown to be grove and was included in the chak allotted to the petitioner. The mis take was rectified by Settlement Officer Consolidation vide its order dated 6- 10-1993 (Annexure 4 to the writ petition) but later on opposite party Nos. 4 and 5 found difficulty in getting the order imple mented. The matter went up to the Revenue Board in Second Appeal assail ing the finding of the suit filed by opposite party Nos. 4 and 5, under Section 229-B of the U. P. Zamindari and Land Reforms Act (hereinafter referred to as the U. P. Z. A. and L. R. Act) for declaration of title of bhumidhari in Plot No. 194 (new) (old plot No. 401 ). It appears that the opposite par ties found difficulty in implementing the order of the settlement officer and such suit was filed under Section 229-B of the U. P. Z. A. and L. R. Act. It returned a finding while dismissing the suit that it is not a "grove" and Settlement Officer's order is not binding as the defendant petitioners were not parties and the order of Settle ment Officer is without jurisdiction (An nexure 1 to the writ petition ). The matter was taken before the Commissioner and the finding of the lower court was upheld. The matter was taken to the Revenue Board on behalf of opposite party Nos. 4 and 5 by way of Second Appeal. The Revenue Board was of the view that while allowing the appeal that the decision of Settlement Officer was valid and grove could not have been formed a chak allotted to the petitioner. The Revenue Board was also of the view that the revenue courts are not to sit over the findings of the Con solidation authorities and implementing their decision and jurisdiction of the revenue court is barred. The judgment of the revenue court is Annexure 3 to the writ petition. This writ petition involves a very short question that once Board comes to the conclusion that the "grove" is not sub ject matter under the definition of the land, then it cannot form subject matter of consolidation proceedings, under Section 3 of theu. P. ZA. andl. R. Act. The land does not include a grove land. This has been conceded by the Counsel for the petitioner also. During the course of arguments he submits that the petitioners are "sir" of the land in dispute. Explanation of Section 3 (i) of U. P. Consolidation of Holding Act for the pur poses of this clause, holding shall not in clude the following: " (i) Land which was grove in agricultural year immediately preceding the year in which the notification under Section 4 was issued. " It may be mentioned that the exist ence of jurisdictional fact is a sine qua non for attracting the jurisdiction of a Tribunal or authority which decide the matters. The foundational fact to attract the jurisdic tion of the authority should be that it must be subject-matter of consolidation proceedings. I am of the firm view that once a finding was given by the Settlement Officer during the consolidation proceed ings started and there was an entry of a grove before CH Form 23 then it could not have been included in the chak of the petitioner. The intention of the legislature is not to disturb the grove. The petitioner's Counsel Shri Srivastava has submitted the following points for consideration.
(3.) SRI SRIvastava has firstly submitted that once title of plot No. 194 (new) (Old Plot No. 401) area was decided by the Consolidation authorities and later on a notice was not given to the petitioners at the time of setting aside the order of con solidation proceedings in Appeal No. 1610, Mahavir Singh v. Raghubar and others without notice in favour of opposite party Nos. 4 and 5. The order is nullity and not binding on the parties. He has further submitted that the opposite parties have failed to file objection under Section 11 of the U. P. Consolidation of Holdings Act. 1953 ans since objections were not filed during the consolidation proceedings it would operate as resjudicata. Section 11 -A of U. P. Consolidation of Holdings Act is quoted with an advantage:- " 11-A Bar on objection.-No question in respect of:- (i) claims of land, (ii) partition of joint holding, and (iii) valuation of plots, trees wells and other improvements, where the question is sought to be raised by a tenure-holder of the plot or the owner of the tree, well or other improvements recorded in the annual register under Section 10, relating to the consolidation area, (which has been raised under Section 9 or which might or ought to have been raised under that section), but has not been so raised, shall be raised or heard at any subsequent stage of the consolidation proceedings. " He has also laid emphasis of Section 21 of the U. P. Consolidation of Holdings Act. It reads as under:- "21. Disposal of objection on the state ment.- (i) All objections received by the Assis tant Consolidation Officer shall, as soon as may be, after the expiry of the period of limitation prescribed therefore, be submitted by him to the Consolidation Officer, who shall dispose of the same, as also the objections received by him, in the manner hereinafter provided after notice to the parties concerned and the Consolidation Committee. " Counsel for the petitioner Sri Srivastava contended that there was no order and question of deciding any appeal did not arise by the Settlement Officer. He further stated that no notice was given and it is not binding. The learned Counsel fur ther submits that Revenue Board's decision is not correct as it has disturbed the concurrent findings of the two courts below. It has also did not consider the findings on the point of possession given in favour of the petitioner by the two courts below. The Revenue Board also did not consider in-action of the parties for im plementation of order dated 6-10-1968 by opposite party Nos. 4 and 5, passed by the Settlement Officer. He has relied upon so many rulings but each ruling need not be referred for the controversy as it is not relevant.;