R.P.Singh - (1.) BY means of this writ petition the petitioner has challenged the order passed by the Deputy Director of Consolidation dated 30-11-88.
(2.) BRIEF facts of the case are that the dispute relates to an area of 0.19 acre of plot no. 56. Plot no. 43-M area 0.90 acre is a public highway. Consolidation proceedings in the area started after the notification issued under section 4 (2) of the U. P. Consolidation of Holdings Act which was published on 11-2-1970. Statement of principles were prepared under section 8-A of the U. P. Consolidation of Holdings Act, hereinafter referred to as the Act, showing plot no. 56 having an area of 0.19 acre and plot no. 43 area 0.90 acre as rasta. However, plot nos. 56, 43 and 51 were allotted in chak no. 27 of Asit Kumar respondent no. 3 against which an appeal was preferred by the aggrieved person before the Settlement Officer (Consolidation) who, after recording a finding that plot no. 56 is a rasta which is a Gaon Sabha property and hence allotment of this rasta in the chak no. 27 of Asit Kumar is wholly illegal and would narrow down the road causing great inconvenience to the general public, set aside the allotment of this rasta in the chak of Asit Kumar taking out the rasta from the chak of Asit Kumar and shifting him from plot no. 56 to plot no. 429. Thus the Settlement Officer (Consolidation) vide his order dated 16-3-1972 took out plot no. 56 and 51 from the chak of Asit Kumar and left it as rasta vesting it in the Gaon Sabha. This order became final and thereafter in the year 1976 the land in . dispute was included within the municipal limits of Kashipur. A notification was also, however, issued under section 52 of the Act on 30-7-77 by which the area was denotified. Thereafter on 8-6-78 an order seems to have been passed by the Deputy Director of Consolidation in reference proceedings under section 48 (3) of the Act allotting plot no. 56 which is in dispute in the chak of Asit Kumar. Asit Kumar thereafter executed a sale deed in favour of the petitioner in respect of 0.25 acre of new plot no. 28-M which was formed after amalgamation of plot no. 56 with that of plot no. 43-M. The petitioner's name was thereafter mutated in the municipal records on 31-3-1979. The petitioner also applied for permission to construct a building and since the land was by the side of road, the petitioner was granted a no objection certificate and the building plan of the petitioner was also approved by the municipal authorities on 3-4-87. At this stage Sudama Lal, respondent no. 2, who is owner of plot nos. 29, 30 and 31 over which he has his grove and rice mill and his main gate opens on the public highway and whose passage was obstructed due to inclusion of plot No. 56 in Chak of Asit Kumar filed an application on 30-10-79 for recalling the order dated 8-6-78 passed in reference proceedings under section 48 (3). This application was, however, summarily dismissed by the Deputy Director of Consolidation on the ground that the order in the reference proceedings under section 48 (3) was passed on merits and Sudama Lal, respondent no. 2 was not a party in these proceedings and hence the application of Sudama Lal, respondent no. 2, was rejected vide order dated 27-11-87 by the Deputy Director of Consolidation. Sudama Lal respondent no. 2 thereafter preferred another restoration application with a prayer for recalling the order dated 8-6-78 passed by the Deputy Director Consolidation. The Deputy Director of Consolidation thereafter vide impugned order dated 30-11-80 holding that the Settlement Officer (Consolidation) had already left the land in dispute as a rasta vide his order dated 22-9-72 which order had become final and hence there was no justification for allotment of the same land in the chak of Asit Kumar respondent no. 3 who subsequently transferred it to the petitioner and since the land was rasta which vested in the Gaon Sabha and in the reference proceedings the Deputy Director of Consolidation had passed the order on 8-6-78 allotting this land in the chak of Asit Kumar respondent no. 3 without impleading the Gaon Sabha which was a necessary party and that Sudama Lal respondent no. 2 who was also an interested party was also not impleaded as a party and further that since the land has now been included within the municipal area vide notification issued in the year 1976, even the Municipal Board was not impleaded as a party when the order dated 8-6-78 was passed in the reference proceedings, set aside the orders passed in reference proceedings dated 8-6-78 as also the order passed on 27-11-87 dismissing the application of Sudama Lal respondent no. 2 and directed that the case shall be sent back to the Assistant Consolidation Officer who shall, after impleading them as parties and giving them due notice frame a fresh reference after giving due opportunity of hearing to the parties. It is this order passed by the Deputy Director of Consolidation dated 30-11-88 which is challenged by the petitioner.
(3.) HEARD Sri K. M. Sinha for the petitioner and Sri G. N. Verma for respondent no. 2. The learned counsel for the petitioner argued that after the land in dispute was included in the chak of Asit Kumar respondent no. 3 on 8-6-78 in reference proceedings under section 48 (3) of the Act, Asit Kumar validly executed a sale deed in favour of the petitioner in respect of the same and since after the land had been included within the Municipal area in the year 1976, the price of the land has escalated and became very valuable and further that since after obtaining permission from the Municipal Authorities the petitioner started constructing his house thereon, Sudama Lal respondent no. 2 out of ill will and malice, filed an application for recalling the order dated 8-6-78 and putting obstruction in the petitioner's constructing his building over the land in dispute. The learned counsel for the petitioner submitted that Sudama Lal respondent no. 2 had earlier filed writ petition no. 14296 of 1983 which was, however, dismissed on 31st August, 1988 on the ground that the petitioner is already seeking his alternative remedy. The case of the petitioner is that the petitioner being a transferee for consideration, had right to construct his building thereon and Sudama Lal respondent no. 2 is not entitled to any rights in the land in dispute, and hence the Deputy Director of Consolidation has wrongly set aside the order passed in reference proceedings dated 8-6-78 as also the order dated 27-11-87 by which Sudama Lal's application for recalling the order dated 8-6-78 was rejected.;