TMI Blog2011 (5) TMI 1062X X X X Extracts X X X X X X X X Extracts X X X X ..... os. 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. and 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsated 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 87 can be retained by the petitioner. On This reliance is placed by Sri Namwar Singh, learned counsel for the petitioner on the decision of This Court in the case of Ram Kumar v. Zila Adhikari/D.D.C. Muzaffar, 2002 (93) RD 403 paragraph 11 to 16. Sri Singh submits that the allotment order of 1987 was done all in public interest and not in the individual interest of the petitioner. On the contrary it was at the instance of Gaon Sabha and the members of the public at large who, were demanding a road to be constructed over the land of the petitioner that the said exchange was brought about which has been described as a proceeding under Section 42-A. Needless to mention that the plots as then numbered were 363/2, 365 and 366 were recorded as Bhumidhari of the petitioner. It is these plots which came to be renumbered as 719 and 721 and a Chak road in between No. 720. An area of six decimals was therefore taken out of the holding of the petitioner and he was relocated over Plot No. 62/11. THEre is no dispute that Plot No. 62/11 part of which was allotted to the petitioner in 1987 is recorded as pasture land but was given in exchange for public utility in the manner aforesaid. The ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidual interest of the petitioner. It is thereafter the exchange was brought about with the conscious consent of the Consolidation Authorities and Gaon Sabha. This consent will be presumed to have been given not only under the provisions referred to hereinabove but also in view of the responsibility and obligation cast on the Consolidation Authorities under Section 11-C of the Consolidation of Land Holdings Act. In my opinion, the Consolidation Authorities while protecting the interest of Gaon Sabha land has rightly implemented the exchange as offered by the petitioner in response to the request made by the Gaon Sabha itself. In view of these peculiar facts and circumstances of the case as noted hereinabove, the proceedings at This stage cannot be allowed to be up turned at the instance of the respondent authorities which would be wholly unjustified. ( 5. ) The alternative offer which has been made over Plot No. 293 M in the affidavits which have been filed today in the opinion of the Court is also not appropriate or equivalent, inasmuch as, the petitioner is now being dislodged from a road side land to half akilometer away to the Eastern side as is evident from a perusal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner. THE allegation in the affidavit is of collusion with the Consolidation Authorities. THEre is no material of any collusion whatsoever and on the contrary the proceedings dated 16th July, 1987 were free, fair and open at the instance of the Gaon Sabha through its Gram Pradhan. THE wishes of the people for getting a Chak road constructed or a passage being made over the land of the petitioner was accepted and the transaction was as transparent as a window pane. THE petitioner was allotted land against land. There was, therefore, neither any fraud or misrepresentation so as to warrant exercise by the Settlement Officer Consolidation to review the matter. Coming to the question of mistake, as pointed out hereinabove, there was no error in the proceedings. Mere mention of a wrong Section does not denude the authority of its power as contemplated under Section 19-A (2) of the U.P.C.H. Act. The hasty decision without giving any opportunity to the petitioner by the Settlement Officer Consolidation and Consolidation Officer appears to have been based on half baked legal advice. This in my opinion is clearly malice in law. The petitioner after 23 years at least had a legit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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