WPMS/647/2002 of ANIS AHMAD Vs DIRECTOR CONSOLIDATION and ORS on 31 December 2012

Facts

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition No. 647 (M/S) of 2002

Anis Ahmad S/o Sri Abdul Sattar

-Petitioner

Versus

Deputy Director Consolidation, Udham Singh Nagar and others - Respondents Sri M.C. Pandey, Senior Advocate assisted by Ms. Puja Sah, Advocate for the petitioner. Sri H.M. Bhatia, Brief Holder for the respondents.

Hon’ble B.S. Verma, J.

By means of this petition the petitioner has sought a writ in the nature of certiorari for quashing the order dated 22-5-2002 (Annexure No.11 to the writ petition), passed by Deputy Director Consolidation, Udham Singh Nagar, in revision No. 52/13 of 1996-97, and order dated 14-3-1996 (Annexure No. 9 to the writ petition) passed by respondent No.2, Settlement Officer Consolidation, Udham Singh Nagar. Further prayer has been made to maintain the order dated 30-6-1994 passed by Consolidation Officer.

Briefly stated the facts of the case giving rise to this writ petition, according to the petitioner, are that the petitioner had filed objection U/S 9-A(2) of the Consolidation of Holdings Act 1953 ( in short ‘the Act’), in respect of Gata (plot) No. 9, area .3680 hectare, Gata(plot) No. 11-Ka, area .3668 hectare and Gata(plot) No. 12, area .1424 hectare of the land situated in Village Dhondha, Tehsil Kichha, District Udham Singh Nagar, before Consolidation Officer, on the ground that the his father Abdul Sattar was in possession of the land and he had made the land cultivable, as the land was ‘Banjar’ . In the objection prayer was made that the entry of ‘Banjar’ class-5 be expunged from Khata No. 45 and Khata No.51 and the land be entered in his name as Bhumidhar with transferable rights. Before the Consolidation Officer the petitioner adduced only oral evidence and got examined himself and in support of his case Sri Bhagwan Singh and other witnesses. It was asserted before the Consolidation Officer that the objector-petitioner was in possession of the land since 25 to 30 years. The Consolidation Officer vide order dated 30-6-94, allowed the objections of the petitioner on the ground that despite of the notice to the Government Counsel but no objection has been filed on behalf of the State.

Aggrieved by the order passed by Consolidation Officer, the State and Sri Jagat Prakash Aggarwal, preferred appeals on the ground that the land was recorded in revenue record as State property- Banjar land and no rights could be given to the petitioner objector merely on the basis of alleged possession. The learned Settlement Officer Consolidation vide order dated 14-3-1996 has held that on the land which is recorded as State land, no rights can be given to any person on the basis of possession, therefore, the order of Consolidation Officer is without jurisdiction and appeal filed by State was allowed and the appeal filed by Sri Jagat Prakash was dismissed. Further aggrieved, the petitioner has preferred revision. The revision was also dismissed by the learned Deputy Director of Consolidation on the same ground vide order dated 22-5-2002.

Further aggrieved the petitioner has filed this writ petition reiterating his long standing possession over the land in dispute and alleged that the Settlement Officer Consolidation as well as the Deputy Director of Consolidation have committed manifest error of law by rejecting the finding of the Consolidation Officer. He has also alleged that no opportunity of hearing was given to the petitioner by the revisional court.

On behalf of respondent/State counter affidavit has been filed. In the counter affidavit it has been alleged that in village Dhondha, Tehsil Kichha, District Udham Singh Nagar was taken into consolidation operation in the year 1986 and after issuing a notification under Section 52 of U.P. Consolidation of Holdings Act, 1953 the consolidation operation in the said village came to an end on 14-1-1995. Before coming to an end the consolidation operation in the said village the petitioner had filed a time barred suit in the Court of Consolidation Officer Kichha U/S 9-A(2) of the Act on 16.5.1994 and prayer was made for recording his name in respect of land in dispute on the basis of adverse possession. The Consolidation Officer Kichha merely on the basis of verbal statements has allowed the suit. It is further alleged that the land in dispute is recorded as barren land in revenue records and belongs to State and no right accrue to the petitioner on the State owned land.

Notice was issued to respondent No.4 but despite service none has appeared on his behalf.

I have heard learned counsel for the petitioner and the learned Brief Holder on behalf of the State and have gone through the objection filed by the petitioner before the Consolidation Officer and the impugned orders.

In the objection filed U/S 9-A(2) of the Act, no specific averment was made that the petitioner or his father were in adverse possession of the land and no documentary evidence has been filed to show that entry of adverse possession has ever been made in the name of the petitioner or his father and on the basis of oral statements that the petitioner is in possession of the land, Bhumidhari rights cannot be given to any person on the State land. The order passed by the Consolidation Officer is a cryptic order and even no notice was issued to the State. Intimation was given only to the State Counsel. The learned Appellate Court as well as the Revisional Court have dealt the matter in detail and it has specifically been held that the petitioner has failed to produce reliable evidence in support of his contention that he is cultivating the land since long and he has perfected the rights by way of adverse possession. The petitioner has not filed any documentary evidence showing his long standing possession over the land in dispute and by merely saying that the he is in possession of the land in dispute, no Bhumidhari rights can be given to the petitioner over the land owned by the State. I am in full agreement with the finding recorded by the learned S.O.C. and the learned D.D.C. The learned Senior Advocate appearing on behalf of the petitioner has failed substantiate the claim of the petitioner before this Court.

So far as the contention of the petitioner that he has not been given opportunity of hearing by the appellate court as well as the revisional court, I do not find any substance in it. Both, the learned S.O.C. and the learned D.D.C. in their judgments have specifically mentioned that both the parties were heard and opportunity was afforded to both the parties.

For the discussion made above, the writ petition lacks merit and is liable to be dismissed.

The writ petition is dismissed. The interim order, if any, is vacated.

ISB

(B.S. Verma, J.) 31-12-2012