MAHANT LALITA SHARANJI versus DEOKI DEVI & ANR. on 16 February 2018

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SUPREME COURT REPORTS

[2018] 1 S.C.R.

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MAHANT LALITA SHARANJI

v.

DEOKI DEVI & ANR.

(Civil Appeal No. 394 of 2009)

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FEBRUARY 16, 2018

[MADAN B. LOKUR AND DEEPAK GUPTA, JJ.]

U.P. Consolidation of Holdings Act, 1953 – ss. 9(2), 11-A –Consolidation proceedings – Appellant-mahant of a temple, ownerof plot bearing no. 212/2 and respondent owner of land bearingCno. 319 – Consolidation proceedings – Appellant allotted portionof plot no. 212/2, 215 and 216 – Portion of plot no. 212/2 adjoiningthe road was treated as bachat land for use by the Gaon Sabha –One P allotted a very small portion of Plot No. 212/2 – Land reservedas bachat land for use by the Gaon Sabha and the land allotted toDP adjoined the main road – Respondent also allotted a portion ofPlot No. 215 – Appellant did not challenge the allotment of frontportion of land as bachat land to be used by the Gaon Sabha or theallotment of land to P – One B, challenged the allotment of land infavour of respondent – Settlement Officer amended the allotment –Respondent was allotted land in plot 212/2 adjoining the main roadE– Bachat land was changed from one plot to another – Share ofappellant also changed – Challenge to, by the appellant – HighCourt held that the appellant had no right to challenge the order ofthe Settlement Officer – Held: It is clear that the appellant wouldhave had access to the road when the land was allotted to the GaonFSabha as bachat land – They could have also used the land and hisaccess to the road would not have been affected, had that portionof the land been not allotted to respondent – This order virtuallynullified the earlier order and, thus, the appellant was well withinhis rights to challenge the order passed by the Settlement Officer inthe appeal filed by B – If an order adversely affects any party, heGhas a right to challenge it – Appellant was not a party to the appealfiled by B, but by the said order passed by the Settlement Officer,Consolidation, the appellant was virtually denied access to the road– Thus, the Deputy Director, Consolidation was justified inentertaining the revision filed by the appellant and making re- H

allotments – High Court erred in holding that the appellant had noright to challenge the order of the Settlement Officer because hehad not challenged the original order in original proceedingswhereby the front portion of the land was treated as bachat land –Later allotment of land to respondent and shifting of the bachatland gave rise to fresh cause of action to the appellant – Thus, theorder of the High Court is set aside and the order passed by theDeputy Director, Consolidation is restored.

Allowing the appeal, the Court

HELD: 1.1 Section 9(2) of the U.P. Consolidation ofHoldings Act, 1953 provides that any person to whom notice hasbeen sent under Section 9(1) has to file objections before theAssistant Consolidation Officer within a period of 21 days fromthe date of receipt of the notice. Section 11 A provides that noquestion in respect of claims to land etc. relating to a consolidationarea which might or ought to have been raised under Section9(2) and were not raised at that stage, can be permitted to beraised or heard at subsequent stage of consolidation proceedings.The purpose of these two provisions is to ensure that when adraft scheme is prepared or notice of allotment of land is issued,then if a person has any objection to the same, he must file hisobjection at that stage and if he does not file the same, he cannotbe permitted to raise these objections at a later stage. [Para8][473-D-E]

1.2 Each case has to be decided on its own facts. In theinstant case, the appellant had not objected to grant of a verysmall portion of land to ‘P’ and allotment of the front portion ofthe land as bachat land to be used by the Gaon Sabha. In thiscase, ‘B’, owner of Plot No. 215 and Plot No.216, filed appeal.Though this appeal was limited to challenging the allotment madeto ‘D’, the Settlement Officer, Consolidation, while allowing theappeal, virtually nullified the original consolidation order and tookaway the land allotted to the appellant in Plot No. 215 and PlotNo. 216 and re-allotted him his land in Plot No. 212/2, allottedland to the Gaon Sabha in Plot No. 216 and allotted the frontportion of the land in Plot No. 212/2 to ‘P’ and ‘D’. It is clear fromthe map that the appellant would have had access to the roadwhen the land was allotted to the Gaon Sabha as bachat land. The AB

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Aappellant could have also used the land and his access to theroad would not have been affected, had that portion of the landbeen not allotted to ‘D’. This order virtually nullified the earlierorder and, therefore, the appellant was well within his rights tochallenge the order passed by the Settlement Officer,Consolidation in the appeal filed by ‘B’. It is well settled positionBof law that if an order adversely affects any party, he has a right tochallenge it. The appellant was not a party to the appeal filed by‘B’, but by the order passed by the Settlement Officer,Consolidation in the appeal filed by ‘B’, the appellant was virtuallydenied access to the road. Therefore, the Deputy Director,CConsolidation was justified in entertaining the revision filed bythe appellant and making re-allotments. [Para 10][473-F-H; 474-A-C]

1.3 The High Court erred in holding that the appellant hadno right to challenge the order of the Settlement Officer,DConsolidation in the appeal filed by ‘B’ because he had notchallenged the original order in original proceedings wherebythe front portion of the land was treated as bachat land. The secondorder virtually nullified the earlier order and this gave a freshcause of action to the appellant and he could challenge the same.

As far as ‘P’ is concerned, she did not challenge the order passedEby the Deputy Director, Consolidation. The writ court did nottake into consideration the averments made wherein ‘D’ hadprayed that she should be re-allotted Plot No.319 and grantedRs.20,000/- as compensation for the construction she had raisedin Plot No. 212/2. The order of the High Court is set aside andFthe order passed by the Deputy Director, Consolidation isrestored. The respondent, ‘D’ is directed to remove the entireconstruction at her own cost and hand over vacant and peacefulpossession of the land to the appellant within the stipulated period.[Paras 11-13][474-E-H; 475-A-B]CIVIL APPELLATE JURISDICTION: Civil Appeal No. 394 ofG2009.

From the Judgment and Order dated 10.03.2006 of the High Courtof Judicature at Allahabad in Civil Misc. Writ Petition No. 12972 of1984.

Neeraj Kumar Jain, A. Mariarputham, Sr. Advs., T. N. Singh,H

Ms. Aruna Mathur, Ms. Anuradha Arputham, Sanjay Singh, Vikas K.Singh for the Appellant.

Deeptakirti Verma, Adv. for the Respondent.

The Judgment of the Court was delivered by DEEPAK GUPTA J. 1. The appellant is the Mahant of ShriMukunddevacharya Peeth, Topi Kunj, Temple of Thakur RadhemohanjiMaharaj at Vrindavan. The temple was owner of plot bearing No. 212/2 measuring 2.48 acres. The contesting respondent no. 1 Deoki Deviwas owner of land bearing No. 319 measuring 0.44 acres. One BansiBallabh [not a party to these proceedings], was the owner of Plot No.215 and Plot No. 216.

2. Consolidation proceedings took place and during the course ofthese proceedings, the appellant was allotted a portion of Plot No. 212/2, a portion of Plot No. 215 and a portion of Plot No. 216. A portion ofPlot No. 212/2, adjoining the road, was treated as bachat land for useby the Gaon Sabha. It is pertinent to mention that one Premwati (not aparty to these proceedings), was also allotted a very small portion ofPlot No. 212/2. The land reserved as bachat land for use by the GaonSabha and the land allotted to Premwati adjoined the Vrindavan Chatikaramain road. Deoki Devi was also allotted a portion of Plot No. 215measuring 0.18 acres. The appellant did not challenge the allotment ofland to the Gaon Sabha [bachat land] or the allotment of land toPremwati.

3. Bansi Ballabh, owner of Plot No. 215 and Plot No. 216, filed anappeal challenging the allotment of 0.18 acres of land in Plot No. 215 infavour of Deoki Devi. It would be pertinent to mention that the presentappellant was not a party to those proceedings. The Settlement Officer,Consolidation allowed the appeal filed by Bansi Ballabh on 27.08.1981.However, the Settlement Officer, Consolidation did not limit the appealto the claim against Deoki Devi only. He ordered amendment of theholding table and now Deoki Devi, who had been allotted land in PlotNo. 215, was allotted 0.17 acres of land in Plot No. 212/2, adjoining theVrindavan Chatikara main road. The holding of the appellant [though hewas not a party to the proceedings] was also changed and 0.39 acres ofland allotted to him in Plot No. 215 and 0.36 acres of land in Plot No.216, were taken away and he was again granted 0.66 acres of land inPlot No. 212/2 in addition to what was already allotted to him. As far asthe bachat land was concerned, that was changed from Plot No. 212/2

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Ato the north-east corner of Plot No. 216 measuring 0.62 acre. Theappellant claims that he was unaware of this order since he was not aparty to the appeal filed by Bansi Ballabh.

4. The appellant filed a restoration application before the SettlementOfficer, Consolidation and, at the same time, filed a revision petitionBbefore the Deputy Director, Consolidation against the order dated27.08.1981. The restoration application was dismissed by the SettlementOfficer, Consolidation mainly on the ground that since the appellant hadnot challenged the reduction of his holding in Plot No. 212/2 in the firstround of consolidation proceedings wherein the front portion of his plothad been reserved as bachat land for use by the Gaon Sabha, he wasCnot entitled to challenge the same in the second round. However, theDeputy Director, Consolidation allowed the revision filed by the appellanton 13.12.1983. Before the Deputy Director, Consolidation, Bansi Ballabh,Hari Vallabh, Deoki Devi and the Gaon Sabha were all parties. Premwatiwas also made a party to the proceedings subsequently. Notices wereDsent but the respondent Deoki Devi and Premwati were proceeded exparte and the revision was allowed. By the amended table of holding,the appellant was allotted Plot No. 212/2, which was his original holdingand both Premwati and Deoki Devi were allotted land in Plot No. 216.

5. Thereafter, Premwati and Deoki Devi both filed restorationEapplication before the Deputy Director, Consolidation, who rejected thesame on the ground that both of them had been duly served. The DeputyDirector, Consolidation also noted that Deoki Devi was not ready totake back her original plot i.e. Plot No. 319 and he upheld the allotmentof land to her in Plot No. 216. Aggrieved, Deoki Devi filed a writ petitionin the Allahabad High Court, which was allowed by the impugnedFjudgment mainly on the ground that since the appellant herein had acceptedthe allotment of front portion of Plot No. 212/2 to the Gaon Sabha andPremwati, he having lost title to the property could not object to thegrant of the same to Deoki Devi especially since he has not filed anappeal against the original order.G

6. We have heard learned counsel for the parties. The maincontention urged on behalf of the appellant is that since the main portionof Plot No. 212/2 was reserved as bachat land, to be allotted to theGaon Sabha, which the appellant could have also utilised, he had notobjected to the same. It is submitted that in the appeal filed by BansiBallabh, the original order of allotment was virtually set aside and evenH

the lands allotted to the appellant in Plot No. 215 and Plot No. 216 weretaken back from him and thereafter, the Respondent No. 1, Deoki Deviwas allotted the front portion of Plot No. 212/2 adjoining the road andthis gave the appellant a fresh cause of action. It is also urged that in thewrit petition filed by Deoki Devi she had made an averment on affidavitthat she wants her original holding [obviously Plot No. 319] provided sheis given compensation of Rs.20,000/-. Therefore, the writ court couldnot have granted relief to her beyond what she had prayed.

7. On the other hand, learned counsel for Respondent No.1, DeokiDevi, after referring to Section 9(2) and 11-A of the U.P. Consolidationof Holdings Act, 1953 (for short ‘the Consolidation Act’), submits thatonce the appellant had accepted the original order, he was no longer theowner of the land and he could not challenge the subsequent order.

8. Section 9(2) of the Consolidation Act provides that any personto whom notice has been sent under Section 9(1), has to file objectionsbefore the Assistant Consolidation Officer within a period of 21 daysfrom the date of receipt of the notice. Section 11-A of the ConsolidationAct provides that no question in respect of claims to land etc. relating toa consolidation area which might or ought to have been raised underSection 9(2) and were not raised at that stage, can be permitted to beraised or heard at subsequent stage of consolidation proceedings. Thepurpose of these two provisions is to ensure that when a draft scheme isprepared or notice of allotment of land is issued, then if a person has anyobjection to the same, he must file his objection at that stage and if hedoes not file the same, he cannot be permitted to raise these objectionsat a later stage. This is a well settled position of law.

9. Each case has to be decided on its own facts. In the presentcase, the appellant had not objected to grant of a very small portion ofland to Premwati and allotment of the front portion of the land as bachatland to be used by the Gaon Sabha. In this case, Bansi Ballabh, ownerof Plot No. 215 and Plot No.216, filed appeal. Though this appeal waslimited to challenging the allotment made to Deoki Devi, the SettlementOfficer, Consolidation, while allowing the appeal, virtually nullified theoriginal consolidation order and took away the land allotted to the appellantin Plot No. 215 and Plot No. 216 and re-allotted him his land in Plot No.212/2, allotted land to the Gaon Sabha in Plot No. 216 and allotted thefront portion of the land in Plot No. 212/2 to Premwati and Deoki Devi.We have perused the map [Annexure P-6] and from this it is clear that AB

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Athe appellant would have had access to the road when the land wasallotted to the Gaon Sabha as bachat land. The appellant could havealso used the land and his access to the road would not have been affected,had that portion of the land been not allotted to Deoki Devi. This ordervirtually nullified the earlier order and, therefore, the appellant was wellwithin his rights to challenge the order passed by the Settlement Officer,BConsolidation in the appeal filed by Bansi Ballabh. It is well settledposition of law that if an order adversely affects any party, he has a rightto challenge it. The appellant was not a party to the appeal filed byBansi Ballabh, but by the order passed by the Settlement Officer,Consolidation in the appeal filed by Bansi Ballabh, the appellant wasCvirtually denied access to the road. Therefore, the Deputy Director,Consolidation was justified in entertaining the revision filed by theappellant herein and making re-allotments, as indicated hereinabove.

10. It has been contended by the appellant that the original holdingof Deoki Devi in Plot No. 319 was almost 2 kilometres away. It may beDtrue that she has been allotted a smaller portion of land but the purposeof the Consolidation Act is to prevent fragmentation of a holding and tohave one common holding. The Deputy Director, Consolidation rightlyallowed the revision.

11. We are of the considered view that the High Court erred inEholding that the appellant had no right to challenge the order of theSettlement Officer, Consolidation in the appeal filed by Bansi Ballabhbecause he had not challenged the original order in original proceedingswhereby the front portion of the land was treated as bachat land. Aswe have pointed out above, the second order virtually nullified the earlierorder and this gave a fresh cause of action to the appellant and he couldFchallenge the same. As far as Premwati is concerned, she did notchallenge the order passed by the Deputy Director, Consolidation. Wealso find that the writ court did not take into consideration the avermentsmade in Para 23 of the writ petition wherein Deoki Devi had prayed thatshe should be re-allotted Plot No. 319 and granted Rs.20,000/- asGcompensation for the construction she had raised in Plot No. 212/2.

12. In view of the above discussion, we set aside the order of theHigh Court and restore the order passed by the Deputy Director,Consolidation.

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MAHANT LALITA SHARANJI v. DEOKI DEVI & ANR.[DEEPAK GUPTA, J.]

13. The respondent, Deoki Devi is directed to remove the entireconstruction at her own cost and hand over vacant and peacefulpossession of the land to the appellant within 30 days from today failingwhich the appellant can take assistance of the Court to take possessionof the land and building in which event, Deoki Devi will not be entitled tothe cost of the structure or any other damages.

14. The appeal is allowed in the aforesaid terms.

Nidhi Jain

Appeal allowed.

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