Anjani Kumar Mishra, J.@mdashHeard learned Counsel for the parties. This petition arises out of an application under section 42-A of the U.P. Consolidation of Holdings Act and it challenges the orders dated 12.6.2009, 23.11.2009 and 2.2.2010 passed by the Consolidation Officer, Ghaziabad, Settlement Officer, Consolidation, Ghaziabad and the Joint Director of. Consolidation, Ghaziabad, respectively.
2. Facts of the case, briefly stated, are that the land in dispute belonged to one Devi Sahai, who had three sons. On his death, all the three sons were recorded over the land in question. It has been alleged by the petitioner that during consolidation operations, a family settlement took place, whereunder Surendra Sharma given a separate chak, having an area of 4-18-8. Another separate chak, being chak No. 162 is said to have been carved out jointly in the name of the sons of Devi Sahai,- namely, Surendra, Hari Dutt and Niranjan.
3. 38 years after the publication of notification under section 52, an application under Rule 109-A was filed by the son of Surendra Sharma, with the allegation that Khata No. 162 was carved out of land in the name of Devi Sahai, but on account of a mistake committed by the consolidation authorities, the name of Surendra, the third son of Devi Sahai was not included in the final consolidation record and hence the application. This application was registered as Case No. 59 of 2006-07, Anil Sharma v. Yogendra and others.
4. The Consolidation Officer by his order dated 4.5.2007, treating this application to be one under section 42-A, directed that the name of Surendra Sharma be recorded over the land in question.
5. On 25.8.2007, the petitioners filed an objection, alleging that the order dated 4.5.2007 was ex parte and that Surendra Sharma had no share in the property in question. The Consolidation Officer thereafter by the order dated 13.2.2008, held that Surendra Sharma had already got his 1/3 share and had no share in Khata No. 170 but he held that the name of Surendra Sharma be recorded over the Plot Nos. 860, 882 and 1247 of Khata No. 162, as his name had been wrongly left out.
6. Against this order, the petitioners preferred Appeal No. 24 of 2008 on the ground that Plot Nos. 860 and 882 etc. were not included in consolidation operations and, therefore, the order had been wrongly passed.
7. The Settlement Officer, vide order dated 29.3.2008 allowed the appeal. This appeal was allowed on the ground that the Consolidation Officer had no jurisdiction of treating an application under Rule 109-A to be one under section 42-A. It was further held that Rule 109-A could only be invoked to incorporate orders, which had been passed after issuance of notification under section 52 of the Act The consequential Revision No. 303 of 2008, filed by the contesting respondents, was dismissed, vide order dated 26.8.2008.
8. Thereafter, a fresh application under section 42-A was filed by the contesting respondents. The consolidation Officer by his order dated 12.6.2009, prepared a reference for incorporating the name of Surendra Sharma and forwarded the same to the Settlement Officer, Consolidation. The Settlement Officer, Consolidation vide order dated 23.11.2009, referred the matter to the Joint Director of Consolidation, who by the order dated 2.2.2010, accepted the reference and directed that the name of Surendra Sharma also be recorded over plot Nos. 860, 882 and 1247 of Khata No. 162.
9. The orders of the Consolidation Officer making the reference and that of the Settlement Officer, Consolidation, whereby the reference was forwarded to the Joint Director of Consolidation as also the order of the Joint Director accepting the reference so forwarded, are under challenge in the writ petition.
10. On the strength of the facts noticed above, learned Counsel for the petitioners has submitted that on account of the family settlement arrived at during the consolidation operations, separate chaks had been carved out, one in the name of Surendra Sharma and another in the joint names of Hari Dutt and Niranjan and, therefore, the parties only had share in the chaks so carved out. The second submission made by learned Counsel for the petitioners is that the application under section 42-A had been filed 38 years after the consociation operations were closed by issuance of notification under section 52(1) of the Act and the same was not maintainable and has been wrongly entertained and allowed. Under the circumstances, the only option, if any, open for the contesting respondents, was to invoke the provisions of the Land Revenue Act.
11. Thus, the primary submission of learned Counsel for the petitioners is that the orders impugned are wholly without jurisdiction, as the application under section 42-A was filed long after the close of consolidation operations and also because the earlier application under Rule 109-A, which was treated as one under section 42-A had been dismissed and, therefore, the second application under section 42-A could not have been filed or entertained.
12. Learned Counsel for the contesting respondents have tried to justify the impugned orders. It has been submitted that substantial justice has been done by the impugned orders because the name of a person left out from being incorporated in the final consolidation records have been ordered to be incorporated therein and, therefore, the matter calls for no interference.
13. I have considered the rival submissions made by learned Counsel for the parties and have perused the record.
14. The parties are not at issue that the application under section 42-A of the Act had been filed about 38 years after the close of consolidation operations.
15. The provisions of section 42-A of the U.P. Consolidation of Holdings Act cannot be invoked after the village has been denotified by issuance of a notification under section 52(1) of the U.P. Consolidation of Holdings Act in view of the Division Bench judgments reported in
16. In view of the Division Bench decisions of this Court as also the other judgments referred to above, it is clear that the consolidation authorities could not have entertained the application filed under section 42-A several decades after the close of consolidation operations and, therefore, the orders passed are clearly without jurisdiction and cannot be sustained. Accordingly, I allow the writ petition and set aside the orders dated 12.6.2009, 23.11.2009 and 2.2.2010 passed by the consolidation authorities.
