Jagrathi Wife of Rama Kant Vs. the Deputy Director of Consolidation, - Court Judgment

Excerpt:
- land acquisition act, 1894 [c.a. no. 1/1894]. section 4; [sushil harkauli, s.k. singh & krishna murari, jj] acquisition of land held, court cannot issue a writ of mandamus directing the state authorities to acquire a particular land. land acquisition is not purely ministerial act to be performed by executive no direction in nature of mandamus whether interim or final can be issued by court under article 226 necessarily to acquire particular land in public interest. land acquisition is not a purely ministerial act to be performed by the executive and therefore, no mandamus can be issued by the court in exercise of its power under article 226 of the constitution, whether suo motu or otherwise, whether in public interest litigation or otherwise directing acquisition of land under the provisions of land acquisition act, 1894. it would, however, be open to the court in exercise of that power to invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time frame. however, the power of the court under article 226 must necessarily stop at that. thereafter, if the decision taken by the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the court to quash the decision and to require reconsideration. but no direction in the nature of mandamus whether interim or final can be issued by the court under article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose. section 4; compulsory acquisition of land powers of state government held, renewal of lease in favour of petitioners would not take away power of state government of compulsory acquisition of land. renewal of lease would at best be taken into consideration for determining quantum of compensation. - 3. submission of learned counsel for the petitioner is that the order passed by the deputy director of consolidation is clearly illegal as two appeals filed against the order of assistant consolidation officer dated 17.12.1982 were earlier dismissed and therefore, passing of the impugned order on the complaint of respondents, after necessary enquiry cannot be said to be just and proper. 4. in response to the aforesaid, submission of learned counsel for the respondents is that it is a clear case where the petitioner practiced fraud on the court and in respect of the waqf property on the basis of forged compromise, from the court of assistant consolidation officer, she obtained order, which being clearly illegal and without jurisdiction, the deputy director of consolidation has rightly exercised his powers under section 48(3) of upch act and thus no exception can be taken to it. there is a clear stand of the respondents that neither any compromise was filed before the assistant consolidation officer nor any appeal was filed against the order of assistant consolidation officer dated 17.12.1982. dewan ashraf khan who has filed counter affidavit has clearly stated that he has never signed any compromise and he has never filed any appeal and thus this is added step,on the part of petitioner to get the order of assistant consolidation officer dated 17.12.1982 to get strengthened on the pretext of dismissal of appeal against that order. the deputy director of consolidation has clearly mentioned that both parties have been given opportunity of hearing. needless to say that unless this court is satisfied that by the impugned oder petitioner has suffered serious prejudice, this court is not to interfere. 8. for the reasons recorded above, this court is not satisfied that it is a fit case for interference in the writ jurisdiction.s.k. singh, j.1. by means of this writ petition, the judgment of the deputy director of consolidation, azamgarh dated 6.2.1989 has been challenged.2. heard sri amrendra pandey, learned advocate in support of the writ petition and sri rajednra rai, learned advocate in opposition thereof.3. submission of learned counsel for the petitioner is that the order passed by the deputy director of consolidation is clearly illegal as two appeals filed against the order of assistant consolidation officer dated 17.12.1982 were earlier dismissed and therefore, passing of the impugned order on the complaint of respondents, after necessary enquiry cannot be said to be just and proper. submission is that the petitioner has not been given proper opportunity before passing the order. it has been further submitted that the exercise of powers by the deputy director of consolidation under section 48(3) of upch act, on the facts cannot be said to be justified. lastly, it has been submitted that the property which is being claimed as waqf property on the basis of waqf deed dated 9.1.1939. is void abinitio and therefore, on the basis of consent of respondent, petitioner's right was rightly accepted by the assistant consolidation officer and thus the deputy director of consolidation in setting aside that order by exercising powers under section 48(3) of upch act has comnitted. an error.4. in response to the aforesaid, submission of learned counsel for the respondents is that it is a clear case where the petitioner practiced fraud on the court and in respect of the waqf property on the basis of forged compromise, from the court of assistant consolidation officer, she obtained order, which being clearly illegal and without jurisdiction, the deputy director of consolidation has rightly exercised his powers under section 48(3) of upch act and thus no exception can be taken to it. submission is that the land in dispute is admittedly grove on the spot and there is no-evidence that dewan ashraf khan mutawalli was given permission from any competent authority to divest the rights of allahtala to be conferred on the petitioner and therefore, this is a clear case where the petitioner by fraudulent means got huge property,,without any trial and thus the deputy director of consolidation has rightly set aside the! order of assistant consolidation officer and remitted the matter to the consolidation officer for decision on merits after evidence about rights and title of the parties. submission is. that, the deputy director of consolidation before passing impugned order has given full opportunity of hearing and evidence to the parties and thus, it is a case where the impugned; order of the deputy director of consolidation is just and proper and thus no interference is required.5. in view of the aforesaid arguments, the court has examined the matter.6. there appears to be no dispute about the fact that the land in dispute i.e. plot no. 5 ( -100) and plot no. 6 ( 5-480 kari) are grove on the spot and that was recorded in the basic year in the name of allahtala. in view of the facts as stated in the supplementary rejoinder affidavit from the side of the petitioner, it is clear that a registered waqf deed was executed on 9.1.1939 about the land in dispute, copy of which is brought on record by petitioner himself by way of annexure along with supplementary rejoinder affidavit. as mentioned in the judgment of deputy director of consolidation, objection was filed by petitioner on 14.12. 1982 claiming rights over the land in dispute on the ground of her long possession from before zamindari abolition. the petitioner claimed that she be declared as grove holder of the land in dispute. objection is said to have been filed by dewan ashraf khan denying petitioner's right with assertion that the land in dispute is to remain recorded in name of allahtala. it is not clear that how and in, what circumstances just after three days of filing objection from the side of allahtala, situation turned and on 17.12.1982, a compromise came to be filed by which the entry in the name of allahtala was permitted to be expunged and petitioner was to be recorded as grove holder. the plea of petitioner is that against the order dated 17.12.1982 twice appeals were filed by respondents which were dismissed on 28.1.1987 and then on '17.11.1987. the record as has been placed before this court speaks that both orders of the. settlement officer consolidation referred above are of dismissing the appeal in default. there is a clear stand of the respondents that neither any compromise was filed before the assistant consolidation officer nor any appeal was filed against the order of assistant consolidation officer dated 17.12.1982. dewan ashraf khan who has filed counter affidavit has clearly stated that he has never signed any compromise and he has never filed any appeal and thus this is added step,on the part of petitioner to get the order of assistant consolidation officer dated 17.12.1982 to get strengthened on the pretext of dismissal of appeal against that order. although learned counsel for petitioner tried to refer various provisions of musalman waqf validity act, 1913 to argue that waqf deed is void ab-initio and no permission was required to enter into compromise and to transfer |the property in favour of petitioner but this court having been apprised of the admitted facts about existence of registered waqf deed dated 9.1.1939 and the land in dispute being recorded throughout as the property of allahtala fails to understand that how in this slip short manner just after three days of filing objection by entering into compromise before the assistant consolidation officer, property in the name of allahtala can be allowed to be recorded in the name of petitioner. on own showing of petitioner, there was a dispute between parties and as observed by the deputy director of consolidation, both sides came with their objection in respect to their rights before the consolidation officer and thus there being a disputed case, matter was to be referred to the consolidation officer as provided in the u.p. consolidation of holdings act. it is only in respect to undisputed cases by re-conciliation, matter can be settled. here was the case that both sides filed objection and thus it was for the assistant consolidation officer to refer the dispute before the assistant consolidation officer and it is only the consolidation officer who can be said to be competent to decide the dispute between parties either on merits or on the basis of compromise and thus it is a clear case where the assistant consolidation officer traveled beyond his jurisdiction in deciding the dispute on the basis of alleged compromise. the contention of the petitioner that registered waqf deed dated 9.1.1939 is void may be accepted or may not be accepted by that adjudication can only be when parties are to get opportunity to corroborate their version. if the required waqf deed is not found to be void then there may be a situation that mutawalli on- his own without there being any permission from any competent authority may not be said to be authorised to enter into compromise. and transfer the rights of allahatala in favour of petitioner. para 14 of the waqf deed dated 9.1.1939 of which reference has been made by petitioner in the supplementary rejoinder affidavit for the purpose that in view of condition provided therein no permission was needed for mutawalli appears to be misconceived as in para 14 of the deed on its perusal it also only states that mutawalli can settle the land on the basis of a patta or in the case of necessity by mortgage of the same but that clause never permits the transfer of land in dispute for all the times to come. thus prima -facie submission of learned counsel for the petitioner about authority of dewan ashraf khan to enter into compromise and transfer of land in dispute in favour of petitioner for ever, prima facie seems to be doubtful. be as it may, it is in the aforesaid background the deputy director of consolidation took up the matter for scrutiny. a clear finding was recorded that the land in dispute was recorded in the name of allahtala. the land in dispute is grove. within three days on the basis of compromise the assistant consolidation officer passed orders. there is nothing on record that dewan ashraf khan had any authority or permission to transfer the grove land recorded in the name of allahtala. to conclude the finding has been recorded by the deputy director of consolidation that it is a case of illegal transfer arid thus the matter is to be dealt by the consolidation officer on merits in respect to their rights after giving opportunity of evidence to both sides. the deputy director of consolidation has clearly mentioned that both parties have been given opportunity of hearing. in view of aforesaid discussion', keeping in mind the stand of respondents that no appeal whatsoever was ever filed on behalf of allahtala, the facts and circumstances and in the manner huge land recorded in the name of allahtala has been tried to be taken away by petitioner, this court is convinced.that the stand of respondents is near the truth and on the findings so recorded by the deputy director of consolidation, the order of assistant consolidation officer has to be held to be not only illegal but without jurisdiction also. it appears to be a clear case of fraud having been played in the proceedings before the assistant consolidation officer in getting an order on the basis of compromise and that too in the proceedings in which assistant consolidation officer has no jurisdiction to pass order on the basis of compromise. thus repelling all the technical objections as advanced from the side of petitioner, this court 'being convinced that by the impugned exercise of the deputy director of consolidation justice has been done and interference in the impugned order may lead to injustice and putting the seal to grabbing of huge property recorded in the name of allahtala refuses to intervene. needless to say that unless this court is satisfied that by the impugned oder petitioner has suffered serious prejudice, this court is not to interfere. by the direction given now by the deputy director of consolidation, the parties are to get an opportunity of evidence to get their rights decided on merits. the petitioner is to establish here claim of acquisition of her rights over the grove land on her plea of long possession and thus now both parties are to enter into trial as directed by the deputy director of consolidation.7. in view of aforesaid discussions, various submission as were tried to be advanced by learned counsel for the petitioner based on provisions of musalman waqf act, 1913 need not to be discussed at this stage as this may be subject matter of consideration when the parties are to receive opportunity of evidence and argument which they are to receive before the consolidation officer pursuant to the remand order passed by the deputy director of consolidation and therefore, submission in this respect are not being dealt with.8. for the reasons recorded above, this court is not satisfied that it is a fit case for interference in the writ jurisdiction. the writ petition accordingly fails and it is dismissed.