HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 411 of 2004 (M/S) Rohit and others ……..Petitioners Versus Deputy Director of Consolidation Haridwar & others …….Respondents Shri Rajendra Singh, learned counsel for the petitioners . Shri Sudhir Kumar, learned Brief Holder for the State. Dated: June 30, 2010 Hon’ble V.K. Bist, J. Present writ petition has been filed by the petitioners for quashing of the orders dated 24.05.1999, 6.06.2002 and 16.08.2003, contained as annexure nos. 5, 6 & 8 to the writ petition) 2. Brief facts of the case, as narrated in the writ petition, are that one Smt. Bugli W/o late Kewal Ram executed a WILL in favour of the petitioners in respect of chak no.271 gata no.13/1, gata no.136/1, gata no.139 and gata no.140/1 situated in village Kothwal Alampur, Paragana Maglour, Tehsil Roorkee, District Haridwar. Smt. Bugli was the Bhumidhar with transferable rights. After her death, the land was transferred in the name of petitioners. It is stated in the petition that during the lifetime of Smt. Bugli, consolidation proceeding was started and her name was recorded by the Assistant Consolidation Officer, Roorkee (for brevity ACO) in Form No.23 on 13.12.1993. 3. On 01.05.1995, Shri Kewal made an objection before the Consolidation Officer Roorkee, under Section 9 Ka (2) of Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act) stating therein that he is Bhumidhar with transferable rights of Khata no.53 gata 2 no.13 area 9 Bigha 3 Biswa and gata no.136 area 10 Biswa. It is stated that at the time of survey, gata no.13 has been shown less and divided into two parts while in map there is no such division. The road shown in the same report was never acquired by any department. He prayed that the land be included in his original chak and prices of the land be adjusted from the gata no.13 and 136. 4. The ACO made a survey (annexure no.4) on the application of the petitioners and submitted his report. The Consolidation Officer decided the objection vide impugned order dated 24.05.1999 in suit no. 5740, ‘Kewal Vs. State’, in which he did not accept the report dated 13.10.1998 of the ACO. Aggrieved by the order dated 24.05.1999 the petitioners filed Appeal No.644 before the Settlement Officer Consolidation, Roorkee, Haridwar, (for brevity SOC) with the averment that the excess land has not been divided in equal ratio therefore, the order of the Consolidation Officer may be set aside but the SOC did not consider the same and dismissed the appeal vide order dated 06.06.2002. Being aggrieved by the order of SOC dated 06.06.2002, the petitioners filed Revision before Deputy Director of consolidation/ respondent no.1 on the ground that the order passed by the Consolidation Officer is against the provision of law. But the respondent no.1 vide his order dated 16.08.2003 also dismissed the revision. Hence this petition. 5. A counter affidavit has been filed by the State and denying the contents made in the petition in which it has been asserted that the consolidation proceedings in the village in question came to an end in the year 1963, but the petitioners did not file any objection in the said consolidation proceedings, as such the contention raised 3 by the petitioners after a long period of 40 years, stating that the area of their land is shown or became less, is not tenable. Furthermore, the said demand can not be raised in this consolidation proceedings as it is purely barred by Section 49 of the Act i.e. this very demand could have been raised by the petitioners or by their legal guardian at the time of consolidation proceedings going on in their village and no right can accrue to any one over the road land which is the public utility land and purely falls within the ambit of Section 132 of U.P.Z.A. & L.R. Act, hence no right can accrue to any one over the land of public utility. The Consolidation Officer while not admitting the report of Assistant Consolidation Officer dated 13.01.1998, has entered the area of Khasra No. 136 as per the settlement. It is further asserted that the map which has been filed by the petitioners (annexure 13), the same is of previous consolidation relating to 1370 Fasly year, i.e. relating to year 1963. The said map is not prepared soon after the consolidation proceedings. Further, merely due to issuance of the copy of said Pedigree/Sajra on 30.05.2003, the same cannot be treated as new map of consolidation. It is further stated that the Pukhta road is located over the plot nos. 13/2 and 136/3 and plot nos. 13/1, 13/2 are recorded in the name of the petitioners but the Pukhta road is located on the plot no. 13/2 at the spot which is kept out of the consolidation proceedings and road is also situated on plot no. 136/3 at the spot and is recorded as ‘road’ in revenue records and the plot nos. 136/1, 136/2 are recorded in the name of cultivators. It is further stated in the counter affidavit that the Pukhta road which situated on the plot no. 13/2 is continuously being used by the villagers and the Pukhta road is also located on the plot no. 136/2 at the spot, hence contention of the 4 petitioners saying that their maternal grandfather was in possession over the area of 0.4100 hectares of land of the plot no. 13/2 is incorrect. The plot no. 13/1 is located in the north of Pukhta road which is recorded in the name of the petitioners and they are cultivating over it and the plot no. 136/1 is located in the south of the Pukhta road and the area measuring 0.1024 hectares of land of this plot is recorded in the name of the petitioners in revenue records over which the petitioners are cultivating at the spot i.e. the petitioners are in possession over the plot nos. 13/1 and 136/2 located on the both sides of said Pukhta road. It is further asserted in the counter affidavit that the plot no. 136/1 measuring 0.1024 hectares of land was recorded as Bhumidhar with transferable rights in the name of the petitioners in revenue records but 0.1453 hectares of land of this plot was recorded in consolidation proceedings. A room without roof is situated over the area measuring 0.06000 hectares of land of plot no. 136/1 on the spot which is proposed in the chak of the petitioners in proposed ‘Chak’ and in the north of it the Pukhta road is located on the spot. 6. I have heard Mr. Rajendra Singh, the learned counsel for the petitioners, Mr. Sudhir Kumar, the learned Brief Holder for the State and perused the entire material available on record. 7. Mr. Rajendra Singh, the learned counsel for the petitioners submitted that sub-rule (2) of Rule 26 of The U.P. Consolidation of Holdings Rules, 1954 (for short 1954 Rules) is mandatory to be followed. The same is quoted hereunder:- 5 “(2) On the date fixed under sub-rule (2) of Rule 25-A, or on any subsequent date fixed for the purpose, the Consolidation Officer shall, hear the parties, frame issue on the points in dispute, take evidence, both oral and documentary and decide the objection.” 8. In this context, the learned counsel for the petitioners relied on the judgment of Allahabad High Court rendered in Raja Ram vs. D.D.C., Basti and others, reported in 1993 RD-32. He contended that without framing issues and without permitting parties to lead evidence, the order impugned passed by the Consolidation Officer is not sustainable. He submitted that prior to passing the impugned order, the Consolidation Officer should have made spot inspection in order to ascertain the actual situation on the spot. 9. On the other hand Mr. Sudhir Kumar, the learned Brief Holder for the State submitted that the petitioners did not file any objection in the said consolidation proceedings, as such the contention raised by the petitioners after a long period of 40 years, stating that the area of their land is shown or became less, is not tenable. He further argued that this very demand could have been raised by the petitioners or by their legal guardian at the time of consolidation proceedings going on in their village and no right can accrue to any one over the road land which is the public utility and purely falls within the ambit of Section 132 of U.P.Z.A. & L.R. Act, hence no right can accrue to any one over the land of public utility. He contended that the mandatory provision issued under Rule 26 of the Rules is formal in nature and it will be applied when dispute arises, but in the present case there was no dispute. He contended that the petitioners neither 6 filed any objection before the Consolidation Officer nor he demanded for framing of such issues. He also contended that the petitioners could have lead evidence before the Consolidation Officer, but nothing was done at the relevant time. 10. After hearing learned counsel for the parties and after careful reading of Sub Rule-2 of Rule 26 of the 1954 Rules, I find that provision contained in Sub Rule-2 of Rule 26 of the 1954 Rules are mandatory. In the present case, the Consolidation Officer ought to have framed issues on the points in dispute, recorded evidence, both oral and documentary and decided the objection. 11. Accordingly, the writ petition is allowed. Impugned orders dated 16.08.2003, 06.06.2002 and 24.05.1999 passed by respondent nos. 1,3 & 4 respectively are quashed. Without commenting anything on the merits of the case, the matter is remanded back to Consolidation Officer, Roorkee/respondent no.4 for deciding the case afresh, after framing issues and after recording evidence. 12. No order as to costs. (V.K. Bist, J.) Arpan 30.06.2010