Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.1521 of 2005 (M/S) Mindresh S/O Sri Prakash, R/O Village Jaurasi, Pargana and Tahsil Roorkee, District Haridwar. …… Petitioner. Versus Deputy Director of Consolidation, District Haridwar and three others. … Respondents. WITH (1)Writ Petition No.1517 of 2005 (M/S) Ram Dass S/O Sri Hari Ram, R/O Village Jaurasi, Pargana & Tahsil Roorkee, District Haridwar. …… Petitioner. Versus Deputy Director of Consolidation, District Haridwar and three others. … Respondents. (2) Writ Petition No.1518 of 2005 (M/S) Balbeer S/O Sri Mani Ram, R/O Village Jaurasi, Pargana and Tahsil Roorkee, District Haridwar. …… Petitioner. Versus Deputy Director of Consolidation, District Haridwar and three others. … Respondents. (3) Writ Petition No.1522 of 2005 (M/S) Ramesh S/O Sri Mam Raj, R/O Village Jaurasi, Pargana and Tahsil Roorkee, District Haridwar. …… Petitioner. Versus Deputy Director of Consolidation, District Haridwar and three others. … Respondents. 2 (4) Writ Petition No.1524 of 2005 (M/S) Mahinder S/O Sri Kali Ram, R/O Village Jaurasi, Pargana and Tahsil Roorkee, District Haridwar. …… Petitioner. Versus Deputy Director of Consolidation, District Haridwar and three others. … Respondents. (5) Writ Petition No.1525 of 2005 (M/S) Rishi Pal S/O Sri Har Phool, R/O Village Jaurasi, Pargana and Tahsil Roorkee, District Haridwar. …… Petitioner. Versus Deputy Director of Consolidation, District Haridwar and three others. … Respondents. Sri Sharad Sharma, learned counsel for the petitioners. Sri N.P.Sah, learned Standing Counsel for the respondent nos. 1-3- State. Sri Alok Singh, Senior Advocate, with Sri Sudhir K.Chaudhary, learned counsel for the respondent no.4 Date November 04, 2008. Hon’ble B.S.Verma, J. Since the controversy involved in all these writ petitions is similar, therefore, for the sake of convenience, all these petitions are being decided by this common judgment. In all these writ petitions, the petitioners have assailed the order dated 30-12-2004 passed by the Settlement Officer Consolidation Haridwar Camp Roorkee (for short S.O.C.) and the order dated 22-9-2005 passed by the Deputy Director of Consolidation/Additional Collector, Haridwar (for short D.D.C.). By the order dated 30-12-2004, the S.O.C. has allowed the appeal and set aside the order dated 2-3-1995 passed by the Consolidation Officer. The D.D.C. by his order dated 22-9-2005 has dismissed the revisions, which were preferred by the petitioners. 3 The short controversy involved in these petitions on the basis of the pleadings of the petitioners, it emerges out that the petitioners claim themselves Bhumidhari rights in the land in question of village Jaurasi, Pargana Roorkee, on the ground that they are in possession since more than 25 years and they belong to ‘Kahar’ backward class and being landless agricultural labours, the name of Gaon Sabha is wrongly recorded and on the ground they also claim the rights in the land on the basis of family planning operation also. The petitioners filed their objections under Section 9 A(2) of the Consolidation of Holdings Act before the Consolidation Officer Roorkee. The Consolidation Officer by his order dated 1-3-1995 entered the name of the petitioners in the revenue records as Varg- 3. When this order came in the notice of Gaon Sabha of the village, an appeal was preferred by Gaon Sabha Jaurasi before the S.O.C., which was allowed vide order dated 30-12-2004 and it has been held that the land being public utility land and as covered under Section 132 of the U.P. Zamindari Abolition and Land Reforms Act, Bhumidhari rights could not be given to the petitioners and accordingly, the S.O.C. set aside the order dated 1-3-1995 passed by the Consolidation Officer. Further aggrieved by the order passed by S.O.C., the petitioners preferred revisions before the D.D.C. The D.D.C. on the same ground also dismissed the revisions. Hence the petitioners have filed these present writ petitions. Counter Affidavit has been filed on behalf of respondent no.4 in each case. In paragraph no.3 the following averments have been made in the counter affidavit:- “3- That as regards the contents of para 2 of the writ petition it is stated that the Gata no. 22/6 measuring 0.140 hectares of land Gata no. 122/4 measuring 0.126 hectare of land, and Gata 4 no. 39/2 measuring 0.240 hectares of land are the Gata numbers of river as these are not the numbers of “Navin Parti” and Khata no. 197 is of river and during the course of Chakbandi partal the possession of the petitioner was not found over the above said land hence the question of recording the possession of the petitioner in C.H. Form 5 does not arise by the consolidation authorities.” In paragraph no.4 it has been stated that the agricultural labour belonging to scheduled caste/scheduled tribe only is entitled to get the benefit of Section 122-B (4)(f) of the U.P.Z.A. and L.R.Act but an agricultural labour belonging to backward caste is not legally entitled to the benefit of aforesaid Section. In paragraph no. 5 of the counter affidavit, it has been specifically stated that the Land Management Committee alone can issue Patta of Bhumidhar with non-transferable rights under Section 195 of the U.P. Zamindari Abolition and Land Reforms Act but during the course of Chakbandi partal the petitioner was not found in possession over the land in question. I have heard learned counsel for the parties and perused the averments made in the writ petitions and the counter affidavit along with its enclosures. Sri Sharad Sharma, learned counsel appearing on behalf of the petitioners, has vehemently contended that the land of river cannot be termed as public utility land and it does not belong to Gaon Sabha and the land belongs to the State. It has been further contended that the appeal was filed by the respondent no. 4-Gaon Sabha after the expiry of about 8 years and the same was not maintainable. It was also contended that the names of the petitioners were rightly recorded as Varg-3 in the revenue record. In support of his contention, learned counsel for the petitioners has placed reliance upon the verdict of the Allahabad High Court in the case of Afzai Ahmad and others Vs. District 5 Officer (Collector, Allahabad) and another [1971, A.W.R., Page 806] and the case of “Hinch Lal Tiwari Vs. Kamala Devi and others” [(2001) 6 Supreme Court Cases, 496]. I have perused the case law referred to by the learned counsel for the petitioners. In the case of Afzai Ahmad and others (supra), the provisions of UP Minor Minerals (Concession) Rules, 1963 and U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 1956 were considered. The case law does not help the petitioners. In the case of Hinch Lal Tiwari (supra), the Apex Court while considering the provisions of Section 122-C, 3(14) and 117(1)(i) of the U.P. Zamindari Abolition and Land Reforms Act, 1950, has held that the High Court proceeded to hold that considering the report of the SDO the area of 10 biswas only could be allotted and the remaining five biswas of land which have still the character of a pond, could not be allotted. It is difficult to sustain the impugned order of the High Court. There is a concurrent finding that a pond exists and the area covered by it varies in the rainy season. In such a case no part of it could have been allotted to anybody for the purpose of house building or any allied purposes. This case law too does not help the petitioners. On the other hand, in reply learned Senior Advocate Sri Alok Singh, appearing on behalf of the respondent no.4 has vehemently urged that no Asami Patta were ever granted to the petitioners by the Gaon Sabha. It reveals from the objections, which were filed by the petitioners before the Consolidation Officer that there is no averment in the objections that the petitioners have ever been granted Asami Patta in their favour. The only objection taken by the petitioners is that they belong to backward caste and they are landless agricultural labour and that they are in possession of land 6 for more than 25 years. They may be given Bhumidhari rights and the name of Gaon Sabha be expunged. By the pleadings of the petitioners itself, it is evident that the land belongs to the Gaon Sabha and not to the State. Even if the land belongs to Gaon Sabha or to the State, it does not make any difference to decide the controversy involved in the present writ petitions. Merely on the basis of oral assertion and without taking any evidence and without examining the petitioners on oath or without any supportive documents, the Consolidation Officer by one line order and that too without assigning any reasons, entered the names of the petitioners in Varg- 3. The appellate court rightly set aside the order of the Consolidation Officer. Even otherwise, the Consolidation Officer has no authority to enter the name of the petitioners in Varg-3 under Section 9-A of the Consolidation of Holdings Act. The consolidation courts can only decide the title of the parties or can correct the entries if they are not correct. It is pertinent to mention here that there was no entry in the name of the petitioners. Varg-3 entry is the entry of Asami Pattedar and that can be made only by Assistant Collector and not by Consolidation Officer on the basis of lease granted by Gaon Sabha. It reveals from the objection of the petitioners that there was no lease in their favour granted by Gaon Sabha. The petitioners only claim adverse possession against Gaon Sabha and prayed for making the entry in revenue record on the basis of objection. The Consolidation Officer without any evidence passed an order to make entry in revenue record in favour of the petitioners in Varg-3. Such an order cannot be sustained. The appellate court rightly quashed the order passed by Consolidation Officer and it is a case of no evidence in favour of the petitioners. The arguments of the learned counsel for the petitioners are misconceived and no right has accrued to the petitioners in the land 7 of Gaon Sabha either the land is covered by Section 132 or Section 117 of the U.P. Zamindari Abolition and Land Reforms Act. So far as the contention of the learned counsel for the petitioners that the appeal was preferred by the respondent no.4 at a highly belated stage and the same is not maintainable is concerned, the appeal was preferred by the Gram Sabha as soon as the order dated 1-3-1995 passed by the Consolidation Officer came to its knowledge. Along with the memo of appeal, application for condonation was also moved. The appellate court has condoned the delay on the ground that the petitioners did not file any affidavit to oppose the application. It is well settled that to condone the delay is the discretionary power of the court and the courts should be liberal in condoning the delay. I am not inclined to accept the contention of the learned counsel for the petitioners that the appeal filed by the respondent no.4 is not maintainable. For the reasons and discussion aforesaid, the writ petitions are devoid of merit and are liable to be dismissed outright. The writ petitions are dismissed. Costs easy. All pending applications stand disposed of. Interim order dated 23-12-2005, passed in each case, stands vacated. ( B.S.Verma, J. ) RCP 8 9