Allahabad High Court
Ghasita Singh And Others vs Dy. Director Of Consolidation ... on 27 April, 2011
Bench: Amreshwar Pratap Sahi
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No.5
Civil Misc. Writ Petition No.24347 of 2011
Ghasita Singh and others Vs. The Deputy Director of Consolidation, Muzaffarnagar and others
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Hon'ble A.P. Sahi, J
Heard Sri A.P. Tiwari, learned counsel for the petitioners and Sri Bakhteyar Yusuf for respondent Nos.2 to 6 and learned Standing Counsel for Respondent No.1.
A counter-affidavit has been filed at the inception itself and, therefore, the matter can be disposed of finally as the arguments have been concluded by the learned counsel for the parties. Learned Standing Counsel has also advanced his submission and has supported the impugned order.
The petition questions the legality of the order of the Deputy Director of Consolidation dated 6.4.2011 whereby the order of the Settlement Officer Consolidation has been reversed and the order of Consolidation Officer has been set aside granting full relief to the contesting respondent in relation to their claim as set up before the authorities.
The dispute in short is as to whether the entry made in the basic year records pertaining to the alleged order of Sub-Divisional Officer dated 23.9.1982 is genuine or fake. The dispute emanated when an objection came to be filed on the ground that the petitioners are the original tenure holders of Plot No. 2922, against which a wrong entry was indicated in the remarks column about the order dated 23.9.1982. The said order is stated to have been passed under the provisions of Section 161 of the U.P. Zamindari Abolition and Land Reforms Act conferring an exchange between the plot of the petitioner, and plot Nos. 1246 and 1252 of the contesting respondent. The objection categorically proceeded on the fact that no such exchange had ever taken place nor any proceedings had been initiated and that the entry is a fake entry. To substantiate the said objection, the petitioner filed documentary evidence including questionnaires from the record-room as well as from the concerned court to demonstrate that no such proceedings were either instituted nor any file was deposited in the record room. With the aid of the evidence as adduced, the petitioner further contended that the entry is forged and, therefore, it should be expunged.
The contesting respondent relied on the entry made in CH Form-2A and further the loan taken by the petitioners which was advanced against the aforesaid plots to contend that it is on the basis of such exchange that the petitioners had already acted upon, and were actually enjoying Plot Nos. 1246 and 1252, hence the objections deserved to be dismissed.
The objections were initially allowed by the Consolidation Officer which in appeal was set aside as it was found that the order had been passed in violation of principles of natural justice. The Consolidation Officer in the second round again recorded findings in favour of the petitioner and allowed the objections against which the appeal filed by the respondents was dismissed. The respondents filed a revision, which has been allowed by the impugned order hence this petition.
Sri Tiwari, learned counsel for the petitioners, submits that basically 2 grounds have been taken by the Deputy Director of Consolidation to allow the revision. Firstly, that the order of the Sub-Divisional Officer could not have been set aside by the Consolidation Authorities more so when CH Form 2A indicated the entry of Plots as alleged by the respondents. The second ground taken by the Deputy Director of Consolidation is the document relating to the loan taken by the petitioners and the entries made in that regard. Sri Tiwari submits that both the grounds are erroneous on facts as well as in law inasmuch as the finding about the genuineness of the entry of the order dated 23.9.1982 is based on surmises and conjectures without upturning the findings recorded by the Consolidation Officer. He further submits that so far as the loan is concerned, that was taken during the pendency of the litigation itself and, therefore, any finding based thereon is irrelevant.
Replying to the said submission, Sri Bakhteyar Yusuf submits that the petitioners by this contrivance are trying to enjoy both plots, and even other wise the entry made during survey in CH Form 2A clearly indicates that the petitioners were in possession of 1246 and 1252, and not 2922. He further submits that the finding on the issue relating to the genuineness of the order dated 23.9.1982 is clearly discussed by the Deputy Director of Consolidation, who has also reflected on the question answer given by the Reader of the concerned court of the Sub-Divisional Officer. He, therefore, submits that there was ample evidence to reverse the order of the Consolidation Officer hence the impugned order does not deserve to be interfered with.
Learned Standing Counsel also supported the impugned order and contended that the presumption of the entry dated 23.9.1982 should be taken to be correct inasmuch as a government official would not ordinarily attempt a fake entry in the revenue records.
Having heard learned counsel for the parties, it is evident that neither the order dated 23.9.1982 was ever produced nor a certified copy of the said order was made available. The only evidence was the entry endorsed in the basic year Khatauni. The respondents, therefore, had failed to adduce the primary evidence that could have led to corroborate the said entry dated 23.9.1982. The Deputy Director of Consolidation, in the opinion of the Court, has proceeded merely on surmises and conjectures to presume that such an entry could not have been fraudulently made by any government official. It is by now settled law that surmises and conjectures or inferences cannot take place or be a substitute of proof. The petitioners on their part had led clear evidence in the form of question answer and an appropriate response from the record room to indicate that no such file was every deposited in the record room. The Deputy Director of Consolidation without upsetting the aforesaid findings of fact as recorded by the Consolidation Officer in my opinion could not have proceed any further.
So far as the issue relating to the loan taken by the petitioners is concerned, the said issue is absolutely irrelevant inasmuch as the loan was admittedly taken during pendency of the proceedings itself. The entry in CH Form 2A is an entry and is rebuttable. This aspect also has been over looked by the Deputy Director of Consolidation.
Accordingly, the writ petition is allowed. The order dated 6.4.2011, which is unsustainable on all counts, is hereby set aside. The matter is remitted to the Deputy Director of Consolidation to pass a fresh order within 3 months from the date of production of a certified copy of this order is produced before him.
Dt. 27.4.2011
Irshad
