Smt. Raj Kumari 478(Cons )07 {At : ... vs Dy. Director Of Consolidation ...
2013 Latest Caselaw 2365 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
Reserved
 

 
Review Petition No.190 (Cons.) of 2008
 

 
Smt. Raj Kumari and another 		...	Petitioners
 

 
Versus
 

 
Dy. Director of Consolidation, District
 
Faizabad and others 				...	Opposite parties 
 

 
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Hon'ble Rajiv Sharma, J.

Heard Sri Shiva Kant Tewari, learned counsel for the petitioners and Sri Vijay Bahadur Verma, learned Counsel for the contesting respondents.

This Review Petition has been preferred against the judgment and order dated 18.8.2008 passed in Writ Petition No.478 (Cons.) of 2007 Rajkumari and another versus Deputy Director of Consolidation and others, whereby this Court dismissed the writ petition on the statement of the Counsel for the contesting respondents that consequent to compromise, the Settlement Officer (Consolidation) decided the appeal on 18.1.1994 and Revision preferred against the same was also dismissed by the Deputy Director of Consolidation.

In the instant Review Petition, learned Counsel for the applicants/petitioners contended that on 18.8.2008 when the case was dismissed, the counsel conducting the case, namely, Sri L. P. Ojha was suffering from viral fever and could not attend the Court. Therefore, the necessary and relevant facts could not be brought to the notice of this Court and the Counsel appearing on behalf of the respondents concealed the material facts resulting in grave injustice.

As regards the error in the judgment under review, Counsel for the petitioners has submitted that the petitioner No.2, namely, Smt. Saraswati Devi (now dead) was the owner of the property who transferred the land through a sale deed in favour of Smt. Raj Kumari, petitioner No.1. Therefore, after selling the property the petitioner No.2 has no right or authority to execute the alleged compromise deed dated 18.1.1994 in favour of contesting opposite parties. It is said that the opposite parties got executed a compromise deed dated 18.1.1994 through an impostor and on the said basis, Settlement Officer (Consolidation) disposed of the appeal in terms of the compromise vide order dated 18.1.1994. It has been pointed out that the private respondents were well aware of the fact that the petitioner No.1 has become the owner after execution of sale deed by the petitioner No.2, but she was not impleaded as party in appeal.

It has been vehemently argued that on the date when the writ petition was dismissed, the counsel for the opposite parties were present, as would be apparent from the perusal of the impugned judgment, but they concealed the material and relevant facts deliberately resulting in ex parte dismissal of writ petition. It has been prayed that serious injustice would be caused if the aforesaid order is recalled.

On behalf of contesting opposite parties, it has been submitted that land of chak no.1028 and 1071 situated at village Kirkhauli, pargana Magalsi, Tehsil Sohaval, District Faizabad was recorded in the name of Smt. Saraswati Devi, W/o Harihar Singh in the basic year. On 30.11.1955, late Harihar Singh executed a Will in which he stated that the name of Smt. Saraswati Devi shall be recorded in the revenue records as Guzara-Dariya (Heen Hayati) and she shall have no right to transfer, mortgage, or sell her movable or immovable property and after her death, real brother Baksh Singh and his descendants shall be owners of the property. On the basis of the aforesaid Will, Sahab Baksh Singh filed a time-barred objection under Section 9-A (2) of U.P. Consolidation of Holdings Act, which was rejected by the Consolidation Officer, Maqbara vide order dated 10.9.1993. Thereafter, Sahab Baksh Singh preferred an appeal where late Smt. Saraswati Devi entered into compromise and the Settlement Officer (Consolidation) disposed of the appeal in terms of the compromise vide order dated 18.1.1994. Late Smt. Saraswati Devi and Raj Kumari Devi preferred revision but the Deputy Director of Consolidation dismissed it vide judgment and order dated 28.6.2007. Therefore, there is no error apparent in the impugned judgment and the Review Petition is liable to be dismissed.

Before dealing with the merits of the case, it is relevant to point out that during pendency of Review Petition, Smt. Saraswati Devi (petitioner No.2) died having no legal heirs, except the applicant/petitioner No.1 Smt Raj Kumari, who is the sole legal heir and representative of petitioner No.2. The application for substitution in this regard was allowed vide order dated 10.4.2009.

A perusal of the record shows that petitioners, namely, Smt. Raj Kumari and Smt. Saraswati Devi filed a writ petition No. 478 (Cons) of 2007 against the order dated 28.6.2007 passed by the Deputy Director of Consolidation in Revision No.591/484/235, Smt.Saraswati Devi and others versus Sahab Singh under Section 48 of Uttar Pradesh Consolidation of Holdings Act arsing out of order dated 18.1.1994 passed by the Settlement Officer (Consolidation) in Appeal No.3927 under Section 11 (1) of The Uttar Pradesh Consolidation Act, Sahab Singh versus State of U.P. and others by which the Deputy Director of Consolidation dismissed the revision preferred by the petitioners.

In the writ petition, there is a specific averment that the petitioner No.2 transferred the entire share in chak No.1071 and 1028 to petitioner No.1 by executing a sale deed dated 20.11.1992. The father of respondent nos.3 to 5 raised objection against the mutation proceeding initiated on the basis of sale deed. But ultimately, vide order dated 2.11.1994, in case No.238 under Section 12 of the Uttar Pradesh Consolidation of Holdings Act, an order for mutation of name of petitioner No.1, in place of petitioner No.2, on the basis of sale deed dated 20.11.1992 was passed. It appears that Sahab Singh preferred an appeal bearing No.3927 under Section 11 (1) of the Act against an imaginary order dated 10.9.1993 passed by the Consolidation Officer in TB under Section 9 (A) (2) of the Act wherein the lower Court's file was summoned. The officer reported that no such file is available. However, without considering the report and on the basis of compromise, alleged to be executed by petitioner no.2, the Settlement Officer (Consolidation) passed the order dated 18.1.1994.

Petitioners have taken a specific plea in the writ petition that compromise was executed by some impostor and the Settlement Officer (Consolidation), without verifying the facts and taking into account the report of Consolidation Officer, disposed of the appeal in terms of the compromise. I find force in the submission advanced by the petitioners that when late Smt. Saraswati Devi had executed the sale deed in favour of petitioner No.1, there was no occasion for her to enter into a compromise in respect of the land of which she was no more the owner.

In order to verify the fact, record of consolidation authorities was summoned, but the relevant record could not be produced and a statement was made by the Standing Counsel that in view of the provisions of Appendix - I of U.P. Correction Manual, the records have been weeded out. Taking the serious view of the matter, this Court vide order dated 27.4.2010 directed the Consolidation Officer to conduct an enquiry. In the supplementary affidavit dated 22.3.2012, sworn by the Principal Secretary (Appointment), who was the erstwhile Consolidation Commissioner, mentioned in para 4 that the Deputy Director of Consolidation, Faizabad Sri R.N. Singh Yadav conducted an enquiry in furtherance of a previous enquiry dated 18.6.2010. In his report, he has stated that there is no evidence showing the decision of case No. TB under Section 9 (A) (2) of the Consolidation of Holdings Act; Ram Baksh Singh versus Saraswari Devi and others by the Consolidation Officer on 10.9.1993; rather, in Peshi Bahi (cause list) another case with the same title appears to have been decided on 20.2.1995. The Deputy Director of Consolidation has also given his opinion that the appeal has been filed against the imaginary and non-existing order dated 10.9.1993 and after getting the appeal decided falsely vide order dated 18.1.1994, an entry has been made in the weeding register in order to conceal the entire fraudulent and unlawful exercise, whereas the fact is that no such file of the Court of Consolidation Officer was available. The file of the appellate Court appears to have been weeded out before expiry of the prescribed period solely with the intention to cover up the entire forged and fraudulent act and exercise.

Thus, it is quite clear that the opposite parties did not bring the correct facts before the Court and on the contrary, concealed/suppressed the material facts resulting in miscarriage of justice.

At this juncture, I would like to refer the decision rendered by the Apex Court in Shivdeo Singh and others Vs.. State of Punjab and others, AIR 1963 SC 1909, wherein a five Judge Bench of the Hon'ble Supreme Court while examining the power of review of the High Court, held as under:

"There is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. In entertaining B's petition the High Court thereby did what the principles of natural justice required it to do."

A Full Bench of this Court in the case of Dinesh Kumar Gupta versus State of U.P. 1999(1) UPLBEC 396-FB while considering the powers of review of the High Court, arising out of proceedings under article 226 of the Constitution, held as under:-

"We consider appropriate to remind ourselves as to what is the scope of review jurisdiction of this Court rising out of a proceedings under article 226 of the Constitution of India. This has already been answered by the Supreme Court through its two 5 judges, decisions and accordingly no longer res-integra. In Shivdeo Singh and other Vs State of Punjab and others, AIR 1963 SC 1909, it was held that there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in very court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. In State of Gujarat Vs Sardar Begum and others, AIR 1976 SC 1695, it was held that if a patent error has crept in due to inadvertence the same could and should have been suo motu corrected by the High court in the exercise of its inherent jurisdiction even after the expiry of the ordinary period of limitation, if any prescribed for a review application".

In view of the aforesaid legal proposition and the facts narrated hereinabove, there are genuine and reasonable grounds justifying invocation of powers of the review. Accordingly, the review petition is hereby allowed. The judgment and order dated 18.8.2008 passed in writ petition No.478 (Cons.) of 2007 Rajkumari and another versus Dy. Director of Consolidation and others, is hereby recalled. The writ petition is restored to its original number and the interim order is also revived.

List the writ petition before the appropriate bench dealing with the Consolidation matters in the month of July, 2013 and it shall not be treated as tied up matter. As the old lady is litigating since 1993, the matter shall be listed within first ten cases of cause list.

Dt.20th May, 2013

MH/lakshman