Shobh Nath vs State Of U.P.And 5 Others
2014 Latest Caselaw 9546 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 28
 

 
Case :- WRIT - B No. - 60647 of 2014
 

 
Petitioner :- Shobh Nath
 
Respondent :- State Of U.P.And 5 Others
 
Counsel for Petitioner :- M.S.Pandey
 
Counsel for Respondent :- C.S.C.,Hare Krishna Mishra
 

 
Hon'ble Anjani Kumar Mishra,J.

Heard Sri M.S. Pandey, learned counsel for the petitioner and Sri Hare Krishna Mishra, who has filed caveat on behalf of respondent no. 6.

This writ petition has been filed challenging an order dated 30.10.2014 passed by the Deputy Director of Consolidation/Additional Collector (Civil Supply), Allahabad in Revision No. 1059 of 2013. This revision had been preferred by respondent no. 6 challenging an order dated 28.2.2013 directing the parties to maintain status quo.

Facts of the case briefly stated are that an Aasami Patta of plot nos. 260/1 and 260/3 was granted in favour of the husband of respondent no. 5. It is the case of the petitioner that once the period of the Patta expired, the land was vacated and remained vacant.

In the year 1986, the respondent no. 4 obtained an order from the Consolidation Officer on 1.8.1986 in a case under section 9A-2, whereby the name of Hari, recorded under class-III, was ordered to be expunged and name of the respondent no. 4, Abdul Hai was ordered to be recorded thereon on the basis of a Patta. It is further relevant to note that respondent no. 4, Abdul Hai, was ordered to be recorded as a Bhumidhar with non-transferable rights as is clear from the Amaldaramad of this order in the revenue record.

It is the case of the petitioner that after having obtained this order, which was absolutely fraudulent, inasmuch as no allotment had been made in favour of respondent no. 4, Abdul Hai, and also because no allotment could have been made in his favour, as he was not a resident of the village and the Gaon Sabha in question, the said Abdul Hai appears to have been executed a sale deed of the property in question in favour of respondent no. 6, who thereafter started raising constructions thereon.

It has been contended by learned counsel for the petitioner that when the Pradhan came to know of these fraudulent proceedings, he filed an appeal against the order passed by the Consolidation Officer on 1.8.1986.

In this appeal, at a subsequent stage respondent no. 6 was also ordered to be impleaded. The Settlement Officer, Consolidation, on a stay application filed by the petitioner, passed an order on 28.2.2013 directing the parties to maintain status quo.

Against this order of status quo, the respondent no. 6 preferred a revision. Perusal of the revisional order indicates that this revision was filed primarily on the grounds that the order had been passed without hearing the revisionist and that the appeal was belated by 23 years and the delay had not been condoned.

On the strength of these two grounds, it was prayed that the order dated 28.2.2013 be set aside.

It is also clear from a perusal of the impugned order itself that a specific plea was raised on behalf of petitioner that the order impugned in the revision being an interlocutory order, the revision itself is not maintainable.

The Deputy Director of Consolidation/Additional Collector (Civil Supply) allowed the revision, set aside the order dated 28.2.2013 and remanded the matter back to the Settlement Officer, Consolidation to pass fresh orders on the stay application filed by the petitioner, after hearing the concerned parties. Hence this writ petition.

The contention of learned counsel for the petitioner is that the entire case of the respondents is fraudulent and that the Deputy Director of Consolidation/Additional Collector (Civil Supply) should not have entertained the revision, which was directed against an interlocutory order.

Learned counsel for the respondent no. 6 on the other hand submitted that the order calls for no interference because the matter has been remanded back to the Settlement Officer, Consolidation and it will be open for the parties to raise their respective claims on the merits of the dispute and, therefore, the petition should be dismissed.

At this stage, on a pointed query by the Court, Sri Hare Krishna Mishra, learned counsel for the respondent no. 6, stated that he has no objection if the writ petition is disposed of finally at this stage without calling for a counter affidavit but subsequently he has resiled from this statement and has submitted that he should be granted time for filing a counter affidavit.

This stand has been taken by learned counsel for the respondent no. 6 after certain observations were made by the Court as regards the conduct of the respondents.

Under the circumstances, I refuse to grant any time to the respondent no. 6, represented by Sri Hare Krishna Mishra, for filing a counter affidavit and I am deciding the writ petition finally at the admission stage itself.

Respondents 4 and 5 in the writ petition are unserved, yet the writ petition is being disposed of finally because from the facts narrated above, it is clear that respondent no. 5 is the wife of Hari, who had been allotted an Aasami Patta of the land in dispute in the year 1975. This allotment could have been for a maximum period of five years and, therefore, as on date the said respondent no. 5, who is the wife of Hari, has no interest in the property in question and, therefore, is not required to be noticed.

As regards the respondent no. 4, Abdul Hai, it would be relevant to record that respondent no. 6 claims on the basis of a registered sale deed said to have been executed by Abdul Hai and, therefore, as on date even Abdul Hai has no right, title or interest in the property in question and is therefore not required to be noticed while deciding this writ petition.

From the facts of the case noticed above, this Court has no hesitation in holding that the revision was not maintainable as it had been directed against an order directing the parties to maintain status quo. The order of status quo does not decide any dispute between the parties nor it determines their rights. It merely provides that the property in question is preserved in its present form during the period of litigation.

Section 48 of the U.P. Consolidation of Holdings Act is very categorical and is extracted below:-

"Section 48. Revision and reference.-(1) The Director of Consolidation may call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings; or as to the correctness, legality or propriety of any order [other than an interlocutory order] passed by such authority in the case or proceedings, may, after allowing the parties concerned an opportunity of being heard, make such order in the case or proceedings as he thinks fit."

It empowers the Deputy Director of Consolidation to examine the legality or otherwise of any proceedings taken by the subordinate consolidation authorities except where such decision are interlocutory.

It is therefore absolutely clear that the revision can be filed and entertained only against a final order. Not only did the revision not fulfil this categorical condition, the Deputy Director of Consolidation/Additional Collector (Civil Supply) has committed a further jurisdictional error in failing to advert to this aspect, even after noticing this submission made by learned counsel for the respondents in the revision (petitioner in the writ petition) and for both the aforesaid reasons, the impugned order cannot be sustained and is liable to be set aside.

Insofar as the submission of learned counsel for the respondent no. 6 that the revision had been filed because the order of status quo was ex parte and because this order had been passed without condoning the delay in filing the appeal itself, it would suffice to state that on both these grounds, it was open for the respondent no. 6 to have filed an appropriate application before the Settlement Officer, Consolidation himself and sought recall of this order. This has admittedly not been done. Instead of availing the proper remedy, the respondent no. 6 choose to avail a remedy, which was not available under law and not only has such remedy been entertained, it has also been allowed, which in my considered opinion is contrary to the mandate of section 48 of the Act.

There is another glaring aspect, which emerges from the record. Amaldaramad of the order dated 1.8.1986 said to have been passed in favour of the respondent no. 4, records him as a Bhumidhar with non-transferable rights. It is surprising that a Bhumidhar with non-transferable rights has transferred the land in question in favour of the respondent no. 6. However, this Court is not expressing any opinion on this aspect but is directing the courts below to minutely examine this aspect while deciding the dispute between the parties.

Since I have already held that the order impugned dated 30.10.2014 is not sustainable and is liable to be set aside, it would be appropriate to consider the effect and the legal consequences that will arise when this order is set aside.

It is not in dispute that the appeal preferred by the petitioner is pending consideration before the Settlement Officer, Consolidation and the same has to be decided after affording all concerned opportunity to adduce evidence and after hearing them and, therefore, even if the order impugned is set aside, this process will necessarily have to be gone through and taken to its logical conclusion.

Accordingly and for the reasons given above, I set aside the order dated 30.10.2014 passed by the Deputy Director of Consolidation/Additional Collector (Civil Supply), Allahabad. The Settlement Officer, Consolidation is directed to decide the pending appeal in accordance with law after hearing all concerned and after affording them opportunity of adducing evidence. He may also bear in mind the observations that have been made in the body of this judgment. It is further provided that this exercise be completed by the Settlement Officer, Consolidation as expeditiously as possible and positively within a period of six months from the date of production of a certified copy of this order before him and for this purpose he may not grant any unnecessary adjournment to any of the parties therein. In case necessity arises, he may hear the matter on a day to day basis, so as to pronounce the judgment within the period specified.

Since I have already observed above that the alleged sale deed in favour of the respondent no. 6 needs to be examined and since there is material on record to indicate that this sale deed has been executed by a person, who, at best, was a Bhumidhar with non-transferable rights, I consider it appropriate to direct that during the pendency  of the appeal, the parties shall maintain status quo and no constructions shall be raised over the land in dispute.

Accordingly and subject to the directions as aforesaid, this writ petition is allowed, the order dated 30.10.2014 passed by the Deputy Director of Consolidation/Additional Collector (Civil Supply), Allahabad is set aside and the Settlement Officer, Consolidation is directed to decide the appeal pending before him in accordance with the directions hereinabove.

Order Date :- 4.12.2014

SR