Shyam Sundar vs D.D.C., Bareilly & Others
2017 Latest Caselaw 3196 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 8                                                                       A.F.R.
 

 
Case :- WRIT - B No. - 13560 of 1997
 

 
Petitioner :- Shyam Sundar
 
Respondent :- D.D.C., Bareilly & Others
 
Counsel for Petitioner :- A.K.Sachan
 
Counsel for Respondent :- C.S.C.,Durg Vijai Singh
 

 

 
Hon'ble Ashok Kumar,J.

Heard Sri A.K. Sachan, learned counsel for the petitioner at great length and learned standing counsel for the State. No one is present on behalf of the private opposite party.

By means of the present writ petition the petitioner has challenged the order passed by the D.D.C. dated 30.4.1988 passed in Revision No. 1195 under Section 48 of the Consolidation of Holdings Act, 1953 (Gaon Sabha vs. Vijay Pal and others).

The brief facts of the case are that the consolidation proceedings has started by the Consolidation Officer under Section 21(2) of the Act and vide order dated 26.5.1986 the proceedings are completed. The petitioner alleges that the Chak No. 512 at Plot No. 1443 and 1472 has been allotted to the opposite party no.2 Ganga Ram and Udan Chak has been given to the petitioner namely, Chak No. 128 which is situated at different place. The petitioner further alleges that no opportunity has been allowed/granted by the Consolidation Officer while allotting the Chak to the petitioner.

According to the petitioner the Chak has been allotted by the Consolidation Officer at Plot No. 547 and while completing the consolidation proceedings the Consolidation Officer has changed several Chaks by allotting the same to different persons. According to the petitioner several appeals have been preferred against the Chak allotment order of the Consolidation Officer and since the opposite party no.2 Ganga Ram was also aggrieved by the allotment proceedings by the Consolidation Officer he has preferred an appeal being Appeal No. 3274 along with other aggrieved parties before the Settlement Officer Consolidation, Bareilly. The case of the petitioner is that the opposite party no.2 who was aggrieved by the order of allotment by the Consolidation Officer has not impleaded the petitioner as a respondent in the appeal proceedings. He has further stated that none of the appellants who preferred the appeals before the Settlement Officer Consolidation has impleaded the petitioner as a respondent in their appeals filed before the Settlement Officer, Consolidation.

The Settlement Officer Consolidation in the appeal proceedings has passed the order and has affirmed the order of the Consolidation Officer except slightly modifying the Chak No. 512 situated at Plot no. 1443, 1472 which has been given to the petitioner as Udan Chak. According to the petitioner the Settlement Officer Consolidation has almost maintained the order of the Consolidation Officer in respect of Chak No. 512 and therefore, the petitioner has not filed any revision or objection against the order of the Settlement Officer, Consolidation dated 21.4.1987.

Still aggrieved by the order of the Settlement Officer Consolidation dated 21.4.1987 the opposite party no.2, who has filed the appeal before the Settlement Officer, Consolidation, has preferred a Revision No. 1195 before the Deputy Director of Consolidation, Bareilly. The petitioner has stated in para 6 of the writ petition that the opposite party no.2, who has filed the revision before the D.D.C., has not made party in the revisional proceedings though the petitioner was the necessary party. In para 7 of the writ petition the petitioner has stated that the respondent no.2 has made objection against the Chak which has been allotted to one Vijay Pal and Sallar Khan. Both the aforesaid persons namely Vijay Pal and Sallar Khan are arrayed as the opposite party nos. 1 and 2 in the revisional proceedings.

The claim of the petitioner is that without impleading the petitioner as opposite party before the reivisional authority the petitioner has not been provided an opportunity to participate in the said proceedings hence the proceedings concluded by the revisional authority are ex parte as such are liable to be set aside.

The petitioner has further stated that since he has demanded 0.30 paise valuation of plot No. 547 in place of 0.20 paise and further he has demanded his Chak over the plot No. 547 the petitioner has affected.

The petitioner has further stated that without issuing any notice to the petitioner the D.D.C. has proceeded and has concluded the revisional proceedings by passing the order dated 30.4.1988 by which he has changed the position of Chak No. 512 of the petitioner and has given it at plot No. 1443 and 1472 which was not the original holding of the petitioner.

The petitioner has further stated that the Chak of the petitioner is Udan Chak which is giving at another end of the village which is away from the original holding of the petitioner. Surprisingly, the petitioner has moved an application after a gap of almost four years before the D.D.C. as a restoration application supported by an affidavit. The petitioner has claimed that he has a right to be heard by the D.D.C. and since he has acquired the knowledge about the order passed by the D.D.C. dated 30.4.1988 later on, hence the application for restoration ought to have been allowed.

The D.D.C. has rejected the restoration application filed by the petitioner vide order dated 17.8.1992 by which he has held that the notices were issued to the respective parties and the same are being served and after hearing the parties and examining the documents the order has been passed which cannot be said to be an ex parte proceedings. The D.D.C. has categorically recorded the finding that no restoration application is maintainable which has been filed after a gap of about four years. He has further recorded that in pursuance of the order passed in the revisional proceedings the order has been duly implemented and at the site the requisite execution of the land has been made out long back which was well known to the petitioner. It is further mentioned in the order passed by the D.D.C. dated 17.8.1992 that at no point of time the petitioner has ever inquired about the proceedings carried out by the revisional authority or by the Settlement Officer Consolidation. The D.D.C. has also considered the decisions which are being relied upon by the petitioner in support of his restoration application and after due consideration and examining the material on record a detailed order has been passed that the matter has been decided on merit of the case after due notice issued to the concerned parties.

After the order passed on the restoration application dated 17.8.1992 the petitioner has filed a review application dated 18.8.1992 by which he has prayed for review of the order dated 17.8.1992. The said review application has been rejected by the D.D.C. vide order dated 20.1.1997.

Against the said orders dated 30.4.1988, 17.8.1992 and 20.1.1997 the present writ petition has been filed by the petitioner. It is necessary to point out here that one Ram Prakash has also filed a recall application for recalling the order dated 17.8.1992 and to restore the case on the ground that he has not been provided an opportunity of being heard. It is necessary to point out here that another recall/review application has been filed by the present petitioner Syamsunder Lal on 18.8.1992 alleging therein that he has not been provided an opportunity of being heard and therefore, the revisional authority has proceeded to decide both the recall/review application namely one filed by Ram Prakash and other one filed by the present petitioner Syamsunder Lal. The revisional authority has considered both the orders namely initial order dated 30.4.1988 as well as the subsequent order passed by the D.D.C. dated 17.8.1992 passed on the restoration application and has noticed that the orders are being passed on merits after due examination of material on record, hence they need not to be amended or corrected or modified. The revisional authority has further dealt with the issue with regard to the value as so claimed by the petitioner and has found that there remains nothing to be re-examined as the entire material has been considered while deciding the issues.

The present writ petition has been filed in the year 1997 and admittedly there are no interim order passed by this Court. The petition has been kept pending for more than 20 years and is listed under the heading 'group of cases likely to be infructuous' for final disposal.

I have heard learned counsel for the parties and has gone through the entire record. On asking by the Court about the order of the Consolidation Officer, the learned counsel has submitted that the same has not been enclosed along with the petition. While considering the order, which is enclosed as Annexure-2 to the writ petition which is passed in appeal proceedings by the Settlement Officer Consolidation, it is found that the petitioner has not challenged the order of the Consolidation Officer or the consolidation proceedings. No appeal has been filed by the petitioner challenging the order of the Consolidation Officer. The party aggrieved by the order of the Consolidation Officer has to challenge the said order or to file the appeal and avail the appropriate remedy. In the instant case admittedly no appeal has been filed by the petitioner therefore, the Settlement Officer Consolidation has rightly not looked into any of the issues which are now being alleged or raised by the petitioner before this Court. Admittedly the opposite party no.2 who has filed the appeal challenging the order of the Consolidation Officer before the Settlement Officer Consolidation has raised his pleas which was decided by the settlement officer consolidation and against that order of the Settlement Officer Consolidation a revision has been filed before the revisional authority. Admittedly the petitioner was not the party before the Settlement Officer Consolidation therefore, the revisional authority has rightly rejected the delayed restoration application filed by the petitioner, which was filed after a gap of about four years. In my opinion, the restoration application is not maintainable for the simple reason that the case was not dismissed in default. Again the review application or recall application of the order rejecting the restoration application, in such a situation, is not maintainable. Once the petitioner was not the party either in the appeal proceedings or before the revisional authority there is no locus to file the restoration or the review application, therefore, the Deputy Director of Consolidation has rightly and correctly rejected the said applications filed by the petitioner.

This writ petition has been filed by the petitioner by which the petitioner has challenged the order of the Deputy Director of Consolidation, the order passed by the Deputy Director of Consolidation on restoration application and the order passed by the Deputy Director of Consolidation on the review application.

As held hereinabove, that the petitioner has no locus to challenge the said original order passed by the Deputy Director of Consolidation under Section 48 of Consolidation of Holdings Act, 1953 as well as the subsequent orders, the present writ petition is nothing but clearly an abuse of process of law, as such is dismissed.

Order Date :- 11.8.2017

S.S.