Allahabad High Court
Dal Singar And 3 Others vs Deputy Director Of Consolidation ... on 5 December, 2017
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 33
Case :- WRIT - B No. - 61549 of 2014
Petitioner :- Dal Singar And 3 Others
Respondent :- Deputy Director Of Consolidation ,Mau And 5 Others
Counsel for Petitioner :- A.K.Maurya, Devendra Kumar
Counsel for Respondent :- C.S.C., Dilip Kr.Singh, J.P. Singh, Krishna Nand Rai, Vijay Anand Rai
Hon'ble Manoj Misra,J.
Heard learned counsel for the petitioners; the learned Standing Counsel for the respondent no.1; Sri K.N. Rai for the respondent nos. 2/1; 3/1; and 4; Sri Dhirendra Singh holding brief of Sri J.P. Singh for the respondent no.7 and perused the record.
The dispute in the present petition relates to plot no. 3300 area 3.390 at Village Dubaree, Pargana Natthupur, Tehsil Maghuwan, District Mau. The petitioners had filed an objection, under Section 9 of the U.P. Consolidation of Holdings Act (in short C.H. Act), on 14.06.1984, claiming that they had been in possession of the land since before the abolition of zamindari and thereby had acquired bhumidhari rights thereon, therefore the name of the recorded tenure-holder be expunged and their names be recorded as bhumidhar thereof. On the date of filing of objection, a compromise application was also filed in which one of the signatories was Lal Bahadur, who claimed himself as power of attorney holder of the contesting respondents (the recorded tenure-holder). On the basis of said compromise, on 14.06.1984 itself, the Consolidation Officer directed recording of the name of the petitioners as bhumidhar of the land in dispute.
Aggrieved by the order dated 14.06.1984, the contesting respondents filed appeal before the Settlement Officer of Consolidation which was dismissed by order dated 31.01.1995. Against which, the contesting respondents preferred revision before the Deputy Director of Consolidation, Mau which came to be allowed by the impugned order dated 12.08.2014.
The Deputy Director of Consolidation found that the objection was filed by the petitioners on 14.06.1984 on which no notices were issued to the other side and, straightaway, a compromise was filed under the signature of one Lalu @ Lal Bahadur and the objectors, whereupon, on the same day itself, the order giving effect to the compromise was passed. The Deputy Director of Consolidation found that the record did not disclose that even the power of attorney was there on record to enable Lal Bahadur @ Lalu to profess authority on behalf of the recorded tenure-holders so as to enable him to enter into a compromise on their behalf with the objectors. The Deputy Director of Consolidation found that a novel procedure was adopted which if permitted would be a fraud on revenue, as by such procedure rights were conferred without there being any proper instrument of transfer on which, otherwise, stamp duty would be payable. Accordingly, the Deputy Director of Consolidation set aside the order passed by the subordinate consolidation authorities and left it open to the objectors to pursue their objection on merit.
Learned counsel for the petitioners has assailed the order passed by the Deputy Director of Consolidation on the ground that power of attorney executed by the recorded tenure-holders in favour of Lalu @ Lal Bahadur, conferred right on Lal Bahadur to represent the interest of the recorded tenure-holders and since signatures of Lal Bahadur appeared on the compromise deed, the recorded tenure-holders could not have challenged the same. He has further contended that the memorandum of appeal presented against the order of the Consolidation Officer was not duly signed by all the appellants and the appeal was therefore incompetent and could not have been entertained.
The learned counsel for the petitioners however could not challenge the correctness of the observations contained in the order of the Deputy Director of Consolidation that entire action had taken place before the Consolidation Officer on the date of filing of the objection, without even issuing notice to the other side, and that the power of attorney of the recorded tenure-holders was not there on the record of the Consolidation Officer.
Learned counsel for the contesting respondents has supported the impugned order and has referred to few lines of the power of attorney, at page 24 of the counter-affidavit, to demonstrate that the power conferred on the holder was not to directly enter into a compromise but to verify the compromise entered into between the parties. He has further submitted that no such compromise was authorized and therefore the Deputy Director of Consolidation was justified in setting aside the order passed by the subordinate consolidation authorities with liberty to the parties to contest the case on merits by pursuing their objection under Section 9 of the C.H. Act.
I have given thoughtful consideration to the submissions of the learned counsel for the parties.
It is well settled legal principle that when a court takes decision on the basis of a compromise, before accepting the same, it has to satisfy itself that there has been a valid compromise between the parties or their representatives.
In the instant case, it has come in the order of the Deputy Director of Consolidation that even the power of attorney in favour of Lal Bahadur was not on record. This observation of the court below has not been challenged though it has been stated in paragraph 25 of the petition that if that was so, then matter ought to have been remanded back.
This court fails to understand as to how could a compromise between parties be accepted, if the person who proposes to represent one of the parties does not even produce his authority. If the power of attorney, which enabled Lal Bahadur to represent the recorded tenure-holder, was not there on the record, there could be no occasion to draw satisfaction that parties had settled there dispute by a compromise. Under such circumstances, the Deputy Director of Consolidation has rightly set aside the order of the subordinate consolidation courts. Even otherwise, the entire process of filing objection as well as compromise on 14.06.1984 and obtaining order on the same date, smacks of collusion and such a compromise does not inspire confidence.
Under the circumstances, once the recorded tenure-holders have come forward with a case that such a compromise was never authorized by them and that they be heard on the objection, the Deputy Director of Consolidation was justified in setting aside the orders passed by the subordinate consolidation authorities and leaving it open to the parties to press their objection on merits.
At this stage, the learned counsel for the petitioners invited attention of the Court to the second last paragraph of the order passed by the Deputy Director of Consolidation dated 12.08.2014 so as to demonstrate that certain unnecessary observations have been made by the Deputy Director of Consolidation on the merits of the claim of the petitioners which may prejudice the rights of the petitioners therefore it has been prayed that observation be made that the consolidation authorities should not get swayed by those observations as and when the petitioners press their objection under Section 9 of the C.H. Act.
The aforesaid contention of the learned counsel for the petitioners has some force. When order was passed on the basis of a compromise and parties were yet to lead their evidence on merits, there was no occasion to comment on the merits of the case while setting aside the compromise order. It is therefore provided that as and when the petitioners / parties press their objection under Section 9 of the C.H. Act, then any observation touching the merits of their claim, contained in the impugned order, shall not be taken to be binding and those observations shall not prejudice adjudication on merits by the consolidation authorities.
Subject to above, the petition is dismissed. Interim order, if any, stands discharged.
Order Date :- 5.12.2017
Sunil Kr Tiwari
