Allahabad High Court
Shiv Shankar & Another vs State Of U.P. & 15 Others on 24 October, 2017
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 33
Case :- WRIT - B No. - 48965 of 2017
Petitioner :- Shiv Shankar & Another
Respondent :- State Of U.P. & 15 Others
Counsel for Petitioner :- Jawahar Lal Maurya
Counsel for Respondent :- C.S.C.,Anuj Kumar
Hon'ble Manoj Misra,J.
Heard learned counsel for the petitioners and learned Standing Counsel for respondents 1 to 3 and perused the record.
The present petition has been filed challenging orders dated 31st March, 2017 and 18th May, 2016 passed by Deputy Director of Consolidation, Chitrakoot and the Consolidation Officer, Karvi, Chitrakoot, respectively.
A perusal of the record would reveal that an order was passed on 30th December, 1988 by the Settlement Officer of Consolidation in Appeal nos.3025 and 3208 under Section 11(1) of U.P. Consolidation of Holdings Act. In that proceeding Badku (predecessor-in-interest of the petitioners), was a party. The order was not challenged by Badku and it attained finality. However, for some reason, the order was not given effect to in the records. Accordingly, it appears, an application under Rule 109-A of the U.P. C. H. Rules was filed for giving effect to the order dated 30th December, 1988. On the basis of such application, the Consolidation Officer, after issuing notice to the parties concerned and after satisfying himself about the existence of the order dated 30th December, 1988, on 18th May, 2016 passed the impugned order thereby ensuring implementation of the order dated 30th December, 1988.
Aggrieved by the order dated 18th May, 2016, the petitioners filed revision before the Deputy Director of Consolidation, Chitrakoot. In the revision it was stated that the order of which implementation was sought was an order based on an alleged compromise but, in fact, no such compromise ever took place.
The Deputy Director of Consolidation dismissed the revision by observing that from the documents brought on record it is established that the Settlement Officer of Consolidation had passed an order of which the predecessor-in-interest of the petitioners had full knowledge but the order was never challenged and now, after more than 20 years, challenge to the said order, at the instance of the petitioners, was not sustainable, particularly when the predecessor-in-interest of the petitioners was party in the proceeding in which the order was passed. Accordingly, revision was dismissed.
Learned counsel for the petitioners submitted that the Deputy Director of Consolidation had misconstrued the revision as that against the order dated 30th December, 1988 when, in fact, the revision was against the order dated 18th May, 2016 passed in proceeding under Rule 109-A. He has submitted that the order dated 30th December, 1988 of which implementation was sought is a bogus order and, as the record of the proceeding had already been weeded out, the order was not verifiable. He has also submitted that the application under Rule 109-A was not maintainable after preparation of final records particularly when the consolidation operations were closed by a notification under section 52 of the U.P. C.H. Act.
I have considered the submissions of learned counsel for the petitioners and have perused the record.
Rule 109-A of the Rules framed under U.P. Consolidation of Holdings Act casts a duty upon the consolidation authorities to give effect to the orders passed. No specific application is required for such implementation and, therefore, the question of application being barred by limitation does not arise. In Mukhtar Vs. Dy. Director of Consolidation, Azamgarh and others : 1993 RD 457, a Division Bench of this court has taken a view that the U.P. Consolidation of Holdings Act casts a duty on consolidation authorities to implement the orders which are passed under the Act. The Division Bench held that since duty is cast upon the consolidation authorities to implement the order passed under the Act, the proceeding to implement the order, if not already implemented, would be deemed pending on the date of notification under Section 52 of the U.P. Consolidation of Holdings Act and as such the proceedings can continue even after notification under Section 52 of the Act. This Court is therefore of the view that the objection taken by the learned counsel for the petitioner that application under Rule 109-A was not maintainable because consolidation operations had come to a close pursuant to a notification under Section 52 of the Act, is worthy of rejection and is, accordingly, rejected.
In respect of the other submissions advanced on behalf of the petitioners, it would be apposite to observe that in the grounds of revision there is nothing to demonstrate that the petitioners had denied the existence of the order dated 30th December, 1988, passed by Settlement Officer of Consolidation in Appeal Nos.3025 and 3208. In fact, the grounds of revision do not specifically disclose as to against which order the revision was filed though a perusal thereof would reveal that a challenge was laid to the merits rather than the existence of the order passed by the Settlement Officer of Consolidation. Under the circumstances, the Deputy Director of Consolidation was justified in observing that such a belated challenge to the order passed by the Settlement Officer of Consolidation in the year 1988 was not to be entertained.
As regards verifiability of the order, consequent to weeding out of the records, suffice it to say that merely because the records have been weeded out, existence of an order cannot be discarded if its existence can be substantiated by secondary evidence. In this case, the Deputy Director of Consolidation satisfied himself from the documents that the order of the Settlement Officer of Consolidation existed. Even otherwise, the grounds of revision, which are on record at pages 54 to 58 of the paper book, lay no specific challenge to the existence of the order passed in the year 1988 by the Settlement Officer of Consolidation. Accordingly, even if the records had been weeded out, the order could have been implemented on the basis of copy of the documents. The Deputy Director of Consolidation was therefore justified in dismissing the revision.
This petition therefore lacks merit and is accordingly dismissed.
Order Date :- 24.10.2017.
Rks.
