Sibtulain Khan vs State Of U.P. And 4 Ors.
2021 Latest Caselaw 214 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

							     A.F..R
 

 
							Reserved on 05.11.2020
 
							Delivered on 06.01.2021
 

 
Court No. - 10
 

 
Case :- WRIT - B No. - 39148 of 2017
 

 
Petitioner :- Sibtulain Khan
 
Respondent :- State Of U.P. And 4 Ors.
 
Counsel for Petitioner :- S. Rashid
 
Counsel for Respondent :- C.S.C.,Ramesh Chandra Upadhyay
 

 
Hon'ble Prakash Padia,J.

1. Heard Sri S. Rashid, learned counsel for the petitioner and learned Standing Counsel appearing for the respondent Nos.1 to 4.

2. The petitioner has preferred the present writ petition inter-alia with the prayer to quash the order dated 30.11.2016 passed by Deputy Director of Consolidation, Azamgarh in Revision No.100 under Section 48 of the Consolidation of Holdings Act, 1953 (hereinafter referred to as "the Act, 1953") with further prayer to allow the application filed by the petitioner under Rule 109 of the U.P. Consolidation of Holdings Rules, 1954 (hereinafter referred to as "the Rules, 1954).

3. Facts in brief as contained in the writ petition are that plot No.228 area 2-0000 acres, 235/2 area 1-205 Kadi and 237 area 1.640 Kadi in the name of the petitioner as well as his brother namely Sri Sikandar, The aforesaid lands were recorded in the revenue records as Sirdar. After the death of the brother of the petitioner, the name of his legal heirs were duly substituted in the revenue records.

4. An objection under Section 9 of the Act, 1953 was moved by one Riyaz and others. The aforesaid objection was decided by the Consolidation Officer vide his order dated 16.12.1971 directing that the name of the petitioner and his brother be struck off from the revenue records and the name of Gaon Sabha be recorded over plots in question. The petitioner as well as aforesaid Riyaz and Sohrab have preferred appeals under Section 11(1) of the Act, 1953 before the Consolidation Officer being Appeal Nos.842, 843 and 934 (Sibtulain Khan Vs. Goan Sabha, Village Bairedih). The Settlement Officer Consolidation vide its order dated 31.07.1972 allowed the appeal filed by the petitioner and dismissed the other two appeals filed by Riyaz and Sohrab and directions were given by him that the name of the petitioner and his brother Sikandar be restored as it was recorded earlier. Against the aforesaid orders, revisions were preferred by Sri Riyaz and Sohrab and Gaon Sabha before the Deputy Director of Consolidation. The Deputy Director of Consolidation vide order dated 25.08.1972 remained back the matter before the Consolidation Officer.

5. Against the aforesaid order dated 25.08.1972 passed by the Deputy Director of Consolidation, the petitioner preferred a writ petition being Writ Petition No.7637 of 1973 (Sibtul Ain Khan and others Vs. Assistant Director of Consolidation Azamgarh and others). The aforesaid writ petition was finally allowed by a co-ordinate Bench of this Court vide its judgment and order dated 12.09.1979. The order passed in the aforesaid writ petition is reproduced below:-

"This writ petition is directed against the judgment of the Assistant Director of Consideration, Azamgarh dated 25.3.73 whereby the Revision petitions filed against the petitioners were allowed.

It is noteworthy that the petitioners claim in the disputed land was recognized by the appellate authority on the basis of an ex-parte decree in favour of the petitioners. The revisional court has dealt with the claims of the parties in the following words:-

"PAKSHON KI BAHAS SUNI GAI TATHA SAKSHYA KA SATARKATA PURVAK AVLOKAN KIYA GAYA. PATRAWALI PAR UPLABDH SAKSHYA SE YAH PRATIT HOTA HAI KI 1368F. KE KHASRE TATHA 1376F. KE KHASRE KEE VIVARAN BHOOMI YA TO AKSHATAR YA PURTAH BANZAR DARJ RAHI HAI, KUCHH VARSHON MEN PHASAL DIKHAY GAI HAI. KUCH BATAJAT MEN SADAK BHI DIKHY GAI HAI, PAKSHO KE BICH TATHA GAON SABHA KE BICH KUKAD ..... HAI PARANTU AISA PRATIT HOTA HAI KI KISI ASTAR PAR MAUKA MAUANA NAHIN KIYA GAYA JISASE YAH ISPASHT HO PATA KI VIVADHAST BHOOMI MEN KHETI KI JATI HAI TO KITNA KHESTRAPHAL MEN IN NIRNIYON KE NIRNAY LIYE UKTA PRACHHA KE IRNAYA KA HONA ATYANT AWASHYAK HAI. CHUNKI IS PRASHNA KA NIRNAYA APNISTHA NYAYALAYON PARA NAHI DIYA GAYA HAI ATAH UKTA NIRNAYA VIDHASTAR SAHI NAHI PRATIT HOTA 1968 R.D. PRISTH SAN 337, 1969 A.L.J. 88 882 TATHA 1969 D, 30KI SANKAREH BHI DIYA SAY PARANTU JAB TAK YAH KA SUKISHCHIT KAR LIYA JAI KI VADGRAST BHOMI MEN KHETI KI JATI HAI ATHWA NAHIN TAB TAK MUKADMEN KA ATRANIYA UNCHIT KAHIN PRATIT HOTA ATAH ADHNASTH NYAYALAY ONKA NIRNAYA NIRAST KIYA JATA HAI, NIGPARNIYAN SWIKAR KI JATI HAI...."

From the above question, it appears that the revisional court is under impression that unless the nature of the disputed land is ascertained it cannot be effectively decided as to whether the present petitioners are Sirdars of the land in question or not. I think the approach of the revisional court is patently erroneous. So long as the exparte decree in favour of the petitioners in respect of the dispute land stands the consolidation authorities have no jurisdiction to go beyond the exparte decree. Before the point is disputed whether the exparte decree has been not aside or not. However, it is not necessary for me to express any final opinion on that question as, I think that the impugned judgement of the Assistant Director of Consolation should be quashed and he should be asked to reconsider the claim of the contesting parties in accordance with law. It would be open to the parties to satisfy the revisional court as to whether the exparte decree relied upon by the present petitioners and accepted by the appellate authority holds good or not.

For the reasons given above, the writ petition succeeds and the impugned judgement of the Assistant Director of Consolation dated 25.08.1973 is hereby quashed and the Assistant Director of Consolation is directed to rehear the revision petitioners against the petitioners. Parties are directed to hear their own costs."

6. Pursuant to the order passed by this Court in the aforesaid writ petition, the matter was placed before the Deputy Director Consolidation which was dismissed by him vide order dated 10.09.1987 and thereafter, the restoration application filed by Riyaz and Sohrab which was also dismissed.

7. It is argued by learned counsel for the petitioner that the order dated 31.07.1972 passed by the Settlement Officer of Consolation has attained finality, thereafter, the petitioner submitted an application for Amal Daramad before the Assistant Consolation Officer. The Consolation Officer, on 08.03.1998 has made a reference and forwarded it along with report of A.C.O. dated 27.05.1997 before the Assistant Consolation Officer, Azamgarh for its approval. The Consolation Officer on 29.06.2001 also submitted its report under Section 109 of the Act, 1953 along with all relevant documents before the Deputy Director of Consolation, Azamgarh for Amal Daramad. It is argued that when long time, his application under Section 109 of the Act, has not been decided, the petitioner approached this Court by way of writ petition being Writ C No.7186 of 2013 and this Court disposed of the writ petition with a direction to decide the matter within three months. It is argued that thereafter, the Deputy Director of Consolation, Azamgarh decided the application in a cryptic manner and rejected the same by passing arbitrary, unjust and non-speaking order dated 30.11.2016.

8. In the impugned order, it is stated that the District Government Counsel has submitted report that the land is recorded as Bhita which is public utility land and thus, it could not be included in Chak.

9. A counter affidavit has been filed by the learned Standing Counsel. It is stated in the counter affidavit that the order passed by the Deputy Director of Consolidation which is impugned in the present writ petition is absolutely prefect and valid order and does not call for any interference by this Court.

10. In response to the same, it is argued by counsel for the petitioner that the order impugned is absolutely illegal and liable to be set aside. It is further argued that no revision whatsoever has been filed by anybody or authority challenging the order passed by the Settlement Officer of Consolidation as directed by the Deputy Director of Consolidation, Azamgarh in its order dated 30.11.2016. Moreover, the decree passed in Case No.480 dated 23.8.1965 in suit uner Section 229B is still unchallenged and hold good. Thus, rejection of application of the petitioner under Rule 109 is wholly illegal.

11. The order passed by the Settlement Officer of Consolidation which was passed in the year 1972 has become final, and as such, the application submitted by the petitioner under Rule 109 is liable to be allowed.

12. Heard learned counsel for the parties and perused the record.

13. From perusal of the record, it is clear that the controversy starts in the year 1971 when the objection was filed by Riyaz and others which was decided on 16.12.1971 by which the name of the petitioner and his brother was struck off. Against the aforesaid order, petitioner and others filed appeals before the Settlement Officer, Consideration and the same were allowed by order dated 31.07.1972 by which the name of the petitioner and his brother was restored and the appeal filed by Riyaz and Sohrab were dismissed. Against the aforesaid order, three revisions were filed by Riyaz, Soharab and Ghoan Sabha before the D.D.C. and D.D.C by order dated 25.08.1972 remanded back the matter before the Consideration Officer. Against the aforesaid order, petitioner filed Writ Petition No.7037 of 1973 before this Court and this Court vide order dated 12.09.1979 allowed the writ petition directing the D.D.C. to decide the matter himself. Thereafter, the D.D.C. vide order dated 10.09.1987 dismissed the revisions filed by Riyaz, Soharab and Ghoan Sabha. This order has never been challenged before any forum and the order dated 31.07.1972 passed by the Settlement Officer of Consolation attained finality. Thereafter, the petitioner filed an application under Section 9 of the Act, 1953 in the year 1998 and the same was dismissed on 30.11.2016.

14. The D.D.C. has not recorded any finding and has dismissed the application on the basis of the report of D.G.C. thus, the order is non-speaking order and is as it did not contain any reason or findings. It is trite to say for a legal principle that an order passed by any judicial or quasi-judicial Authority, or for that matter even Administrative Authorities, where rights of parties are decided ought to disclose reasons for the decisions reached. As is often said, reasons are the soul and heart of a decision and convey to the persons affected, as also a superior Authority or a Superior Court, the considerations that have weighed with the decision maker in arriving at his conclusions. Bereft of reasons, the decision is inherently arbitrary. On howsoever good and valid consideration a decision may have been rendered, the absence of reasons would make it foul of Article 14 of the Constitution.

15. Law in this connection is well settled in the case of Sheo Pal vs. Basu Deo & others, 2017 (135) RD 335. In this case following observations were made by this Court:-

"1. .....The only argument advances is that without giving any reason by a totally non-speaking order revision has been allowed by DDC.

3. A bare perusal thereof would leave no manner of doubt that it is totally a non-speaking and unreasoned order. The issues raised by petitioner has not been discussed at all and straightway conclusion have been recorded by DDC.

16. It is well known that "conclusions" and "reasons" are two different things and reasons must show mental exercise of authorities in arriving at a particular conclusion. In Union of India v. Mohan Lal Capoor MANU/SC/0405/1973 : (1973) 2 SCC 836, as under:-

"Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached."

17. Apart from the fact that the order impugned is non-speaking order, it appears from the perusal of the record that the matter is pending consideration before the authorities since 1972. Time and again orders after orders were passed, but till date no final decision has been taken in the matter by the authorities. It further appears from the perusal of the record that in pursuance of the order of the High Court dated 12.9.1979, the Deputy Director of Consolidation has dismissed the revision filed by Riyaz and Sohrab on 10.9.1987. The application for setting aside the order was also dismissed by the Deputy Director of Consolidation. Thus, the order passed on 31.7.1972 is final.

18. Since the matter is pending consideration before the authorities from last about 50 years, in the special facts and circumstances of the case, no useful purpose will be served in remitting the matter back before the authorities.

19. In view of the same, the application submitted by the petitioner under Rule 109 is liable to be allowed and the authorities are directed to make the necessary Amal Daramad in the revenue record within a period of two months from the date of presentation of the copy of the order.

20. With the aforesaid observations, the writ petition is allowed.

Order date:06.01.2021

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