Allahabad High Court
Brij Kishor vs Deputy Director Of Consolidation ... on 9 March, 2021
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 18
Case :- CONSOLIDATION No. - 375 of 2005
Petitioner :- Brij Kishor
Respondent :- Deputy Director Of Consolidation Faizabad And Others
Counsel for Petitioner :- Bhimsen Dubey,Durga Pd.Verma,Mohd.Traiq Iqbal,Shiv Nath Goswamia,Suni Srivastava
Counsel for Respondent :- C.S.C.,Amita Anand,Arun Kr. Pandey,D.K.Singh,Indra Mani Pandey,L.K.Pathak,Mahesh Chandra Tiwari,Onkar Nath Tiwari,Shikhar Anand
WITH
Case :- CONSOLIDATION No. - 380 of 2005
Petitioner :- Brij Kishore
Respondent :- The Deputy Director Of Consolidation, Faizabad And Another
Counsel for Petitioner :- Bhimsen Dubey,Durga Prasad Verma,Shiv Nath Goswami
Counsel for Respondent :- C.S.C.,Arun Kr. Pandey,Indra Mani Pandey
Hon'ble Rajnish Kumar,J.
1. Heard Shri Durga Prasad Verma, learned counsel for petitioner and Shri Arun Kumar Pandey, Shri I. M. Pandey, Advocate, holding brief of Shri L. K. Pathak and the learned Standing Counsel for the opposite parties.
2. Writ Petition No. 375 (Consolidation) of 2005 has been filed challenging the order dated 07.04.2005 passed on the application filed by the petitioner/ Brij Kishore for recall of the order dated 17.01.2004 in Revision No. 1043 and Revision No. 1044 by the Deputy Director of Consolidation.
3. Writ Petition No. 380 (Consolidation) of 2005 has been filed challenging the order dated 07.04.2005 passed in Revision No. 2193/ 1349 filed by the petitioner/ Brij Kishore, by means of which the revision has been dismissed on the ground that the Chak No. 318 of the petitioner has already been amended by means of the order dated 17.01.2004 passed in Revision No. 1043 & 1044, against which writ petition has been filed by the sons of Dukhi, Chakdar No. 219 before the High Court, in which order of status quo has been passed.
4. Submission of the learned counsel for petitioner is that the application for recall of the order dated 17.01.2004 passed in Revision Nos. 1043 & 1044 by the petitioner was rejected wrongly and illegally on the ground that the order was passed on merit after hearing the parties, whereas the Chak No. 318 of the petitioner was amended without any opportunity or notice to the petitioner and there is an interim order operating against the said order in a writ petition filed before this High Court. Similarly the revision filed by the petitioner was rejected. Therefore, the impugned orders are not sustainable and liable to be quashed.
5. Learned counsel for opposite parties submitted that the order was passed on merit after hearing the parties and the petitioner has failed to indicate as to how he is effected, therefore, these writ petitions are not maintainable. He further submitted that the revision could not have been filed directly against the order passed by the Consolidation Officer. He relied on a judgment of this Court in the case of Rakesh Kumar Misra and others Vs. Deputy Director of Consolidation, Barabanki and others, 2011 (29)LCD 1316. In view of above the writ petition is liable to be dismissed.
6. Having considered the submissions of the learned counsel for the parties and going through the orders passed by the Deputy Director of Consolidation and the record, this Court finds that the Deputy Director of Consolidation has admitted in the order dated 07.04.2005 passed in Revision No. 2193/ 1349 that the Chak No. 318 of the petitioner has been amended by means of the order dated 17.01.2004 passed in Revision No. 1043 & 1044 and on account of status quo granted by this Court he is not in a position to consider the revision. Therefore, this Court is of the view that the order dated 07.04.2005, challenged in the Writ Petition No. 375 (Consolidation) of 2005 is liable to be set aside, because once the Chak of the petitioner was effected and amended by the order dated 17.01.2004 passed in Revision Nos. 1043 & 1044 without impleading the petitioner and affording opportunity of hearing, it cannot be said that the order was passed on merit after hearing the parties, as such, it is not sustainable in the eyes of law.
7. Writ Petition No. 262 (Consolidation) of 2004 challenging the order dated 17.01.2004 passed in Revision No. 1043 & 1044, in which interim order was granted on 12.03.2004 for maintaining status quo, has been dismissed today and the interim order has been vacated. Therefore, the order dated 07.04.2005 passed in Revision No. 2193/1349 is also liable to be set aside.
8. So far as the submission of the learned counsel for respondents that the revision could not have been filed directly against the order passed by the Consolidation Officer is concerned, it is apparent from the order dated 07.04.2005 passed in Revision No. 2193/ 1349 that the revision was filed against the order dated 16.09.2002 passed in Appeal No. 1494, Dukhi Vs. Ram Teerath and others, therefore, the submission of learned counsel for the opposite parties is misconceived and not tenable as it was filed against the appellate order. Therefore, the judgment relied upon by him is of no assistance.
9. Section 48 of the U.P. Consolidation of Holdings Act, 1953 provides that 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 passed by such authority. Explanation. -(1) of Section 48 provides that for the purposes of this section, the Consolidation Officer shall also be subordinate to the Director of Consolidation, therefore, the powers under Section 48 can be exercised by the Director of Consolidation for examining the correctness, legality or propriety of the order passed by the Consolidation Officer also, which is subordinate to him.
10. In view of above, this Court is of the view that the orders passed by the Deputy Director of Consolidation challenged in both the writ petitions are liable to be quashed with direction to take decision afresh.
11. Thus both the writ petitions are partly allowed. The orders dated 07.04.2005 challenged in both writ petitions are set aside. The matter is remanded to the Director of Consolidation to consider and pass a fresh order in accordance with law after affording opportunities to the parties.
12. No order as to costs.
(Rajnish Kumar, J.)
Order Date :- 9.3.2021
Mustaqeem
