Rameshwar vs D.D.C. And Ors.
2022 Latest Caselaw 22670 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 52
 

 
Case :- WRIT - B No. - 10545 of 1988
 

 
Petitioner :- Rameshwar
 
Respondent :- D.D.C. And Ors.
 
Counsel for Petitioner :- P.S. Pandey,Pallavi Srivastava
 
Counsel for Respondent :- S.C.,Amrendra Singh,Nagendra Singh,R.K. Shahi
 

 
Hon'ble Chandra Kumar Rai,J.

Civil Misc. Delay Condonation Application No. 5 of 2021 and Civil Misc. Recall/Restoration Application No.6 of 2021

Heard Mr. M.D. Mishra, assisted by Pallavi Srivastava, counsel for the petitioner and Mr.R. K. Shahi, counsel appearing for the proposed heirs of respondent No.2.

The instant restoration application has been filed along with the delay condonation application to recall of the order dated 31.01.2005 dismissing the writ petition in default of the parties.

The instant applications have been filed in the year 2021 stating that sole petitioner has died and his legal heirs were not aware about the pendency of the writ petition nor received any information about the order of dismissal dated 31.01.2005 from any body. The proceeding under Rule 109-A of U.P.C.H. Rule has been initiated by respondent then legal heirs of petitioner came to know about the same accordingly filed the instant application along with the delay condontion application.

Notices were issued to the respondents vide order dated 14.09.2021 and Mr. R.K. Sahi Advocate has put in appearance.

Explanation given for delay in filing the recall application in the affidavit is satisfactory.

Delay in filing the restoration application is condoned.

Cause shown for non appearance on the date fixed in the affidavit is also sufficient.

The restoration/recall application is, accordingly, allowed.

The order dated 31.01.2005 dismissing the writ petition for want of prosecution is hereby recalled and the writ petition is restored to its original number.

.

In Re: C.M. Delay Condonation Application No.1 of 2021 and C.M. Substitution Application No.2 of 2021

The substitution application has been filed to substitute the legal heirs of deceased sole petitioner along with delay condonation application.

Reasons given for the condonation of delay in affidavit is satisfactory.

Delay is condoned.

Let the word 'deceased' be mentioned against the name of sole petitioner and the name of his legal heirs as mentioned in prayer clause be substituted as petitioner Nos.1/1 and 1/2 respectively.

Both the applications are accordingly disposed of.

In Re: C.M. Delay Condonation Application No.3 of 2021 and C.M. Substitution Application No.4 of 2021

The instant applications have been filed to substitute the legal heirs of deceased respondent Nos.2, 3, 3/1, 3/2, 3/4 and 3/4/4 along with prayer of delay condonation.

Vide order dated 14.09.2021 notice were issued to the heirs of deceased respondent Nos.2 and 3 and heirs of deceased-respondent No.2 are represented by Mr. R. K. Shahi, Advocate.

As per officer report dated 14.11.2022, the service is deemed to be sufficient upon the proposed heirs of deceased respondent Nos.2 and 3..

Reasons given for the condonation of delay in affidavit is satisfactory.

Delay is condoned.

Let the word 'deceased' be mentioned against the name of respondent Nos.2 and 3 and the name of his legal heirs as mentioned in prayer clause be substituted as respondent Nos.2/1 to 2/4, respondent No.3/1 to 3/4.

The word deceased be further added against the name of respondent Nos.3/1, 3/2, 3/3 and 3/4 and the names of their legal heirs be substituted as respondent Nos.3/1/1 to 3/1/3, 3/2/1 to 3/2/3, 3/4/1 to 3/4/5. In respect of respondent No.3/3 only word deceased be added against his name. The word deceased be further against the name of respondent No.3/4/4 and his legal heir as mentioned in prayer clause be substituted as respondent No.3/4/4/1.

Both the applications are accordingly disposed of.

Order on Writ Petition

1. The Writ Petition is restored to its original number.

2. Heard Mr. M.D. Mishra, counsel for the petitioner and Mr.R. K. Shahi, counsel appearing for the substituted heirs of respondent No.2 and service upon substituted heirs have already deemed sufficient in view of office report dated 14.11.2022.

3. The brief facts of the case are that dispute relates to plot No.750 of Khata No. 42 which was recorded in the basic year of consolidation operation in the name of Junab Ali son of Gopi (respondent No.3). Before consolidation operation, petitioner filed a suit under Section 229-B of U.P.Z.A. & L.R.Act on12.01.1970 for declaration of his right on the basis of long possession. Suit was dismissed by trial court vide judgment dated 26.03.1974 accordingly petitioner filed Appeal before Commissioner, which was allowed vide judgment dated 06.10.1975 setting aside the order of trial court dated 26.03.1974 and remanded the matter before trial court for fresh adjudication of the suit. During pendency of suit after remand Consolidation operation intervene in the village accordingly, petitioner's' suit under Section 229-B of U.P.Z.A. & L.R. Act was abated under Section-5 of U.P.C.H. Act. Against the basic year entry petitioner filed an objection under Section 9A(2) of U.PC.H. Act. Respondent No.2 alleged to be vendee of respondent No.3 of the disputed plot. Before the consolidation Officer issues were framed and respondent No.2 contested the proceeding of objection. Consolidation officer after considering the evidence on record allowed the objection vide judgment and order dated 09.06.1983 and ordered to record the name of petitioner after expunging the name of respondent No.3 from plot No.750 of khata No.42. Against the judgment of Consolidation Officer dated 09.06.1983, respondent No.3 did not file appeal rather respondent No.2 filed appeal under Section 11 of U.P.C.H. Act before Settlement officer of Consolidation which was dismissed on 14.03.1984. Respondent No.2 challenged the order of appeal through Revision under Section 48 of U.P.C.H. Act which was allowed vide order dated 30.04.1988 and matter was remanded back before consolidation officer for fresh decision of objection hence this writ petition.

4. This Court while admitting the writ petition passed the following interim order dated 19.05.1988:-

"Issue notice.

Until further orders of this court, the operation of the order dated 30.04.1988 passed by the Assistant Director of Consolidation, Deoria shall remain stayed."

5. Counsel for the petitioner submitted that against the basic year entry, title objection filed by the petitioner, was allowed by the Consolidation officer and the order of Consolidation Officer was maintained in appeal. He further submitted that the revision under Section 48 of U.P.C.H. Act has been filed by respondent No.2, which was allowed by the Deputy Director of Consolidation and matter has been remanded back before the Consolidation Officer for fresh decision of objection. Counsel for the petitioner further submitted that in view of the provisions contained under Section 48 of U.P.C.H. Deputy Director of Consolidation in place of remanding the matter before the Consolidation officer should have himself decide the revision. Counsel for the petitioner placed reliance upon the judgment of this Court reported in 2017 (134) R.D. 555 Chandrama vs. Deputy Director of Consolidation Ballia and others in which it has been held that Deputy Director of Consolidation should not remand the matter to the courts below rather revisional court should himself decide the matter.

6. On the other hand, counsel for the contesting respondent Mr. R.K. Shahi, submitted that Deputy Director of Consolidation has rightly remanded the matter before the Consolidation Officer, where the dispute will be decided in accordance with law. He further submitted that impugned order is remand order as such there should be no interference under Article-226 of the Constitution of India against the remand order. He further submitted that petitioner will have opportunity to take whatever objection he want before the Consolidation Officer. He further submitted that no interference is required in the matter as such writ petition is liable to be dismissed.

7. I have considered the submission advanced by counsel for the parties and perused the record.

8. There is no dispute about the fact that title revision has been remanded by the Deputy Director of Consolidation for afresh consideration before the Consolidation Officer. There is also no dispute about the fact that objection of the petitioner has been allowed after framing issues and considering the evidence on record, the order of the Consolidation officer has been affirmed in appeal under Section 11 of U.P.C.H. Act, but the Deputy Director of Consolidation has allowed the revision filed by respondent No.2 and again remanded the matter before Consolidation Officer for fresh decision of objection. Since the scope of Section 48 of U.P.C.H. Act (in the light of explanation 3) is wide as such remand of the matter will be harassment to the parties and abuse of process of law. Section 48 of U.P.C.H. Act, is as follows:

"48. Revision and reference.- (1) 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 other than an interlocutory order passed by such authority in the case or proceedings, may, after allowing the parties concerned an opportunity of being heard, make such order in the case or proceedings as he thinks fit.

(2) Powers under sub-section (1) may be exercised by the Director of Consolidation also on a reference under sub-section (3).

(3) Any authority subordinate to the Director of Consolidation may, after allowing the parties concerned an opportunity of being heard, refer the record of any case or proceedings to the Director of Consolidation for action under sub-section (1).

Explanation (1).- For the purposes of this section, Settlement Officers, Consolidation, Consolidation Officers, Assistant Consolidation Officers, Consolidator and Consolidation Lekhpals shall be subordinate to the Director of Consolidation.

Explanation (2). - For the purposes of this section the expression 'interlocutory order' in relation to a case or proceeding, means such order deciding any matter arising in such case or proceeding or collateral thereto as does not have the effect to finally disposing of such case or proceeding.

Explanation (3). - The power under this section to examine the correctness, legality or propriety of any order includes the power to examine any finding, whether of fact or law, recorded by any subordinate authority, and also includes the power to re-appreciate any oral or documentary evidence.?

9. In the Chandrama (supra), this Court has held that Deputy Director of Consolidation should decide the revision himself in place of remanding the matter before the court below. Paragraph No.10 of the judgment will be relevant, which is as follows:

"10. Under the circumstances, therefore, in my considered opinion, this exercise could have been undertaken by the Deputy Director of Consolidation himself and a remand for this purpose is not going to serve any useful purpose, except prolonging the litigation."

10. Considering the facts and circumstances of the case, as well as ratio of law laid down in Chandrama (supra) the impugned revisional order dated 30April, 1988 passed by respondent No.1 is liable to be set aside and is hereby set aside. The writ petition is allowed in part and matter is remitted back before the Deputy Director of Consolidation to decide the revision afresh after affording the opportunity of hearing to both the parties within a period of three months from the date of production of certified copy of this order. Since the matter relates to title, as such it is directed that till the disposal of revision by the Deputy Director of Consolidation, status quo with respect to the nature and possession of the property in dispute be maintained.

11. No order as to costs.

Order Date :- 23.12.2022

PS*