Jal Singh And 2 Others vs Deputy Director Of Consolidation ...
2022 Latest Caselaw 5780 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 32
 

 
Case :- WRIT - B No. - 666 of 2022
 

 
Petitioner :- Jal Singh And 2 Others
 
Respondent :- Deputy Director Of Consolidation And 7 Others
 
Counsel for Petitioner :- Anil Kumar Aditya
 
Counsel for Respondent :- C.S.C.,Pradeep Kumar Srivastav
 

 
Hon'ble Dinesh Pathak,J.

Heard learned counsel for the petitioners, learned counsel for respondent no.5 and the learned Standing Counsel for respondents no.1 to 4.

Challenge in the present writ petition is the impugned order dated 21.12.2021 passed by the Deputy Director of Consolidation, while deciding three revisions, affirming the order passed by the Settlement Officer of Consolidation dated 20.07.2011, by which the matter was remanded before the Consolidation Officer for fresh trial after giving due opportunity of hearing to the parties concerned inasmuch as the order dated 20.10.1999 passed by the Consolidation Officer was an ex parte order.

Present writ petition is arising out of proceeding under Section 9A(2) of the U.P. Consolidation of Holdings Act, 1953 (in brevity 'U.P.C.H. Act'). In the basic consolidation record, name of Hari Singh s/o. Chhallu was recorded over Khata No. 347, Plot Nos. 142, 332 & 333. On behalf of the petitioners objection under Section 9A(2) of the U.P.C.H. Act has been filed claiming their right and title over the land in question on the basis of succession and averred that name of Hari Singh has illegally been recorded over the plots in question. During the proceeding, though Hari Singh had initially appeared but at the subsequent stage he remained absent and consequently, order dated 13.08.1999 was passed for initiating ex parte proceeding against him. In absence of Hari Singh, the Consolidation Officer has passed the order dated 20.10.1999 directing to record the name of Ajab Singh, Jal Singh and Inder Singh sons of Data Ram.

Challenging the order dated 20.10.1999, restoration application was filed on behalf of Hari Singh which was rejected vide order dated 05.01.2020. Feeling aggrieved with both the orders, Hari Singh has preferred revision against the order dated 20.10.1999 and 05.01.2000. Aforesaid revision was dismissed vide order dated 02.01.2002 on the ground of maintainability with an observation that against the order dated 20.10.1999, appeal is already pending before the Court competent and aggrieved party can resort to the restoration against the order dated 05.01.2000.

It emerges from the record that against the order dated 20.10.1999, an appeal was also preferred by Hari Singh. Simultaneously, he has filed an appeal as well against the order dated 05.01.2000 by which restoration application was rejected. The Settlement Officer of Consolidation vide common order dated 20.07.2011 has allowed both the appeals and relegated the parties before the Consolidation Officer to contest the matter de novo.

Having been aggrieved with the order dated 20.07.2011, the petitioners have preferred three revisions which were dismissed by the common order dated 21.12.2021. The same is under challenge before this Court.

Learned counsel for the petitioners submitted that the Revisional Court has illegally dismissed the revision on the ground of maintainability, filed against the remand order. It is further submitted that neither the Appellate Court nor the Revisional Court has considered the matter on merits and illegally remitted the matter before the Consolidation Officer on the ground of providing an opportunity of hearing to the opposite party whereas he himself has deserted the court proceeding, despite service of notice upon him. It is further submitted that against the order passed by the Consolidation Officer, opposite party has not filed any credible evidence before the court concerned in support of his entries in the basic consolidation records. It is further submitted that the Consolidation Officer has given a categorical finding that name of Hari Singh has illegally been recorded in the revenue record without reference of any case, therefore, Hari Singh (recorded tenure holder) has no legal right and title over the property in question. Further submission is that no explanation has been offered on behalf of respondents for absence in the initial proceeding, therefore, their case cannot be considered sympathetically and no opportunity of hearing is required to be given to the contesting respondents.

Per contra, learned counsel for the respondent no. 5 contended that proper and effective opportunity of hearing had not been afforded to the respondents. The Consolidation Officer has decided the matter in a very cursory manner, without discussion any evidence in favour of the respondents. Even case of the present petitioners has not properly been discussed as to how they succeeded the property in question. It is further contended that the Settlement Officer of Consolidation and the Deputy Director of Consolidation have given a categorical finding that the order passed by the Consolidation Officer is an ex parte order passed behind the back of the respondents and they were justified in remitting the matter before the Court below to decide it de novo, after giving due opportunity of hearing to both the parties.

I have carefully considered the rival submissions made by learned counsel for the parties and perused the record on Board.

Order dated 20.10.1999 evince the ex parte order against Hari Singh. Restoration application filed on behalf of recorded tenure holder (predecessor in interest of contesting respondents) was rejected vide order dated 05.01.2000. It appears that contesting respondents have resorted two remedies. Firstly, they have filed an appeal against both the orders i.e. order dated 20.10.1999 and 05.01.2000 and simultaneously they have filed the revision. The Revisional Court has dismissed the revision vide order dated 02.01.2002 on the ground of its maintainability inasmuch as proceeding in appeal was going on against the said orders. The Settlement Officer of Consolidation has allowed both the appeals, vide order dated 20.07.2011, with an observation that no proper and effective opportunity of hearing was afforded to Hari Singh before passing the order dated 20.10.1999 passed by the Consolidation Officer. Order passed by the Settlement Officer of Consolidation was affirmed by the Deputy Director of Consolidation by the impugned order dated 21.12.2021. Perusal of the order passed by the Settlement Officer of Consolidation and the Deputy Director of Consolidation reveals that both the Courts have not whispered anything on the merits of the case and remitted the matter before the Consolidation Officer, in the interest of justice, for deciding it afresh after giving due opportunity of hearing to the parties concerned.

So far as the argument of learned counsel for the petitioners is concerned that the revision against the remand order is maintainable, I do agree with the submission of learned counsel for the petitioners which is supported by the dictum of this Court in the Case of Deena Nath and Others vs. Deputy Director of Consolidation and Others reported in 2010 (110) RD, 584. The said judgment is not fully applicable in the present matter inasmuch as the Settlement Officer of Consolidation has not whispered anything about the merits of the case and has simply remitted the matter before the Trial Court to decide the case on merits, after affording opportunity of hearing to the parties concerned.

Considering the aforesaid aspect of the matter, the Deputy Director of Consolidation has rightly affirmed the order passed by the Settlement Officer of Consolidation and dismissed the revision on the ground that nothing has been decide on merits inasmuch as the Settlement Officer of Consolidation has simply relegated the parties before the Court below to get the matter decided de novo, after giving opportunity of hearing to the parties concerned. Record reveals that no evidence was adduced on behalf of the contesting respondents in support of their case to strengthen the basic year entry in his name. The Deputy Director of Consolidation has rightly affirmed the order passed by the Settlement Officer of Consolidation who has remitted the matter before the Consolidation Officer to decide the matter afresh, after giving due opportunity of hearing to the parties concerned.

I do not find any illegality or perversity in the impugned orders passed by the Settlement Officer of Consolidation and the Deputy Director of Consolidation. There is no force in the present writ petition to justify the interference of this Court in the impugned order, in exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India. The petition is devoid of merits and is, accordingly, dismissed. No order as to costs.

Before parting, learned counsel for the parties have requested for a direction to the Consolidation Officer to decide the matter in a time bound manner. Seeing the old litigation between the parties, the Consolidation Officer is hereby directed to decide the matter, in accordance with law, within a period of five months, without granting any unnecessary adjournment to either of the parties. Counsel for the parties have agreed to cooperate with the Court proceeding so that the matter may be decided within the aforesaid period.

Both the parties are directed to appear before the Court concerned on 18.07.2022. Seeing the peculiar facts and circumstances of the present case, both the parties are directed to maintain status quo on the spot for a period of five month or till the date of decision, whichever is earlier.

Order Date :- 4.7.2022

VR