Karan Singh vs Deputy Director Of Consolidation ...
2022 Latest Caselaw 6200 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 32
 

 
Case :- WRIT - B No. - 705 of 2022
 

 
Petitioner :- Karan Singh
 
Respondent :- Deputy Director Of Consolidation And 4 Others
 
Counsel for Petitioner :- Ramendra Asthana
 
Counsel for Respondent :- C.S.C.,Aktar Ahmed Siddiqui
 

 
Hon'ble Dinesh Pathak,J.

Heard Sri Ramendra Asthana, leaned counsel for the petitioner, Sri A.A. Siddiqui, learned counsel for the respondent no. 3 and the learned Standing Counsel representing respondent nos. 1, 2 and 6.

In view of the peculiar facts and circumstances of the case and the order proposed to be passed, the writ petition is being decided finally with the consent of the counsel for the parties without calling for their respective affidavits in the present writ petition (counter affidavit and rejoinder affidavit) and without putting notice to the remaining respondents.

Challenge in the present writ petition is the order dated 16.12.2021 (Annexure No. 4) passed by the Deputy Director of Consolidation/Additional District Magistrate (Administration), Shahjahanpur (Respondent no. 1) partly allowing Revision No. 98/239/2016 (Kavita Verma vs. Karan Singh), under Section 48(1) of U.P.C.H. Act and remanding the matter before the Consolidation Officer, Jalalabad for deciding the matter after proper opportunity of hearing to the parties.

The petitioner is aggrieved with the remand order passed by the Deputy Director of Consolidation, whereas he is the competent authority to decide the revision on merits in exercising its supervisory power under Section 48 of U.P. Consolidation of Holdings Act.

The instant writ petition is arising out of proceeding under Section 12 of U.P. Consolidation of Holdings Act (in brevity ?U.P.C.H. Act?). The property in dispute was belonging to Brij Pal. During consolidation operation Brij Pal died leaving behind his three sons, namely, Karan Singh, Jagapl and Kanhai Lal and wife, Smt. Shiv Devi. Ultimately, dispute arose with respect to the succession of Kanhai Lal, one of the son of recorded tenure holder Brij Pal. Respondent no. 3 Kavita Verma has filed an application claiming her right and title under succession, being a daughter of Kanhai Lal. Against her application a contest has been made on behalf of Karan Singh and Jagpal raising question with respect to her genuineness being daughter of Kanhai Lal. The Consolidation Officer passed an order dated 13.07.2015 for recording the name of Karan Singh and Jagpal being sons and Smt. Shiv Devi being wife in place of Brij Pal. Claim of Kavita Verma, being a daughter of Kanhai Lal (one of the son of Brij Lal) has been discarded by the court.

Having being aggrieved with the order passed by the Consolidation Officer, Kavita Verma has filed an appeal before the Settlement Officer of Consolidation, which was dismissed vide order dated 09.02.2016. The order passed by the Settlement Officer of Consolidation was challenged in revision, which was allowed by the Deputy Director of Consolidation, vide impugned order dated 16.12.2021, remanding the matter before the Consolidation Officer, which is under challenge before this Court.

Learned counsel for the petitioner submits that the Deputy Director of Consolidation has illegally remitted the matter before the Consolidation Officer for a second round litigation only on the basis of the presumption without giving any specific finding as to on what point matter is being remanded or what material is left to be considered. The Deputy Director of Consolidation has illegally made an observation, in remanding the matter, that the matter should be decided afresh after giving appropriate opportunity of evidence and hearing to the parties, wheres there is no case of the other side that proper and effective opportunity of hearing had not been given to her. It is further submitted that the Deputy Director of Consolidation has illegally remanded the matter before the Consolidation Officer whereas he is competent enough to examine the matter as enunciated under Explanation-3 to Section 48 of U.P.C.H. Act. Therefore, the order passed by the Deputy Director of Consolidation, being illegal and perverse, is liable to be quashed.

Per contra, learned counsel for the respondent contended that to examine the legal relationship of respondent no. 3 with Kanhai Lal, being daughter and father, the Deputy Director of Consolidation has rightly relegated the parties before the Consolidation Officer to decide the matter afresh after giving proper opportunity of hearing. He further submits that the pleadings of the respondent no. 3 has not properly been dealt with by the Consolidation Officer and Settlement Officer of Consolidation with respect to her succession being daughter of Kanhai Lal. The Deputy Director of Consolidation has rightly allowed the revision and remanded the matter before the Consolidation Officer to decide the matter de novo.

Carefully considered the rival submissions advanced by the counsel for the parties and perused the record.

Question for consideration in the present matter lies in a narrow compass as to whether Deputy Director of Education has rightly remanded the matter before Consolidation Officer with respect to the claim of respondent no. 3 being a daughter of Kanhai Lal, who was one of the sons of Brij Pal. Consolidation Officer and the Settlement Officer of Consolidation have given a categorical finding discarding the claim of Kavita Verma on the basis of succession being a daughter of Kanhai Lal.

In deciding the revision, Deputy Director of Consolidation has discussed the High School Certificate, wherein date of birth of Kavita Verma is recorded as 10.05.1998, whereas Kanhai Lal has been shown to be dead on 17.01.1995, therefore, Kavita Verma has been shown to be born after three years of the death of Kanhai Lal. Deputy Director of Consolidation has observed that mere High School Certificate is not sufficient to discard the claim of Kavita Verma and hence he himself given a finding that Kavita Verma appears to be daughter of Kanhai Lal. It appears that the Deputy Director of Consolidation, without any cogent reason, came to a conclusion that the matter should be remanded before the Consolidation Officer for fresh trial.

It appears that the Deputy Director of Consolidation has dealt with the matter in very cursory manner on the basis of conjecture and surmises in considering the genuineness of succession of Kavita Verma being a daughter of Kanhai Lal. Under Explanation-3 to Section 48 of U.P.C.H. Act, the Deputy Director of Consolidation is authority competent to decide the matter on merits in place of remitting the matter before the Consolidation Officer, whereas the entire record was present before him and nothing new evidence was required to be filed by the parties. Relegating the parties before a Consolidation Officer for deciding the matter de novo, after giving an opportunity of hearing to the parties to adduce evidence in the second round of litigation, is not justified in the eyes of law. There is nothing in the judgment passed by the Deputy Director of Consolidation that the opportunity to adduce evidence was not given to respondent no. 3 by the court below in deciding the genuineness of the succession of Kavita Verma being a daughter of Kanhai Lal. While exercising power under Section 48 of U.P.C.H. Act, the Deputy Director of Consolidation is free to examine the correctness, illegality or propriety of any order including the power to examine any finding whether on fact or law recorded by any subordinate authority and also the power to appreciate any oral or documentary evidence. Relevant provision of Section 48 of U.P. C.H. Act is quoted below:-

"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)."

Perusal of the provision as enunciated under Section 48 of U.P.C.H. Act evince the supervisory and vast jurisdiction of Deputy Director of Consolidation to appreciate the evidence on record and examine, even, finding of fact. While the entire evidence is available before the Deputy Director of Consolidation, there was no occasion for him to remand the matter before the Consolidation Officer to reopen the matter for the benefit of a particular party. Remand order should not be passed in a routine manner. Remand would not be made to provide a fresh opportunity to adducing evidence or to provide an opportunity to a party to fill up the lacuna in his/her evidence.

I find no substance in the order passed by the Deputy Director of Consolidation in remitting the matter before the Consolidation Officer to examine same afresh after giving fresh opportunity of hearing, and adducing evidence, to the parties.

Accordingly, the present writ petition succeeds and allowed in part. Impugned order passed by the Deputy Director of Consolidation dated 16.12.2021 is hereby quashed.

The parties are relegated before the Deputy Director of Consolidation with a direction that the revision should be decided on merits afresh on the basis of the evidence available on record, after giving effective opportunity of hearing to the parties, within a period of three months from the date of production of a certified copy of this order.

There is no order as to cost.

Order Date :- 7.7.2022

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