Allahabad High Court
Rama Shanker vs Deputy Director Of ... on 30 May, 2022
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 20
Case :- WRIT - B No. - 301 of 2022
Petitioner :- Rama Shanker
Respondent :- Deputy Director Of Consolidation,Sultanpur And Others
Counsel for Petitioner :- Mohammad Aslam Khan
Counsel for Respondent :- C.S.C.,Vijay Bahadur Yadav
Hon'ble Jaspreet Singh,J.
Heard Shri Mohd. Arif Khan, learned Senior Counsel alongwith Shri Mohd. Sadab Khan, Shri Mohammad Aslam Khan, learned counsel for the petitioner, learned Standing Counsel for the State-respondents, Shri Pankaj Gupta learned counsel for respondents no.4 to 6 and Shri Ajay Vikram Verma, learned counsel has put in appearance on behalf of the private respondents no.7 and 8 and has filed his Vakalatnama and the same is taken on record.
Under challenge is the order dated 30.04.2022 passed by the Deputy Director of Consolidation as well as order dated 22.10.1973 which has been passed by the Settlement Officer of Consolidation, Sultanpur and order dated 10.12.1971 passed by Consolidation Office Sultanpur respectively.
The dispute in question relates to plots No.234 and 243, situate in village Naseerpur, Pargana Aldemau, Tehsil Kadipur, District Sultanpur. In the basic year, the aforesaid plots were recorded in the name of Ram Chritra, the father of the petitioner. Upon the publication of the notices under Section 9 of the U.P.Consolidation of Holdings Act 1953, objections were filed by one Ram Ajor who died during the proceedings and is now represented by his heirs who are respondent no.4 and also Ram Subhag and Lal Bahadur who had filed their objections are the respondents no.5 and 6 before the Court whereas the private respondents no.7 and 8 herein are the grand children of Ram Ratan.
Initially, the Consolidation Officer by means of order dated 10.12.1971 had passed an order which was assailed by the father of the petitioner Ram Chritra before the Settlement Officer of Consolidation. His appeal also came to be dismissed by means of order dated 22.10.1973 which was further assailed before the Deputy Director of Consolidation under Section 48 of UPCH Act, 1953. The said revision was allowed by means of order dated 27.12.1974 and the order was passed in favour of the father of the petitioner.
The private respondents preferred a writ petition before this Court at Allahabad bearing Writ Petition No.6349 of 1975 which was allowed vide judgment dated 16.12.2003. The writ petition was allowed and the judgment dated 27.12.1974 was set aside and the matter was remanded to the Deputy Director of Consolidation to decide the controversy fresh in light of the observations made by this Court within a period of three months. A copy of the judgment passed by the High Court at Allahabad has been brought on record as annexure no.7.
It is the specific case of the petitioner that though the Deputy Director of Consolidation was required to decide the matter fresh within a period of three months, however, it took 19 years to decide and that too without complying with the terms of remand.
It is submitted that the order dated 30.04.2022 which has been brought on record as annexure no.8 would indicate that there is a mere reference to the order passed by the High Court but the true intent and spirit of the order and the terms of remand which required the Deputy Director of Consolidation to examine the parties and record the findings in respect of possession has not been done at all and apparently the order is per se illegal and deserves to be set aside.
Shri Pankaj Gupta, learned counsel appearing for the private respondents no.4 to 6 and Shri Ajay Vikram Verma for the respondents no.7 and 8 though argued at length, however, could not dispute the fact that in so far as the terms of remand as directed by this Court in its judgment dated 16.12.2003 cannot be found seen or reflected from the impugned order date 30.04.2022.
Before proceedings further, it will be relevant to notice the observations made by this Court in its order dated 16.12.2003 and the relevant portion whereof reads as under:-
"Be as it may, so far entitlement of respondent No.5 to continue in possession is concerned, on reversal of the judgment in his favour that automatically seized and thus unless he is able to prove by filing positive evidence to demonstrate about taking of possession and thereafter his continuous possession even after reversal of the judgment in his favour, acceptance of his rights may not be proper. Settlement Officer Consolidation has referred various Khasra extracts to record his finding that petitioners have been able to prove their possession throughout. Although Settlement Officer Consolidation has not referred to any other evidence but at the same time Deputy Director of Consolidation, on perusal of hi judgment makes it clear that he has not even referred to revenue entries and other facts as stated by Settlement Officer Consolidation and straightway he proceeded to make an observation that the entry in Khasra in favour of the petitioner will not carry any weight. In view of the aforesaid this Court is satisfied that findings recorded by the Deputy Director of Consolidation regarding possession of either of the parties cannot be said to be based on any positive evidence, which was relevant for deciding the rights of the parties. It was for the petitioners to have proved that on the basis of decree in favour of the respondent no.5, he did not receive possession and Dakhal Dehani was just a proper transaction and in the event of their being delivery of possession to the respondent No.5 after reversal of the judgment they get possession over the land. In the same manner, it was for the respondent No.5 to have proved that they have received actual possession pursuant to the judgment and decree in his favour and thereafter he continued in possession throughout without any break permitting acquisition of rights by him on that score. Accordingly, this Court is of the view that for accepting rights of either of the parties finding on question of fact, as observed above, will be required and thus it will be first concern of the revisional court to record a finding in the light of evidence so available on the record, so that, it may be tested by this court as and when either of the party approaches this court."
From the perusal of the aforesaid, it would indicate that specific direction had been issued and the respondent no.1 Deputy Director of Consolidation, Sultanpur was required to adhere to. It is now well settled that once a matter is remanded to a subordinate authority, then the Authority is bound by the terms of remand and it is not open for such an authority to ignore the same. This has been well settled in the case of Jasraj & others Vs. Hem Raj & others reported in AIR 1977 SC 1011 and requires no elaboration or reiteration.
Needless to say that from the perusal of the impugned order dated 30.04.2022 in context with the direction of remand as given by this Court has already reproduced herein above first. This Court has no hesitation to hold that the order of remand has not been complied with. The order passed by the Deputy Director of Consolidation, Sultanpur is oblivious to the direction of remand. In view of the aforesaid such an order cannot be sustained.
Accordingly, with the consent of learned counsel for the parties, this petition is disposed of at the admission stage itself setting aside the order dated 30.04.2022 passed by the Deputy Director of Consolidation, Sultanpur with a direction that the revision shall stand restored before the Deputy Director of Consolidation, Sultanpur who shall ensure that after affording full opportunity of hearing to the parties and noticing the mandate of this Court its judgment dated 16.12.2003 shall decide the revision afresh within a period of two months from the date of copy of this order is placed before the Deputy Director of Consolidation concerned. It shall also ensure that the matter shall be taken up on weekly basis and no adjournment shall be granted to the parties except in exceptional circumstances.
With the aforesaid, the writ petition is allowed in the aforesaid terms, however, there shall be no order as to costs.
Order Date :- 30.5.2022
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