Shiv Shankar Yadav And 2 Others vs Deputy Director Of Consolidation ...
2023 Latest Caselaw 9549 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 18
 

 
Case :- WRIT - B No. - 1469 of 2021
 

 
Petitioner :- Shiv Shankar Yadav And 2 Others
 
Respondent :- Deputy Director Of Consolidation And 6 Others
 
Counsel for Petitioner :- Santosh Kumar Chaubey,Adya Prasad Tewari
 
Counsel for Respondent :- C.S.C.,Adarsh Singh,Ashutosh Kumar Singh,Indra Raj Singh,Santosh Kumar Singh
 

 
Hon'ble Chandra Kumar Rai,J.

Heard Mr. A.P. Tewari, counsel for the petitioners and Mr. I.R. Singh, counsel for respondent no. 4 and perused the record.

Brief facts of the case are that Assistant Consolidation Officer vide order dated 21.06.1984 on the basis of some compromise ordered to record the plot No. 114/1 area 2 Bigha 2 Biswa 9 Dhoor in the name of petitioner's father and reduced the share of the father of respondent no. 4. Against the order dated 21.06.1984 a time barred appeal was filed by respondent no. 4 after death of his father before Settlement Officer of Consolidation which was dismissed in default on 27.07.2001. Restoration application filed by respondent no. 4 against the order dated 27.07.2001 was also dismissed on 23.06.2016. Respondent no. 4 again filed restoration application which was allowed and appeal was also allowed vide order dated 29.01.2021 setting aside the order dated 21.06.1984 passed by Assistant Consolidation Officer and matter was remitted back before Consolidation Officer to decide the matter on merit after framing issues and affording opportunity to the parties to lead evidence. Against the Appellate order dated 29.01.2021, petitioners filed revision under Section 48 of the U.P.C.H. Act which was numbered as revision no. 0028 of 2020. The aforementioned revision was dismissed vide order dated 03.08.2021. In pursuance of the appellate order dated 29.01.2021, the Consolidation Officer has decided the objection vide order dated 22.03.2021. Hence, this writ petition challenging the appellate order dated 29.01.2021, revisional order dated 03.08.2021 and the order passed by the Consolidation Officer dated 22.03.2021.

Counsel for the petitioners submitted that the title objection under Section 9(A)(2) of U.P.C.H. Act was decided on the basis of compromise executed in accordance with law vide order dated 21.06.1984. He further submitted that appeal was barred by limitation as well as the appeal was filed by the contesting respondent no. 4 who is son of late Sugga @ Ram Janam Singh as such the same was not maintainable. He further submitted that father of respondent no. 4 has not taken any steps for setting aside the compromise in his lifetime as such the appeal filed along with application under Section 5 of Limitation Act by the respondent no. 4 was not maintainable. He further submitted that appeal filed by respondent no. 4 cannot be allowed unless the finding is recorded by the appellate that compromise is fraudulent or irregular.

He further submitted that petitioners challenged the appellate order in revision and during pendency of the revision, the Consolidation Officer has decided the objection without framing the issue and without giving opportunity to the petitioners to contest the objection in accordance with law. He further submitted that the appellate order, revisional order and the subsequent order of the Consolidation Officer be set aside and the order passed by Assistant Consolidation Officer on the basis of compromise be affirmed. Learned counsel for the petitioners placed reliance upon the judgment reported in 2009 (107) RD 747 Doodh Nath and others Versus Deputy Director of Consolidation, Mirzapur and others in order to demonstrate that if the compromise has been acted upon, then after lapse of considerable period, it will not be proper to disturb the order passed on the basis of compromise.

On the other hand, Mr. I.R. Singh appearing for respondent no. 4 urged that title/objection was decided on the basis of illegal compromise as such the same was rightly set aside. He further submitted that the alleged compromise was fraudulent as at the time of alleged compromise, the father of respondent no. 4 was on bed as such there was no question of compromise. He further submitted that after the death of the father of respondent no. 4, when respondent no. 4 became aware, he took appropriate step to challenge the order passed on the basis of compromise. He further submitted that order of Assistant Consolidation Officer has been rightly set aside by the Appellate Court after granting benefit of Section 5 of Limitation Act and remanded the matter before the Consolidation Officer to decide the objection in accordance with law. He submitted that Consolidation Officer has decided the objection as such petitioner has an alternative remedy to challenge the same in appeal or revision and writ petition cannot be entertained against the impugned orders. He placed reliance upon the judgment of this Court passed in Writ -B No. 224 of 2023 Lalman And 14 Others Vs. Settlement Officer Consolidation And 39 Others dated 07.02.2023 in order to demonstrate that against the order of the Consolidation Officer, an alternative remedy will lie under Section 11(1) of U.P.C.H. Act before the settlement Officer Consolidation. He further placed reliance upon the judgment of the Apex Court reported in 1998 (207) SCC 1 N. Balakrishnan vs M. Krishnamurthy in order to demonstrate that the matter should be decided on merit in place of deciding the same on technical grounds.

I have considered the argument advanced by learned counsel for the parties and perused the record.

There is no dispute about the fact that the title objection was decided by Assistant Consolidation Officer on the basis of compromise. There is also no dispute about the fact that the order passed by the Assistant Consolidation Officer has been set aside in appeal and matter has been remanded back to the Consolidation Officer to decide the matter on merit after framing issue and the revision filed by the petitioners has been dismissed. There is also no dispute about the fact that during pendency of the revision, the Consolidation Officer has decided the objection without framing the issue.

Since the Appellate Court has allowed the appeal and remanded the matter to the Court of Consolidation Officer to decide the objection after framing issues and giving opportunity to the parties to lead evidence hence there was no occasion to the Consolidation Officer to decide the objection without framing issue and without giving opportunity to the parties to lead evidence. It is also material that the parties were contesting in revision against the order of the Appellate Court and the Consolidation Officer in hasty manner has decided the objection during pendency of the revision before the Deputy Director Consolidation.

So far as the availability of remedy against the order of Consolidation Officer is concerned, the Apex Court in the case of Committee of Management and another versus Vice-Chancellor and others reported in 2009 (1) AWC 437 (SC) has held that if the impugned order has been passed without giving opportunity of hearing then the alternative remedy will not come in the way of the parties to challenge the impugned order before superior Court.

Paragraph no. 21 of the judgment rendered in Committee of Management (supra) is relevant which is as under:

"Furthermore, when an order has been passed by an authority without jurisdiction or in violation of the principles of natural justice, the superior courts shall not refuse to exercise their jurisdiction although there exists an alternative remedy. In this context, it is appropriate to refer to theobservations made by this Court in the case ofWhirlpool Corporation v. Registrar of Trade Marks, Mumbai & Ors. (1998) 8 SCC 1 :

"15. .... But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. .?"

[See also Guruvayoor Devaswom Managing Committee & Anr. v. C.K. Rajan & Ors. (2003) 7 SCC 546] In this case, albeit, before us for the first time, the vires of the proviso appended to Section 16 of the Act is in question, besides other points noticed by us hereinbefore."

In the present case, the Consolidation Officer has decided the objection without framing the issues and without opportunity to the party to lead evidence in spite of the specific order of the settlement Officer that he will decide the objection after framing issue as well as giving opportunity to the parties to lead evidence but the Consolidation Officer has decided the objection without framing issue and without giving opportunity to parties to lead evidence.

Rule 26 (2) to the U.P.C.H. Rule provides that issues shall be framed by the Consolidation Officer while deciding the title objection which is mandatory in nature as such the non-compliance of the Rule 26(2) of U.P.C.H. Rules is illegal. This Court in the case reported in 2015 (127) RD 163 Bansh Raj and others Versus Deputy Director of Consolidation, Basti and others has considered the provisions of Rule 26(2) of U.P.C.H. Rules. Paragraph No. 10 and 11 of the Judgment are relevant which are as under:-

"10- There was a separate appeal before Settlement Officer Consolidation from the order of Consolidation Officer dated 29.01.2014 as such he was competent to examine legality and propriety of the order of Consolidation Officer on merit. Settlement Officer Consolidation recorded a finding that Consolidation Officer had not framed issues. Thus proper trial was not conducted and the parties were not given opportunity of evidence. It is well settled that in consolidation objection does not pay any vital role. Consolidation Officer has to observe the procedure as provided under Rule 26 (2), which provides for framing issues after hearing the parties and record evidence both oral and documentary and decide the dispute. Deputy Director of Consolidation did not consider the reasons and findings recorded by Settlement Officer Consolidation and held that the petitioners were given proper opportunity to adduce evidence but they failed to adduce any evidence.

11- Before Consolidation Officer, the objections of the petitioners were in effect a counter objection. In any case, names of respondents-2 and 3 were not recorded in basic consolidation records as such for deciding their objections issues were required to be framed and evidence was required to be recorded. Deputy Director of Consolidation has illegally failed to consider that although 16.10.2004 was the date fixed for evidence of Uma Shankar but his oral evidence has not been recorded nor there was any thing to show that his evidence was closed. The objection of the petitioners as well as the objections of respondents - 2 and 3 were consolidated and evidence has to be recorded of the parties. Admittedly the evidence of the parties has not been recorded. In such circumstances findings recorded by Settlement Officer Consolidation that a proper trial was not conducted by Consolidation Officer, does not suffer from any illegality. Deputy Director of Consolidation has illegally remarked that from 1997 till 2004 the petitioners were given opportunity for evidence. Although by that time issues were not framed. Thus the finding in this respect does not appears to be proper. Deputy Director of Consolidation has illegally interfered with the order of Settlement Officer Consolidation which is liable to be set aside."

So far as argument advanced by learned Counsel for the petitioners that order of appellate Court and Revisional be also set aside as the order passed by Assistant Consolidation Officer dated 21.06.1984 on the basis of compromise was in accordance with law, is concerned, since the contesting respondent is disputing the compromise as such matter requires consideration on merit by Consolidation Officer as such argument advanced by learned counsel for the petitioners for quashing the appellate order dated 29.01.2021 and revisional order dated 03.08.2021 is rejected.

In view of the above facts and circumstances, the order passed by the Consolidation Officer dated 22.03.2021 cannot be sustained in the eye of law. The impugned order passed by Consolidation Officer dated 22.03.2021 is liable to be set aside and the same is hereby set aside. The writ petition is allowed in part and matter is remitted back before the Consolidation Officer, respondent no. 3 to decide the aforementioned title objection afresh after framing issues and giving parties to lead evidence expeditiously/preferably within a period of six months from the date of production of certified copy of this order.

Order Date :- 3.4.2023

Anjali