Shiv Murat Chauhan And 3 Others vs State Of U.P. And 53 Others
2023 Latest Caselaw 9708 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 18
 

 
Case :- WRIT - B No. - 974 of 2023
 

 
Petitioner :- Shiv Murat Chauhan And 3 Others
 
Respondent :- State Of U.P. And 53 Others
 
Counsel for Petitioner :- Udai Shankar Chauhan
 
Counsel for Respondent :- C.S.C.,Mukul Yadav,Rajesh Yadav
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Sri Udai Shankar Chauhan, learned counsel for the petitioners, Sri Rajesh Yadav, learned counsel for respondent nos. 3 to 5 and the learned standing counsel for the state-respondents.

2. Brief facts of the case are that against the basic year entry, an objection under Section 9-A(2) of the U.P. C.H. Act was filed in respect to khata no. 26, plot nos.8/2 & 9/1, situated in village Kadirshahpur, Pargana- Sadiyabad, Tahasil-Jakhaniya, District Ghazipur by the predecessor of the petitioners. The Consolidation Officer decided the objection vide order dated 24.12.2021. Against the order of the Consolidation Officer dated 24.12.2021, an appeal under Section 11(1) of the U.P. C.H. Act was filed by the contesting respondents on 6.1.2022 which was numbered as Appeal No.1193. The aforementioned appeal was dismissed by the Settlement Officer (Consolidation) vide order dated 30.7.2022. Against the appellate order dated 30.7.2022, a revision under Section 48 of the U.P. C.H. Act, was filed by the contesting respondents which was allowed by the Deputy Director of Consolidation vide order dated 13.1.2023, setting aside the order passed by the Consolidation Officer and the Settlement Officer (Consolidation) and remanding the matter to the court of the Consolidation Officer to decide the dispute afresh, in accordance with law. Hence, this petition.

3. Learned counsel for the petitioners submitted that the Consolidation Officer has decided the dispute in accordance with law and the appeal filed by the contesting respondent has been dismissed but the revisional court without setting aside the finding of the appellate court, has allowed the revision and remanded the matter back before the Consolidation Officer. He further submitted that after following the due procedure, the order was passed by the Consolidation Officer which requires no interference by the revisional court. He further submitted that the impugned revisional order is illegal and is liable to be set aside and the order passed by the Consolidation Officer be maintained.

4. In reply, Sri Rajesh Yadav, learned counsel for the contesting respondents submitted that the Consolidation Officer has decided the title objection without framing the issue, as such, the order passed by the Consolidation Officer is in violation of Rule 26(2) of the U.P. C.H. Rules. He further submitted that the revisional court has rightly exercised the jurisdiction, setting aside the order and remanding the matter to the Consolidation Officer to decide the title objection in accordance with law. He further submitted that finding has been recorded by the revisonal court that although there was an order of Consolidation Officer for framing issue even then the issue has not been framed in the title objection. He submitted that no interference is required against the order passed by the Deputy Director of Consolidation.

5. I have considered the arguments advanced by learned counsel for the parties and perused the records.

6. There is no dispute about the fact that the title objection has been decided without framing issue. There is also no dispute about the fact that the appeal filed by the contesting respondent has been dismissed and the revision has been allowed and the matter has been remanded back to the court of the Consolidation Officer to decide the title objection in accordance with law.

7. In order to appreciate the controversy, perusal of Rule 26(2) of the U.P. C.H. Rules is necessary which is as under:-

"26(2) On the date fixed under sub-rule (2) of Rule 25-A, or on any subsequent date fixed for the purpose, the Consolidation Officer shall hear the parties, frame issues on the points in dispute, take evidence both oral and documentary, and decide the objections."

8. This Court in the decision of Banshraj vs. Deputy Director of Consolidation, Basti and Others, reported in 2015 (127) RD 163, has considered the scope of Section 9 of the U.P. C.H. Act and Rule 26(2) of the U.P. C.H. Rules for deciding the title objection. Paragraph nos.10 & 11 of the judgment are relevant which are quoted hereunder:-

"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."

9. In the present dispute, the Consolidation Officer has decided the title objection without framing issues and passed a cryptic order, as such, the revisional court has exercised the revisional jurisdiction in setting aside the order of Consolidation Officer and Settlement Officer of Consolidation and remanded the matter before Consolidation Officer to decide the title objection, after framing issues and permitting the parties to lead evidence.

10. Considering the ratio of law laid down by this Court in Banshraj (supra) as well as the provisions contained under Section 26(2) of the U.P. C.H. Rules, no interference is required in the impugned order.

11. The writ petition has no merit and is, accordingly, dismissed.

12. However, the Consolidation Officer is directed to decide the title objection in compliance of the revisional order dated 30.1.2023, after framing issue and permitting the parties to lead evidence, in accordance with law, expeditiously, preferably within a period of 6 months, from the date of production of the certified copy of the order.

Order Date :- 4.4.2023

C.Prakash