Kamla (Dead) And Another vs The Deputy Director Of Consolidation ...
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Allahabad High Court

Kamla (Dead) And Another vs The Deputy Director Of Consolidation ... on 13 December, 2023

Author: Saurabh Shyam Shamshery

Bench: Saurabh Shyam Shamshery

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:236384
 
Court No. - 48
 

 
Case :- WRIT - B No. - 1019 of 2023
 

 
Petitioner :- Kamla (Dead) And Another
 
Respondent :- The Deputy Director Of Consolidation And 13 Others
 
Counsel for Petitioner :- Shravan Kumar Mishra
 
Counsel for Respondent :- C.S.C.,Rajiv Kumar Mishra
 

 
Hon'ble Saurabh Shyam Shamshery,J.
 

1. This Court is not pleased the way order passed by this Court is not followed. The conduct of authority concerned is not appreciated.

2. This is second round of litigation. Earlier petitioners have approached this Court by way of filing a writ petition bearing No. 15569 of 1989, which was allowed by a reasoned order dated 13.11.2019 and matter was remanded to Deputy Director of Consolidation to decide it afresh. The Court has made following observations in the said order :-

"This Court thinks that there is many a gap of grave consequence in the reasoning adopted by the Deputy Director of Consolidation. The foremost fact that the Deputy Director of Consolidation has ignored is that the petitioner and respondent nos. 3 to 6 are descended of a comman ancestor, who would logically be in joint holdings. There is no case set up by respondent nos. 3 to 6 that down the three to five generations from Payag Mishra to the parties here, there is ever a partition of holdings. This material fact and the lack of evidence about it, have been totally ignored from consideration by the Deputy Director of Consolidation. Likewise, the Deputy Director of Consolidation has ignored from consideration the proceedings of compromise taken before the Assistant Settlement Officer of Consolidation in appeal, where plot no. 1902 is claimed to be divided between the petitioner and respondent nos. 3 to 6, to the extent of 140 links each, and sub divided numbers of the plot are assigned there. There is simply no finding about this compromise, either in the impugned order passed by the Deputy Director of Consolidation, or even in the reference, made by the Settlement Officer of Consolidation. It cannot be ignored that the Settlement Officer of Consolidation has taken note of the fact that proceedings between parties were in the nature of title objection under Section 9 of the Act and that is inferable, looking to the fact that there is mention of two Appeals, bearing numbers 301 and 302, under Section 11(1) of the Act, mentioned by the Consolidation Officer in his report dated 23.11.1986 that he submitted to the Settlement Officer of Consolidation, while he was inquiring into the complaint on the basis of which the reference was made.

It is noteworthy that the record of compromise annexed by the petitioner, entered into between parties before the Assistant Settlement Officer of Consolidation, shows the same to be recorded in Appeal No. 301 'Bhairo vs. Ayodhya and others'. The reference made by the Settlement Officer of Consolidation clearly mentions, that the fact that these appeals were filed between parties finds mention in the the goswara. It was looking to the said facts that the Settlement Officer of Consolidation has recommended an equal division of Plot No. 1902, between parties, in terms of the compromise arrived at between them. The Deputy Director of Consolidation in writing the impugned order has not considered these very relevant facts and evidence about the rights of parties. He has written a judgment that is utterly mechanical and shows non application of mind. There is also this question that once CH Form-23 was issued to the parties, which showed the petitioner's rights with regard to the plot no. 1902/2 to the extent of 140 links, there is no good reason why respondent nos. 3 to 6 waited 18 long years to take action.

This Court does not intend to express any final opinion about these issues, for that is the province of the Deputy Direction of Consolidation, under Section 48(3) of the Act. This Court, however, is equally clear in its opinion that the Deputy Director of Consolidation has written too casual and cursory a judgment to stand to the requirements of its jurisdiction as the last Court of fact, under Section Section 48 of the Act. The Deputy Director of Consolidation must carefully look into all these aspects, and must do so after summoning relevant records, before he enters judgment in the matter that would draw curtains on valuable civil rights of parties.

In the result, the writ petition succeeds and is allowed. The impugned order dated 26.07.1989 is hereby quashed. The matter stands remanded to the Deputy Director of Consolidation, Azamgarh for decision afresh, within a period of six months from the date of receipt of a certified copy of this order, bearing in mind the guidance in this judgment.

Status quo as obtains today with regard to possession, nature and character of the land in dispute shall be maintained till decision afresh by the Deputy Director of Consolidation, Azamgarh.

Costs easy. "

3. In pursuance of above order, Deputy Director of Consolidation on remand has decided the case as fresh and rejected the revision petition filed by petitioners.

4. I have found merit in argument of Sri Shravan Kumar Mishra, learned counsel for petitioners that above referred observations were not followed. No consideration or finding was returned in regard to compromise as well as other aspects of case. Learned counsel has drawn attention of this Court on paragraph No.19 of writ petition which is reproduced hereinafter:-

"That this Hon'ble Court has remanded the case before respondent No.1 for decision of the case along with observation but the respondent No.1 has not recorded finding about the observation of the order on 13.11.2019 passed by this Hon'ble Court so the order dated 17.6.2022 passed by respondent no.1 Deputy Director of Consolidation, Azamgarh is illegal and liable to be quashed by this Hon'ble Court."

5. Learned counsel for contesting respondent is not present, therefore, I have perused counter affidavit and reply to above referred paragraph mentioned in paragraph No.18 of counter affidavit which is reproduced hereinafter:-

"That the contents of paragraph no.14, 15, 16, 17, 18 and 19 of the writ petition are matters of record hence as alleged are denied. Correct facts can be seen by perusal of the record itself. It is settled law that to undo fraud there is no question of limitation since a fraudulent document is a non-est order and cannot be validated by lapse of time. The void order can be set aside at any time."

6. From the bare reading of above referred part of counter affidavit, the referred averment in writ petition has been vaguely denied. In order to scrutinize above referred argument. I have carefully perused the impugned order and relevant part thereof is mentioned hereinafter :-

"??? ?????? ?? ????? ??? ??? ???????? ?? ?????? ???? ???? ??? ????? ?? ????????? ???? ?? ???????? ?? ?????? ??????? ?????? ????? ????????? ??????? ?????? ??? ??????? ??????? ?? ????? ?? ???????? ???? ??? ?????? 26.07.1989 ?? ???? ???? ???, ????? ?????? ?????? ??????? ???? ??? ???? ?????? 1902 ?? ???????? ???? 280 ???? ???? ???? ?? ?????? ??? ????? ??? ?? ??? ????? ???? ???? ???? ???? ?? ??????? ???? ???? ?????? ??? ???? ???????? ??? ??? ?????? ?????? 15539/1989 ???????? ?? ???? ?????? ??? ???? ???????? ??? ?????? 13.11.2019 ?? ???? ????? ???? ??? ???? ?????? 26.07.1989 ?????? ?? ???? ??? ??? ???? ?? ????? ?????? ?? ???????? ???? ?? ??????? ????? ???? ?? ???? ??? ?????? ?? ???? ???????? ???? ???? ????????? ???

???? ??????? ??????? ?? ????? ?????? 29.12.1986 ?? ??????? ???? ???? ????? ?????? ??????? ??????? ?????? ???????? ?? ???? ????? ??? ?? ???? ?????? 1902/0.280 ???? ???? ???? ????? ??? ???? ??? ????? ????? ????? ??? ???? ??????????? ?? ??? ?????? ????? ??? ???? ?????? ??? ?? ???? ???? ???? ?? ???? ?????? 1902/0.140 ???? ?? ???? ??? ???????? ??? ????? ??? ????, ????? ???????? ???? ?? ???? ???? ???? 11 ??? ??? ?????? ?? ???? ??? ?? ??? ???? ?????? 1902/1/0.070 ????? ?? ???? ??? ??? ???? ???? 23 ??? ???? ??? ?? ??? ???? ?????? 1902/0.140 ???? ????? ?? ???? ??? ??? ???? ???? 41 ? 45 ??? ??? ???? ?????? 658 ??? 659 ????? ???? ??? ??? ??? ????? ?????? ?????? ?? ??? ?? ?? ???? ???? 45 ??? ???? ??? ??? ???? ??? ???? ?????? 658 ?? 659 ??? ???? ??? ??? ???? ?? ??? ??? ???? ??? ???? ?????? 659 ?? 658 ??? ???? ???? ??? ????? ?? ???? ?? ?? ???? ?????? 1902/0.280 ???? ?? ???? ??? ?? ??????? ???? ??? ???????? ????????? ?? ?? ?? ???? ??? ????? ??? ?? ??? ???? ???? ????? ??? ??? ???? ??? ?? ??? ???? ?????? 1902/0.280 ???? ?? ?????? ???? ??? ????? ?? ??? ???? ???? ???? ??????? ??????? ?? ???? ????? ?? ??? ?????? ?? ??????? ??? ????? ????????? ??????? ??????? ?????? ?????? 18.02.1987 ?? ???????? ??? ????? ???????? ?? ???, ????? ?????? ???? ?????? 1902/0.280 ???? ?? ???????? ???? ??? ????? ? ???? ??????????? ?? ??, ?? ???? ???? ?? ????? ??? ???? ??? ????? ??? ???? ???? ?? ??????? ??? ??? ?????? ???? ??? ?? ? ?? ??? ???????? ??, ?????? ???? ?????? ??? ?? ????? ??? ?? ???? ?????? 1902 ?? ???? 0.070 ???? ?? ???? ??? ????? ??? ???? ??? ??? ???? ?? ??? ???? 23,41 ? 45 ?? ???? ?????

???? ????? ??????? ?? ?????? ?? ?????? ???? ?? ?? ???? ?????? 1902/0.280 ???? ??? ????? ? ???? ?????????? ?? ??? ????? ?? ????? ??? ??????? ??????? ?? ????? ?? ?????? ?? ?? ??????? ???? ?????? 1902/0.070 ???? ???? ???? 11 ??? ???? ??? ?? ??? ????? ??, ?????? ???? ????? ?? ???????? ?? ?????? ???? ?? ?? ?? ???? ???? ??? ?? ??? ??? ?? ???? ????? ????????? ??????? ??????? ?????? ???? ?????? 1902/0.140 ???? ?? ???? ??? ?? ??? ????? ???? ?? ???????? ?? ???, ????? ??? ???????? ???? ???? ??? ??? ??? ??? ?? ????? ???? ?????? 1902/0.070 ???? ?? ????? ??? ?? ???? ??? ?? ??? ????? ??, ?????? ???? ???? ?????? 1902 ?? ???????? ???? 0.280 ???? ?? ??? ????? ??? ?? ??? ????? ???? ???? ?????? ??? ???? ???? ?? ??? ????? ?? ????????? ???? ??????? ???? ???? ????? ???"

7. From the bare reading of above referred analysis and conclusion, there is no doubt that various observation made by this Court in earlier round of litigation were not followed, therefore, not only impugned order is set aside but matter is also remanded back to concerned authority for fresh consideration with observation that concerned authority is under legal obligation to follow the order passed by this Court in its letter and spirit.

8. This writ petition is accordingly, disposed of with further direction that Revisional Authority will decide the case afresh within six weeks from today, if there is no legal impediment.

Order Date :- 13.12.2023

P. Pandey