Allahabad High Court
Sunaina vs State Of U.P. And 4 Others on 15 February, 2023
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 5
Case :- WRIT - B No. - 180 of 2023
Petitioner :- Sunaina
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Krishna Kumar Chaurasia
Counsel for Respondent :- C.S.C.,Vinay Kumar Mishra
Hon'ble Dinesh Pathak,J.
Heard learned counsel for the petitioners, learned Standing Counsel representing respondent nos. 1 to 3 and learned counsel for the private respondent no. 4.
Instant writ petition is arising out of restoration application dated 06.09.2018 and 11.09.2018 filed by contesting respondent nos. 4 and 5 against the order dated 24.08.2018 passed by the Consolidation Officer allowing application under Section 42-A of U.P.C.H. Act filed on behalf of the petitioner. The Consolidation Officer, vide order dated 31.08.2022, has allowed the restoration application and recalled the order dated 24.08.2018. Having been aggrieved against the order dated 31.08.2022, the petitioner has preferred a revision. The Deputy Director of Consolidation has dismissed the revision vide impugned order dated 17.11.2022. Having been aggrieved against the said orders, the petitioner has filed the instant writ petition.
Learned counsel for the petitioner submits that the order dated 31.08.2022 amounts review of the earlier order dated 24.08.2018, which is not permissible in the eye of law by virtue of ratio decided by the Full Bench of this Court in the case of Shivraji vs. Deputy Director of Consolidation Allahabad, reported in 1997 R.D. 562. It is further submitted that both the parties have submitted their written arguments before the Consolidation Officer and after considering the written submissions order has been passed on 24.08.2018, which cannot be said to be an ex parte order.
Per contra, learned counsel for the private respondent no. 4 has contended that the Consolidation Officer has reserved the judgment on 19.08.2017, thereafter normal dates were being fixed but no order could be passed. However, all of sudden on 24.08.2018 order has been passed without giving any opportunity of hearing to the parties concerned. It is further submitted that the village was de-notified on 22.02.1983, however, application under Section 42-A of U.P.C.H. Act was filed on 04.03.2013, therefore, application itself was not maintainable. It is further contended that the Consolidation Officer has rightly allowed the restoration application for affording opportunity of hearing to the contesting respondents and same has rightly been affirmed by the Deputy Director of Consolidation by the order impugned. It is next contended that the instant writ petition is liable to be dismissed being devoid of merits and misconceived.
Having considered the rival submissions advanced by the counsel for the parties and perusal of record, it reveals that the order dated 24.08.2018 has been passed in a very cursory manner without discussing the case in detail as put forward by the respective parties. The Consolidation Officer has given a categorical finding that the order-sheet dated 29.08.2017 reveals that both the parties were present and matter was heard on merits and 05.09.2017 was the date fixed for orders. Parties were also directed to submit their written submissions. However, since 29.08.2017 matter was kept pending and all of sudden on 24.08.2018, after one year from the date when the judgment was reserved, final order has been passed by the Consolidation Officer. It has also been observed that since 29.08.2017 normal dates were being fixed and order-sheet was maintained till 24.08.2018, which was the date of final order.
I failed to understand that once the judgment was reserved on 29.08.2017 and the next date was fixed i.e. 05.09.2019 for delivery of judgment, under what circumstances normal dates were fixed after 05.09.2017 and all of sudden on 24.08.2018 final order has been passed. There is nothing on the record to establish that after lapse of about one year matter was heard again and parties were given opportunity of hearing to defend their respective cases. The case of Shivraji (supra), as cited by the learned counsel for the petitioner in support of his plea, is not applicable in the facts and circumstances of the present case. Full Bench of this Court has held that the consolidation authorities have got no jurisdiction to review their orders, however, in the instant matter the order dated 24.08.2018 has been recalled on the restoration application moved on behalf of contesting respondents. Consequent thereto, original proceeding under Section 42-A of U.P.C.H. Act restored to its original number and same is still pending for consideration. Nothing has been decided finally on merits with respect to the right and title of the parties over the property in question. Therefore, it cannot be said that the order dated 31.08.2022 will tantamount as review of the earlier order dated 24.08.2018. So far as maintainability of the application under Section 42-A of U.P.C.H. Act is concerned, it would not be befitting to make any comment with respect to its maintainability after de-notification of the village under Section 52 of U.P.C.H. Act inasmuch as original application under Section 42-A of U.P.C.H. Act is still pending consideration before the Consolidation Officer, who is competent enough to examine the maintainability and pass suitable order thereon.
In this conspectus, as above, no justifiable ground is made out to interfere in the impugned orders passed by the Consolidation Officer and the Deputy Director of Consolidation. There is nothing on record to demonstrate as to how petitioner is prejudiced, or is there any likelihood of causing miscarriage of justice to him, due to the impugned orders under challenge. No justifiable ground is made out to interfere in the orders under challenge. There is no illegality, perversity and ambiguity in the orders under challenge so as to warrant indulgence of this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India.
As such, instant writ petition, being devoid on merits and misconceived, is dismissed with no order as to costs.
Order Date :- 15.2.2023
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