Allahabad High Court
Kulbul @ Teerath vs Deputy Director Of Consolidation ... on 13 March, 2023
Bench: Chandra Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 18
Case :- WRIT - B No. - 1722 of 2020
Petitioner :- Kulbul @ Teerath
Respondent :- Deputy Director Of Consolidation And 7 Others
Counsel for Petitioner :- Pramod Kumar Singh,Tripathi B.G. Bhai
Counsel for Respondent :- C.S.C.,Nilam Shukla,Surnedra Prasad Shukla
Hon'ble Chandra Kumar Rai,J.
Heard Counsel for the petitioner and Mr. S.P. Shukla, Counsel for respondent Nos.2 to 8 and learned Standing Counsel for respondent No.1.
Brief facts of the case are that plots of Khata No.103 was recorded in the basic year of consolidation operation in the name of Khaderan (father of respondent Nos.2 and 3). Against the basic year entry, the objection was filed by petitioner claiming right of co-tenure holder of 1/2 share, which was allowed by Consolidation Officer vide order dated 30.04.1977 giving 1/2 share in the khata in dispute to the petitioner. Against the order of Consolidation Officer, contesting respondent filed appeal under Section 11 of U.P.C.H. Act, which was dismissed vide order dated 05.09.1980 by Settlement Officer of Consolidation. Against the aforementioned appellate order, revision under Section 48 of U.P.C.H. Act was filed by the contesting respondent, which was allowed and the matter was remitted back before the Consolidation Officer to decide the case afresh vide order dated 26.08.1982. Against the order dated 26.08.1982, petitioner filed a writ petition No.14074 of 1982 before this Court which was allowed vide judgement dated 16.09.2003 setting aside the order dated 26.08.1982 passed by Deputy Director of Consolidation and order passed by Consolidation Officer and Settlement Officer of Consolidation have been affirmed. Against judgment of this Court dated 16.09.2003, contesting respondents filed a Civil Appeal No.1188 of 2007 before Hon'ble Apex Court, which was disposed of vide order dated 07.03.2007 setting aside the judgment of this Court dated 16.09.2003 and remanding the matter before Deputy Director of Consolidation to decide the case on merit after giving opportunity of hearing to the parties concerned. The Deputy Director of Consolidation has heard and dismissed the revision vide order dated 29.01.2020 confirming the earlier order of Consolidation Officer and Settlement Officer of Consolidation. Contesting respondent challenged the order dated 29.01.2020 passed by the Deputy Director of Consolidation before this Court by way of writ bearing writ B No.776 of 2020 before this Court, which was allowed vide order dated 19.06.2020 and Deputy Director of Consolidation was directed to decide the case afresh. The Deputy Director of Consolidation vide order dated 04.11.2020 heard the matter in pursuance of the order of this Court dated 19.06.2020, the revision was disposed of setting aside the orders dated 30.04.1977, 05.09.1980, 26.08.1982, and the matter was remanded before the Consolidation Officer to decide the dispute afresh, hence this Writ Petition.
This Court on 05.01.2021 has passed the following interim order:.
"It is contended by Sri Tripathi B.G. Bhai, learned counsel for the petitioner that the Deputy Director of Consolidation by passing the impugned order has acted in the teeth of the judgment and order rendered by the Hon'ble Supreme Court on 07.03.2007 in Civil Appeal No. 1188 of 2007 as well as the judgment and order passed by this Court on 19.06.2020 in Writ-B No. 776 of 2020 (Brij Lal and 5 others Vs Deputy Director of Consolidation Basti and 3 others). The Deputy Director of Consolidation was required to decide the controversy on merits and not remand the same to the subordinate courts, which precisely has been done.
Matter needs consideration.
Issue notice to the respondent nos. 2 to 8 by registered post AD as well as by regular process returnable within four weeks. Steps be taken within two weeks.
Learned Standing Counsel may file counter affidavit within four weeks.
List thereafter.
Till the next date of listing the effect and operation of the order dated 04.11.2020 passed by the Deputy Director of Consolidation, Basti, shall remain stayed."
In pursuance of the interim order of this Court dated 05.01.2021 contesting respondents have filed their counter affidavit along with stay vacation application.
Counsel for the petitioner submitted that this Court has remanded the matter before the revisional court to decide the revision afresh on merit but Deputy Director of Consolidation has illegally remanded the matter before the Consolidation Officer to decide the dispute. He further submitted that in place of remanding the matter before Consolidation Officer Revisional Court should decide the dispute himself. He placed reliance upon the provisions contained under Section 48 of U.P.C.H.Act and submitted that matter be remitted back to Revisional Court to decide the revision himself.
On the other hand, Mr. S.P. Shukla, Counsel for respondent Nos.2 to 9 submitted that revisional Court had to decide the revision on the issues which were settled by this Court while allowing the writ petition vide order dated 19.06.2020 and remanding the matter back before the Revisional Court, as such revisional court should decide the dispute in the light of judgment passed by this Court on 19.06.020 passed in Writ-B No.776 of 2020. He further submitted that father of respondent Nos.2 and 3 was recorded in the basic year of Consolidation operation and petitioner is not entitled to 1/2 share.
I have considered the arguments advanced by the counsel for the parties and perused the record.
There is no dispute about the fact that the title dispute has been decided by this Court vide judgment dated 19.06.2020 and the matter has been remitted back to the revisional Court to decide the revision on certain issues after considering the entire evidence of both parties but revisional Court under the impugned order has again remitted the matter to the Court of Consolidation Officer to decide the matter afresh. There is also no dispute about the fact that Consolidation Officer has already decided the matter therefore there is no necessity to remand the matter again to the Consolidation Officer.
The family pedigree according to petitioner as mentioned in the judgment of appellate Court dated 05.09.1980 is relevant to appreciate the controversy which is as under:-
Pedigree
Kulpu
_______________________|________________________
| | |
Gangadin Thakur Ayodhya
X ___________|________________ X
| | |
Garib Buddhu Khaderan
X |
Kulbul @ Ramtirath
Accordingly to contesting respondents petitioner is son of Buddhu son of Sohan resident of another village-pipra and family pedigree of the family of petitioner according to contesting respondents as mentioned in revisional court order dated 04.11.2020 is as under:
Pedigree
Musayee
__________________|____________________
| |
Ghansyam Sohan
X _______________________________|___ | | | |
Buddhu Kiya Lalsoo Baburam
| |
| |
Kulbul @ Ramtirath |
|
Bhagirathi
The perusal of Section 48 of U.P.C.H. Act is necessary in order to consider the scope of Section-48 of U.P.C.H. Act, which is as under:
"Section 48. Revision and reference. - (1) The Director of Consolidation may call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings; or as to the correctness, legality or propriety of any order] [other than an interlocutory order] passed by such authority in the case or proceedings, may, after allowing the parties concerned an opportunity of being heard, make such order in the case or proceedings as he thinks fit.
(2) Powers under sub-section (1) may be exercised by the Director of Consolidation also on a reference under sub-section (3).
(3) Any authority subordinate to the Director of Consolidation may, after allowing the parties concerned an opportunity of being heard, refer the record of any case or proceedings to the Director of Consolidation for action under sub-section (1).
[Explanation. -] [(1)] For the purposes of this section, Settlement Officers, Consolidation, Consolidation Officers, Assistant Consolidation Officers, Consolidator and Consolidation Lekhpals shall be subordinate to the Director of Consolidation.
Explanation (2) - For the purposes of this section the expression 'interlocutory order' in relation to a case or proceeding, means such order deciding any matter arising in such case or proceeding or collateral thereto as does not have the effect to finally disposing of such case or proceeding.
[Explanation (3). - The power under this section to examine the correctness, legality or propriety of any order includes the power to examine any finding, whether of fact or law, recorded by any subordinate authority, and also includes the power to re-appreciate any oral or documentary evidence."
The perusal of Section 48 of U.P.C.H.Act fully demonstrate that Deputy Director of Consolidation has full jurisdiction to decide the revision in place of remanding the same before Consolidation Officer.
The perusal of relevant portion of the order of this Court passed in Writ-B No.776 of 2020 is also necessary in order to adjudicate the controversy which is as under:
"Having heard the learned counsel for the petitioners and learned counsel for the respondent No.4 and the learned Standing Counsel, this Court is of the view that when the Deputy Director of Consolidation was deciding the Revision, he should have at least looked into the evidence / documents which the Deputy Director of Consolidation had by his order dated 26.8.1982 directed the Consolidation Officer to look into, when he had earlier decided the matter and had remanded the same to the consolidation officer. This having not been done, I find that the Deputy Director of Consolidation erred while deciding the Revision. The impugned order dated 29.1.2020 cannot be sustained and is thus set aside. The matter shall now again be decided by the Deputy Director of Consolidation within a period of three months of the filing a copy of this order. The Revisional Court shall look into all the evidence produced by both the sides and give a definite finding as to whether the respondent No.4 was the son of Buddhu who was the son of Thakur or whether the respondent No. 4 was the son of Buddhu, who was the son of Sohan.
With these observations, the writ petition is allowed.
Till the decision of the Revision status-quo on the spot shall be maintained"
The finding recorded by this Court in Writ-B No.776 of 2020 fully demonstrate that Deputy Director of Consolidation should himself decide the dispute in place of remanding the matter before Consolidation Officer.
Considering the facts and circumstances of the case, the impugned revisional order dated 04.11.2020 passed by Deputy Director of Consolidation, Basti 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 to the revisional Court/ Deputy Director of Consolidation Basti to decide the revision on merit in the light of the observation made in the judgment of this Court dated 19.06.2020 in Writ B No.766 of 2020 expeditiously preferably in within a period of three months from the date of production of certified copy of this order.
Since the dispute relates to the title, hence interest of justice requires that status quo with respect to the nature and possession of the plot in dispute be maintained by the parties till the disposal of the revision by the revisional court.
In view of the above, it is also directed that till the disposal of the revision, by the revisional Court as specified above, the status quo with respect to the nature and possession of the plot in dispute shall be maintained by the parties.
Order Date :- 13.3.2023
PS*
