Neelam Priyaranjan And Another vs Deputy Director Of Consolidation ...
2023 Latest Caselaw 8141 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 18
 

 
Case :- WRIT - B No. - 430 of 2023
 

 
Petitioner :- Neelam Priyaranjan And Another
 
Respondent :- Deputy Director Of Consolidation And 6 Others
 
Counsel for Petitioner :- Sunil Kumar I
 
Counsel for Respondent :- C.S.C.,Nikhil Kumar,Pritam Kumar Singh Patel
 

 
Hon'ble Chandra Kumar Rai,J.

Heard Mr. Sunil Kumar, Counsel for the petitioners, learned Standing Counsel for State-respondents and Mr. Nikhil Kumar, Counsel for respondent Nos.2 and 3.

The instant writ petition has been filed for quashing the revisional order dated 14.11.2022 passed by respondent No.1/Deputy Director of Consolidation in Revision No.3132 of 2022 (computerized case No.D202215060003132) (Karmi Devi Vs. Phool Chand and others) Under Section 48 of U.P.C.H. Act, 1953.

Brief facts of the caseare that in the case/ objection filed by contesting respondent under Section 9A (2) of U.P.C.H. Act, along with prayer for Section 5 of Limitation Act as the objection was filed after 10 years from the notification issued under Section 9 of U.P.C.H. Act in respect to plot No.349 area 0.061 Kadi of Khata No.48 situated at Mauja-Haraiya, Tappa-Athaisi, Pargana-Nizamabad, Tehsil-Sadar, District-Azamgarh. The Consolidation Officer has decided the objection on the basis of compromise vide order dated 26.04.1997. After 10 years of passing of the order by Consolidation Officer dated 26.04.1997, contesting respondents initiated proceeding under Section 42-A of U.P.C.H. Act on 24.02.2007 and the Consolidation Officer has passed the order in aforementioned proceeding on 01.09.2008 for correcting the record. Contesting respondent No.2 filed Revision No. 3132 of 2022 computerized case No.D202215060003132 under Section 48 of U.P.C.H. Act against the order dated 26.04.1997 and 01.09.2008 along with prayer for delay condonation application. Revisonal Court vide order dated 14.11.2022 has set aside the orders dated 26.04.1997 and 01.09.2008, hence this petition.

Counsel for the petitioners submitted that title objection filed by the petitioners has been decided on the basis of compromise by the Consolidation Officer in the year 1997, which has been set aside in the revision filed by contesting respondents arbitrarily. He further submitted that contesting respondents has filed a suit under Section 42 A of U.P.C.H. Act in the year 2007 and Consolidation Officer has also passed the order on 01.09.2008 for correcting the revenue records on the basis of order dated 26.04.1997 passed by the Consolidation Officer. Contesting respondent No.2 filed revision in the year 2022, in which orders dated 26.04.1997 and 01.09.2008 have been set aside. He further submitted that proper opportunity of hearing has not been afforded to the petitioners by the revisional Court, as such revisional order is liable to be set aside and the matter should be sent back to the revisional court to decide the revision afresh after affording proper opportunity of hearing to the petitioners. Counsel for the petitioners placed provisions of Section 48 of U.P.C.H. Act, which is as follows:

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."

On the basis of provisions contained under Section 48 of U.P.C.H. Act, counsel for the petitioners submitted that the impugned order is illegal as proper opportunity of hearing has not been afforded to the petitioners.

On the other hand, Mr. Nikhil Kumar, counsel for respondent Nos.2 and 3 submitted that objection under Section 9A(2) of U.P.C.H. Act filed by the petitioners cannot be allowed as such the revisionists have manipulated fraudulent compromise and get the title objection decided in their favour. He further submitted that no notice has been issued to the opposite parties in the revision and in arbitrary manner right of the opposite parties has been affected. He next submitted that without framing the issues, title objection cannot be decided. He further submitted that after passing of the order under Section 9 A(2) of U.P.C.H. Act, proceeding under Section 42 A of U.P.C.H. Act has been initiated in the fraudulent manner after 10 years of passing of order under Section 9-A (2) of U.P.C.H. Act on the basis of compromise. He further submitted that revision filed by the petitioners has been rightly allowed after recording the finding of fact that no notice was issued to the opposite party and in the fraudulent manner the compromise has been manipulated by the vendor of the petitioners, as such revisional court has set aside the order passed under Section 9-A (2) of U.P.C.H Act, as well as order under Section 42 (A) of U.P.C.H. Act which requires no interference under Article 226 of the Constitution of India.

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

There is no dispute about the fact that title objection filed by the petitioners has been decided on the basis of compromise which has been objected by the opposite party in the revision when she came to know. There is also no dispute about the fact that revision under Section 48 of U.P.C.H. Act filed by the contesting respondent No.2 and 3 has been allowed setting aside the order passed under Section 9-A(2) and Section 42 A of U.P.C.H. Act and date has been fixed for consideration of the sale deed.

Since the title objection has been allowed without proper notice and opportunity to the opposite parties in the revision, as such revisional court while allowing the revision has recorded the finding that the manipulation has been made by the parties in the objection under Section 9 A (2) of U.P.C.H. Act in order to manage the order on the basis of compromise. The finding recorded by the revisional Court is relevant for perusal which is as under:

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??? ??????? 3132/2022

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??????? ?????-48, ????????- ?????? ??? ??????? ???????, 1953

??????? ?? ?????? ?? ?????? ?? ?? ????? ????????? ??????? ????? ?? ?? ??? ??? ???? ?? ???????????? ?? ??????? ??? ???? 9 ?? ??????? ?????? 31.03.1988 ?? ??? ??? ??????? ?? 8 ???? ??? ??????? ??????? ?? ?????? ??????? ???? ?? ??? ????????????? ???? ??? ????? ?? ???? ?? ?????? ?? ??? ??, ?????? ????? ?? ??????? ??? ??? ????????/????? ??????? ???????? ?? ?????? ???? ??? ???? ????????? ?????? ??? ??????? ??? ??????? ???? ?? ?????? ???? ???? ???????? ????? ???? ?????? ???????????? ????? ??? ?? ???? ??? ?????? 31.03.2008 ?? ???? ??? ??? ???? 9 ?? ??????? ?? 8 ???? ??? ??????? ??????? ?? ????? ?????? ???????? ?? ??? ?? ??????? ???? ??? ??? ?????? 26.04.1997 ?? ??? ???? ??? ??, ?? ???? ??????? ??? ??????? ???? ???? 45 ????? ??? ????? ???? ???? ???? ??????? ????????? ?????? ???? ?? ??? ??????? ???? ?????? 26.04.1997 ?? ???? ?? ???????? ???? 42 ??????? ??? 10 ???? ??? ????????? ???? ???????? ???? ???? ????????? ???? ?????? 21.08.2008 ?? ????? ???? ???, ????? ??????? ?????? 27.08.2008 ?? ????????? ???????? ?? ???? ????????? ?? ?????? 30.08.2008 ?? ??? ???? ?? ???? ????? ???? ???? ???? ????? ??????? ? ?????? ?? ??? ?? ???? ??????? ??? ???? ??? ??? ????????? ???????? ???? ?? ??? ?? ??? ???????? ???? ???? ???, ? ?? ??? ????? ???? ??? ?? ? ?? ???????????? ?? ??????? ????? ???? ??? ?? ???????????? ?????? ?????? 05.04.2007 ?? ??????? ???????? ?? ???? ??????? ?? ????? ?????? ?? ??? ??? ??? ????? ????????? ???? 41, 45 ????? ??? ??? ??? ?? ???? ????? ??? ??? ??????? ?? ???? ??? ??? ??? ??????? ?? ???? ??????? ??????? ?????? ?????? 01.09.2008 ?? ???? ????? ???? ???? ??????? ?????? ??? ??????? ???? 19.07.1996 ?? ??????? ?? 19.08.1996 ????? ???? ??? ??? ???? ???? ???? 09 ??? ??? ?????? 26.04.1997 ?? ??????? ???? ??? ??? ?????? 19.07.1996?? ???????? ?? ????????? ?? ?????? 26.04.1997 ?? ???? ??? ???????? ?? ????????? ??? ???? ???? ??? ???? ?? ?? ??????? ??? ?????????? ???? ?? ?? ?? ????? ???? ?????? ?????? 21.08.2008 ?? ?????? ???? ???????? ???? ??? ?? ?? ???? ???? 42 ?????? 01.09.2008 ?? ????? ??? ??? ?????? ?? ?? ?????? ???? ???????? ???? ?? ?????? ????? ????? ???? ??? ??? ???? ????? ?? ????? ??? ???

??????? ????? ???? ??????? ???????? ?????? 05.07.1996 ? ???? ???????? ?? ????? ???? ?????? 26.04.1997 ? ???????? ???? 42 ????? ???? ?????? 01.09.2008 ?? ????? ??? ??? ???? ???? ?? ????? ???? ???? ??? ??????? ????? ????????? ??????? ????? ?? ?????? ??? ??? ??, ???????????? ???? ??? ???? ?? ????????? ?? ???? ???

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??????? ?????? ?? ???? ?? ??????? ???????? ?????? 05.07.1996 ? ???? ???????? ?? ????? ???? ?????? 26.04.1997 ??? ???? ?????? 01.09.2008 ?????? ???? ???? ??? ???????????? ?? ?????? ???? ?? ?????? ???? ???????? ?????? 26.11.2022 ?? ???????? ???

?????? 14.11.2022

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Considering the finding recorded by revisional court there is no scope of interference by this court under Article 226 of the Constitution of India. This Court in the case reported in 1985 R.D. 71 Paras Nath singh Vs. The Deputy Director of Consolidation and others has held that if by setting aside the impugned order another illegal order will be restored then the Court under Article 226 of the Constitution of India should not interfere with the impugned order even though the order impugned is illegal or irregular. Paragraph No.21 of the judgment rendered in Paras Nath (supra) is relevant which is as follows:

21. It is, no doubt, correct to say that any order passed without jurisdiction is a nullity and deserves to be quashed. But if as a result of quashing that order another wrong and illegal order would be restored, this Court would refuse to interfere with the impugned order which appears to be quite proper equitable and just order. As mentioned above, the power under Article 226 of the Constitution is devised to advance justice and not to thwart it. To me it appears to be well settled that an order which is illegal cannot be quashed or set aside in writ jurisdiction if quashing of it results in bringing on record another illegal order."

Considering the entire facts and circumstances of the case, no interference is required against the impugned order so far as setting aside the orders dated 26.04.1997 and 01.09.2008 are concerned, but further hearing by the revisional court is not proper.

It is also material that revisional court after setting aside the orders dated 26.04.1997 and 01.09.2008 has not remanded the matter before the Consolidation Officer to decide the title objection on merit rather he himself fixed the date for examining the matter as such the impugned order is modified to the extent that matter will be remitted back before the Consolidation Officer to decide the title objection filed by the petitioners' vendor on merit after framing issues and giving opportunity to the parties to lead evidence in the objection expeditiously preferably within a period of four months from the date of production of certified copy of this order.

The revisional court shall pass the consequential order for final disposal of the revision as mentioned above, so that title objection may be decided on merit. Parties shall file the copy of this order before respondent No.1/ Revisional Court within a period of three weeks. After passing of necessary order by revisional court, parties shall appear before Consolidation Officer for disposal of title objection as mentioned above.

With the aforesaid observation, the writ petition is disposed of.

Order Date :- 21.3.2023

PS*