Vishwanath And 6 Others vs Deputy Director Of Consolidation ...
2023 Latest Caselaw 9374 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 18
 

 
Case :- WRIT - B No. - 1077 of 2023
 

 
Petitioner :- Vishwanath And 6 Others
 
Respondent :- Deputy Director Of Consolidation And 7 Others
 
Counsel for Petitioner :- Manoj Kumar Singh
 
Counsel for Respondent :- C.S.C.,Rajesh Kumar Yadav
 

 
Hon'ble Chandra Kumar Rai,J.

Heard Mr. Manoj Kumar Singh, Counsel for the petitioners, learned Standing Counsel for State-respondents and Mr. Rejesh Kumar Yadav, Counsel for the contesting respondent Nos.3 to 7.

With the consent of the counsel for the parties, the writ petition is being heard and disposed of finally without calling counter affidavit.

The brief facts of the case are that Khata No.355, plot No.410/48/3 M, area 150 air, plot No.410/49 M area 113 air, Khata No.347, Plot No.496 area 194 air situated in Mauza Pisor, Pargana-Shivpur, Tehsil and Distrit-Varanasi was recorded in the name of Beere, who died on 14.09.1994. The application/objection under Section 12 of U.P.C.H. Act was filed by the petitioner No.1 along with father of petitioner Nos.2 to 7 for recording their names over the disputed plot on the basis of succession. Consolidation Officer vide order dated 07.10.1995 allowed the application/ objection filed by the petitioners under Section 12 of U.P.C.H. Act and ordered to be recorded the name of the petitioner No.1 along with father of petitioner Nos.2 to 7 over the disputed plot. Against the order dated 07.10.1995 contesting respondents filed recall application after 15 years along with application under Section 5 of Limitation Act. Against the recall application as well as application under Section 5 of Limitation Act, objection was filed by the petitioners. The Consolidation Officer vide order dated 19.10.2015 rejected the application on the ground of the limitation. Against the order dated 19.10.1995 and 07.10.1995 passed by the Consolidation Officer, appeal filed under Section 11(1) of the U.P.C.H.Act was filed by contesting respondents and the appellate Court/Settlement officer of Consolidation vide order dated 14.06.2021 allowed the appeal and set aside the orders of Consolidation Officer dated 07.10.1995 and 28.10.2015 and dismissed the petitioners' objection under Section 12 of U.P.C.H. Act. The petitioners challenged the order of appellate court in revision, which was dismissed vide order dated 27.02.2023. hence this writ petition.

Counsel for the petitioners submitted that the application/ objection under Section 12 of U.P.C.H. Act along with application under Section 5 of Limitation for recording the name in place of deceased tenure holder by the Consolidation Officer has been allowed in the year 1995, against which restoration application was filed after 15 years by the contesting respondents, which was dismissed by the Consolidation Officer. He further submitted that an appeal was filed against the order of Consolidation Officer which was allowed setting aside the orders passed by the Consolidation Officer. He further submitted that in place of remanding the matter to decide the application/objection afresh on merit appellate court himself rejected the petitioners' objection which is not in accordance with law. He further submitted that appellate Court utmost set aside the order passed without notice to other side but he cannot allow the appeal rather he should remand the matter to Consolidation Officer for deciding of the application/ objection filed under Section 12 of U.P.C.H. Act in accordance with law. He further submitted that agaisnt the appellate order, revision filed by the petitioners has also been dismissed arbitrarilly. He further submitted that impugned order be set aside and matter be sent back before Consolidation Officer for fresh consideration of the petitioners' application/ objection under Section 12 of U.P.C.H. Act on merit.

On the other hand, counsel for respondent Nos.3 to 7 submitted that petitioners have manipulated the order in the proceeding under Section 12 of U.P.C.H.Act on the ground that the deceased tenure holder has no sons and daughter, as such the same was rightly set aside by the appellate court as contesting respondents are the daughter of the deceased tenure holder, but the petitioners have committed fraud as such he is not entitled to be recorded in the revenue record. He further submitted that appellate court and revisional court has considered the case of the petitioners on merit and rejected the claim of the petitioners as such no interference is required and writ petition is liable to be dismissed.

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

There is no dispute about the fact that application under Section 12 of U.P.C.H. Act filed by the petitioners has been allowed by Consolidation Officer. There is also no dispute about the fact that recall application along with application under Section 5 of Limitation Act filed after 15 years by the contesting respondents being married daughters of the deceased tenure holder was rejected by Consolidation officer on the ground of limitation, but in appeal the orders have been set aside and appeal has been allowed on merit rejecting the claim of the petitioners without remanding the matter to the Consolidation Officer. There is also no dispute about the fact that revision filed by the petitioner has also been dismissed by Deputy Director of Consolidation.

In order to appreciate the controversy, the perusal of Section-12 of U.P.C.H. Act Rule-30 of U.P.C.H. Rules applicable for deciding application/ objection under Section-12 of U.P.C.H. Act as well as Rule-26 (2) of U.P.C.H. Rules will be necessary which are as under:

Section-12 of U.P.C.H. Act:-

"[12. Decision of matters relating to changes and transactions affecting rights or interests recorded in revised records. -

(1) All matters relating to changes and transfers affecting any of the rights or interests recorded in the revised records published under sub-section (1) of Section 10 for which a cause of action had not arisen when proceedings under Sections 7 to 9 were started or were in progress, may be raised before the Assistant Consolidation Officer as and when they arise, but not later than the date of notification under Section 52, or under sub-section (1) of Section 6.

(2) The provisions of Sections 7 to 11 shall mutatis mutandis, apply to the hearing and decision of any matter raised under sub-section (1) as if it were a matter raised under the aforesaid sections."

Rule-30 of U.P.C.H. Rules:-

"30. Section 12. - (a) The form in which the matter mentioned in Section 12 of the Act may be raised before the Assistant Consolidation Officer shall be C.H. Form 6-C.

[(b) The procedure laid down in Rules 25-A to 27 and 29 shall, mutatis mutandis be followed in deciding matters raised before the Assistant Consolidation Officer under Section 12."

Rule-26 (2) of U.P.C.H. Rules:

"[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."

This Court in the case reported in 2015 (127) RD 163 Banshraj and others Vs. Deputy Director of Consolidation Basti and others has considered the scope of Rule-26 (2) of U.P.C.H. Rules while deciding the objections. Paragraph No.10 and 11 of the judgment rendered in Banshraj (Supra) are relevant which are as under:-

"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."

Since the order passed on the application/objection filed by the petitioners under Section-12 of U.P.C.H. Act filed by petitioners has been set aside by the appellate Court on the ground that Consolidation Officer has allowed the objection on concealment of fact, as such in the interest of justice the matter should be remanded back before Consolidation Officer to decide the petitioners' objection afresh, so that the provisions contained under Section-12 of U.P.C.H. Act and Rule 30 along with Rule-26 (2) of U.P.C.H. Rules be followed rather appellate court himself conduct the trial.

Considering the entire facts and circumstances of the case, the revisional order dated 27.02.2023, the appellate order dated 14.06.2021 passed by Settlement Officer of Consolidation Varanasi are liable to be set aside in part by which the claim of the petitioners under Section 12 of U.P.C.H. Act has been rejected out-rightly by the appellate court accordingly revisional order dated 27.02.2023 is hereby set aside. The part of the appellate court order dated 14.06.2021 by which orders of Consolidation officer dated 07.10.1995 and 19.10.2015 have been set aside is hereby maintained and part of the appellate court order dated 14.06.2021 judgment by which claim of the petitioners under Section 12 of U.P.C.H. Act has been rejected on merit is set aside and matter is remanded back before the Consolidation Officer to decide the petitioners' application / objection filed under Section 12 of U.P.C.H. Act on merit after framing issues and permitting the parties to lead evidence as provided under Section-12 of U.P.C.H. Act and Rule 30 of U.P.C.H. Rules. The Consolidation Officer shall decide the application/ objection under Section 12 of U.P.C.H. act on merit expeditiously preferably within a period of six month from the date of production of certified copy of this order.

With the above observation/ direction, the writ petition is allowed in part.

Order Date :- 31.3.2023

PS*