Chandan Singh vs State Of U.P. And 9 Others
2023 Latest Caselaw 14561 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Neutral Citation No. - 2023:AHC:99442
 
Court No. - 18
 

 
Case :- WRIT - B No. - 1651 of 2023
 

 
Petitioner :- Chandan Singh
 
Respondent :- State Of U.P. And 9 Others
 
Counsel for Petitioner :- Kamini Pandey (Dubey),Anand Kumar Pandey
 
Counsel for Respondent :- C.S.C.,Deepak Gaur
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Smt. Kamini Pandey, Counsel for the petitioner, learned Standing Counsel for the State-respondents and Mr. Deepak Gaur, counsel for respondent No.9/Gaon Sabha.

2. The brief facts of the case are that against the basic year entry, an objection under Section 9A(2) of U.P.C.H. Act along with the prayer for condonation of delay was filed by the petitioner and Consolidation officer vide order dated 01.12.2015 decided the objection expunging the basic year entry. Against the order of the Consolidation Officer, an appeal under Section 11 (1) of the U.P.C.H. Act filed by the contesting respondents was dismissed by the Settlement officer of Consolidation vide order dated 14.06.2017. Against the appellate order dated 14.06.2017, revision under Section 48 of U.P.C.H. Act was filed by the contesting respondents which was registered as revision No.55/2017 before the Deputy Director of Consolidation, Jhansi. The aforementioned revison was heard by Deputy Director of Consolidation who vide order dated 26.09.2022 allowed the revision, set aside the order dated 14.06.2017 passed by Settlement Officer of Consolidation and 01.12.2015 passed by Consolidation Officer as well as remanded the matter before the Consolidation Officer to decide the title objection on merit after framing issues and giving opportunity of hearing to the parties to lead the evidence, hence this writ petition.

3. Counsel for the petitioner submitted that forged entry of the contesting respondents has been expunged in the title objection filed by the petitioner. She further submitted that Consolidation Officer in the pending title proceeding after considering the report has passed the order expunging the entry of the contesting respondents. She further submitted that appeal filed by the contesting respondents was also dismissed. She further submitted that against the dismissal of the appeal, revision filed by the contesting respondents, has been arbitrarilly allowed and matter has been remanded for fresh consideration before the Consolidation Officer, which is abuse of process of law. She next submitted that matter was decided by Consolidation Officer as well as by Settlement officer of Consolidation, as such there was no occasion to remand the matter for fresh consideration before Consolidation officer.

4. She further placed reliance upon the judgment of the Hon'ble Apex Court passed in Civil Appeal No.516 of 2009 dated 5th February, 2019 in order to demonstrate that case of forged and fraudulent entry is liable to be expunged.

5. On the other hand, learned Standing Counsel for the State-respondents and Counsel for the Gaon Sabha submitted that vide impugned order matter has been remanded before the Consolidation Officer, as such no interference is required. They further submitted that revisional court has recorded finding while allowing the revision that proper opportunity was not afforded to the contesting respondents, who were recorded in the basic year entry as well as no issues were framed while deciding the title objection. They further submitted that no interference is required against the impugned remand order passed by the Deputy Director of Consolidation.

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

7. There is no dispute about the fact that title objection filed by the petitioner against the basic year entry was decided by the Consolidation Officer expunging the basic year entry. There is also no dispute about the fact that title appeal filed by the petitioner was dismissed but revision under Section 48 of U.P.C.H. Act has been allowed and matter has been remanded back before the Consolidation Officer to decide the title objection afresh on merit.

8. In order to appreciate the controversy, perusal of Rule 26 (2) Of U.P.C.H Rule is relevant, which is as under:

"Rule 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."

9. Perusal of order of Consolidation Officer reveals that no issue was framed in the matter and the title objection has been decided by the Consolidation Officer.

10. This Court in case reported in 2015 (127) RD 163 Bansraj and others vs. Deputy Director of Consolidation, Basti and others has held that the title objection is to be decided after following the mandatory provisions of Rule 26 (2) of U.P.C.H. Rules. Paragraph Nos.10 & 11 of the judgment is relevant, which are as follows:

"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."

11. The revisional Court has recorded the finding that no issues were framed by the Consolidation Officer while expunging the basic year entry which is mandatory requirement of Rule 26 of U.P.C.H.Rules.

12. Considering the finding of fact recorded by the revisional court as well as provisions contained under Rule 26 (2) of U.P.C.H. Rules, no interference is required against the revisional order.

13. However, Consolidation Officer is directed to decide the aforementioned title objection after framing issues and giving opportunity to the parties to lead evidence in accordance with law expeditiously preferably within a period of six months from the date of production of certified copy of this order and without granting unnecessary adjournments to either of the parties.

14. The writ petition is finally disposed of accordingly.

Order Date :- 9.5.2023

PS*