Smt. Vimla Devi vs Deputy Director Of Consolidation ...
2023 Latest Caselaw 27390 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:64670
 
Court No. - 18
 
Case :- WRIT - B No. - 896 of 2023
 
Petitioner :- Smt. Vimla Devi
 
Respondent :- Deputy Director Of Consolidation Distt. Pratapgarh And 2 Others
 
Counsel for Petitioner :- Prabhakar Vardhan Chaudhary
 
Counsel for Respondent :- C.S.C.,S.P. Singh Somvanshi
 

 
Hon'ble Saurabh Lavania,J.

1. Heard learned counsel for the petitioner, Shri Hemant Kumar Pandey, learned Standing Counsel for State-respondent and Shri S.P. Singh Somvanshi, learned counsel for caveator/opposite party no. 3 i.e. Ram Sukh S/o Ram Newaj.

2. By means of the present petition, the petitioner has assailed the order dated 30.06.2023 passed by opposite party no.1/Deputy Director of Consolidation District Pratapgarh whereby he dismissed the petitioner's revision registered as Revision No. 766/719/2023 (Vimla Devi Vs. Ratti Devi).

3. It would be apt to indicate that after arguing the matter at some length, Shri S.P. Singh Somvanshi, learned counsel for caveator prays for time to file counter affidavit. The prayer sought is rejected. It is for the reason that without delving in the facts of the case, this petition can be decided on legal issue involved in the petition and as such, providing time to file counter affidavit and in keeping the present petition pending, no fruitful purpose would be served.

4. Aforesaid is for the reasons that Deputy Director of Consolidation District Pratapgarh (in short "DDC") passed an order dated 05.06.1985 and this order was challenged in Writ Petition (Consolidation) No. 3349 of 1985 (Ratti Devi Vs. Vimla Devi and Others), which was decided on 23.08.2006 and thereafter, the DDC passed the order dated 14.07.2017, which was again challenged before this Court in Writ Petition (Consolidation) No. 26533 of 2017 (Vimla Devi Vs. DDC and Others) and this writ petition was finally decided vide judgment and order dated 06.11.2017 and thereafter, the DDC dismissed the revision by the impugned order dated 30.06.2023 and the main ground of challenge in this petition is that the DDC has not decided the matter in terms of judgment and order of remand of this Court dated 06.11.2017.

5. The brief facts, which are relevant for the purpose of disposal of present petition, reads as under:

6. For the first time, the DDC passed an order on 05.06.1985 in Revision No. 423/661 and vide order dated 23.08.2006, this Court, on the ground that opportunity of hearing was not provided to the petitioner of the Writ Petition (Consolidation) No. 3349 of 1985 (Ratti Devi Vs. Vimla Devi and Others), interfered in the order of DDC dated 05.06.1985 and remanded the matter back for deciding the controversy afresh on merits after affording proper opportunity to the parties to the litigation. The order dated 23.08.2006, being relevant, on reproduction, reads as under:

"Feeling aggrieved with the impugned order dated 5.6.1985 passed by Deputy Director of Consoliation, Pratapgarh the petitioner has approach this Court under Article 227 of the Constitution of india with a assailing the impugned order it has been submitted by the petitioner's counsel that Lahuni died on 25.03.1981 and the sale deed dated 05.04.1981 was alleged to be executed in favour of the opposite party no.1, after death of Lahuri, Accordinly, the submission of the petitioner's counsel is that sale deed in question relief upon by the court below is ficious and forged. The other submission of the petitioner's counsel is that no opportunity of hearing was granted to the petitioner by the learned Deputy Director of Consolidation Pratapgarh while deciding the present controversy. Learned Counsel for the petitioner has relied upon the avernments contained in paragraph 12 and 13 of the writ petition. The respondents while filing the counter affidavit have no categorically denied the averments contained in paragraph 12 and 13 of the writ petition. According to the petitioner's counsel to petitioner has filed one certificate issued by the competent authority from death and birth register, which indicates that Lahuri died on 25.03.1981. On the other hand the respondents have filed the copy of the Kutumb Register indicating the death of Lahuri as 19.04.1981. Accordingly, whether the impugned death and birth register should be the basis to record a finding relating to death of Lahuri or the impugned Kutumb Register is a question, which calls for adjudication by the competent court.

Since, from the material on record it appears that Deputy Director of Consoliation, Pratapgarh has not provided opportunity of hearing to the petitioner while deciding the revision, the impugned order seems to be violative of principles of natural justice. Accordingly the writ petition deserves to be allowed. A writ in the nature of certiorari is issued quashing the impugned order datd 5.6.1985 passed by Deputy Director of Consolidation Pratapgarh opposite party no.3, as contained in annexure -5 to the writ petition with consequential benefits. The case is remanded back to the Deputy Director of Consolidation Pratapgarh for deciding the controversy afresh on merit after providing opportunity of hearing to the learned counsel for the parties, in accordance to law expeditiously and preferably within a period of four months from the date of receipt of certified copy of this order. The writ petition is allowed accordingly. No order as to costs."

7. It is apparent from the judgment and order dated 23.08.2006 passed by this Court that all the issues were required to be considered and decided by the DDC, as the matter was not remanded with specific terms/directions.

8. Thereafter, the DDC dismissed the revision numbered as Revision No. 982/1688 filed by the present petitioner vide order dated 14.07.2017 (Vimla Devi Vs. Ratti Devi).

9. This Court, after considering all the aspects of the case, interferred in the order of the DDC dated 14.07.2017 and remanded the matter back to the DDC for deciding the matter afresh vide order dated 06.11.2017 passed in Writ Petition (Consolidation) No. 26533 of 2017. The relevant portion reads as under:

"6. A perusal of the impugned order dated 14.07.2017 would show that the following two issues were framed by the Deputy Director of Consolidation in the said revision:-

1. ?? ?????? ????? ????? ???????? ?????? ?? ?? ?? ???? ????????? ?? ?????? ?? ??? ???? ????? ????? ?? ?????????? ?????

2. ???? ????? ???? ?????? ?? ???? ?? ????? ?? ???? ???

7. In so far as issue no. 1 is concerned, the Deputy Director of Consolidation has held that neither of the parties could verify the date of death of Lahuri alleged by them. It has also been held that the petitioner could not establish that Ratti Devi had remarried and accordingly the revision preferred by the petitioner was rejected.

8. The Deputy Director of Consolidation, on a misinterpretation of this Court's judgment, took the view that this Court had allowed the respondent's application for recall and set aside the order dated 19.10.1982. While setting aside the order dated 19.10.1982, the Deputy Director of Consolidation did not give any finding or reasons as to why the compromise filed in the matter was to be considered to be fraudulent or non-binding upon the parties, and as to why it was liable to be set aside. The revision was restored to its original number, and listed for hearing on merits. The application moved by Ratti Devi for recalling of the order dated 19.10.1982 was rejected with a specific finding that she could not establish that the alleged compromise had been forged. In the totality of the circumstances, the Deputy Director of Consolidation was obliged to first take into consideration the said fact and return a finding on the said issue. This has not been done. Effectively, the alleged compromise has been totally discarded without so much as a mention of its genuine or forged nature. No evidence was led by the respondent no. 3 or considered by the Deputy Director of Consolidation as far as the compromise is concerned. It has merely been set aside and ignored based upon this Court's order dated 23.08.2006, which itself did not give any finding on the compromise and had merely set aside the order dated 05.06.1985.

9. In these circumstances, with the consent of the counsel for the contesting parties, the judgment and order dated 14.07.2017 passed by the Deputy Director of Consolidation impugned in the present writ petition is set aside.

10. The matter is remanded back to the Deputy Director of Consolidation, Pratapgarh to decide the matter afresh in the light of the observations made above within a maximum period of six months from the date a certified copy of this order is served upon him.

11. Till the disposal of the revision, the parties shall maintain status quo and shall not alienate the property in question"

10. A perusal of order dated 06.11.2017 indicates that the DDC was under obligation to return a finding on the issue related to the compromise and as such, taking note of this aspect of the matter, the impugned order dated 30.06.2023 is to be looked into.

11. For the aforesaid purpose, the relevant observations of the order impugned dated 30.06.2023 are relevant which are as under:

"?????? ?? ?????? ?? ????? ??? ???????? ?? ?????? ????????? ?? ??????? ?? ?? ????? ???? ?? ?? ?????? ?? ???? ???? ????????? ?? ????? ?? ????? ??? ?????? ?? ??? ????????? ?? ????????? ?? ????? ???? ??????? ??? ???????????? ?????? ?? ??? ?? ??? ?? ?? ????????? ?? ?????? ?? ??? ??? ????? ?? ???????? ?? ?????????? ?? ???? ????? ?? ????? ???? ???? ???????? ?? ?????????? ?????? ??? ??? ??????? ???? ???????? ???? ??? ?? ????? ?? ?????? ?? ?? ???? ???????? ?? ????? ???? ??? ???????? ?? ?????? ??? ??? ????? ???? ?? ???? ?? ??? ????? ?? ??? ??? ???? ???????? ???? ???? ?? ???? ??? ???????????? ??? ??? ??? ????? ?? ??? ??? ?? ?????? ???????? ??????? ???????? ???? ???????? ??? ???? ??? ?? ?????????? ??? ?? ????? ????? ??? ????? ?????? ????? ??? ?? ??? ??? ?? ?? ???? ?????? ?????????? ???? ???? ??? ??? ????? ????????? ??? ?? ????????? ?? ???????? ?? ????? ?????? ?? ??? ??? ????? ???? ????? ??? ?? ?????? ?? ????????? ???? ??? ???? ?? ?? ???????? ?????? ?? ?? ?? ????? ????? ?? ???? ????? ?? ??? ????? ???, ????? ????????? ?? ???????? ?? ??????? ??? ???? ?????? ????? ???? ????? ?? ????????? ????? ???? ?????? ?????? ?? ?????? ?? ???? ?? ?? ?? ?? ???? ??? ?? ????? ???? ?????? ???? ?? ?? ?????? ?? ??? ????? ?????? ????? ??? ??? ???? ?? ?? ?? ??? ????? ???? ???? ????????? ?? ????? ??? ?? ???? ??? ???????? ?? ?????? ????????? ?? ???????? ?? ?? ??? ????? ???? ??? ????????? ?? ????? ?? ???? ??????? ????? ???? ????????? ?? ??? ?? ?? ??????? ???? ?? ?? ?? ???? ??? ??? ????????? ?? ?????? ?? ??? ?????? ?? ????????? ???? ?? ?????? ???? ?? ?????????? ??? ???? ??? ????????? ????? ?? ???????????? ?? ??????? ???? ????????? ??? ?? ?? ?????? ?? ?? ??? ????? ???? ?????? ??? ?????????? ???? ???? ???? ????? ???????????? ?? ?????? ?? ???? ?? ???????? ?? ??? ??? ?? ?? ??????? ?? ?? ??? ????? ???? ?? ???????? ???????????? ???, ?? ???????? ?? ?????? ???? ?? ? ???? ?? ?????? ????? ???????? ??? ???? ?? ?????? ?? ?? ???????????? ????? ?? ???????? ?? ?????? ?? ??????? ?????? ???? ??? ??? ?????? ????????? ?? ?????? ?? ??? ???? ????? ?? ????? ? ????? ???? ?? ??? ???? ????? ????? ???? ?? ??? ????????? ??????????? ????? ??? ??? ????????? ??? ?? ?? ????????? ???? ?? ?? ??? ????? ????????? ?? ???? ????? ??? ????? ?? ?? ???? ?????? ?? ???????? ?????? ???? ???? ???? ?? ??????? ???? ???? ????? ??????? ??????? ??, ?? ?????? ??? ???? ????? ???"

12. From the aforesaid observations/findings of the DDC in impugned order dated 30.06.2023, it is apparent that he has not made any whisper with regard to compromise though as per order of writ Court dated 06.11.2017, the DDC was under obligation to return a finding on the same.

13. The law on the issue, dealing with the case in terms/directions of remand order, is settled by this Court as also by the Hon'ble Apex Court in various pronouncements. As per the same, the Court, to which the matter was remanded back for deciding the same a fresh with certain terms/directions, cannot deviate from the said terms/directions indicated in the the order of remand. Reference can be made to the following judgments.

14. In the case of Rama Kant vs. Board of Revenue & others; reported in 2005 SCC OnLine All 49, this Court observed as under:-

"7.The order of remand dated 22.11.1979, became final between the parties an same was not challenged. Thus, it was not open to the trial court being an inferior court to reframe fresh issues and to record fresh findings. The only course open to the trial court was to give finding on the two issues reframed by the first appellate court and decide the suit accordingly as directed in the order of remand. The trial court exceeded its jurisdiction by travelling beyond directions contained in the remand order and this vital aspect have been illegally ignored by the court of first appeal as well as second appeal.

6.It is not open to an inferior Court or Tribunal to refuse to carry out the directions or to act contrary to directions issued by a superior Court or Tribunal. Such refusal to carry out the directions or to act in defiance of the directions issued by the superior Court or Tribunal is in effect denial of justice and is destructive of the basic principle of the administration of justice based on hierarchy of Courts in our country. If a subordinate Court or Tribunal refuses to carry out the directions given to it by a superior Court or Tribunal in exercise of its appellate power, the result would be chaos in the administration of justice."

15. In the case of Radha Raman Samanta vs. Bank of India; reported in (2004) 1 SCC 605, the Hon'ble Apex Court observed as under:-

"12. On the earlier occasion when the matter was considered by the Division Bench, the respondent Bank did not raise any issue of alternative remedy or any question relating to non-maintainability of the writ petition. We may also notice that when such issues might and ought to have been raised but had not been done so, it must be taken that the Division Bench had rejected such contentions and the order of the Division Bench remanding the matter to the learned Single Judge was not carried in appeal and became final. Therefore, the learned Single Judge was bound to address only on one issue upon which the matter had been remanded. Thus, the Division Bench could not have overlooked these facts in the appeal arising from the order of the learned Single Judge on the second occasion after remand and need not have gone into the question as to whether the writ petition could have been entertained at all or not. Therefore, we are of the view that the High Court could not have overlooked these facts and interfered with the order of the learned Single Judge."

16. In the case of Paper Products Limited vs. Commissioner of Central Excise, Mumbai; reported in (1999) 7 SCC 84, the Hon'ble Apex Court observed as under:-

"10. A bare reading of para 10 makes the position clear that it only related to the particular plea and no other plea which was covered by para 8. The scope of limited remand has been highlighted by this Court inMohan Lalv.Anandibai[(1971) 1 SCC 813 : AIR 1971 SC 2177] . It was observed at para 9 as follows: (SCC pp. 821-22)

"9. Lastly, counsel urged that now that the suit has been remanded to the trial court for reconsidering the plea of res judicata, the appellant should have been given an opportunity to amend the written statement so as to include pleadings in respect of the fraudulent nature and antedating of the gift deed Exhibit P-3. These questions having been decided by the High Court could not appropriately be made the subject-matter of a fresh trial. Further, as pointed out by the High Court, any suit on such pleas is already time-barred and it would be unfair to the plaintiff-respondents to allow these pleas to be raised by amendment of the written statement at this late stage. In the order, the High Court has stated that the judgments and decrees and findings of both the lower courts were being set aside and the case was being remanded to the trial court for a fresh decision on merits with advertence to the remarks in the judgment of the High Court. It was argued by learned counsel that, in making this order, the High Court has set aside all findings recorded on all issues by the trial court and the first appellate court. This is not a correct interpretation of the order. Obviously, in directing that findings of both courts are set aside, the High Court was referring to the points which the High Court considered and on which the High Court differed from the lower courts. Findings on other issues, which the High Court was not called upon to consider, cannot be deemed to be set aside by this order. Similarly, in permitting amendments, the High Court has given liberty to the present appellant to amend his written statement by setting out all the requisite particulars and details of his plea of res judicata, and has added that the trial court may also consider his prayer for allowing any other amendments. On the face of it, those other amendments, which could be allowed, must relate to this very plea of res judicata. It cannot be interpreted as giving liberty to the appellant to raise new pleas altogether which were not raised at the initial stage. The other amendments have to be those which are consequential to the amendment in respect of the plea of res judicata."

17. The Hon'ble Apex Court in the judgment of Bhopal Sugar Industries Ltd. Vs. Income Tax Officer, Bhopal reported in AIR 1961 Supreme Court 182 observed in Para 8 as under:

"We think that the learned Judicial Commissioner was clearly in error in holding that no manifest injustice resulted from the order of the respondent conveyed in his letter dated March 24, 1955. By that order the respondent virtually refused to carry out the directions which a superior tribunal had given to him in exercise of its appellate powers in respect of an order of assessment made by him. Such refusal is in effect a denial of justice, and is furthermore destructive of one of the basic principles in the administration of justice based as it is in this country on a hierarchy of courts. If a subordinate tribunal refuses to carry out directions given to it by a superior tribunal in the exercise of its appellate powers, the result will be chaos in the administration of justice and we have indeed found it very difficult to appreciate the process of reasoning by which the learned Judicial Commissioner while roundly condemning the respondent for refusing to carry out the directions of the superior tribunal, yet held that no manifest injustice resulted from such refusal."

18. Taking note of the aforesaid proposition of law and the judgment and order of remand passed by this court on 06.11.2017 in Writ Petition (Consolidation) No. 26533 of 2017 as also that DDC has not recorded any finding with regard to issue related to compromise, which ought to be recorded/returned in view of the order of remand of this Court dated 06.11.2017, this Court finds that impugned order dated 30.06.2023, Annexure No. 1 to the petition, is liable to be set aside. Accordingly, it is set aside.

19. The matter is remanded back to opposite party no. 1/Deputy Director of Consolidation, District - Pratapgarh to decide the revision afresh in the light of observation made by this Court in judgment and order dated 06.11.2017 as per which the DDC is under obligation to return a finding on the issue related to compromise.

20. The opposite party no.1/Deputy Director of Consolidation, District - Pratapgarh shall decide the matter within a period of three months from the date of receipt of certified copy of the order.

21. To conclude the proceedings, he shall not grant any adjournment to the parties to the litigation. It is for the reason that matter is extremely old.

22. With the aforesaid, the writ petition is allowed.

Order Date :- 6.10.2023/Mohit Singh/-