Allahabad High Court
Krishna Kumar vs State Of U.P. & Others on 3 July, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No:- 2024:AHC:108408
Court No. 33
Reserved on: 28.5.2024
Delivered on: 3.7.2024
WRIT - B No. - 1636 of 2024
Petitioner :- Krishna Kumar
Respondent :- State of U.P. & Others
Counsel for Petitioner:- Mr. Ram Kishore Pandey,Advocate
Counsel for Respondent :- Mr. Rishikesh Tripathi, Advocate, Mr. Ashish Chandra Nishad, Standing Counsel
Hon'ble Chandra Kumar Rai,J.
1. Heard Sri Ram Kishore Pandey, learned counsel for the petitioner, Sri Rishikesh Tripathi, learned counsel for respondent no.3 and Sri Ashish Chandra Nishad, learned standing counsel for the state respondents.
2. Brief facts of the case are that dispute relates to plot of khata no.74, situated in village Mataundh, Pergana, Tahasil & District- Banda which was recorded in the basic year khatauni in the name of Gulab Shankar and Krishna Kumar (petitioner). Plot of khata no.185 was recorded in the name of petitioner's mother and Gulab Shanker and plot of khata no.190 was recorded in the name of Gulab Shanker and petitioner. The family pedigree of petitioner and respondent no.3 is as under:-
Shiv Balak
Kallu Raja Bhaiya Gulab Shanker
Krishna Kumar Sant Kumar (died issueless)
(petitioner) (respondent no.3)
Gulab Shanker died issueless, as such, name of petitioner and respondent no.3 were recorded on the basis of Pa Ka 11 in the year 1983. During consolidation operation, plots of aforementioned khata were ordered to be recorded as ½ share each in the name of petitioner and respondent no.3 by the order of Assistant Consolidation Officer dated 26.11.1990 passed on the basis of compromise. Petitioner challenged the order dated 26.11.1990 by way of appeal under Section 11(1) of the U.P. Consolidation of Holdings Act, 1953 (herein referred to as "U.P. C.H. Act") along with prayer for condonation of delay of about 27 years in filing appeal. The Settlement Officer of Consolidation vide order dated 5.9.2018 condoned the delay of 27 year, set aside the order dated 26.11.1990 and remanded the matter before the Consolidation Officer to decide the matter afresh on merit. Respondent no.3 challenged the appellate order dated 5.9.2018 through revision under Section 48 of the U.P. C.H. Act before the Deputy Director of Consolidation which was registered as Revision No.0022 of 2019 (Computerized Case No.201953071100022). The Consolidation Officer in pursuance of the remand order dated 5.9.2018 passed in appeal, decided the title objection vide order dated 23.10.2020, declaring the ¾ share of petitioner and ¼ share of respondent no.3 in respect to plots of khata nos. 74 & 190. On the basis of the order dated 23.10.2020, Consolidation Officer has passed the order dated 18.1.2023 under Rule 109-A of the U.P. C.H. Rules, 1954 for implementation of the order. Respondent no.3 filed two separate appeals against the order dated 23.10.2020 and 18.1.2023 which are pending before the Settlement Officer of Consolidation. In Revision No.0022 of 2019, filed by respondent no.3, petitioner filed his objection, stating about the order passed by the Consolidation Officer dated 23.10.2020 & 18.1.2023 as well as pendency of the petitioner's appeal against the order dated 23.10.2020 and 18.1.2023 but the Deputy Director of Consolidation vide impugned order dated 27.3.2024 allowed the Revision No.0022 of 2019, setting side the order dated 5.9.2018 passed in appeal and remanded the matter before the appellate court/Settlement Officer of Consolidation to decide the appeal afresh after proper opportunity of hearing to respondent no.3 in respect to inordinate delay of 27 years in filing appeal. Hence this writ petition on behalf of the petitioner for following reliefs:-
"1. Issue a writ, order or direction in the nature of certiorari, quashing the impugned order dated 27.3.2024 passed by respondent no.2/D.D.C., Banda in Revision No.22/2019 (Sant Kumar vs. Krishna Kumar), under Section 48(1) of the U.P. C.H. Act (Computer Case No.2019530711000022) (Annexure No.1 to the writ petition.
2. Issue a writ, order or direction in the nature of mandamus, restraining the respondents from dispossessing the petitioner from the plot in dispute in pursuance of the impugned order and maintain status quo on the spot."
3. Counsel for the petitioner submitted that the Assistant Consolidation Officer has passed the order dated 26.11.1990 on the basis of fraudulent compromise, as such, the same has been rightly set aside in appeal after condonation of delay in filing appeal as well as remanding the matter before Consolidation Officer to decide the dispute of share on merit in accordance with law which is correct exercise of appellate jurisdiction under Section 11(1) of the U.P. C.H. Act. He further submitted that in pursuance of appellate order dated 5.9.2018, Consolidation Officer has decided the dispute of share between the parties giving ¾ share to petitioner and ¼ share to respondent no.3, as such, there was no occasion to the revisional court to exercise his revisional jurisdiction under Section 48 of the U.P. C.H. Act to set aside the appellate order dated 5.9.2018 which has already been given effect by Consolidation Officer in the proceeding under Section 9-A(2) of the U.P. C.H. Act and Rule 109-A of the U.P. C.H. Rules. He further submitted that appeals filed by respondent no.3 against the orders passed by the Consolidation Officer under Section 9-A(2) of the U.P. C.H. Act and Rule 109-A of the U.P. C.H. Rules are still pending before the Settlement Officer of Consolidation, as such, revisional court could not exercise his jurisdiction which had already become infrucutuous due to final decision taken by the Consolidation Officer under Section 9-A(2) of the U.P. C.H. Act. He further submitted that some evidence were filed by respondent no.3 for the first time in revision which has been illegally taken into consideration in spite of the objection filed by petitioner in revision, as such, the impugned revisional order dated 27.3.2024 is liable to be set aside. He further submitted that the Consolidation Officer has rightly decided the dispute regarding share, as such, the exercise of subsequent revisional jurisdiction to decide the time barred appeal afresh is abuse of the process of law.
4. On the other hand, learned counsel for respondent no.3 submitted under the order of the Assistant Consolidation Officer dated 26.11.1990, both parties have been given ½ share each in the plot in dispute and final records were prepared in the name of the respective parties. He further submitted that the parties are in possession of the plots in dispute, according to the order passed on 26.11.1990. He also submitted that the village in question has been denotified under Section 52 of the U.P. C.H. Act, as such, filing of appeal under Section 11(1) of the U.P. C.H. Act along with application under Section 5 of the Indian Limitation Act for condonation of delay of about 27 years is abuse of process of law. He also submitted that no opportunity of hearing was given to respondent no.3 before passing of appellate order dated 5.9.2018, as such, the same is liable to be set aside. He also submitted that abadi and residential construction of both the parties are situated over the plot in question and suit for partition of share filed by petitioner before the Sub Divisional Officer is pending, as such, there was no occasion to file appeal under Section 11(1) of the U.P. C.H. Act after 27 years against the order dated 26.11.1990. He further submitted that the Deputy Director of Consolidation has rightly exercised his revisional jurisdiction against the appellate order dated 5.9.2018 by which delay of 27 years has been condoned in ex parte manner as well as in ex parte manner the order dated 26.11.190 has been set aside and the matter has been remanded back before the Consolidation Officer to decide the dispute regarding share afresh. He submitted that in pursuance of the illegal and ex parte appellate order dated 5.9.2018, Consolidation Officer has passed the order dated 23.10.2020 in ex parte manner, declaring ¾ share of petitioner and ¼ share of respondent no.3 in respect to plots of khata nos. 74 & 190, without proper adjudication of dispute regarding share under Section 9-A(2) of the U.P. C.H. Act, accordingly, appeal filed by respondent no.3 is pending but the pendency of appeal cannot stop the Deputy Director of Consolidation to exercise his revisional jurisdiction under Section 48 of the U.P. C.H. Act against the appellate order dated 5.9.2018. He further placed the following judgment of Hon'ble Apex Court as well of this Court in support of his arguments:- AIR 2024 SC (Civil) 1127, Union of India and Another vs. Jahangir Byramji Jeejeebhoy; (2000) 6 Supreme Court Cases 359, Kunhayammed and Others vs. State of Kerela and Another; (2001) 10 Supreme Court Cases 191, State of Kerela vs. Puthenkavu N.S.S. Karayogam and Another; C.M.W. Petition No.25127 of 1989 decided on December 6, 1989, Ishwari and Others vs. Dy. Director of Consolidation and Others; C.M. Writ Petition No.23448 of 1989 decided on November 3, 1989, Dilbagh Singh vs. Dy. Director of Consolidation and Another; AIR 1965 Allahabad 296, Smt. Kanizan vs. Ghulam Nabi and Others and 2024 (163) RD 124, Smt. Yasmeen Zia vs. Smt. Haneefa Khursheed and Others.
5. In reply, counsel for the petitioner submitted that provisions of Civil Procedure Code are not applicable under U.P. C.H. Act, as such, the judgment relied upon by learned counsel for respondent no.3 will not be applicable in the instant matter. He placed reliance upon the judgment of this Court in support of his arguments:-AIR 1970 ALL 241, Bijai Narain Singh and Others vs. State of U.P.; Civil Misc. Writ Petition No.9278/1983 decided on August 25, 1983, Bullarey and Another vs. Dy. Director of Consolidation and Others; 2022(10) ADJ 190, Mohd. Imran vs. Deputy Director of Consolidation and Others and Civil Misc. Writ No.2758 of 1963 decided on April 26 1968, Mandir Shivji Maharaj vs. Commissioner.
6. I have considered the arguments advanced by learned counsel for the parties and perused the records.
7. There is no dispute about the fact that the Assistant Consolidation Officer under Section 9-A(2) of the U.P. C.H. Act has decided the dispute regarding share on the basis of compromise vide order dated 26.11.1990, giving ½ share each to petitioner and respondent no.3 in respect to the disputed khata. There is also no dispute about the fact that the village has been denotified under Section 52 of the U.P. C.H. Act and appeal under Section 11(1) of the U.P. C.H. Act has been filed by petitioner along with prayer for condonation of delay of 27 years. There is also no dispute about the fact that the Settlement Officer of Consolidation has condoned the delay of 27 years in filing appeal, set aside the order dated 26.11.1990 and remanded the matter before the Consolidation Officer to decide the dispute regarding share afresh. There is also no dispute about the fact that the Consolidation Officer has decided the dispute regarding share giving ¾ share to petitioner and ¼ share to respondent no.3, accordingly, respondent no.3 has filed appeal which is pending before the Settlement Officer of Consolidation. There is also no dispute about the fact that the revision filed under Section 48 of the U.P. C.H. Act filed by respondent no.3 against the appellate order dated 5.9.2018 has been allowed, setting aside the appellate order dated 5.9.2018 and remanded the matter back before the Settlement Officer of Consolidation to decide the appeal afresh, considering delay condonation matter in proper manner.
8. On the basis of rival submission, the issues which are to be examined in the matter is as to whether the Deputy Director of Consolidation is justified in passing the impugned revisional order, setting aside the appellate order dated 5.9.2018 and remanding the matter back before the appellate court / settlement officer of consolidation to decide the appeal afresh considering the delay condonation matter after affording proper opportunity of hearing to respondent no.3 especially when Consolidation Officer has already decided the dispute of share vide order dated 23.10.2020 during pendency of revision filed by respondent no.3.
9. It is material to mention here that under the order of Assistant Consolidation Officer dated 26.11.1990, petitioner and respondent no.3 have been given ½ share each in the disputed khata and village has also been denotified under Section 52 of the U.P. C.H. Act but appeal under Section 11(1) of the U.P. C.H. Act along with prayer for condonation of delay of 27 year in filing appeal has been filed by petitioner which has been allowed in ex parte manner by the Settlement Officer of Consolidation, condoning delay of 27 year, setting aside the order of Assistant Consolidation Officer dated 26.11.1990 as well as remanded the matter for decision of dispute regarding share on merit, accordingly, respondent no.3 challenged the appellate order dated 5.9.2018 in revision under Section 48 of the U.P. C.H. Act which remained pending and no interim order was operating, as such, Consolidation Officer has decided the matter in ex parte manner vide order dated 23.10.2020, declaring ¾ share of petitioner and ¼ share of respondent no.3 in the disputed khata. The perusal of the order of Consolidation Officer dated 23.10.2020 will be relevant which is as under:-
न्यायालय चकबन्दी अधिकारी, बांदा
वाद सं०- 842
कृष्णकुमार बनाम संत कुमार
धारा- 9ए(2) जोत चक० अधि०
ग्राम मटौंध, तहसील बाँदा
जनपद बाँदा
निर्णय
आज पत्रावली प्रस्तुत। सुना जा चुका है। पत्रावली का अवलोकन किया गया। पत्रावली ब०अ०च० न्यायालय बांदा से आदेश दिनांक 5.9.18 को प्रत्यावर्तित होकर 6.10.18 को प्राप्त हुई। पत्रावली में मुख्य विवाद विभाजन का है। प्रत्यावर्तन के बाद एक वाद बिन्दु निर्मित किया गया कि पक्षों के बीच अंश क्या है। पत्रावली में कृष्ण कुमार के तरफ से शपथ-पत्र के साथ एक सेजरा प्रस्तुत किया गया। नकल खतौनी 1390 से 1395 प्रस्तुत किया गया जिसमें एक अमलदरामद प०क०-11 से हुई है जिसमें स्पष्ट है कि गुलाब शंकर पुत्र शिवबालक मृतक का नाम खारिज होकर संत कुमार पुत्र राजा भइया व कृष्ण कुमार पुत्र कल्लू निवासी मटौंध का नाम बतौर वारिस दर्ज हो। आ०वर्ष के खतौनी में कृष्ण कुमार पुत्र कल्लू व गुलाब शंकर पुत्र शिवबालक निवासी ग्राम अंकित है। इस आधार पर कृष्ण कुमार ½ व गुलाब शंकर का ½ अंश के मालिक है। चूंकि गुलाब शंकर मृतक के स्थान पर कृष्ण कुमार व संत कुमार वारिस बने, इसलिए कृष्ण कुमार का ½ + ¼ व संत कुमार का ¼ अंश विभाजन होना उचित है।
आदेश
आदेश हुआ कि ग्राम मटौंध के खाता सं० 74, 190 में अंकित कृष्ण कुमार पुत्र कल्लू का अंश ¾ व संत कुमार का ¼ अंश अंकित किया जाता है। बाद अमलदरामद पत्रावली दा०द० हो।
ह० अ० 23.10.2020
(अजय कुमार सिंह) च०अ०, बांदा
10. The perusal of the order dated 23.10.2020 passed by the Consolidation Officer in the proceeding under Section 9-A(2) of the U.P. C.H. Act for adjudication of dispute regarding share, cannot be sustained in the eye of law as there is violation of mandatory provision contained under Rule 26(2) of U.P. C.H. Rules.
11. So far as exercise of appellate jurisdiction is concerned by which highly time-barred appeal has been allowed vide order dated 5.9.2018, the appellate court/Settlement Officer of Consolidation has condoned the delay of 27 year and set aside the order dated 26.11.1990 in ex parte manner, as such, Deputy Director of Consolidation has rightly exercised the revisional jurisdiction in setting aside the appellate order dated 5.9.2018 so that respondent no.3 may get opportunity to contest the proceeding of time-barred appeal. The revisonal court has also taken into consideration the fact regarding order dated 23.10.2020 passed by Consolidation Officer during pendency of revision as well as filing of appeal at the instance of respondent no.3 against the order of Consolidation Officer dated 23.10.2020 and held that time-barred appeal is to be decided afresh after proper opportunity of hearing to the parties including respondent no.3. The observation has also been made by Deputy Director of Consolidation that pending appeals against the order of Consolidation Officer, can be consolidated and heard together which is just and proper exercise of revisional jurisdiction under Section 48 of the U.P. C.H. Act.
12. It is made clear that order of Consolidation Officer dated 23.10.2020 cannot be sustained on merit, as such, Settlement Officer of Consolidation shall pass appropriate orders in pending appeal against the order dated 23.10.2020 and 18.1.2023.
13. On the point of applicability of the provisions of Code of Civil Procedure in the U.P. C.H. Act is concerned, the law is well settled that Code of Civil Procedure is not applicable in the proceedings under U.P. C.H. Act as held by Full Bench of this Court in Bijai Narain Singh (supra) but the substance and spirit of the provisions of C.P.C. can be applied in the ends of justice as held by this Court in Dilbagh Singh (supra).
14. On the point of exercise of writ jurisdiction 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 although the order impugned is illegal or irregular. Paragraph No.21 of the judgment rendered in Paras Nath Singh (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."
15. Considering the entire facts and circumstances of the case as well as ratio of law laid down by this Court from time to time as mentioned above, no interference is required against the impugned order dated 27.3.2024 passed by respondent no.2.
16. The writ petition stands dismissed.
17. However, the appellate court / Settlement Officer of Consolidation, Banda shall consolidate Appeal No.59 (Krishna Kumar vs. Sant Kumar) along with Appeal No.11 dated 17.8.2023 (Computerized Appeal No.202354071100000198) (Sant Kumar vs. Krishna Kumar) as well as Appeal No.4 dated 17.8.2023 (Computerized Appeal No.202354071100000199) (Sant Kumar vs. Krishna Kumar) and decide the same together, after proper notices and opportunity of hearing to both parties, expeditiously, in the light of the Division Bench judgment of this Court reported in 2022 (155) RD 309, Ram Prakash vs. D.D.C., Hardoi and Others.
Order Date :- 3.7.2024
C.Prakash
(Chandra Kumar Rai, J.)
