Ram Swaroop And Others vs Dy. Director Of Consolidation ...
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Allahabad High Court

Ram Swaroop And Others vs Dy. Director Of Consolidation ... on 22 May, 2024

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:92757
 
Court No. - 48
 
Case :- WRIT - B No. - 30798 of 2007
 
Petitioner :- Ram Swaroop And Others
 
Respondent :- Dy. Director Of Consolidation Saharanpur And Others
 
Counsel for Petitioner :- Suresh Chandra Varma,Raj Kishore Yadav,Sunil Kumar Srivastava
 
Counsel for Respondent :- C.S.C.,Ajay Kumar Sharma,Ajeet Srivastava,D.C. Dwivedi,Manu Sharma,S.K.Pundir,Shashi Dhar Dwivedi
 

 
Hon'ble Chandra Kumar Rai,J.
 

Order on C.M.Delay condonation Application No.6 of 2021 and C.M. Substitution Application No.7 of 2021

1. Heard learned counsel for the parties.

2. The instant substitution application along with delay condonation application have been filed to substitute the legal heirs of deceased-petitioner Nos.1 and 2.

3. Explanation given for delay in filing the substitution application is satisfactory.

4. Delay in filing the substitution application is condoned.

5. Mr. Suresh Chandra Varma, learned counsel for the petitioners submitted that Smt.Bala, wife of Ram Swaroop has expired during pendency of the instant application before this court, as such, the sons of deceased Ram Swaroop be substituted as heirs of petitioner Nos. 1.

6. Let the word 'deceased' be mentioned in respect to the petitioner No. 1 and 2 and name of their legal heirs Vipin Kumar, Shashi Kant, Vikash Kumar and Ravi Kant be substituted as petitioner Nos.1/1 to 1/4 and name of Romy Kant be substituted as petitioner No.2/1.

7. Applications are accordingly disposed of.

C.M. Impleadment Application No. 9 of 2023

1. Heard Mr. Manu Sharma, learned counsel for the applicant/respondent.

2. Instant application has been filed to impleade Arun Kumar son of Mahipal Singh as respondent in the instant petition.

3. Learned counsel for the applicant submitted that petitioner's father (Chandrapal) was party in Revision No. 1507 but Chandrapal has expired on 267.09.2018 as such applicant is to be impleaded in the instant petition as respondent

4. Considering the facts and circumstances of the case, there is need to implead the applicant in the instant petition rather applicant can file proper application in Revision No. 1507, which has been ordered to be decided afresh in pursuance of the final order passed in the instant petition.

5. With the above observation, application is disposed off.

Order on writ petition

1. Heard Mr. Suresh Chandra Varma, learned Counsel assisted by Mr. S. K. Srivastava, learned counsel for the petitioners, learned Standing Counsel for the State-respondents, Mr. Amit Kumar Chaudhary, learned counsel for respondents No. 2 and 3 as well as Mr. D.C. Dwivedi and Mr. S.D. Dwivedi, learned counsel for respondent Nos 4, 5 and 7.

2. The brief facts of the case are that petitioner No. 1 is Chak holder No. 1169 and petitioner Nos. 1, 2 and 3 are joint Chak holder No. 473. Chak objection filed against the proposal of Assistant Consolidation Officer was decided by Consolidation Officer vide order dated 29.07.2005. Petitioner filed three appeals under Section 21 (2) of U.P.C.H. Act against the order of Consolidation Officer. The aforementioned appeals were consolidated and heard together by Settlement Officer-Consolidation. The Settlement Officer-Consolidation vide order dated 7.11.2005 allowed the Chak Appeals filed by petitioners and orders passed by Consolidation Officer was modified. Against the appellate order dated 07.11.2005 Smt Shyamo Rani filed two revisions under Section 48 of U.P.C.H. Act, which were registered as revision No.1518 and 1256. The Deputy Director of Consolidation consolidated both the revisions and vide order dated05.09.2006 dismissed both the revisions. Against the order dated 5.9.2006 Shyamo Rani filed a recall application which was also dismissed by Deputy Director of Consolidation by order dated 11.1.2007. Against the order dated 11.1.2007, Shyamo Rani filed a writ petition no. 19804 of 2007 which was entertained and order for maintaining status quo was passed on 23.04.2007. Contesting respondents have also filed seven revision under Section 48 of U.P.C.H. Act before Deputy Director of Consolidation against the appellate order dated 07.11.2005 which were registered as Revision No.1507, 1503,1505, 1509, 1524, 1577, 1586. Aforementioned revision were Consolidated and heard together . The Deputy Director of Consolidation vide order dated 12.01.2007 allowed all the seven revisions, set aside the appellate orders and remanded he matter before Consolidation Officer to decide the chak objection afresh hence this writ petiton for following relief:

"(i) a suitable writ, order or direction in the nature of certiorari quashing the impugned order dated12.01.2007 (Annxure No.1) concerning Revision Nos. 1505 and 1507 ( Man Singh vs. Ram Swaroop and others and Jagdish vs. Ram Swaroop)."

3. This Court entertained the matter on 12.07.2007 and stayed the further proceeding before the Consolidation Officer in pursuance of the impugned order dated 12.07.2007.

4. In pursuance of the interim order dated 12.07.2007 parties have exchanged their pleadings.

5. Learned counsel for the petitioner submitted that Deputy Director of Consolidation had passed the impugned order in arbitrary manner remanding the case before the Consolidation Officer. He submitted that in any case, the matter can be decided by Deputy Director of Consolidation himself in view of provisions contained under Section 48 Explanation 3 of U.P.C.H. Act rather to remand the matter before the Consolidation Officer to decide the chak objection afresh. He further submitted that matter arises out of chak allotment proceeding as such, there was no need to remand the matter before Consolidation Officer as chak appeals have already been decided by Settlement Officer of Consolidation in accordance with the provision of U.P.C.H. Act.

6. On the other hand, Mr. Amit Chaudhury, Mr. D.C.Dwivedi, Mr. S.D. Dwivedi, learned counsel appearing for respondent Nos. 2, 3,4, 5 and 7 submitted that under the impugned order, matter has been remanded back to the Consolidation Officer, as such, no interference is required. They further submitted that Revisional Court has assigned reason in support of the order as such, writ petition is not maintainable against the remand order passed by Deputy Director of Consolidation under Section 48 of U.P.C.H. Act.

7. I have considered the argument advanced by learned counsel for the parties and perused the record.

8. There is no dispute about the fact that matter relate to the allotment of chaks and under the impugned order, the Deputy Director of Consolidation has remanded the matter before Consolidation Officer to decide the chak proceeding afresh.

9. In order to appreciate the controversy involved in the matter, perusal of order passed by Deputy Director of Consolidation in Revision Nos. 1503 and 1507 will be relevant, which is as under:

???????? D.D.C. SRE ??? ??? 1507 ???? 48

?????- ?????? ?? ?????? ????? ??? Vs ????????? ????

??? ??? 12.01.07

???????? ?? ?????? ???????, ?????????

??????? ??? 1507 ????? ???? ????????? ???

??????? ??? 1503 ????????? ???? ???? ???

??????? ??? 1505 ??????? ???? ????????? ???

??????? ??? 1509 ????????? ???? ????

??????? ??? 1524 ????????? ???? ???? ???

??????? ??? 1577 ????????? ???? ???? ???

??????? ??? 1586 ???? ???? ???

???????? ???? -48 ?????????

????? ???????, ?????-??????, ?????-???????, ????- ?????????

??????

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??????? ?????????? ?? ????? ?? ????????? ?? ?????? ???? ???????? ?? ??? ???? ???? ?? ?????? ??????? ??? 1507 ????? ???????? ????? ??? ?? ???? ??????? ??? 1503, 1505, 1509, 1524, 1577, 1586 ?? ?? ???? ?????

??????? ??? 1507-

???????? ??????? ????? ? ??? ??????? ?????? ?????? ?????? ?? ?????? ???????? ?? ???? ?????? 07.11.2005 ?? ??????? ?????? 01.12.05 ?? ?? ??? ?? ???????? ?? ?? ?? ???????????? ?? ?????? ???? ??? 2134/4 ???? 3.3.10 ??????? ???? ??? ??? ?? ????? ?? ??? 1084 ???? ??? ?? ????- 21(2) ?? ???? ?? ???? ?????? ?? ??? ?????? ???????? ?????? ??????? ???? ???? ??? ?? ???? ???? ?? ??? ?? ???? ??? ?? ??? ???? ???? ?? ?? ???? ?? ?????? ?? ???? ??. 2134/4 ?? ???? 3.3.10 ????????? ??? ?????

??????? ??? 1503-

???????? ??????? ????????? ????? ??????? ?????? ????? ?????? ?? ?????? ???????? ?? ???? ?????? 07.11.05 ?? ??????? ?? ??? ?? ???????? ?? ?? ?? ?????? ???????? ?? ???? ?????? ?? ??????? ????? ?? ????? ?? ?? ?????? ???? ???????????? ?? ????? ?? ???? ?? ???? ??? ???? ??? 2134/7 ?? ???????? ???? ?????

????? ?????? ? ???? ??????? ?????????? ?? ??? ?? ????? ????? ??????? ? ?? ??????? ?? ?????? ????? ????? ????? ?? ?? ?????? ???????? ?????? ???? ???? ?????? 07.11.2005 ?? ?????? ??????? ???? ?? ???? ?? ???? ??? ???? ???? ??? ?? ??? ????? ???? ?? ???? ?? ???? ??? ?? ????? ??????? ??? ??????? ?? ???? ?? ??? ???? ???? ?? ??? ???? ?? ??????? ?? ???? ???????? ?? ??? ??????? ??? ?????????? ?? ??????? ???? ???? ??? ??? ???????? ??????? ??????? ?? ?? ??????? ?? ??? ????????????? ???? ???? ?? ?? ?? ?????? ?? ????? ??? ???????? ?? ???-????? ??????? ???? ???? ??? ?? ???????? ??? -??? ?? ???? ????????? ?????

????

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??????? ????? ?? ???? ?? ??????? ??? 1507, 1503, 1505, 1509, 1524, 1577, 1586 ??????? ?? ???? ?? ??? ?????? ???????? ?????? ???? ??????- 1073, 916, 972 ??? ????? ???? ?????? 07.11.2005 ?????? ???? ???? ??? ??? ???????? ??????? ??????? ?? ?? ??????? ?? ??? ????????????? ???? ???? ?? ?? ?? ?????? ?? ????? ??? ???????? ?? ????-????? ??????? ???? ???? ??? ?? ???????? ??? ??? ?? ???? ?? ???? ????????? ????? ???? ??????? ??????? ???? ?? ???????? ??? ?????? 25.1.2007 ?? ??????? ??? ?????? ?????? ???????? ????? ????? ???

?????

12.1.2007

(????? ???? ?????)

?? ?????? ???????,

?????????

10. The perusal of Section 48 of U.P.C.H. Act will be also relevant which is as under:

(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."

11. In view of the provisions contained under section 48 of U.P.C.H. Act as quoted above, the Deputy Director of Consolidation can himself decide the revision rather to remand the matter before Consolidation Officer to decide the chak objection afresh.

12. This Court in case reported in 2020 (148) RD 114 Lakshmania Versus D.D.C. Deoria and others has considered the scope of Section-48 Explanation 3 of UP.C.H. Act. Paragraph No.44 of the judgment is relevant for perusal, which is as under:

"44. In this case, the objections were filed in the year 1981, and, therefore, the amended provisions of Section 48, operative retrospectively, would squarely apply. Under the amended statute, the Revisional Court has been conferred with unique powers by virtue of the added Explanation 3 to go into the correctness, legality or propriety of an order passed by an Authority below, whether on fact or law, and includes the powers to appreciate any oral or documentary evidence. Thus, to the understanding of this Court, in view of the added Explanation by U.P. Act no.3 of 2002, retrospectively w.e.f. 10.11.1980, the Revisional Court is in no manner inhibited from examining any question of fact or law, or appreciating evidence whether documentary or oral, virtually like any other Court of fact and law. It is a unique position that the Revisional Authority enjoys, under Section 48 of the Act, conventionally not associated with the exercise of revisional jurisdiction."

13. Considering the entire facts and circumstances of the case as well as ratio of law laid down by this Court in Lakshmania (Supra) the impugned order dated 12.01.2007 passed in Revision Nos. 1505 and 1507 are liable to be set aside and the same are hereby set aside. Writ Petition is allowed in part and matter is remanded back before Deputy Director of Consolidation-respondent No.1 to register the aforementioned revision on their original numbers and decide the same afresh after notice and opportunity of hearing to the parties expeditiously preferably within a period of four months from the date of production of certified copy of this order before him.

Order Date :- 22.5.2024

PS*