Allahabad High Court
Shahid And 4 Others vs State Of U.P. And 3 Others on 7 November, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:197102
HIGH COURT OF JUDICATURE AT ALLAHABAD
WRIT - B No. - 4200 of 2025
Shahid And 4 Others
.....Petitioner(s)
Versus
State Of U.P. And 3 Others
.....Respondent(s)
Counsel for Petitioner(s)
:
Manish Joshi, Sudhakar Yadav
Counsel for Respondent(s)
:
C.S.C.
Court No. - 55
HON'BLE CHANDRA KUMAR RAI, J.
1. Heard learned counsel for the petitioners and Mr. Shailesh Srivastava, learned Standing Counsel for the State-respondents.
2. With the consent of the learned counsel for the parties, the instant writ petition is decided finally without inviting counter affidavit.
3. Brief facts of the case are that on the basis of the report of the authorities, entry of the plot in question has been expunged by Consolidation officer vide order dated 19.11.2020. Revison under Section 48 of U.AP.C.H. Act filed by petitioners has been dismissed by Deputy Director of Consolidation vide order dated 23.7.2025. Hence this writ petition filed for the following relief:-
"I. issue a writ, order direction in the nature certiorari to quash the impugned order dated 23-07-2025 passed by respondent No.2/ Deputy Director of consolidation Moradabad District Moradabad in revision No.0551 of 2024 as well as 258/202454135400000551 in proceedings under section 48(1) of U.P. Consolidation of Holding Act 1953. and order dated 19.11.2020 passed by the respondent no.3, consolidation Officer (1s?) Moradabad in case no. 1057/2020 in a proceedings under section 9A(2) U.P. Consolidation of Holding Act (Annexure No.5 and 7) to this writ petition.
ii.issue a writ, order or direction in the nature of mandamus commanding and directing the direct the respondents not to dispossessed the petitioners over the land in dispute during pendency of present writ petition before this Hon'ble Court."
4. Learned counsel for the petitioners submitted that entry of the plot in question has been expunged by consolidation officer in ex parte manner. He submitted that petitioners were recorded over the plot in question but without any notice and opportunity of hearing to the petitioners, who are sons of recorded tenure holder, the entry has been expunged. He submitted that revision filed by petitioners has been dismissed without considering the case of the petitioners as set up in revison. He further submitted that petitioners' predecessor purchased the plot in question from the recorded tenure holder, who was recorded as bhumidhar with transferable right over the plot in question, as such the entry of the plot in question cannot be expunged unless the lease executed in favour of the vendor of the petitioners' predecessor is cancelled in accordance with law. He submitted that proper procedure as prescribed under Rule 26(2) of U.P. C.H. Rules for deciding the dispute under Section 9-A (2) of U.P.C.H. Act has not been followed, as such the order passed by Consolidation Officer cannot be sustained in the eye of law.
5. On the other hand, learned Standing Counsel for the State-respondents submitted that in view of the earlier entry of the plot in question, no right will accrue to the petitioners, or their predecessor, or vendor of the petitioners' predecessor. He submitted that Consolidation Officer has exercised the jurisdiction in proper manner and order has been maintained in revision recording the finding of fact, as such no interference is required in the matter.
6. I have considered the arguments advanced by the learned counsel for the parties and perused the record.
7. There is no dispute about the fact that in the proceeding under Section 9-A (2) of U.P.C.H. Act entry of the plot in question has been expunged by the consolidation officer and the same was ordered to be recorded as class-6(4) category plot in the records. There is also no dispute about the fact that revision under Section 48 (1) of U.P.C.H.Act filed by petitioners has been dismissed under the impugned order.
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. This Court in case reported in 2015 (127) RD 163 Bansraj and others vs. Deputy Director of Consolidation, Basti and others has held that provisions contained under Rule 26 (2) of U.P.C.H. Rule is mandatory in nature and order passed without following the provisions contained under Rule 26 (2) of U.P.C.H. Rule will be illegal.
10. 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. Perusal of the records demonstrate that entry of the plot in question has been expunged without any notice or opportunity of hearing to the petitioners who are legal heirs of the recorded tenure holder. It is also material to mention that recorded tenure holder Nafisa mother of the petitioners has expired. It is also material to mention that petitioners' predecessor has purchased plot in question, from the tenure holders,who were recorded as bhumidhar with transferable rights in the revenue records, as such opportunity of hearing is to be afforded to the recorded tenure holder/ legal heirs of the recorded tenure holder in case of death of tenure holder concerned. In the instant matter, Consolidation Officer has expunged the entry only on the basis of the report of the consolidation authorities.
12. Considering the facts and circumstances of the case as well as in view of the ratio law laid down in Bansraj (Supra), provisions contained under Rule 26 (2) of U.P. C.H.Rules, the impugned order dated 23.7.2025 passed by respondent No.2/Deputy Director of Consolidation, Moradabad and 19.11.2020 passed by respondent No.3 Consolidation Officer (Ist) Moradabad are liable to be set aside and the same is set aside. The writ petition is allowed and matter is remitted back before consolidation officer, Moradabad to register the proceeding on its original number implead the petitioners as opposite parties and after affording proper opportunity of hearing to decide the proceeding considering the ratio of law laid down by this court (supra) expeditiously preferably within a period of four months from the date of production of certified copy of this order before him.
(Chandra Kumar Rai,J.)
November 7, 2025
PS*/C.Prakash
