Court No. - 44
Case :- WRIT - B No. - 937 of 2019 Petitioner :- Bhagmani Devi And Another Respondent :- Deputy Director Of Consolidation And 3 Others Counsel for Petitioner :- Ram Dayal Tiwari,Sri M.D. Singh Shekhar,Vikas Mani Srivastava Counsel for Respondent :- C.S.C.,Adya Prasad Tewari,Sheo Shankar Tripathi
Hon'ble Rajiv Joshi,J.
Heard Sri M.D. Singh Shekhar, learned Senior Advocate assisted by Sri Vikas Mani Srivastava, learned counsel for the petitioners and Sri Adya Prasad Tiwari, learned counsel for the respondent no.4.
Learned counsel for the petitioners is permitted to correct the prayer clause during the course of the day.
Present writ petition has been filed challenging the order dated 16.1.2019 passed by the Deputy Director of Consolidation, whereby the revision filed by the petitioners was dismissed as time barred as well as not maintainable.
Facts as reflect from the record are that an objection was filed by the predecessor-in-interest of petitioners under Section 9A (2) of U.P.C.H. Act, 1953 (hereinafter referred to as Act, 1953) claiming their rights over the disputed land of plot no. 428, area 0.45 aire (11 decimal) pursuant to the sale deed dated 22.3.1974 executed by Ramdhani, father of respondent no.4.
Subsequently, on the basis of compromise under Rule 25A of U.P.C.H. Rules, 1954, the claim of the ancestors of petitioners was accepted and Consolidation Officer vide order dated 13.6.1990 allowed the objection of Shaila Devi on the basis of compromise. Subsequently, after the death of Ramdhani, respondent no.4 filed a recall application on 30.6.1998 on the ground that his father Ramdhani never made any compromise and therefore, the order be recalled. The said application was rejected by Consolidation Officer vide order dated 12.4.1999. Against that order, respondent no.4 filed a revision before Deputy Director of Consolidation bearing Revision No. 2430, which too was dismissed vide order dated 28.8.2001.
Subsequently, again an application was filed for recalling the order dated 28.8.2001 on 4.11.2003, which was allowed by the Deputy Director of Consolidation vide order dated 31.12.2008 and the order dated 28.8.2001 was recalled. Subsequently, a restoration application filed on behalf of contesting respondents was withdrawn. In the meantime, an appeal was filed by respondent no.4 challenging the order dated 13.6.1990 before the Settlement Officer Consolidation, which was allowed vide order dated 27.2.2015 and the matter was remanded to the Consolidation Officer after setting aside the order dated 13.6.1990. Against the order dated 27.2.2015, the petitioner filed a revision (registered as Revision No. 672) before the Deputy Director of Consolidation on 14.12.2015 under Section 48 (1) of U.P.C.H. Act.
During the pendency of the revision, since there was no interim order, the Consolidation Officer proceeded with the case and rejected the objection vide order dated 5/11.8.2015 filed by predecessor-in-interest of the petitioner pursuant to the remand order dated 27.2.2015. Subseuently, the petitioner challenged the order dated 5.8.2015 before the Settlement Officer of Consolidation by way of appeal being Appeal No. 316, which was dismissed vide order dated 25.6.2018.
The order dated 5/11.8.2015 passed by Consolidation Officer as well as order dated 25.6.2018 passed by Settlement Officer of Consolidation was challenged by the petitioner before the Deputy Director of Consolidation by way of revision, registered as Revision No. 490 of 2019, which remained pending. In the meantime, the revision bearing Revision No. 672 filed by the petitioner was dismissed vide order dated 16.1.2019.
The order dated 16.1.2019 passed by the Deputy Director of Consolidation is impugned in the present writ petition.
Contention of learned counsel for the petitioner is that revision has been dismissed on the ground of limitation as well as not maintainable, which is wholly illegal as the revision against the order of Settlement Officer of Consolidation remanding the matter to Consolidation Officer is very well maintainable in the eyes of law. It is further contended that against the order dated 27.2.2015 passed by Settlement Officer of Consolidation, the revision was filed on 14.12.2015 and thus there was a slight delay in filing of the revision which should not have been dismissed on the ground of limitation.
Learned counsel for the petitioner further invited the attention of this Court to the finding recorded by Deputy Director of Consolidation holding that the order passed by Consolidation Officer dated 5/11.8.2015 is fully correct and there is no illegality or infirmity in the same. The said finding cannot be recorded by Deputy Director of Consolidation in Revision No. 672 as the said order was under challenge alongwith the order of Settlement Officer of Consolidation before the Deputy Director of Consolidation in Revision No. 490, which is pending and therefore, the Deputy Diector of Consolidation has exceeded his jurisdiction in making such observation on the order passed by the Consolidation Officer after the remand.
It is further contended by learned counsel for the petitioner that the order dated 13.6.1990 was passed on the basis of compromise, which was affirmed upto the stage of Deputy Director of Consolidation and the finality of the said order has not been taken into consideration while remanding the matter as well as while deciding the revision vide order impugned.
On the other hand, learned counsel for respondent no.4 contended that order has rightly been passed by the revisional authority and there is no illegality or infirmity in the same. It is further contended that no doubt Revision No. 490 is pending before the Deputy Director of Consolidation against the order dated 5/11.8.2015 passed by Consolidation Officer as well as order dated 25.6.2018 passed by Settlement Officer of Consolidation. According to the learned counsel, he has no objection in case the observation of Deputy Director of Consolidation holding that the said order passed by the Consolidation Officer dated 5/11.8.2015 is correct, is quashed.
I have considered the rival submissions and perused the record.
It is admitted by both the parties that after the appeal was allowed by Settlement Officer of Consolidation vide order dated 27.2.2015 and the matter was remanded to Consolidation Officer for deciding the objection afresh, the Consolidation Officer proceeded with the case and dismissed the objection vide order dated 5/11.8.2015 and the appeal filed against the said order was also dismissed by Settlement Officer of Consolidation on 25.6.2018. Both the aforesaid orders were challenged in the revision filed by the petitioner bearing Revision No. 490 of 2019. Under these circumstances, the revision filed by the petitioner before the Deputy Director of Consolidation challenging the remand order of Settlement Officer of Consolidation dated 27.2.2015 had become infructuous and hence, the Deputy Director of Consolidation cannot touch the merit of the order dated 5/11.8.2015 by observing that the said order has rightly been passed by the Consolidation Officer.
It is also well settled that against the order of Settlement Officer of Consolidation remanding the matter to Consolidation Officer, revision is very well maintainable under Section 48 (1) of the Act. No doubt, the revision filed by the petitioner before the Deputy Director of Consolidation was slightly beyond time and hence the delay, under these circumstance, should have been condoned by the Deputy Director of Consolidation particularly when the revision was being dismissed on merits as well.
The Deputy Director of Consolidation appears to have committed an illegality while dismissing the revision on the ground of limitation as well as on merits, that too with the observation that the order passed after the remand by the Consolidation Officer dated 5/11.8.2015 is fully legal. In fact, the revision filed by the petitioner after the remand order passed by the Settlement Officer of Consolidation has given effect to and the revision has become infructuous.
Accordingly, present writ petition succeeds and is, allowed.
The impugned order dated 16.1.2019 passed by Deputy Director of Consolidation in Revision No. 672/2015 is hereby quashed and the said revision filed by the petitioner stands dismissed as having become infructuous.
It is further provided that whenever the petitioner raised his submission with regard to the finality of the order dated 13.6.1990, it is open to the petitioner to raise all such grounds in Revision No. 490 of 2019, which is pending before the Deputy Director of Consolidation.
Order Date :- 29.4.2019 Noman