Heard learned counsel for the petitioners Sri Shyam Krishna and Sri J.A. Azmi for the respondent no. 4. No one has put in appearance on behalf of the respondent no. 3 inspite of service of notice.
This is a peculiar case where the court has an inkling that the file of the Consolidation Officer has either been lost or has been deliberately removed to gain advantage this way or that.
The dispute appears to have arisen out of proceedings under Section 12 of the U.P. Consolidation of Holdings Act, 1953. The father of the petitioner no. 1 and the respondent no. 3 are stated to be real brothers and co-tenants of the disputed land. The petitioner no. 1 claims himself to be the purchaser from the respondent no. 3. After purchase of the area covered under the sale deed an application appears to have filed under Section 12 for mutation. The petitioner no. 2 also appears to have applied for mutation. The contention of the petitioners is that the mutation was carried out on the basis of a compromise and an order to that effect was passed on 5.11.1986.
Harkh Chand is alleged to have filed an appeal against the said order. A copy of the memo of appeal is Annexure-2 to the writ petition. The memo of appeal initially indicated that it was filed against an order dated 21st July, 1980 passed by the consolidation Officer. Later on an amendment is said to have been moved contending that the said date of the order be amended as 5.11.1986 whereafter the appeal proceeded and was allowed on 31st January, 2003 recording a finding categorically to the effect that the records of the court of the Consolidation Officer were not available. It was also recited in the order that the respondent in the appeal namely the petitioner no. 1 herein had not put in appearance.
On coming to know of the said order of the Settlement Officer Consolidation a restoration was filed on behalf of the petitioner no.1 copy whereof is Annexure 4 to the writ petition.
The application for restoration was also accompanied by a stay application dated 21.2.2004 copy whereof is Annexure 6 on which an order came to be passed on the same day restraining the parties from transferring the land in dispute.
It appears that a reference was prepared by the Consolidation Authorities for approval, copy whereof is Anneuxre 7 to the writ petition. The said reference was accepted on basis of the order dated 31st January, 2003 that is the appellate order referred to hereinabove and the order of the Assistant Consolidation Officer dated 31.5.2004.
The reference came to be accepted and the petitioner Bridhi Chand who had filed an objection on 13.2.2007 before the Deputy Director of Consolidation has filed this petition against the final order dated 20.3.2007.
The contention raised is that the reference could not have been accepted as it was a clear dispute relating to the mutation order being passed on the basis of an alleged compromise which according to the petitioners had already taken place and formed part of the order dated 5.11.1986.
Learned counsel for the respondent submits that the order dated 5.11.1986 was absolutely erroneous, inasmuch as, no such compromise had taken place and therefore the appeal had been filed which was allowed setting aside the order dated 5.11.1986.
Sri J.A. Azmi further submits that the sale deed which has been executed in favour of the respondent no. 4 dated 30.1.2004 by Harkh Chand is a valid sale deed as such the reference has been rightly accepted.
This is being disputed by the petitioners on the ground that the sale deed cannot be of the area which has already been purchased by the petitioner no. 1 and therefore the matter ought to have been decided after hearing the petitioners. It is urged that the appeal was allowed ex-parte without calling for the records of the Consolidation Officer and the restoration is still pending which has not been disposed of till date, hence, acceptance of the reference in between was patently illegal.
Having perused the records and having considered the submissions raised, this is a peculiar case where the appeal was filed against the order dated 5.11.1986 and the same has been allowed without even calling for the records of the Consolidation Officer. The Settlement Officer Consolidation has clearly recorded that the file was not available. If that was so, then it was the duty of the Settlement Officer Consolidation to have summoned the records of the Consolidation Officer or get it reconstructed in case it was missing. No enquiry worth the name appears to have been held on this count by the Settlement Officer Consolidation and without verifying the facts relating to the order passed under Section 12 on 5.11.1986, the Settlement Officer Consolidation proceeded to pass the order dated 31.1.2003. The reference has been prepared on the basis of the said order.
In the opinion of the court the order of reference is founded on the order of the Settlement Officer Consolidation which otherwise is illegal. This court has the power to mould the relief as prayed for, and in exercise of such powers I find it necessary that the order of the Settlement Officer Consolidation dated 31.1.2003 also deserves to be set aside. This is an extraordinary situation requiring an extraordinary remedy in order to do complete justice between the parties. Reference be had to the scope of such powers being exercised by the High Court under Article 226 of the Constitution explained in the cases of S. Barrow Vs. State of U.P. & another AIR 1958 Alld. Pg. 154, Smt. Abida Begam Vs. Rent Control and Eviction Officer, Lucknow and another AIR 1959 Alld. Pg. 675 and Dr. Ravindra Kumar Goel and others Vs. State of U.P. and another 2004 ALR (2) Pg. 807 (Pagraphs 19 to 22). The petitioner had already filed a restoration application before the Settlement Officer Consolidation. I am of the considered opinion that a case for restoration was made out in the absence of the file of the Consolidation Officer. The case could not have proceeded before the Settlement Officer Consolidation which according to the order dated 31.1.2003 was ex-parte and a decision without records.
Accordingly, the writ petition is allowed. The order of the Settlement Officer Consolidation dated 31st January, 2003 as well as the order of reference dated 20.3.2007 are both set aside. The matter shall now stand transmitted to the Consolidation Officer of the area concerned who shall summon the records of the file which is stated to have been decided on 5.11.1986. In the event the records are not available, the same shall be reconstructed and the petitioners and the contesting respondents shall co-operate with the Consolidation Officer in reconstruction of the file, the order whereof finds endorsed in C.H. Form 23. The Consolidation Officer after verifying the status of the said file shall proceed to decide the objections to be filed by the parties in relation to their respective claims and thereafter pass an order preferably within three months of the date of presentation of a certified copy of this order before him.
The writ petition is allowed.
Order Date :- 4.1.2012/Sahu