Court No. - 9
Case :- WRIT - B No. - 5741 of 2018 Petitioner :- Devi Singh And 2 Others Respondent :- Additional District Magistrate (Administration) And 3 Others Counsel for Petitioner :- Kashi Nath Shukla Counsel for Respondent :- C.S.C.,Rajesh Dutta Pandey,Suresh Chandra Tripathi connected with Case :- WRIT - B No. - 5804 of 2018 Petitioner :- Suresh Singh Respondent :- Additional Collector (Administration) And 3 Other Counsel for Petitioner :- Kashi Nath Shukla Counsel for Respondent :- C.S.C.
Hon'ble Anjani Kumar Mishra,J.
Sri S.C. Tripathi, Advocate has filed his appearance on behalf of contesting respondent in Writ Petition No.5804 of 2018, in Court today.
These two writ petitions challenge the same impugned order.
I have heard counsel for the parties both the petitions and they are being decided finally with their consent without calling for a counter affidavit.
I have heard Sri R.C. Singh for the petitioners and Sri S.C. Tripathi for respondents 3 and 4 in Writ Petition No.5804 of 2018.
The remaining respondents are described as proforma respondents.
Similarly, I have heard Sri R.C. Singh for the petitioners in Writ Petition No.5741 of 2018 and Sri S.C. Tripathi for respondents 3 and 4. Respondents 5 and 6 are described as proforma respondents.
The instant writ petition arises out of an objection under Section 9-A (2) filed by the contesting respondents.
The objection was decided by the Consolidation Officer on 11.11.2003 and was allowed. The name of the petitioners was ordered to be expunged and the property was ordered to be recorded exclusively in the name of the objector. This order pertained to plot no.424 of Khata No.55, situated in Village Chhatikari, Pargana Vrindavan, Tehsil Sadar, District Mathura.
Against this order and alleging that it was passed ex-parte, a restoration application was filed by the petitioners in these two writ petitions, separately.
The restoration applications were allowed on 30.01.2014 and the objection was restored to its original number.
Against the order allowing the restoration, an appeal filed by the contesting respondents was rejected. However, the consequential revision has been allowed by the impugned order dated 22.11.2018 and the ex-parte order dated 11.11.2003 passed by the Consolidation Officer has been affirmed. Hence these writ petitions.
The contention of Sri R.C. Singh, counsel for the petitioners in both the petitions is that the objection was filed after second round of the consolidation operations in the unit had been closed by issuance of notification under Section 52 (1) of the Consolidation of Holdings Act, on 05.03.2010.
On the objection being filed, a report was called for from the Assistant Consolidation Officer, which report was incorrect inasmuch as it had been furnished after the notification under Section 52 of the Act had been issued closing consolidation operations but this fact was not mentioned in the report. The report was therefore, highly unreliable.
The next submission made that the impugned order holds an entry made in the year 1956 in the revenue record to be a fraudulent entry. This finding is vitiated on two grounds. One, it had been arrived at ex-parte without affording any opportunity of hearing or adducing evidence to the petitioners. Secondly, this objection has been raised for the first time after the close of the second round of consolidation operations. Even if it is assumed that the objection was filed during the currency, the second round of consolidation operations, yet, it would still be barred by Section 49 of U.P. Consolidation of Holdings Act, as no objection was filed by the contesting respondents in the first round of the consolidation operations.
It is lastly submitted that the matter has been decided finally by the order impugned without any trial because admittedly, the order dated 05.03.2010 affirmed by the Deputy Director of Consolidation was an ex-parte order.
Sri S.C. Tripathi appearing for the contesting respondents has supported the impugned order. He has submitted that once a finding of fraud has been returned, the issue of the objection in the order impugned of the reporting being barred by Section 49 of the U.P. Consolidation of Holdings Act, becomes redundant because fraud vitiates all solemn proceedings.
I have considered the submissions made by counsel for the parties and perused the record.
Prima-facie, it appears that the objection was barred by Section 49 of the Consolidation of Holdings Act because admittedly, the allegedly fraudulently entry is of the year 1956. Between 1956 and 11.11.2003 when the objection under Section 9 of the U.P. Consolidation of Holdings Act was actually filed at- least one round of consolidation operations had concluded in the unit. The other question over which the parties are at variance is whether the second round of consolidation operations had been closed.
To get over this legal bar of Section 49 of U.P. Consolidation of Holdings Act, the factum of fraud having been practised by the categorized petitioners is required to be established. Although, it is contended that a finding of fraud has been returned, but the fact remains the finding of fraud returned by the Consolidation Courts is a finding which has been recorded, ex-parte.
Under the circumstances, I have find substance in the submission of counsel for the petitioners that they were at-least entitled to one opportunity of hearing and of adducing evidence for establishing his claim to the land in question, which opportunity has been denied to him by the order impugned, on account of the order allowing their restoration application and restoring the objection of the respondent under Section 9-A (2), to its original number, having been set aside.
Under the circumstances, the impugned order passed by the Deputy Director of Consolidation dated 22.11.2018 is liable to be set aside and the matter is unable to be remanded back to the Deputy Director of Consolidation to pass a fresh order after hearing the parties and after affording them opportunity of adducing evidence, both oral and documentary.
Matter is being remanded to the Deputy Director of Consolidation in order to shorten the litigation between the parties and also in view of the third proviso to Section 48 of the Act, which provides that the Deputy Director of Consolidation is last Court of fact.
Accordingly, the petitions are allowed and the order dated 22.11.2018 is set aside and the matter is remanded back to the Deputy Director of Consolidation to pass a fresh order in accordance with the directions/observations made here- in-above, as expeditiously as possible.
Order Date :- 22.2.2019 Jitendra