Court No. - 9
Case :- WRIT - B No. - 38534 of 2004 Petitioner :- Duryodhan Respondent :- D.D.C. And Others Counsel for Petitioner :- A.K. Maurya Counsel for Respondent :- C.S.C.,Anil Kumar Aditya,Anuj Kumar,Atul Kumar,R.P.Dubey,Sankatha Rai Hon'ble Salil Kumar Rai,J.
Heard the counsel for the parties.
The facts of the case are that during the consolidation operations in the village, an objection was filed under Section 9-A (2) of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act, 1953') praying to chuck out plot no. 33/4 (area 0.20 hectare) from consolidation operations claiming that the plot was the abadi of the petitioner. The plot was not shown as abadi in C.H. Form-2A. The Consolidation Officer vide his order dated 25.02.1993, chucked out plot no. 33/4 from consolidation operations on the ground that it was situated on the east of abadi and was between two roads. Against the order dated 25.02.1993 passed by the Consolidation Officer, an appeal was filed by the respondents under Section 11(1) of the Act, 1953 and the Settlement Officer of Consolidation vide his order dated 31.05.2001, set aside the order passed by the Consolidation Officer. In his order dated 31.05.2001, the Settlement Officer of Consolidation reasoned that the order dated 25.02.1993 had been passed in a very cryptic manner which was evident from the fact that order did not indicate that any case was registered on the objections allegedly filed under Section 9-A (2) of the Act, 1953 and there was no endorsement by the Consolidation Officer on the objections. In his order dated 31.05.2001, the Settlement Officer of Consolidation also recorded the fact that the order dated 25.02.1993 was passed without issuing notice to any of the defendants in the case and was passed on the application of a person who had no right in plot no. 33/4. Subsequently, the petitioner filed a recall application for recall of the order dated 25.02.1993. The recall application was time barred. The Settlement Officer of Consolidation vide his order dated 08.06.2004, recalled his previous order dated 31.05.2001 and restored the appeal to its original number on the ground that no Vakalatnama of the petitioner was available on the record and the proceedings in the appeal had not been signed by any counsel of the petitioner indicating that the petitioner had not been heard before passing the order dated 31.05.2001. Against the order dated 08.06.2004 passed by the Settlement Officer of Consolidation, the respondents filed Revision No. 1373 under Section 48 of the Act, 1953 before the Deputy Director of Consolidation, Varanasi, who vide his order dated 25.08.2004, allowed the revision and set aside the order dated 08.06.2004 passed by the Settlement Officer of Consolidation. The order dated 25.08.2004 passed by the Deputy Director of Consolidation, Varanasi has been challenged in the present writ petition.
In his order dated 25.08.2004, the Deputy Director of Consolidation has held that the recall application filed by the petitioner was time barred and the Settlement Officer of Consolidation had committed a material irregularity of law in recalling his previous order dated 31.05.2001 without condoning the delay in filing the recall application. In his order dated 25.08.2004, the Deputy Director of Consolidation further considered the merits of the different orders passed by the subordinate consolidation authorities referred above and held that the order dated 25.02.1993 passed by the Consolidation Officer was contrary to law and as the petitioner has been allotted a Chak on plot no. 33/4, according to his share, therefore, no material prejudice was caused to the petitioner by the order dated 31.05.2001.
It was argued by the counsel for the petitioner that from the recital in the order dated 08.06.2004 passed by the Settlement Officer of Consolidation, it was evident that the order dated 31.05.2001 was passed without hearing the petitioner and, therefore, there was no error in the order dated 08.06.2004 occasioning interference by the Deputy Director of Consolidation under Section 48 of the Act, 1953. It was further argued that the Deputy Director of Consolidation had exceeded his jurisdiction in considering the merits of the order dated 25.02.1993 passed by the Consolidation Officer and the order dated 31.05.2001 passed by the Settlement Officer of Consolidation. It was argued that for the aforesaid reason, the order dated 25.08.2004 passed by the Deputy Director of Consolidation is contrary to law and is liable to be set aside. Rebutting the argument of the counsel for the petitioner, the counsel for the respondent has supported the order dated 25.08.2004 passed by the Deputy Director of Consolidation and the reasons given in the same.
I have considered the submissions of the counsel for the parties.
A reading of the order dated 08.06.2004 passed by the Settlement Officer of Consolidation shows that no findings have been recorded by the Settlement Officer of Consolidation, that notices in the appeal were not served on the petitioner. In absence of such finding by the Settlement Officer of Consolidation, it cannot be said that the petitioner did not get an opportunity of hearing in the appeal. Whether the petitioner availed the opportunity or not would be a different issue. The absence of Vakalatnama in the records of the appeal or the absence of signatures of the counsel for the petitioner in the appeal could be for any reason and one of them could be that the petitioner, despite notice, did not intend to contest the appeal. In the circumstances, it was mandatory for the Settlement Officer of Consolidation to record a finding on the issue regarding service of notice on the petitioner. No such finding has been recorded by the Settlement Officer of Consolidation in his order dated 08.06.2004.
Apart from the aforesaid, a reading of the order dated 08.06.2004 passed by the Settlement Officer of Consolidation also shows that the delay in filing the recall application has not been condoned by the Settlement Officer of Consolidation before recalling the order dated 31.05.2001. Apparently, the Settlement Officer of Consolidation committed a material irregularity in recalling the order dated 31.05.2001 without condoning the delay in filing the recall application. There is no illegality in the opinion of the Deputy Director of Consolidation that for the said reason, the order dated 08.06.2004 passed by the Settlement Officer of Consolidation was illegal.
Apart from the aforesaid, a reading of the order dated 25.02.1993 shows that plot no. 33/4 had been chucked out by the Consolidation Officer only on the ground that the said plot was near abadi and situated between two roads. In his order dated 25.08.2004, the Deputy Director of Consolidation has rightly held that the said ground was not a valid ground, by itself, to chuck out any plot from the consolidation operations. In his order dated 31.05.2001, the Settlement Officer of Consolidation has also noted the cryptic manner in which the order dated 25.02.1993 was passed and that the order had been passed without following the procedure prescribed in law, i.e., without registering any case under Section 9-A (2) of the Act, 1953. Assuming for a moment that there may be some illegality in the order dated 25.08.2004 passed by the Deputy Director of Consolidation, the same cannot be a ground to set aside the said order as setting aside the order of the Deputy Director of Consolidation would amount to restoring an illegality brought in existence by the order dated 25.02.1993. It is not the practice of the writ Courts to set aside one illegal order to restore another illegality. Further as noted in the order dated 25.08.2004, the petitioner has already been granted a Chak according to his share in the disputed plot and, therefore, no material prejudice was caused to him so as to recall the order dated 31.05.2001.
In view of the aforesaid, there is no illegality in the order dated 25.08.2004 passed by the Deputy Director of Consolidation.
The writ petition lacks merit and is, hereby, dismissed.
Order Date :- 24.9.2021 Rameez