Court No. - 21
Case :- WRIT - B No. - 1517 of 2021 Petitioner :- Fakiran And 9 Others Respondent :- Deputy Director Of Consolidation And 13 Others Counsel for Petitioner :- Awadhesh Kumar Singh Counsel for Respondent :- C.S.C.
Hon'ble Dinesh Pathak,J.
1. Heard Sri Awadhesh Kumar Singh, learned counsel for the petitioners, learned Standing Counsel represents responded nos. 1 & 2 and perused the record.
2. Petitioners have filed the instant writ petition invoking extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, challenging the order dated 23.09.2020 passed by the Deputy Director of Consolidation (respondent no.1).
3. Considering the facts of the case, question for consolidation in the instant writ petition lies in a narrow compass as to whether Deputy Director of Consolidation (respondent no.1) has justified in remitting the matter before Settlement Officer of Consolidation (respondent no.2) to search the original record of the court subordinate first and fix the responsibility of erring employees.
4. It is submitted by counsel for the petitioners that Fakiran and others (petitioners) have preferred an appeal dated 04.09.2000 against the order dated 10.01.1995 and 05.12.1994 passed by Consolidation Officer in a proceeding under Section 9-A(2) of UPCH Act in Case No.1424 of 1994. Since the date of filing of aforesaid appeal i.e. 04.09.2000, no order could be passed due to the missing of record of the court of Consolidation Officer. Ultimately, respondent no.2 has passed order dated 16.12.2019 (Annexure No.3) directing the parties for re-construction of record. Order dated 16.12.2019 was challenged in revision filed by Sharda and others (contesting respondents). Respondent No.1 has allowed the revision, vide impugned order dated 23.09.2020, remitting the matter before respondent no.2 to search the record of case no.1424 of 1994 (Shambhu @ Somaroo and others Vs. State) decided by order dated 10.01.1995 first and fix responsibility of the concerned officials and decide the appeal after obtaining the report qua record of court of the Consolidation Officer. Counsel for the petitioners has further submitted that in pursuance of the impugned order dated 23.09.2020 till date no fruitful steps have been taken by the respondent no.2 to search the record. Therefor, order passed by the respondent no.1 may be quashed and respondent no.2 may be directed to decide the appeal after re-construction of the record in pursuance of the earlier order dated 16.12.2019 passed by him.
5. Perusal of the order dated 23.09.2020 reveals that one Santosh Kumar Tiwari (Clerk) has submitted his report dated 30.08.2017 showing the availability of record of the court of Consolidation Officer attached with Appeal No.866/870 under section 11(1) of UPCH Act. When the record of the court of Consolidation Officer was not found in Appeal No.866/870 respondent no.2, vide order dated 28.03.2018, has called for the explanation from Santosh Kumar Tiwari, but the reply of the concerned clerk is not available on the record. There is no explicit report on record qua record in question so as to ascertain that by which challan number and on which date record was sent to Directorate. It is also not clear as to whether aforesaid record was returned back or not and as to whether weeded out or consigned to record room.
6. Considering the aforesaid aspects of the matter, respondent no.1 has made an observation that in absence of the specific report in this respect it would not be appropriate to direct to the parties for reconstruction of the record. Respondent no.1 has also considered the application dated 29.01.2019, by which prayer was made to send letter to the Directorate requesting for search of the record, but aforesaid letter has been ignored by respondent no.2. In the light of the aforesaid facts respondent no.1 has quashed the order dated 16.12.2019 passed by respondent no.2 for rec- construction of the record and remitted the matter to search the file and decide the revision after obtaining a specific report qua missing of record.
7. I have carefully considered the observation made by respondent no.1 and do not find any illegality or perversity as to warrant indulgence of this Court in exercise of extraordinary jurisdiction under Article 226 of Constitution of India. Respondent no.1 has not committed any error in passing the order dated 23.09.2020 and has rightly issued direction to respondent no.2 to decide the revision after obtaining the specific report and fix responsibility of the official concerned qua missing of the record of the court of Consolidation Officer.
8. However, protraction of the appeal is a matter of concern which is pending since 04.09.2000 and still hanging in the balance due to absence of record of the court of Consolidation Office. It is surprising that despite order dated 23.09.2020 till date no fruitful steps have been taken by respondent no.2 in compliance thereof and matter is left protracted since last one year from the date of order dated 23.09.2020, whereas direction was made to get a report and decide the appeal within two months.
9. In this conspectus as above, I am of the view that respondent no.2 must comply with the order dated 23.09.2020 passed by respondent no.1. It is expected that respondent no.2 shall take appropriate decision, whatsoever it may be, with respect to the search or reconstruction of the record of Case No.1424 of 1994 (Shambhu @ Someroo and others Vs. State) decided by order dated 10.01.1995 passed by Consolidation Officer, after obtaining the definite report.
10. As such, order dated 23.09.2020 passed by respondent no.1 is modified to the extent that respondent no.2 shall take afresh decision within two months qua existence of record in question and, after expire of the aforesaid two months, he shall proceed and decide the appeal, pending before him, within six months from the date of production of copy of this order which shall be filed by the petitioners within fifteen (15) days from today.
11. It is expected that it should be decided by reasoned and speaking order, in accordance with law, after affording opportunity of hearing to the parties concerned without granting unnecessary adjournments.
12. Instant writ petition is disposed of in the above terms with no orders as to costs.
13. The petitioners shall file computer generated copy of this order downloaded from the official website of High Court, Allahabad supported by an affidavit, which shall be verified by the concerned authority from the website of the High Court, Allahabad.
Order Date :- 28.9.2021 VKG