Court No. - 45
Case :- WRIT - B No. - 24542 of 1994 Petitioner :- Gopi Nath And Others Respondent :- D.D.C. And Others Counsel for Petitioner :- S.N. Singh,A.K. Rai,H.S. Misra,Jagannath Singh,L.C.Srivastava,N.D.Keshri,P.K. Keshari Counsel for Respondent :- S.C.,R.K. Bind,Radhey Shyam,Rajesh Dwivedi,Satish Dwivedi
Hon'ble Salil Kumar Rai,J.
Heard Shri P.K.Keshri, counsel for the petitioners, Shri R.K.Bind, counsel for respondent no.8 as well as Shri Prem Shanker Kushwaha holding brief of Shri Satish Dwivedi representing respondent nos.4/1 to 4/5, 5, 6 & 7.
The facts of the case are that in the basic year, one Shri Kunwar Bahadur, the predecessor in interest of respondent no. 8 was recorded as tenure holder of the disputed plots. The petitioners filed objections under Section 9 of the U.P Consolidation of Holdings Act, 1953 (hereinafter referred to as Act, 1953) on which Case No.17 under Section 9-A(2) of the Act, 1953 was registered before the Consolidation Officer (hereinafter referred to as C.O). The said case was dismissed in default vide order dated 28.8.1984 passed by the C.O. The petitioners did not file any recall application for recall of the order dated 28.8.1984 and for restoring Case No.17 but filed a second objection and got registered another Case No.2287 of 1986 under Section 9-A(2) of the Act, 1953 before the C.O praying that they may be declared Sirdar of the disputed plots on the basis of their adverse possession over the disputed plots.
Subsequently, a compromise dated 21.8.1986 was filed before the C.O which was ostensibly signed by the petitioners and Kunwar Bahadur. The C.O. vide his order dated 21.8.1986 allowed the objections of the petitioners in terms of the compromise.
It appears from the record that some times in 1986, a notification under Section 52 of the Act, 1953 was also published but by that date, the petitioners were not recorded either as Bhumidar or Sirdar of the disputed plots in the consolidation records. After the order dated 21.8.1986 passed by the C.O, Kunwar Bahadur executed a sale deed dated 29.7.1987 in favour of respondent nos.4 to 7. The petitioners were recorded in the revenue records relating to the disputed plots on 21.2.1990, i.e. after publication of the notification under Section 52(2) of the Act, 1953. It appears that when respondent nos. 4 to 7 came to know about the entries in the revenue records and the order dated 21.8.1986 passed by the C.O, the respondent nos. 4 to 7 filed an application before the C.O for recall of the order dated 21.8.1986 along with an application to condone the delay in filing the same. The recall application was filed on 23.3.1990. Subsequently, Kunwar Bahadur also filed an application on 5.4.1990 for recall of the order dated 21.8.1986. The recall application filed by Kunwar Bahadur was supported by an affidavit and along with the said application, Kunwar Bahadur also filed an application to condone the delay in filing the recall application. In the affidavit filed in support of the recall application, Kunwar Bahadur stated that the order dated 21.8.1986 had been passed without issuing any notice to Kunwar Bahadur and behind his back implying that the comprise was not signed by him. Kunwar Bahadur died during the pendency of the recall application before the C.O.
While the recall application was still pending before the C.O, respondent no.8 and respondent nos. 4 to 7 also filed separate appeals under Section 11(1) of the Act, 1953 before the Settlement Officer of Consolidation (hereinafter referred to as S.O.C). The said appeals were filed on 25.9.1992 along with applications to condone the delay in filing the appeals. The appeal filed by respondent nos. 4 to 7 was numbered as Appeal No.258 and the appeal filed by respondent no.8 was numbered as Appeal No.259. The appeals were allowed by order dated 21.9.1993 passed by the S.O.C and the order dated 21.8.1986 passed by the C.O was set aside. Through his order dated 21.9.1993, the S.O.C further directed that the respondent nos. 4 to 8 be recorded as tenure holders of the disputed plots.
Aggrieved by the order dated 21.9.1993 passed by the S.O.C, allowing Appeal Nos.258/92 and 259/92, the petitioners filed Revision Nos.4099 and 5002 under Section 48(1) of the Act, 1953 before the Deputy Director of Consolidation, Allahabad (hereinafter referred to as D.D.C), i.e. respondent no.1. The respondent no.1 vide his order dated 12.7.1994 dismissed Revision Nos.4099 and 5002 filed by the petitioners. The orders dated 21.9.1993 and 12.7.1994 passed by S.O.C and D.D.C have been challenged in the present writ petition.
It has been argued by the counsel for the petitioners that assuming that the order dated 21.8.1986 passed by the C.O accepting the compromise was illegal and liable to be set aside, the S.O.C could have only remanded back the matter to the C.O to decide the objections of the petitioners on merits and the S.O.C had committed an error of law apparent on the face of record in directing that the name of the petitioners be deleted from the revenue records and in his place the respondent nos. 4 to 7 be recorded. It was argued by the counsel for the petitioners that assuming that the findings recorded by the S.O.C in his order dated 21.9.1993 were correct, the procedure followed by the C.O. was merely violative of Rule 25-A of the U.P Consolidation of Holdings Rules 1954 and therefore, the S.O.C should have remanded back the matter to the C.O to decide the objections of the petitioners in accordance with the procedure prescribed in Rule 26 of the Rules, 1954. In support of his arguments, the counsel for the petitioners has relied upon the judgment of this Court in Raja Ram versus D.D.C, Basti and others (1993) RD 32. It was argued by the counsel for the petitioners that in view of the Section 201 of the U.P Land Revenue Act, 1901 (hereinafter referred to as Act, 1901) read with Section 41 of the Act, 1953, the appeal was not maintainable and was therefore, liable to be dismissed. It was further argued by the counsel for the petitioners that in his order dated 12.7.1994, the D.D.C has not considered the aforesaid short comings in the order passed by the S.O.C and therefore, for the same reasons, the order dated 12.7.1994 passed by the D.D.C is also illegal and liable to be set aside.
Rebutting the arguments of the counsel for the petitioners, the counsel for the respondents has supported the impugned orders passed by the S.O.C and the D.D.C and has argued that the writ petition was liable to be dismissed.
I have considered the submissions of the counsel for the parties.
A reading of the impugned orders dated 21.9.1993 and 12.7.1994 passed by the S.O.C and the D.D.C show that the second objection filed by the petitioners was addressed to the Assistant Consolidation Officer (hereinafter referred to as A.C.O) as required under Section 9/9-A of the Act, 1953. However, it is also apparent that there was no reference from the A.C.O to the Consolidation Officer as stipulated under Section 9-A (2) of the Act, 1953. A reading of the order dated 21.9.1993 passed by the S.O.C also shows that the C.O took cognizance of the Second objections filed by the petitioners only on a report of the Lekh Pal even though the matter was not forwarded by the A.C.O. to the C.O as required under Section 9-A(2). Further, the second objections filed by the petitioners were barred by time and no orders were passed by the C.O condoning the delay in filing the said objections.
In view of the aforesaid, the S.O.C has held that in light of the facts stated above proceedings before the C.O were suspicious. The C.O. did not have any jurisdiction to decide Case No.2287 of 1986 under Section 9-A(2) of the Act, 1953 as no case had been registered before the C.O on the second objections filed by the petitioners.
For the aforesaid reason, no illegality was committed by the S.O.C in not remanding back the matter to the C.O to decide the same in accordance with the procedure prescribed in Rule 26 of the Rules 1954. In light of the facts stated above, the judgment of this Court in Raja Ram (Supra) relied by counsel for the petitioners is not applicable in the present case.
So far as the second argument of the counsel for the petitioners that the appeals filed by respondent nos. 4 to 8 was not maintainable in view of Section 201 of the U.P Land Revenue Act 1901 read with Section 41 of the Act, 1953 is concerned, it is sufficient to state that the provisions of the Act, 1901 relate only to mutation proceedings and objections under Section 9-A(2) of the Act especially in the present case related to the title of the parties, as admittedly in the present case, the petitioners through their second objections were claiming to be recorded as Sirdar of the disputed plots which was recorded as Bhumidari of Kunwar Bahadur, the predecessor of respondent no.8. In view of the aforesaid, the Act, 1901 was not applicable in the present case and therefore, the arguments of the counsel for the petitioners regarding Section 201 is not acceptable and stands rejected.
While rejecting the arguments of the counsel for the petitioners and up holding the impugned orders passed by S.O.C and the D.D.C, the Court has also taken note of the fact that the first objections filed by the petitioners were dismissed in default in 1984, because of absence of the petitioners and the petitioners instead of filing an application for restoring the case, filed another objection under Section 9 of Act, 1953 which itself was not maintainable.
For the aforesaid reasons, there is no illegality in the impugned orders dated 21.9.1993 and 12.7.1994 passed by the S.O.C and the D.D.C.
The writ petition lacks merit and is dismissed.
Order Date :- 30.4.2019 IB