Court No. - 9
Case :- WRIT - B No. - 5612 of 2018 Petitioner :- Jitendra Singh Respondent :- Additional District Magistrate And 7 Others Counsel for Petitioner :- Siddharth Niranjan,Sri Dharampal Singh Counsel for Respondent :- C.S.C.,Anil Kumar Aditya,Manu Singh
Hon'ble Salil Kumar Rai,J.
Heard the counsel for the parties.
The present writ petition arises out of proceedings registered under Section 20 of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act, 1953') in relation to allotment of chaks and from the orders passed in the consequential appeal and revision registered under Section 21 and Section 48 of the Act, 1953.
Through his order dated 5.12.1992, the Consolidation Officer allotted Plot No. 7401, 7402 and 7403 to the respondent no. 2. Against the said order, the petitioner filed an appeal which was dismissed by the Settlement Officer of Consolidation by his order dated 8.9.1995. Subsequently, the petitioner filed a revision under Section 48 of the Act, 1953 and the said revision was allowed and the matter was remanded back to the Settlement Officer of Consolidation to pass fresh orders in the appeal filed by the petitioner. The Settlement Officer of Consolidation, after remand, vide his order dated 23.4.2004 allowed the appeal, i.e., Appeal No. 836, filed by the petitioner. Through his order dated 23.4.2004, the Settlement Officer of Consolidation allotted Plot Nos. 7401, 7402 and 7403 to the petitioner and exchanged the chaks allotted to the petitioner and the respondent no. 2 on the ground that the Mausoleum of the ancestors of the petitioner was situated in the aforesaid plots.
It has been stated in the writ petition that as a result of the order dated 23.4.2004, C.H. Form - 23 was modified by order dated 6.7.2004 and notification under Section 52 of the Act, 1953 was published on 11.3.2011. Subsequently, on 8.5.2018, the respondent no. 2 filed Revision No. 346 of 2018 under Section 48 of the Act, 1953 before the Deputy Director of Consolidation, Hathras challenging the order dated 23.4.2004 passed by the Settlement Officer of Consolidation. The Deputy Director of Consolidation vide his order dated 22.10.2018 condoned the delay in filing the said revision and allowed the revision by setting-aside the order dated 23.4.2004 passed by the Settlement Officer of Consolidation and remanded back the matter to the Settlement Officer of Consolidation to pass fresh orders in Appeal No. 836 after giving the parties an opportunity of hearing. The order dated 22.10.2018 has been challenged in the present writ petition.
It has been argued by the counsel for the petitioner that no reasons have been given by the Deputy Director of Consolidation to condone the delay in filing the revision which was filed 14 years after the initial order and almost seven and a half years after the notification published under Section 52 of the Act, 1953. It was further argued that under Section 48 of the Act, 1953, the Deputy Director of Consolidation himself had the power to decide the revision on merits and there was no occasion to remand back the matter to the appellate court. It was argued that through his order dated 22.10.2018, the Deputy Director of Consolidation has abdicated his jurisdiction under Section 48 of the Act, 1953 and for the aforesaid reason, the order dated 22.10.2018 is contrary to law and is liable to be quashed.
Rebutting the arguments of the counsel for the petitioner, the counsel for respondent no. 2 has supported the order dated 22.10.2018. It was argued by the counsel for the respondent that the delay in filing the revision was because the order dated 23.4.2004 was not in the knowledge of the respondent because it was never implemented on the spot and there was no delivery of possession of chaks in pursuance to the order dated 23.4.2004. It was argued that when the respondents started interfering in the possession of the petitioner over the disputed plots on 27.4.2018, the respondent no. 2 came to know about the order passed by the Settlement Officer of Consolidation and subsequently filed a revision. It was argued that in the aforesaid circumstances, the delay in filing the revision was rightly condoned and it was not a fit case for this Court to interfere under Article 226 of the Constitution of India. It was argued that for the aforesaid reason, the writ petition is liable to be dismissed.
I have considered the submissions of the counsel for the parties.
There is nothing on record to show the date of delivery of possession of chaks by the consolidation authorities to the petitioner in accordance with the order dated 23.4.2004 passed by the Settlement Officer of Consolidation. It is true that the Deputy Director of Consolidation has not given any reasons for condoning the delay in filing the revision but the jurisdiction of this Court under Article 226 of the Constitution of India being an equitable jurisdiction and, therefore, in the absence of any material to rebut the averment of respondent no. 2 that he came to know about the order dated 23.4.2004 only on 27.4.2018 when the petitioner started interfering in his possession over the disputed plots, it would not be equitable to interfere in the order of the Deputy Director of Consolidation condoning the delay in filing the revision. Apart from the aforesaid, a reading of the order dated 23.4.2004 passed by the Settlement Officer of Consolidation shows that no reasons have been given by the Settlement Officer of Consolidation for modifying the allotment of chaks as made till the stage of Consolidation Officer and for holding that the Mausoleum of the ancestors of the petitioner was situated in the disputed plots. A reading of the order passed by the Settlement Officer of Consolidation also shows that the respondent no. 2 had not been heard as he did not appear before the appellate court. In the circumstances, this Court refuses to exercise its equitable discretion to set-aside the order of the Deputy Director of Consolidation condoning the delay in filing the revision.
However, so far as the argument of the counsel for the petitioner that the Deputy Director of Consolidation himself had the jurisdiction to decide the revision and the dispute on merits and, therefore, he should have decided the case on merits himself, has force. Under Section 48 - Explanation III, the Deputy Director of Consolidation has the power to examine any finding, whether of fact or law, recorded by any sub-ordinate authority and includes the power to re-appreciate any oral or documentary evidence on record. In view of the aforesaid Explanation, the Deputy Director of Consolidation had the power to himself consider and decide the dispute between the parties on merits. Considering that the matter relating to allotment of chak was, for the first time, decided by the Consolidation Officer in 1992, it was a fit case for the Deputy Director of Consolidation to himself decide the dispute between the parties regarding allotment on merits.
In view of the aforesaid, the order dated 22.10.2018 passed by the Deputy Director of Consolidation, Hathras so far as it remands back the matter to the Settlement Officer of Consolidation is, hereby, set-aside. The Deputy Director of Consolidation is directed to decide the dispute regarding the allotment of chaks between the parties on merits within a period of six months from the date a copy of this order is served on him. The Deputy Director of Consolidation in order to decide the said dispute shall also make a spot inspection of the disputed plots, if necessary, to ascertain the situation. Till the decision by the Deputy Director of Consolidation, parties shall maintain status-quo regarding the disputed plots.
With the aforesaid directions, the writ petition is partly allowed.
Order Date :- 21.9.2021 Satyam