Court No. - 17
Case :- WRIT - B No. - 4306 of 2018 Petitioner :- Mahboob Miyan Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Rakesh Pande,Dinesh Kumar Rai Counsel for Respondent :- C.S.C.
Hon'ble Rajiv Joshi,J.
Heard Sri Rakesh Pandey, learned counsel for the petitioner and Sri Gaurav Singh, learned standing counsel appearing for respondent no. 1 to 4.
By this petition, the petitioner seeks quashing of the order dated 18.5.2018 passed by District Director of Consolidation, Rampur as well as the order dated 4.1.2017 passed by the Consolidation Officer, by which the preliminary objection raised by the petitioner regarding maintainability of the restoration application for recalling the order of Consolidation Officer, has been rejected.
The facts as reflect from record are that an application under section 12 of the U.P. Consolidation of Holdings Act (hereinafter referred to as the Act) was filed by the petitioner for recording his name on the ground that that the land in dispute was allotted to him by respondent no. 5-U.P. Bhu-Daan Yagya Samiti. The said application was rejected by the Consolidation Officer vide order dated 26.4.2013. Challenging the said order, the petitioner preferred an appeal which was allowed by the Settlement Officer Consolidation vide order dated 18.7.2013 and the matter was remanded for decision afresh.
After the remand, an objection was filed by panel lawyer on behalf of the State Government/Gaon Sabha. However, the said objection was not considered and ultimately the petitioner's application under section 12 of the Act was allowed by the Consolidation Officer vide order dated 12.3.2015. Subsequently, an application was moved by the panel lawyer on 30.6.2016 for recalling the order dated 12.3.2015 on the ground that the order was an ex parte order and that even respondent no. 5-U.P. Bhu-Daan Yagya Samiti had not executed any Patta in favour of the petitioner and under the scheme of Bhu-Daan Samiti, the Collector is empowered to execute Patta.
In the aforesaid restoration/recall application, the petitioner raised a preliminary objection on the ground that said restoration/recall application is not maintainable as the same has been filed on behalf of the State Government/Gaon Sabha by the panel lawyer in his own capacity and there is no signatures thereon either of the Adhyaksh of Bhu-Daan Simit, Land Management Committee or the State Government. The said preliminary objection of the petitioner was rejected by the Consolidation Officer vide order dated 4.1.2017, recording a finding that earlier also an objection to the petitioner's application under section 12 of the Act, was moved by the panel lawyer and as such he had a right to move the recall application. Against the order dated 4.1.2017 of the Consolidation Officer, the petitioner preferred a revision which too was dismissed by the District Director of Consolidation vide order dated 18.5.2018. These two orders i.e. dated 4.1.2017 and 18.5.2018 are impugned in the present writ petition.
Contention of the counsel for petitioner is that the restoration/recall application must be signed either by a member of the Land Management Committee or any representative of the State Government and in the absence of signatures by them, the application moved by the panel lawyer of the State Govt./Gaon Sabha in his own capacity, is not maintainable. It is further contended that the revisional authority has committed illegality in dismissing the petitioner's revision only on the ground that order impugned in the revision is an interlocutory order while the order of the Consolidation Officer impugned in the revision had decided the issue regarding maintainability of the restoration application and as such it was not an interlocutory order.
On the other hand, plea taken by the learned Standing Counsel is that panel lawyer Sri Gulzari Lal Srivastava, had been nominated by the District Magistrate vide order dated 20.7.2015 for pursuing the matter on behalf of Gaon Sabha in respect of Tehsil -Shahbad, a copy of which has also been appended as annexure C.A.-1 to the counter affidavit. It is further contended by learned standing counsel that earlier also the said panel lawyer had filed objection before the Consolidation Officer to the petitioner's application under section 12 of the Act and thus, he said panel lawyer was fully authorized to move the recall application.
I have considered rival arguments advanced on behalf of the respective parties and also carefully gone through the record.
It is apparent from record that earlier also, objection was filed by the panel lawyer to the petitioner's mutation application under section 12 of the Act although the said objection was not considered and ultimately the application of the petitioner under section 12 was allowed. Thereafter, the panel lawyer has moved the recall application before the Consolidation Officer which is very well maintainable since the said lawyer was duly authorised by the District Magistrate to do pairvee on behalf of the Gaon Sabha as panel lawyer as is apparent from Annexure C.A.-1.
In so far as the submission of the learned counsel for the petitioner that Gaon Sabha or the State of U.P. is not a party to the proceedings and unless they are impleaded as party, they had no locus to move the application, is concerned, suffice it to say that this aspect of the matter can be seen by the Consolidation Officer while deciding the restoration application on merits and no prejudice is caused to the petitioner in case the restoration application filed by the State Govt./Gaon Sabha is decided on merits by the Consolidation Officer, for the reason the petitioner has remedy to challenge the order of the Consolidation Officer if the same is decided against him.
The revisional authority while dismissing the revision filed by the petitioner, has merely affirmed the order of the Consolidation Officer by mentioning that earlier the panel lawyer had filed objection in order to contest the petitioner's application for mutation under section 12 of the Act and as such he has a right to file the restoration application.
For the aforesaid reasons, I do not find it to be a fit case for interference under Art. 226 of the Constitution.
The writ petition lacks merit and is accordingly dismissed.
Order Date :- 24.8.2018 SNT/