Court No. - 44
Case :- WRIT - B No. - 37728 of 2017 Petitioner :- Mohan Deceased And 2 Others Respondent :- Dy. Director Of Consolidation/Collector And 16 Others Counsel for Petitioner :- Ramesh Chandra Singh,Ramesh Chandra Singh Counsel for Respondent :- C.S.C.,Rakesh Kumar Mathur,Rampyare Lal Srivastava,Subash Chandra Srivastava
Hon'ble Rajiv Joshi,J.
Heard Sri R.C. Singh, learned counsel for the petitioners and Sri Rakesh Kumar, learned counsel for the contesting respondents.
The present writ petition has been filed challenging the order dated 29.06.2016 passed by Respondent No.1- Collector/D.D.C., Kushinagar and the order dated 03.07.2017 passed by Respondent No.3- Consolidation Officer, Kushinagar whereby the names of the petitioners were expunged from the revenue record. The report of the Consolidation Officer, Kushinagar was affirmed by Respondent No.2- Additional District Magistrate, Kushinagar on 29.06.2017.
It reflects from the record that the dispute between the petitioners and the contesting respondents was decided by the Consolidation Officer vide order dated 05.05.1983 and the order dated 05.05.1983 was implemented in the revenue record i.e. in Form C.H. -23. The petitioners are claiming their rights on the basis of succession as the 'uncle of Mohan', petitioner No. 1- Narain died in the year 1990. Subsequently, the sale deed has been obtained by Smt. Showa claiming herself to be the wife of Narain vide sale deed dated 13.11.1987.
Subsequently, Narain himself filed a Suit No. 910 of 1988, for cancellation of sale deed dated 13.11.1987 and by an ex-parte order dated 03.03.2000 passed by the civil court the sale deed was cancelled and on an application filed under Order IX Rule 13, the ex-parte decree was set-aside and suit was restored to its original holding which is still pending.
The order passed by the Consolidation Officer dated 05.05.1983 was challenged by the respondents by way of filing an appeal before the Settlement Officer, Consolidation which remain pending till date. In the meantime, parallel proceeding was initiated by the respondents by means of filing the complaint to the effect that the order dated 05.05.1983 is forged order and on the basis of that order, the names of the petitioners were expunged in the revenue record. On his application, a report was submitted by the Consolidation Officer on 23.06.2017 and subsequently the order was declared to be forged order and the names of the petitioners were expunged from the revenue record.
Both, the report as well as the order are impugned in the writ petition.
The contention of learned counsel for the petitioners is that the appeal against the order dated 05.05.1983 is still pending and the parallel proceeding by way of filing complaint is not at all justified. The said proceedings are against the petitioners and no opportunity whatsoever is given to the petitioners while passing the impugned order.
On the other hand, learned counsel appearing on behalf of the contesting respondents justified the impugned order by stating the order dated 05.05.1983 a forged order, the names of the petitioners have rightly been expunged in the revenue record.
I have considered the rival submission so raised by the parties and perused the record.
It is admitted case between the parties that the order dated 05.05.1983 passed by the Consolidation Officer in case No. 1376 is under challenged before the Settlement Officer, Consolidation where the appeal is pending.
It is further admitted by the parties that suit for cancellation of the sale deed before the civil court is pending, no final decision has been taken till date.
It is apparent from the records that the order passed by the Collector dated 29.06.2017 is an ex-parte order, no opportunity whatsoever has been given to the petitioners either to file objection to the enquiry report alleged to have been taken by the Consolidation Officer or issue any notice before expunging the names of the petitioners.
In view of the same, the order impugned passed by the Collector dated 29.07.2017 cannot be sustained in the eye of law, and it is accordingly, quashed.
However, it is open to the authorities concerned to pass afresh order, after hearing both the parties. It is also made clear that the appeal, which was filed by the contesting respondents before the Settlement Officer, Consolidation is pending since 2016 and the Settlement Officer, Consolidation is directed to decide the said appeal No. 1624 in accordance with law, as expeditiously as possible, preferably within a period of six months from the date of production of certified copy of this order.
With the aforesaid direction/observation the writ petition stands disposed of.
Order Date :- 30.4.2019/Sweety