Court No. - 11
Case :- WRIT - B No. - 3559 of 1996 Petitioner :- Radhey Shyam Dubey Respondent :- D.D.C. & Others Counsel for Petitioner :- P.N.Tripathi Counsel for Respondent :- C.S.C.,Ashok K.Pandey,Ashok Kumar Pandey
Hon'ble Salil Kumar Rai,J.
Heard Shri P.N.Tripathi, counsel for the petitioner and Shri Ashok Kumar Pandey for respondent no.5 as well as Standing Counsel representing respondent nos. 1,2, 3 & 4.
The dispute in the present writ petition relates to Plot Nos.136, 197 and 192 (hereinafter referred to as disputed plots). Due to certain discrepancies in the total area of the disputed plots as entered in different records, the petitioner and respondent no.5 filed separate objections under section 9-A of the Act before the Consolidation Officer. It has come on record that the objections filed by both the parties were dismissed for non prosecution on 25.4.2008. However, it has been stated in the rejoinder affidavit that the objections filed by respondent no.5 was subsequently restored by the Consolidation Officer but the restoration application filed by the petitioner is still pending before the Consolidation Officer. It is pertinent to note that the objections filed by the petitioner and respondent no. 5 before the Consolidation Officer were dismissed for non prosecution and subsequently restored during the pendency of the writ petition and therefore, the said fact is not relevant for a decision of the present case on merits. However, during the pendency of objections under section 9-A of the Act, C.H.Form No.11 and C.H.Form No.23 were prepared recording an increased area of the disputed plots. It is evident that the entries in C.H.Form No. 11 and C.H.Form No.23 were recorded even though the objections of both the parties were pending before the Consolidation Officer. Consequently chak allotment process was initiated and it appears that Chak were allotted on the basis of the said entries and possession was being transferred by the consolidation authorities. Respondent no.5 filed an application before respondent no.1 praying that an enquiry may be held regarding entries in C.H.Form No.11 and C.H.Form No.23 as entries in the same were made without any orders having been passed under section 9-A(2) of the Act by the concerned Consolidation Officer and further prayed that no allotments may be made till the decision of the concerned Consolidation Officer on the objections filed by the petitioner and respondent no.5. On the aforesaid applications filed by respondent no.5, respondent no. 1 summoned a report from the Consolidation Officer. A report dated 30.11.1990 was submitted by respondent no.3 stating that irregularities had been committed in preparation of C.H.Form No.11 and C.H.Form No.23 and areas of disputed plots in the aforesaid documents have been increased without any corresponding order by the Consolidation Officer. It also transpires from the record that after the report dated 30.11.1990, an order dated 15.1.1991 was passed by Assistant Settlement Officer of Consolidation ostensibly making a reference under section 48(3) of the Act. The said order has been annexed as annexure-
8 to the writ petition. The respondent no.1 vide his order dated 11.1.1996 allowed the said reference after hearing the concerned parties and directed that records relating to the disputed plots be appropriately corrected and the increased area shown in C.H.Form No.11 and C.H.Form No.23 be deleted from the said documents as the said entries were made without any corresponding order of the Consolidation Officer under section 9(A)(2) of the Act. The order dated 11.1.1996 has been challenged in the present writ petition.
It has been contended by the counsel for the petitioner that the order dated 11.1.1996 passed by respondent no. 1 was without jurisdiction in as much as there was no reference under section 48(3) of the Act by any subordinate consolidation authority and the order dated 15.1.1991 passed by the Assistant Settlement Officer of Consolidation was merely an order forwarding the report of the Consolidation Officer to respondent no.1. It has been contended by the counsel for the petitioner that respondent no.1 could not have exercised his powers under section 48(3) of the Act on an application filed by respondent no. 5 and was also not empowered to institute suo motu proceedings under section 48(3) of the Act. It has been further contended by the counsel for the petitioner that the impugned order dated 11.1.1996 is without jurisdiction in as much as respondent no.1 could not have decided the dispute regarding the area of the disputed plots when objections regarding the same were already pending before the Consolidation Officer. It has been argued that for the aforesaid reason, the order dated 11.1.1996 passed by respondent no. 1 is liable to be set aside.
Rebutting the arguments of the counsel for the petitioner, counsel for the respondents has argued that the order dated 15.1.1991 passed by Assistant Settlement Officer of Consolidation was a reference and therefore, the order dated 11.1.1996 passed by respondent no.1 was within his jurisdiction under section 48(3) of the Act 1953 and in any case, the respondent no.1 had the jurisdiction under section 48(1) of the Act, 1953 to pass the aforesaid order. It has been further argued by the counsel for the respondents that the order dated 11.1.1996 passed by respondent no.1 was in the nature of merely rectifying an error in the entries in C.H.Form No.11 and C.H.Form No.23 regarding the disputed plots which had occurred due to unauthorized and illegal acts of the subordinate consolidation authorities and, therefore, it is not a fit case for interference under Article 226 of the Constitution of India and the writ petition is liable to be dismissed.
I have considered the submissions of the counsel for the parties and have also perused the records. The order dated 15.1.1991 was passed by the Assistant Settlement Officer of Consolidation on the basis of report dated 30.11.1990 submitted by the Consolidation Officer. The aforesaid report showed that irregularities were committed while preparing C.H.Form No.11 and C.H.Form No.23 and area of the disputed plots in the aforesaid documents were increased without any order to that effect having been passed by the Consolidation Officer under section 9-A(2) of the Act. On the aforesaid report, Assistant Settlement Officer of Consolidation vide his recommendation dated 15.1.1991 recorded his opinion that it was a fit case for instituting proceedings under section 48(3) of the Act. The aforesaid was evidently a reference by a subordinate consolidation authority under section 48(3) of the Act. Further, under section 48(1) of the Act, the concerned Director of Consolidation has the power to take suo motu cognizance and examine the record of any proceedings taken by any subordinate authority for the purpose of satisfying himself as to regularity of any proceedings or to correctness, legality or propriety of any order passed by such authority in the said proceedings and make such order in the proceedings as he thinks fit. It is admitted that an application was filed by respondent no. 5 before the respondent no.1 bringing to his notice the irregularities in the proceedings narrated in the previous paragraphs of the judgment. Thus, in any case, under section 48(1) of the Act, the respondent no.1 had the jurisdiction to examine the regularity of the proceedings culminating in erroneous entries in C.H.Form No.11 and C.H.Form No.23 either suo motu or even on an application filed by respondent no.5. The mere reference in the impugned order to a Reference under section 48(3) of the Act would not affect the jurisdiction of the Deputy Director of Consolidation, i.e the respondent no.1, under section 48(1) of the Act and would not invalidate the order if the respondent no.1 had the power to pass an order under section 48(1). In the circumstances, the first argument of petitioner that the order dated 11.1.1996 passed by respondent no.1 was without jurisdiction has no merit and is rejected.
The second argument raised by the counsel for the petitioner is that respondent no. 1 could not have passed any orders rectifying the entries in C.H.Form No.11 and C.H.Form No.23 regarding the disputed plots till objections were pending before the concerned Consolidation Officer is also fallacious. Objections regarding the area of the disputed plots were filed by the petitioner and respondent no.5 before the Consolidation Officer and till date no orders have been passed in the same by the concerned Consolidation Officer. In the circumstances, area of the disputed plots could not have been increased in C.H.Form No.11 and C.H.Form No.23. C.H.Form No.11 prepared during the consolidation operation is the revised annual register revised on the basis of orders passed under section 9-A of the Act, 1953. Section 10 of the Act, 1953 and Rule 28(1) of Uttar Pradesh Consolidation of Holdings Rules, 1954 are relevant for the purpose and are quoted below:
“Section 10. Preparation and maintenance of revised annual registers- (1) The annual register shall be revised on the basis of the orders passed under sub-section(1) and sub-section(2) of Section 9-A. It shall thereafter be prepared in the form prescribed and published in the unit.
Rule 28. Section 10 -(1) A revised annual register in C.H.Form 11 shall then be prepared by the Consolidation Lekhpal incorporating all the orders relating to rights in, and liabilities in respect of land passed by the Assistant Consolidation Officer under sub-section (1) of Section 9-A and the Consolidation Officer under sub-section (2) of Section 9-A and also the orders passed by the Settlement Officer, Consolidation under Rule 27-A.”
The entries in C.H.Form No.11 regarding the area of disputed plots, without any corresponding order having been passed by Consolidation Officer on the objections filed by the petitioner and respondent no.5, in itself were illegal and, as held earlier, the respondent no. 1 had the jurisdiction to enquire in the aforesaid irregularities under section 48(1) of the Act. Thus, the second argument of the counsel for the petitioner is also rejected.
The entries in C.H.Form No.11 and C.H.Form No.23 regarding the areas of the disputed plots were unauthorized and the order dated 11.1.1996 passed by respondent no.1 merely corrects the errors in the aforesaid documents as a result of unauthorized acts of the subordinate consolidation authorities. For the aforesaid reason, there is no illegality in the order dated 11.1.1996 passed by respondent no.1 and it is not a fit case for interference under Article 226 of the Constitution of India. The writ petition lacks merit and is liable to be dismissed.
It is evident that the objections of the petitioner and respondent no. 5 are still pending before the concerned Consolidation Officer. The matter is pending, at least, since 1990. The respondent no. 4 i.e Consolidation Officer, Shahganj, Jaunpur is directed to decide the objections of the petitioner and respondent no.5 within a period of two months from the date a certified copy of this order is produced before him by either of the parties. It is also directed that any consequential appeal or revisions filed by either of the parties shall also be decided within a period of two months from the date of filing of the said Appeal or Revision. It is directed that all proceedings on the objections of the petitioner and respondent no.5 regarding the disputed plots which includes the consequential appeal and revision, shall be decided within a maximum period of eight months from the date a certified copy of this order is produced by either of the parties before the Consolidation Officer and also before respondent no.1.
The respondent no.1 is directed to ensure that proceedings between the petitioner and respondent no.
5 regarding the disputed plots are finally concluded within the aforesaid period. It is also clarified that the concerned Consolidation Officer shall decide the objections of the petitioner and respondent no. 5 without being bound by any observation made by respondent no.1 in his impugned order dated 11.1.1996.
With the aforesaid observations and directions, the writ petition is dismissed. Interim order, if any, stands vacated.
Order Date :- 24.4.2018 IB