JUDGMENT Ashok Bhushan, J.
1. Second supplementary affidavit filed today is accepted on record. Heard counsel for the petitioner, Sri Himanshu Shekher and Sri Anuj Kumar learned Counsel for the respondents.
2. By this writ petition the petitioner has prayed for quashing the order dated 18.1.2006 passed by the Deputy Director of Consolidation by which the revision No. 486 filed by Shivjor and other contesting respondents has been allowed.
3. Brief facts necessary for deciding the writ petition are;
4. The dispute relate to plot No. 439 situate in village Uchagaon, Pargana Nizamabad, Tahsil Sadar District Azamgarh. The contesting respondents are original tenure holders of the plot and the said plot is said to be adjoining the road. The plot was kept out of consolidation proceedings. Subsequently on an application filed by the co-tenure holders of the said plot, an order was passed by the Consolidation Officer on 29.3.1988 valuing the plot No. 439 at 40 paisa and after the said plot being valued, a Chak was proposed in favour of the petitioner by Assistant Consolidation Officer on 31.1.1992. The contesting respondents after coming to know that the plot No. 439 has been valued and has been allotted, filed an objection before the Settlement Officer of Consolidation under Section 11(1) of the U.P. Consolidation of Holdings Act, 1953 against the order dated 29.3.1988 passed by the Consolidation Officer. A copy of the said objection has been filed as Annexure S. A. 5 to the second supplementary a Mdavit. The Settlement Officer of Consolidation treating the said objection as an appeal passed an order on 9.12.1997 allowing the appeal and setting aside the order dated 29.3.1988 directed the plot No. 439 to be kept out of consolidation. Petitioner thereafter filed an application on 2.6.2001 praying for recall of the order dated 9.12.1997 before the Settlement Officer of Consolidation and also claimed benefit of Section 5 of the Limitation Act. The Settlement Officer of Consolidation by order dated 17.10.2003 allowed the application setting aside the order dated 9.12.1997. Against the said order dated 17.10.2003, a revision was filed which was allowed by the Deputy Director of Consolidation by the impugned order dated 18.1.2006.
5. Learned Counsel for the petitioner challenging the order contended that the chak was proposed in favour of the petitioner after plot No. 439 was valued by the order dated 29.3.1988 of the Consolidation Officer. He submitted that the objection of contesting respondents for recalling the order dated 29.3.1988 was filed on 20.2.1993 i.e. subsequent to the allotment in favour of the petitioner hence the petitioner was the necessary party to be heard. He further contended that the Settlement Officer of Consolidation committed error in setting aside the order. It is further submitted that it is true that the plot No. 439 was out of consolidation but on the application of the co-tenure holders the said valuation was made and no objection can be taken to the respondents to the valuation.
6. Sri Amar Shukh Rai assisted by Sri Himanshu Shekher supporting the impugned order contended that the land in dispute was kept out of consolidation which fact was also noted by the Deputy Director of Consolidation while deciding another revision on 8.1.2002. He further contended that the land is valuable land on the road side to which original tenure holders' right cannot be disturbed. It is contended that the contesting respondents were not aware of the valuation of the land which was ex parte done by the Consolidation Officer.
7. I have considered the submissions of counsel for both the parties and perused the record.
8. There is no dispute between the parties that the plot No. 439 was kept out of consolidation and was not included in consolidation scheme. Further, there is material on record that the plot No. 439 is on the road side and valuation of the land of plot No. 439 was made on the objection filed by one Vasudeo and Mst. Sartaji. A copy of the said objection has been filed as Annexure S.A.1 to the second supplementary affidavit. The said objection does not even show that who is the original tenure holders of the plot and the Consolidation Officer on the said objection passed a cryptic order on 29.3.1988 valuing the plot in dispute at 40 paisa. It is not noted in the order that all the tenure holders were noticed. The contesting respondents after coming to know about the order dated 29.3.1988 filed objection before the Settlement Officer of Consolidation. The said application of the contesting respondents is titled as objection and the reference has been made under Section 11(1) of the U.P. Consolidation of Holdings Act. The said objection has rightly been treated as appeal by the Settlement Officer of Consolidation because under Section 9-B of the said Act the power of appeal is vested with the Settlement Officer of Consolidation against an order passed by the Consolidation Officer. Mere mention of objection was inconsequential. The Settlement Officer of Consolidation has allowed the appeal and set aside the ex parte order. The submission of the counsel for the petitioner is that the chak was proposed in favour of the petitioner hence he was entitled to be heard. The petitioner is not the original tenure holder of the plot in question. Petitioner has also not disputed that the said plot was kept out of consolidation and the chak was proposed in his name after it was valued by the order of the Consolidation Officer dated 29.3.1988. The chak having been proposed on the plot in question in favour of the petitioner, the petitioner became interested party and had right to be heard. However, to that extent the petitioner's contention is justified but the petitioner has filed a revision under Section 48 of the said Act and has raised contentions on merit including the contention of passing of the order without hearing of him. The Deputy Director of Consolidation has decided, the revision on merit and allowed the . revision giving three reasons. Firstly, the land in dispute was out of consolidation and the valuation was made by the Assistant Consolidation Officer in the presence of the villagers; Secondly, by the order of the Deputy Director of Consolidation dated 8.1.2002 wnich was passed in village after hearing hearing the villagers a decision was taken that the said plot was out of consolidation. Thirdly, under the order of the Consolidation Commissioner the land which are on the road side should be kept out of consolidation. The said plot being out of consolidation from the very beginning and the contesting respondents being not aware that the land has been valued they had every justification to pray for recall of the order of the Consolidation Officer fixing valuation and no error has been committed by the Settlement Officer of Consolidation in recalling the said order. The order of the Consolidation Officer valuing the plot having been recalled allotment of chak in favour of the petitioner automatically falls to the ground. The petitioner who has been allotted chak on plot No. 439 is entitled to get the same valuation of land at some other place, for which it is open for the petitioner to initiate proceedings under Section 48(3) of the U.P. Consolidation of Holdings Act and if any such proceedings are initiated the petitioner shall be provided the valuation in accordance with law.
9. Learned Counsel for the petitioner has lastly contended that the appeal did not lie under Section 11 of the U.P. Consolidation of Holdings Act against an order passed., under Section 9-B. He submitted that the order of the Consolidation Officer dated 29.3.1988 was under Section 9-B He further submitted that the appeal under Section 11(1) of the Act lie only against the order passed under Section 9-A. Section 9- B and Section 11 of the Act are quoted below :-
9-B. Disposal of objections on the Statement of Principles, ______ (1) Where objections have been filed against the Statement of Principles under Section 9, the Assistant Consolidation Officer shall , after affording opportunity of being heard to the parties concerned and after taking into consideration the- views of the Consolidation Committee , submit his report to the Consolidation Officer , who shall dispose of the objections in the manner prescribed.
(2) Where no objections have been filed against the Statement of Principles within the time provided therefor under Section 9, the Consolidation Officer shall, with a view to examining its correctness, make local inspection of the unit, after giving due notice to the Consolidation Committee, and may thereafter make such modifications or alterations in the Statement of Principles as he may consider necessary.
(3) Any person aggrieved by an order of the Consolidation Officer under Sub-section (1), or Sub-section (2), may, within 21 days of the date of the order, file an appeal before the Settlement Officer , Consolidation, whose decision, except as otherwise provided by or under this Act, shall be final.
(4) The Consolidation Officer and the Settlement Officer, Consolidation shall, before deciding an objection or an appeal, make local inspection of the unit after giving due notice to the parties concerned and the Consolidation Committee.
11. Appeals, _ (1) Any party to the proceedings under Section 9-A aggrieved by an order of the Assistant Consolidation Officer of the Consolidation Officer under that Section), may within 21 days of the order, file an appeal before the Settlement Officer, Consolidation, who shall, after affording opportunity of being heard to the parties concerned, give his decision thereon which except as otherwise provided by or under this Act, shall be final and not to be questioned in any Court of law.
(2) The Settlement Officer, Consolidation, hearing an appeal under Sub-section (1) shall be deemed to be a Court of competent jurisdiction, anything to the contrary contained in any law for the time being in force notwithstanding.
10. From perusal of Section 9-B of the Act it is clear that any person aggrieved by an order of the Consolidation Officer passed under Sub-section (1), or Sub-section (2) of Section 9-B has right of appeal within 21 days. The right of appeal against an order passed under Section 9-B has been given under Section 9- B itself. The reference of Section 11 in the objection was misplaced. The Settlement Officer of Consolidation had right to hear the appeal under Section 9- B(3). Mere mention of wrong section in appeal has n o consequence right of appeal is vested in the party. The appeal has been decided by the competent authority. On this submission that wrong provision was mentioned in the appeal as under Section 11 , the petitioner cannot get any benefit.
11. In aforesaid view of the matter I am satisfied that substantial justice has been done by the Deputy Director of Consolidation while passing the impugned order dated 18.1.2006 which does not warrant any interference under Article 226 of the Constitution.
12. The writ petition lacks merits and is dismissed.