JUDGMENT R.P. Yadav, J.
1. By means of this writ petition under Article 226 of the Constitution of India, the petitioners pray for quashing of the order dated 3.4.1980, passed by Deputy Director of Consolidation, as contained in Annexure-6 to the petition and the order dated 28.9.1977, passed by the Assistant Consolidation Officer, as contained in Annexure-1 to the writ petition.
2. Dispute relates to khata No. 436, having an area of 2 bighas and khata No. 486, having an area of 23 bighas, 16 biswas situated in village Ainjar, Pargana Barausa, Tehsil and District Sultanpur. In the basic year khatauni, khata No, 486 was recorded in the name of petitioners, Ram Ji and Shyam Ji, whereas khata No. 436 was recorded in the name of opposite parties Nos. 1 to 3.
3. It would be relevant to mention at this very stage that petitioner No. 2, Shyam Ji was minor and at the time of filing of the petition he was alleged to be aged about 11 years. Opposite party No. 1, Shri Shyam Lal died during the pendency of the petition and his sons, S/Shri Sant Ram and Net Ram have been substituted as his legal representatives.
4. It is said that during the consolidation proceeding, some compromise was filed by the petitioners and opposite party Nos. 1 to 3 before Assistant Consolidation Officer, whereby it was agreed that 1/3 share of the aforesaid two khatas 486 and 436 will belong to opposite party Nos. 1 to 3, whereas the rest 2/3 in the said khatas will be held by the petitioners. The Assistant Consolidation Officer passed an order on 28.9.1977, on which date, the compromise is said to have been filed by the parties before him. He directed the correction of the entries in the revenue record on the basis of the said compromise (the copy whereof is Annexure-2 to the petition). The petitioners filed an appeal before the Settlement Officer (Consolidation), Sultanpur on 2.2.1978 alongwith an application under Section 5 of the Limitation Act. The Settlement Officer (Consolidation) after hearing the parties, allowed the appeal and remanded the matter to the Consolidation Officer for disposal according to law. Opposite parties 1 to 3 filed a revision under Section 48 of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act), which was registered as revision No. 1271. It was decided on 3.4.1980. The revision was allowed and the order of the Settlement Officer (Consolidation) was set aside. The compromise filed by the parties before the Assistant Consolidation Officer was held to be valid. It is this order of the Deputy Director of Consolidation and also the order passed by the Assistant Consolidation Officer, which have been challenged before this Court through this writ petition.
5. Heard the learned Counsel for the parties and perused the relevant records.
6. It is submitted by the learned Counsel for the petitioners that there was no objection raised during the consolidation proceedings either at the stage of field to field partal or under Section 9(2) of the said Act and since there was no objection and no dispute between the parties, the Assistant Consolidation Officer was not competent to record any compromise. This argument has been advanced in addition to the argument that there was no compromise at all between the parties and there was no such occasion even for the parties to file compromise, when there existed no dispute between them. It has also been submitted for one of the petitioners, namely, Shyam Ji who was then a minor that no guardian as required under Rule 14 of the Rules framed under Section 54 of the Act was appointed nor any permission was sought for from any competent court as required under Order XXXII, Rule 7, C.P.C. and Section 8 of the Hindu Minority and Guardianship Act, 1956.
7. The learned Counsel for the opposite parties has submitted that there was in fact a dispute and a case was registered wherein the impugned order was passed, so it is not correct to say that the order was passed without there being any case or dispute before the Assistant Consolidation Officer. It has also been submitted that the provisions of the Code of Civil Procedure or the Hindu Minority and Guardianship Act are not applicable to the proceedings under the Act and that the mother of Sri Shyam Ji, who was the natural guardian has herself affixed her thumb mark over the compromise in question, which was duly attested by two members of the Consolidation Committee and, therefore, It was legally valid as held by the Deputy Director (Consolidation).
8. Section 8 of the Act provides for the revision of the field book and the current annual register and also for determination of valuation and shares in joint holdings. Sub-clause (2) thereof provides that the District Deputy Director of Consolidation shall cause to be prepared a khasra chakbandi, in the form prescribed in respect of all the plots falling in the units as also a statement showing the mistakes (undisputed cases of succession) and disputes discovered during the test and verification of the annual register and in the course of field to field partal. Section 8A of the Act lays down about the preparation of statement of principles whereas, Section 9 provides for issue of extracts from records and statements and publication of records mentioned in Sections 8 and 8A and the issue of notices for inviting objections. Sub-section (2) of Section 9 of the Act provides that any person to whom a notice under Sub-section (1) has been sent or any other person Interested may, within 21 days of the receipt of notice or of the publication under Sub-section (1) as the case may be, file before the Assistant Consolidation Officer, objections in respect thereof disputing the correctness or nature of the entries in the records or in the extracts furnished therefrom or in the Statement of Principles, or the need for partition. After the objections are filed within the period of 21 days, as provided in the said section, then the provisions of Section 9A of the Act will be applicable and procedure prescribed therein will be followed. This section empowers the Assistant Consolidation Officer to dispose of the cases of the undisputed succession or dispose of such disputes, wherein the parties file compromise before him. Such orders will be passed on conciliation only.
9. It is crystal clear from the reading of the aforesaid provisions that the Assistant Consolidation Officer has jurisdiction to pass order on the basis of conciliation arrived at between the parties in the presence of the members of the Consolidation Committee only in the cases where objection is filed or a dispute is registered at the time of field to field partal under Section 8(2) of the Act. He can also decide a matter on the basis of conciliation where dispute is shown under Section 8(2) but no objection is filed but not otherwise.
10. In the present case, no objection under Section 9(2) was filed. No dispute was registered at the time of field to field partal. Therefore, there was no case or dispute at all pending before the Assistant Consolidation Officer. It was submitted on behalf of the opposite parties that provisions of Section 9A(1) and (ii) of the Act authorize the Assistant Consolidation Officer to pass an order on the basis of compromise, where even no objections are filed but this clause does not relate where there is no dispute at all. This relates to only those matters where at the time of field to field partal some dispute is shown or registered in the prescribed column of the khasra CH Form 2A. It would also be significant to note that in paras 2 and 4 of the writ petition, it has been specifically stated by the petitioner that no objection was ever filed by the opposite parties at the appropriate stage of the Consolidation. The relevant reply of para 4 of the petition is contained in para 5 of the counter-affidavit wherein it is stated that... "once a compromise was filed it is immaterial whether any objection was filed by the petitioners in respect of the khata No. 436 or not." There is no averment in the counter-affidavit that any such objection under Section 9(2) was filed or any dispute was raised at the time of field to field partal. It does not require any repetition that when there was no dispute or objection, the Assistant Consolidation Officer had no jurisdiction at all to record any compromise or pass any orders on the basis of conciliation.
11. Argument of the learned Counsel that the case was registered and number was marked, therefore, it should be presumed that there existed a dispute is not legally tenable. Rule 25 provides for making the entry of the cases on the objection filed under Section 9(2) of the Act. It says that the cases relating to each of the two categories mentioned in Clause (i) of the Sub-rule (c) shall be entered in chronological order in a Misilband register in C.H. Form 6 to be maintained by each Assistant Consolidation Officer. The heading of the register prescribed in C.H. Form 6 proceeds with the words "Misilband register of cases instituted before....Tehsil/District". This shows that only objections filed by the parties under Section 9(2) will have to be registered as cases and it is only thereafter that the Jurisdiction of the Assistant Consolidation Officer begins. Rule 25A of the rules framed under the Act lays down that "the Assistant Consolidation Officer shall as far as possible deal with all the objections filed by a tenure holder with regard to the matters referred to in Clause (i) of Sub-section (1) of Section 9A and Sub-section (1) of Section 9B in the village itself. In deciding disputes on the basis of conciliation in terms of Sub-section (1) of Section 9A, he shall record the terms of conciliation in the presence of at least two members of the Consolidation Committee of the village.... "This rule also restricts the power of the Assistant Consolidation Officer only to those matters, in which, the objection has been filed by either of the parties within the limitation of 21 days of the publication of notice. The Assistant Consolidation Officer cannot take action suo motu without there being any objection of either of the parties. In the present case as held above, there being no objection from either of the parties, the Assistant Consolidation Officer had no jurisdiction and competence to dispose of the matter on the basis of a compromise. The circumstances eloquently speak that the opposite parties with the collusion of the Assistant Consolidation Officer have played fraud in getting this compromise and the orders thereon.
12. The second ground raised by the learned Counsel for the petitioners is also not without any substance. The petitioner No. 2 was undisputedly a minor at the time when the case was allegedly decided on conciliation. The compromise is said to have been signed by Smt. Rajpati, whereas correct name of his mother is said to be Smt. Jagpati. Without going into this fact as to what is the correct name of the mother of petitioner No. 2 it is clear that no permission was sought for or obtained for filing the compromise specially when the claim of the opposite parties was being admitted by her, which was prima facie not for the benefit of minor. In fact, Rule 14 of the Act also requires for an order in specific terms for appointment of a guardian but nothing has been placed before this Court to show that Smt. Jagpati or Rajpati was ever appointed as a guardian of the minor, petitioner No. 2. Moreover, the Assistant Consolidation Officer was not competent to appoint her as guardian or permit her to file any compromise on behalf of a minor. Rule 14 of the Act provides that:
(1) The Assistant Consolidation Officer in consultation with the Consolidation Committee will appoint guardians, for purposes of proceedings under the Act, of such tenure holders, who are minors... unless such guardians have been already appointed by order of a competent court.
(2) The guardian appointed for a minor... under Sub-rule (1) shall be his natural guardian unless the natural guardian possesses an interest adverse to that of the minor, the idiot or the lunatic, if the natural guardian is not so appointed, the Assistant Consolidation Officer shall record reasons therefor and shall then appoint the nearest male relative of the minor, the Idiot or the lunatic not possessing an interest adverse to him as his guardian.
(3) A list of all such guardians together with the names of their wards shall be published in the village and any person interested in the ward may file an objection against such appointment before the Consolidation Officer within fifteen days, of such publication, whose orders shall, subject to the modification, if any, made by orders passed under Section 48, be final.
13. No material has been placed before this Court to show that the Assistant Consolidation Officer had passed any order appointing Smt. Jagpati or Rajpati as his guardian. He should have followed the procedure as provided in Rule 14 (supra). Even if, he could have appointed a guardian-ad-litem he could not permit to file the compromise before him. The power given to him by the Act was to decide the case on conciliation only and not beyond that. He could not grant permission as required under Order XXXII, Rule 7 of the C.P.C. which undoubtedly applies to the proceedings under the Act also as held in the case of Sita Ram and Ors. v. Director of Consolidation, Agra, Division Agra and Ors. 1967 AWR 634, in which it was held by this Court that there is no reason why the minor should not have the same rights in the Consolidation Proceedings in which the title of the parties is determined. It was, therefore, open to the consolidation authorities to hold that the compromise decree was not binding if they came to the conclusion that it had been passed in violation of the provisions of Rule 7 of Order XXXII, C.P.C.
14. In view of this authority, the provision of Rule 7 of Order XXXII and also the provision of Section 8 of Hindu Minority and Guardianship Act which are enacted to safeguard and protect the interest of the minors equally apply to the proceedings under the Act where the rights and title of the parties are adjudicated upon and decided and specially when the guardian makes an attempt or admits the rights of the other party without there being any case or dispute before the Assistant Consolidation Officer and the compromise was prima Jade not for the benefit of minor. In view of the above, this compromise filed on behalf of the minor was also illegal and invalid. Permission to file compromise could not be accorded by Assistant Consolidation Officer as he had no Jurisdiction to pass any order on his own. His orders could be only on the basis of conciliation and the permission to file compromise required the application of mind by the Court, who in the present case was the Consolidation Officer. The Assistant Consolidation Officer was not competent to pass any orders against the interest of the minor. The statute does not authorize the Assistant Consolidation Officer to apply his mind and pass orders against a minor, whenever the interest of minor is involved, such matter needs to be referred to Consolidation Officer, who is the lowest authority under the Act to pass orders after applying his mind judicially.
15. It also does not appeal that when there was no objection and no dispute at all why they would have filed a compromise admitting the claim of the opposite parties in their 26 bighas land giving thereby about 8 bighas of land and accepting in lieu thereof less than one bigha of the land. So this compromise was also not for the benefit of the minor and in such a case permission could not be given even by Consolidation Officer, Rule 7 of Order XXXII provides the manner and procedure as well where permission can be given. It lays down:
An application for leave under Sub-rule (1) shall be accompanied by an affidavit of the next friend or the guardian for the suit, as the case may be, and also, if the minor is represented by a pleader, by the certificate of the pleader, to the effect that the agreement or compromise proposed is, in his opinion, for the benefit of the minor:
Provided that the opinion so expressed, whether in the affidavit or in the certificate shall not preclude the Court from examining whether the agreement or compromise proposed is for the benefit of the minor.
16. In the instant case, no affidavit was filed, no permission was sought for and there is no certificate of the lawyer, and yet the compromise against the interest of the minor was recorded. Such an act of the Assistant Consolidation Officer cannot be upheld or endorsed as legal as the same was beyond his jurisdiction and authority.
17. Mere signature of the two members of the Consolidation Committee on the compromise is not sufficient to make it valid, specifically when it was wholly illegal and invalid and beyond the competence of the Assistant Consolidation Officer. The order of the Deputy Director of Consolidation as well as that of Assistant Consolidation Officer being beyond jurisdiction, arbitrary and illegal deserve to be set aside.
18. The petition is allowed. The impugned order passed by the Deputy Director of Consolidation as contained in Annexure-1 to the writ petition is set aside. The orders passed by the Assistant Consolidation Officer being without jurisdiction, illegal and Invalid in the eyes of the law is also set aside. However, the opposite parties will be at liberty to raise their grievance, if any, before the appropriate authority if it is so legally permissible now.