Heard Sri Faujdar Rai learned counsel for the petitioners, Sri A.P.Singh learned counsel for the respondent no.3 and the learned standing counsel on behalf of the State. Sri M.N.Singh has put in appearance on behalf of the respondent no.2.
This writ petition assails the order of the Deputy Director of Consolidation dated 21.4.2011 whereby proceedings under Section 48 (3)of the U.P. Consolidation of Holdings Act have been finalised holding that the entries in relation to the land in dispute in favour of the petitioners appears to be forged. This fact has been recorded on the strength of the report of the Settlement Officer Consolidation dated 24.4.1990 and the report of the consolidation officials dated 13.11.2009.
The litigation has a chequered history inasmuch as earlier an order had been passed on 8.8.1991 in favour of the predecessor in interest of the petitioner that came to be recalled on 28.8.1991. The predecessor in interest of the petitioner Jamuna filed a Writ Petition No. 24959 of 1991 which was dismissed on 8.12.97 holding that opportunity is yet to be given and the matter is yet to be decided by the Deputy Director of Consolidation and therefore the order impugned does not deserve to be interfered with. The High Court clearly held that as the order yet to be passed on merits after affording opportunity of hearing to the petitioner it was not a fit case for interference under Article 226 of the Constitution of India.
Aggrieved by the order of the High Court a Civil Appeal No. 1945 of 1998 was filed before the Supreme Court. The Supreme Court refused to entertain the same by observing as follows:-
"In this appeal, not only the order passed by the High Court is assailed, but an attempt is made to the question of jurisdiction of the Deputy Director of Consolidation. Since the matter is still to be, decided by the Deputy Director of Consolidation on merits, we refuse to go into those questions. We find no infirmity in the judgment of the High Court and, therefore, the appeal is dismissed.
No costs."
Learned counsel for the respondent no.3 submits that the file thereafter was misplaced and the proceeding could not continue as a result whereof subsequent complaints were filed on which proceedings were drawn and accordingly a fresh report dated 13.11.2009 was prepared. The petitioners who were legal representatives of late Jamuna were put to notice where after the impugned order dated 21.4.2011 has been passed. The Deputy Director of Consolidation has proceeded to hold that from a perusal of the records, it appears that this forgery has been committed later on, presumably after the consolidation operations, and therefore, he finds that the entries being forged deserve to be expunged.
Sri Faujdar Rai has raised four submissions. He submits that in view of the aforesaid observations made by the apex court the question of maintainability of the proceedings and merits of the claim, were both left open to be decided. He contends that the issue relating to maintainability has been raised by the petitioners and clear allegations are indicated in Annexure 12 to the writ petition dated 20.2.2010. He submits that the Deputy Director of Consolidation has committed an error by assuming that the jurisdiction will be presumed to have been conferred by the Supreme Court judgment whereas the judgment itself allows the question to remain open to be decided by the Deputy Director of Consolidation. He therefore contends that this issue has not been decided independently and is founded on a wrong assumption. The second submission is that the Deputy Director of Consolidation has not proceeded in accordance with the procedure as prescribed in law and has passed the order on the basis of the reports that were available without allowing the parties to lead evidence. He therefore contends that the entire procedure as prescribed in law has been violated and therefore the order impugned is in violation of the principles of natural justice. He further contends that the entire proceedings are initiated at the instance of the respondent no.3 without undertaking any regular proceedings under the U.P.C.H. Act. He therefore submitted that this having not been done the impugned order is vitiated. Lastly, he submits that forgery cannot be assumed. It has to be established on the basis of the record. The impugned order has proceeded without allowing the petitioners to contest the issue of fraud.
Sri A.P.Singh learned counsel for the respondent no.3 submits that the forged entries have been established, and the report being conclusive the findings recorded by the Deputy Director of Consolidation are not vitiated in any way so as to warrant exercise of jurisdiction under Article 226 of the Constitution. He submits that the petitioner was given full opportunity and that the Deputy Director of Consolidation after going through the report has passed the impugned order to which the petitioners had also filed their objections He contends that all provisions of U.P.C.H.Act have been taken care of and no further inquiry was wanted, forgery having been established. The impugned order does not deserve any interference under Article 226 of the Constitution of India.
Learned counsel for the Gaon Sabha and the learned standing counsel contend that they do not propose to file any counter affidavit at this stage and they adopt the same arguments. Sri A.P.Singh learned counsel for the respondent no.3 also contends that he does not propose to file any counter affidavit and the matter may be disposed of finally at this stage.
Having heard learned counsel for the parties, it is evident that the impugned order has been passed on the basis of two reports submitted by the Settlement Officer Consolidation and the report dated 13.11.2009 prepared by the consolidation officials and forwarded by the Settlement Officer Consolidation. The objection taken by the petitioner is on record. Paragraphs 7 and 8 of the said objection categorically state that CH Form No.11 prepared during consolidation operations, do not indicate any double entries, and therefore to presume that any forgery had been committed thereafter by the Deputy Director of Consolidation is not borne out from the records. Apart from this, it is also trite law that forgery has to be established on the basis of the evidence and it cannot be inferred except on proven facts.. Reference may be had to the decision of the Supreme Court in the case of Indian Bank Vs. Satyam Fibres reported in 1996(5) SCC 550. Para 30 of the said judgment is quoted below:
"30. Forgery and fraud are essentially matters of evidence which could be proved as a fact by direct evidence or by inferences drawn from proved facts.
A perusal of the ratio of the aforesaid decision of the Supreme Court clearly indicates that if the parties are contesting the issue of forgery on the basis of evidence led, then the Court or the authority concerned has to record finding on the said issue after allowing the parties to lead evidence in this regard. This procedure has not been adopted by the Deputy Director of Consolidation who summarily believed the report without summoning the original records. In the opinion of the Court the Deputy Director of Consolidation has all such powers under Section 48(1) of the U.P.C.H.Act, 1953. Not only this, he has concurrent powers which are conferred on all the competent authorities to decide such objection under Section 44-A of the Act. Over and above this, it is obligatory on the part of the competent authority to decide such objections keeping in view the provisions of Section 11-C , and in this case as a matter of fact the Deputy Director of Consolidation will have jurisdiction to proceed to deal with any error if it has crept on account of any forgery or manipulation. Apart from this fraud, which is an element of forgery vitiates all solemn proceedings.
As noted herein above the Deputy Director of Consolidation did not summon the original records relating to the forgery committed and has proceeded to decide the same on the basis of reports that too even without adverting to the specific allegations as noted raised herein above.
Accordingly in view of the observations made herein above the impugned order is unsustainable. The order dated 21.4.2011 is quashed and the matter is remanded back to the Deputy Director of Consolidation who after allowing the parties to lead evidence and summoning the original records and shall pass an appropriate order in accordance with law as expeditiously as possible preferably within a period of 3 months from the date of production of a certified copy of this order before him.
The writ petition is allowed. No order as to costs.
Dt.2.5.2011.
mna