Heard Sri Jai Prakash Prasad, the counsel for the petitioners and Sri Prashant Kumar Tripathi, the counsel for respondent nos. 3 to 6.
The facts of the case relevant to decide the present writ petition are that petitioner no. 1 claims herself to be widow of Panna Lal and the petitioner nos. 2 and 3 claim themselves to be the sons of Panna Lal. It is also claimed by the petitioners that Panna Lal was the son of Raghubir. The respondent no. 3 also claims himself to be the son of Raghubir. The respondents claim that Raghubir had no biological son and respondent no. 3 was the adopted son of Raghubir. Evidently, there was a dispute between the petitioners and respondents regarding the paternity of Panna Lal and the alleged adoption of respondent no. 3 by Reghubir. It appears from the records of the case annexed with the writ petition that the dispute between the parties was in issue before the consolidation authorities in proceedings registered under Section 9-A(2) of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act, 1953') and in the said proceedings, the claim of Panna Lal was accepted by the Consolidation Officer vide his order dated 22.5.1967 but in the consequential appeal and revision the order of the Consolidation Officer was set-aside and the claim of respondent no. 3 was accepted and the claim of Panna Lal was rejected by the appellate and the revisional courts vide orders dated 31.7.1967 and 5.12.1970. Subsequently, Panna Lal filed a Civil Suit No. 103 of 1988 for a decree declaring that he was the real/biological son of Raghubir and, therefore, entitled to inherit his agricultural properties. In the said Civil Suit No. 103 of 1988, a preliminary issue was framed at the instance of respondent no. 3 who was the defendant in the said case, as to whether the suit was barred by Section 49 of the Act, 1953. The issue was decided by the trial court in favour of plaintiff - Panna Lal and against the respondent no. 3 and it was held that the suit was not barred by Section 49 of the Act, 1953. The consequential Revision No. 38 of 1998 filed by respondent no. 3 was dismissed and consequently the respondent no. 3 challenged the orders passed by the trial court as well as the revisional court through C.M. Writ Petition No. 42864 of 2000. The C.M. Writ Petition No. 42864 of 2000 was disposed of by this Court vide its order dated 10.7.2006. In its order dated 10.7.2006, this Court held that in view of the orders passed by the consolidation authorities, Civil Suit No. 103 of 1988 was barred by Section 49 of the Act, 1953 but at the same time also granted Panna Lal the liberty to file appropriate application before the District Deputy Director of Consolidation to re-open the consolidation proceedings, in case, the consolidation operations had ceased in the village on the ground that fraud vitiates all actions and Panna Lal should not be rendered remedyless because of the orders passed by the consolidation authorities. During the pendency of the writ petition, Panna Lal had died and therefore after the order dated 10.7.2006, the petitioners being the widow and the sons of Panna Lal, filed an application dated 10.8.2006 before the District Deputy Director of Consolidation bringing to his notice the order passed by this Court and praying that the consolidation proceedings be re-opened and the fraud committed by the respondent no. 3 may be enquired into and the petitioners be declared as having 1/3 share in the disputed plots. It appears that the said application filed by the petitioners was transferred by the District Deputy Director of Consolidation to the Deputy Director of Consolidation who in turn marked the same to the Settlement Officer of Consolidation. The Settlement Officer of Consolidation through his order dated 15.11.2010 expressed his inability to decide the said application on the ground that the dispute had already been decided by the Deputy Director of Consolidation through his order dated 5.12.1970 and therefore any authority subordinate to the Deputy Director of Consolidation cannot re-open and re-investigate the dispute between the petitioners and respondent no. 3. Against the order dated 15.11.2010 passed by the Settlement Officer of Consolidation, the petitioners filed Misc. Application No. 143 before the Deputy Director of Consolidation and in the said application the petitioners again prayed that the consolidation proceedings be re-opened and the dispute between the petitioners and respondent no. 3 relating to the title of the disputed plot in light of the dispute relating to the paternity of Panna Lal and respondent no. 3 be re-considered and fresh orders may be passed. The said Misc. Application No. 143 has been dismissed by the Deputy Director of Consolidation vide his order dated 28.12.2011 on the ground that the application was not maintainable under the Act, 1953 or any rules framed thereunder and further on the ground that the dispute between Panna Lal and respondent no. 3 and consequently between the petitioners, who claim through Panna Lal, had already been finally decided through order dated 5.12.1970 and the said order cannot be recalled on a miscellaneous application filed by the petitioners. The order dated 28.12.2011 has been challenged in the present writ petition.
It was argued by the counsel for the petitioners that by order dated 10.7.2006 passed by this Court in C.M. Writ Petition No. 42864 of 2000, the petitioners were permitted to file an application before the District Deputy Director of Consolidation who was directed to decide the said application within three weeks and therefore the application filed by the petitioners could not have been decided by the Deputy Director of Consolidation and thus the order dated 28.12.2011 passed by the Deputy Director of Consolidation is without jurisdiction. It was argued that for the said reason, the order dated 28.12.2011 is liable to be set-aside.
I am not inclined to accept the aforesaid argument of the counsel for the petitioners in as much as under Section 3 (4-A) of the Act, 1953, the Deputy Director of Consolidation is a person who is appointed by the State Government to exercise the powers and perform the duties of the Director of Consolidation as may be delegated to him and includes the District Deputy Director of Consolidation and the Assistant Director of Consolidation. While passing the order dated 28.12.2011, the Deputy Director of Consolidation, Varanasi Camp, Mirzapur was exercising the delegated powers of the Director of Consolidation and therefore the order dated 28.12.20111 cannot be considered to be without jurisdiction only because the same was not decided by the District Deputy Director of Consolidation.
It is evident that the consolidation operations cannot be re-reopened except in the circumstances provided in the statute and therefore the consolidation authorities could have re-considered the dispute between the petitioners, who claim through Panna Lal, and respondent no. 3 only after an appropriate application had been filed by the petitioners for recall of the order dated 5.12.1970 passed by the Deputy Director of Consolidation dismissing the revision filed by Panna Lal. In his order dated 28.12.2011, the Deputy Director of Consolidation has also permitted the petitioners to file a recall application for recall of the order dated 5.12.1970. There is no illegality in the reasons given by the Deputy Director of Consolidation that the application was not maintainable as the order dated 5.12.1970 had finally decided the rights of the parties. In view of the aforesaid, no interference under Article 226 of the Constitution of India against the order dated 28.12.2011 is required. The petitioner may file a recall application before the Deputy Director of Consolidation, Varanasi for recall of the order dated 5.12.1970 along with a delay condonation application explaining the reasons for the delay in filing the said recall application and the Deputy Director of Consolidation, Varanasi shall sympathetically consider the aforesaid delay condonation application considering the observations of this Court made in its order dated 10.7.2006 passed in C.M. Writ Petition No. 42864 of 2000 that frauds vitiates all actions and fraud and justice can never go together and further Panna Lal was erroneously litigating his interest in civil courts. If such a recall application is filed by the petitioners before the Deputy Director of Consolidation, the same shall be decided by the Deputy Director of Consolidation, Varanasi within a period of six months from the date a certified copy of this order is produced before him. In case, the Deputy Director of Consolidation recalls his order dated 5.12.1970 and remands back the matter to the Settlement Officer of Consolidation, he shall ensure that the Settlement Officer of Consolidation decides the appeal within a period of six months thereafter.
With the aforesaid directions, the writ petition is disposed of.
Order Date :- 31.7.2019 Satyam