Raisuddin v. Deputy Director of Consolidation and 3 Others

Reserved-: 09/10/2023 Delivered-: 19/10/2023 Court No. - 48 Case :- WRIT - B No. - 3323 of 2023 Petitioner :- Raisuddin Respondent :- Deputy Director Of Consolidation And 3 Others Counsel for Petitioner :- Umesh Vats Counsel for Respondent :- CSC, R.P.S. Chauhan Hon'ble Saurabh Shyam Shamshery,J.

¶1Heard Sri Umesh Vats, learned counsel for petitioner, learned Standing Counsel for State and Sri R.P.S. Chauhan, learned counsel for respondents, perused the writ petition and short counter affidavit filed on behalf of contesting respondents.

¶2This writ petition is filed by petitioner being aggrieved by an order dated 18.07.2023 passed by Deputy Director of Consolidation, Sambhal, whereby a reference was accepted.

¶3The controversy could be narrowed down on basis of following facts -: a. The Assistant Consolidation Officer by an order dated 22.04.2006 passed in a Case No. 151 under Section 12 of U.P. Consolidation of Holdings Act, 1953 (Act of 1953) directed for mutation of name of one Kallu on land in dispute. b. Name of answering respondent Smt. Sarvari Begum (respondent No.3) was mutated by an order dated 04.02.2008 passed by Assistant Consolidation Officer in Case No. 73 under Section 12 of Act of 1953 and accordingly name of above referred persons were recorded in CH Form-23. It appears that Form 40 and 41 were not prepared at that time. c. Before finalization of consolidation operation, a reference was prepared under Section 48(3) read with Section 42A of Act of 1953 whereby chaks were carved out in favour of Kallu and contesting respondent no. 4 in regard to plot nos. 641, 641-A and 641-B. d. Said reference which was proposed by Assistant Consolidation Officer on 05.01.2010, by Consolidation Officer on 25.01.2010 and by Settlement Officer of Consolidation on 28.01.2010 was approved by Deputy Director of Consolidation, Moradabad vide order dated

30.01.2010. On basis of said approval, CH Form-40 and 41 of land in dispute were prepared. e. In aforesaid circumstances, respondent no.3 filed a restoration application on 12.01.2018 before Deputy Director of Consolidation, Sambhal vide Reference No. 183 taking a specific averment that reference proceedings were decided ex-parte and that location of her chak no. 641-B was not disclosed in proceedings and prayed that ex-parte order passed in reference may be set aside. f. Deputy Director of Consolidation vide order dated 05.06.2018 allowed restoration application and order dated 30.01.2010 was set aside and it was directed that Consolidation Officer may send a fresh reference. g. In pursuance of above order, amended reference dated 04.01.2020 was referred to Deputy Director of Consolidation which was allowed by an order dated

31.08.2021. According to order, no objection was filed to reference by any land-holder. h. In aforesaid circumstances, petitioner has filed a restoration application on 09.03.2022 against ex-parte order dated 31.08.2021 with a direction to condone the delay along with application to maintain status-quo. i. Deputy Director of Consolidation on above referred restoration application passed an order dated

06.04.2023 whereby an ex-parte order dated

31.08.2021 was set aside and reference was put for fresh hearing. It was held that no notice was issued to respondents in earlier proceedings.

¶4In short counter affidavit, orders dated 09.05.2023 and

08.06.2023 passed by Deputy Director of Consolidation are placed on record that a spot inspection was conducted. It has also been brought on record that four persons have filed their affidavit before Revisional Authority that land was transferred to them by petitioner himself.

¶5In aforesaid circumstances, impugned order dated

18.07.2023 was passed and reference was again accepted.

¶6Above order dated 18.07.2023 is impugned in this writ petition.

¶7Learned counsel for petitioner has submitted that Deputy Director of Consolidation has erred in considering the restoration application filed by contesting respondent No.3, which was allowed by an order dated 05.06.2018, where an order passed on merit was wrongly recalled.

¶8Learned counsel has further submitted that said order was in teeth of judgment of Full Bench of this Court in Smt. Shivraji Devi and another vs. D.D.C. and others, 1997 SCC Online All

505.

¶9Learned counsel has further submitted that Deputy Director of Consolidation has erred in law by approving the amended reference, which has caused great prejudice to him. The reliance placed on spot inspection report, without inviting objections has also cause great prejudice to petitioner.

¶10Learned counsel has further submitted that restoration application filed by respondents was barred since Notification under Section 52 has already been notified.

¶11Learned counsel for respondents has opposed above submissions. He has submitted that in earlier round, Deputy Director of Consolidation has approved the reference by an unreasoned order dated 30.01.2010 and since it was an ex-parte order, therefore, on a restoration application filed by respondents, it was set aside and was directed to submit a fresh report.

¶12Learned counsel has further submitted that fresh reference was submitted which was rightly approved by Deputy Director of Consolidation in first round as well as after restoration application of petitioner was allowed, it was reheard and was rightly again approved by impugned order.

¶13Learned counsel has lastly submitted that there was no error which requires interference by this Court with impugned order.

¶14Heard learned counsel for parties and perused the record.

¶15In order to appreciate rival submissions, I have carefully perused various orders passed in present proceedings. Restoration application filed by petitioner as well as contesting respondents on different stages were allowed. Order passed by Deputy Director of Consolidation on restoration application filed by respondent no.4 whereby it was directed to submit a fresh reference was not challenged at the instance of petitioner, therefore, it has attained finality.

¶16In pursuance of above order, a new reference was prepared and submitted before Deputy Director of Consolidation which was allowed, however, on a restoration application, order was recalled and both parties were heard on reference and finally, by the impugned order, reference was allowed.

¶17In these circumstances, Court is of considered view that there was no procedural error in entire proceedings. Now the issue involved for consideration is that whether impugned order was passed rightly on merit.

¶18In order to consider above issue, I have carefully perused the impugned order. The order indicates that it was passed after hearing both parties as well as perusal of record available with restoration application. Impugned order also indicates that in present case, Deputy Director of Consolidation has inspected land in dispute and villagers' statement were taken into consideration. Relevant part of order is quoted below -: "

स्पस्潣矱ह潃料क峦敹सरवर䩦䧌बेग䃿⹉नेगा潣矱ासंዕঊ९४/३/ዕঊ.७५ዕঊ, ९४/२/ዕঊ.४ዕঊዕঊ

कु㝱㞇द┙㝧किकतारकबे१.

१५ዕঊह潃料ዕঊका१/

२अं旡攙क峦敹भूकि䃿⹉बख्旡攙ु्ቌ䩦䧌नपु्ቔ

नज़䩦䧌रसेकिव्ቅ䧤䂑प्ቔ किदनांकिकत२८.१२.

२ዕঊዕঊ७के्ቛ ारा्ቅ 䧤䂑क峦敹ह潃料जि.सके

ना䃿⹉ांतरꗗ솀काआदे旡攙सहा䧤䂑कचकबंद䩦䧌अधि3कार䩦䧌केवादसंዕঊ७३आदे旡攙

किदनांक४.२.

२ዕঊዕঊ८के्ቛ ाराकिक䧤䂑ाग䧤䂑ाह潃料寖敎सहा䧤䂑कचकबंद䩦䧌अधि3कार䩦䧌के

आदे旡攙किदनांक४.२.

२ዕঊዕঊ८केअनुपा㝱㞇न䃿⹉斌湠सरवर䩦䧌बेग䃿⹉क┙㝧चक्ቚ किद्ቖ

.ानाह潃料寖敎गा潣矱ासंዕঊ९४/३/ዕঊ.

७५ዕঊह潃料ዕঊकेद┙㝧न⸍䄿गा潣矱ासंዕঊ४ዕঊዕঊव ४ዕঊዕঊ/

१३२쯭쇱बनेह潃料寖敎गा潣矱ासंዕঊ४ዕঊዕঊक्ሴे रस्तेकेकिकनारेपूरबक峦敹ओर

कागा潣矱ाह潃料तथागा潣矱ासंዕঊ४ዕঊዕঊ/

१३२쯭쇱पधि=䃿⹉क峦敹ओरगा潣矱ाह潃料寖敎्ቇ ा䃿⹉

.ाकरप्ቌ砻訏क峦敹उपቝኌस्थधित䃿⹉斌湠गा潣矱ासंख्䧤䂑ा४ዕঊዕঊ

, ४ዕঊዕঊ

/

१३२쯭쇱कास्थ㝱㞇

किनर䩦䧌्ቌꗗ솀किक䧤䂑ाग䧤䂑ा寖敎गा潣矱ासंख्䧤䂑ा४ዕঊዕঊ䃿⹉ौकेपरखा㝱㞇䩦䧌पडाह潃料तथागा潣矱ा

संख्䧤䂑ा४ዕঊዕঊ

/

१३२९.┙㝧गा潣矱ासंख्䧤䂑ा४ዕঊዕঊकेप䩦䧌छेपधि=䃿⹉किद旡攙ा䃿⹉斌湠ह潃料

उसकेअधि3कां旡攙भागपर䃿⹉ौकेपरप्ሪे 䃿⹉कान

/

आबाद䩦䧌बन䩦䧌ह潃料寖敎स्थ㝱㞇पर

्ቇ ा䃿⹉ के अन्䧤䂑्ቇ ा䃿⹉वाजिस䧤䂑砻訏 के्ቛ ारा बता䧤䂑ा ग䧤䂑ा किक गा潣矱ा संख्䧤䂑ा ४ዕঊዕঊ

/

१३२쯭쇱क峦敹भूकि䃿⹉रह䩦䧌सु्ቌ䩦䧌नके्ቛ ाराकिबनाब潃料ना䃿⹉ेके्ቇ ा䃿⹉केअन्䧤䂑

व्䧤䂑किJ䧤䂑砻訏क┙㝧बेच䩦䧌ह潃料औरउनके्ቛ ारा䃿⹉ौकेपर䃿⹉कानबनालि㝱㞇䧤䂑ेग䧤䂑ेहैं寖敎इस

सम्बन्3 䃿⹉斌湠भूरेपु्ቔ अ㝱㞇䩦䧌旡攙ेर

,

भूरापु्ቔ अनवार

,

अ्ቤ䩦䧌पु्ቔ दु㝱㞇ारे

, नूरवख्旡攙

पु्ቔ फक峦敹र䩦䧌किनवास䩦䧌्ቇ ा䃿⹉वे潣矱㝱㞇ाके्ቛ ारा旡攙पथप्ቔ्ቚ स्तुतकरकथनकिक䧤䂑ा

ह潃料किकपुरानागा潣矱ासंख्䧤䂑ा९४

/

३जि.सकान䧤䂑ागा潣矱ासंख्䧤䂑ा४ዕঊዕঊ

/ १३२쯭쇱

ह潃料.┙㝧पधि=䃿⹉किद旡攙ा䃿⹉斌湠हैं

,

इसगा潣矱ेक峦敹भूकि䃿⹉क┙㝧रह䩦䧌सु्ቌ䩦䧌ननेह䃿⹉ेबेचाह潃料

तथाउनके्ቛ ारा䃿⹉कानबनालि㝱㞇䧤䂑ेग䧤䂑ेहैं

寖敎वख्旡攙ु्ቌ䩦䧌नपु्ቔ न.䩦䧌रके्ቛ ारा

旡攙पथप्ቔ्ቚ स्तुतकरकथनकिक䧤䂑ाह潃料旡攙पथकताR वउसकेभत䩦䧌.ेरह䩦䧌सु्ቌ䩦䧌न

पु्ቔ 䃿⹉कसूदक峦敹सहखातेदार䩦䧌क峦敹स䃿⹉स्तभूकि䃿⹉ह潃料पुरानागा潣矱ासंख्䧤䂑ा९४/२

जि.सकान䧤䂑ागा潣矱ासंख्䧤䂑ा३९९रकवाዕঊ.

४ዕঊዕঊबनाह潃料䧤䂑हगा潣矱ाचकबन्द䩦䧌

्ቚ कि्ቅ䧤䂑ासेपृथकह潃料寖敎पुरानागा潣矱ासंख्䧤䂑ा९४/

३रकवाዕঊ.

७५ዕঊहेዕঊजि.सका

किवकिन䃿⹉䧤䂑अनुपात९ዕঊप潃料सा㝱㞇गाह潃料तथासम्पूꗗ솀R गा潣矱ा旡攙पथकताR वउसके

भत䩦䧌.ेकासं䧤䂑ुJ चेकसंख्䧤䂑ा-

쯭쇱४१बनाह潃料जि.सकान䧤䂑ावतR䃿⹉ानगा潣矱ा

संख्䧤䂑ा४ዕঊዕঊ⸍䄿वं४ዕঊዕঊ/1326

बनेह潃料寖敎आपस䩦䧌फ潃料स㝱㞇ेसे्ቚ ा⸤㝅भूकि䃿⹉गा潣矱ा

संख्䧤䂑ा९४/

३पूरबक峦敹ओरक峦敹भूकि䃿⹉काब潃料ना䃿⹉ा्ቦ 䩦䧌䃿⹉त䩦䧌सरवर䩦䧌पत्न䩦䧌नौ旡攙े

अ㝱㞇䩦䧌केप्ቌ 䃿⹉ेकिदनांक२८.१२.

२ዕঊዕঊ७क┙㝧किक䧤䂑ाह潃料तभ䩦䧌सेवह㝱㞇गातार

काकिब. वदख䩦䧌㝱㞇ह潃料寖敎रह䩦䧌सु्ቌ䩦䧌ननेगा潣矱ासंख्䧤䂑ा९४/

३न䧤䂑ागा潣矱ासंख्䧤䂑ा ४ዕঊዕঊ/

१३२쯭쇱क┙㝧किव्ቅ䧤䂑कर,

䃿⹉कानबनानेकेलि㝱㞇䧤䂑ेअन्䧤䂑व्䧤䂑किJ䧤䂑砻訏क┙㝧

कब्.ाकराकर䃿⹉कानबनाकिद䧤䂑ेग䧤䂑ेह潃料寖敎

तहस䩦䧌㝱㞇स्तरपरगा潣矱ासंख्䧤䂑ा

४ዕঊዕঊव४ዕঊዕঊ

/

१३२쯭쇱क峦敹स्थ㝱㞇परक峦敹ग䧤䂑䩦䧌प潃料䃿⹉ाई旡攙क峦敹आख्䧤䂑ाजि.सक峦敹

छा䧤䂑ा्ቚ धित रह䩦䧌सु्ቌ䩦䧌न्ቛ ारा्ቚ स्तुत क峦敹 ह潃料 उस䃿⹉斌湠 भ䩦䧌 गा潣矱ा संख्䧤䂑ा ४ዕঊዕঊ

/

१३२쯭쇱䃿⹉斌湠䃿⹉ौकेपरआबाद䩦䧌ह┙㝧नाद旡攙ाR䧤䂑ाग䧤䂑ाह潃料寖敎स्प्ቖ ह潃料किक

सहा䧤䂑क चकबन्द䩦䧌 अधि3कार䩦䧌 के आदे旡攙 किदनांक ዕঊ४

. ዕঊ१ .

२ዕঊ२ዕঊ क┙㝧

हस्ता्ቌरकिक䧤䂑ेग䧤䂑ेहैंइसन्䧤䂑ा䧤䂑ा㝱㞇䧤䂑क┙㝧किनस्तारꗗ솀हेतु्ቚे किYतकिक䧤䂑ाग䧤䂑ाह潃料

अभिभ㝱㞇ेख䩦䧌䧤䂑वउJ साቌኚ䧤䂑砻訏केसह䩦䧌पा䧤䂑े.ानेपरइससन्दभR क┙㝧न्䧤䂑ा䧤䂑ा㝱㞇䧤䂑

्ቛ ाराकिदनांक३१

. ዕঊ८ .

२ዕঊ२१क┙㝧सह䩦䧌स्व䩦䧌कारकिक䧤䂑ाग䧤䂑ाह潃料寖敎पूवR पारिरत

आदे旡攙किदनांक३१

. ዕঊ८ .

२ዕঊ२१क┙㝧䧤䂑थावतरखा.ानाकिवधि3 सम्䃿⹉तह潃料

" 寖敎 (Emphasis Supplied)

¶19It is also relevant to point out that in a case of procedural error i.e. if one of parties was not heard, Authority concerned could recall its order being procedural error.

¶20From above referred order, spot inspection was conducted and report was prepared on which rival parties have put their signatures and none of parties had filed any objection to it.

¶21I find merit in argument of learned counsel for respondent that since proceedings were continuing even after earlier order was recalled and matter was put up for hearing, therefore, there would not be any bar under Section 52 of Act of 1953 and that Authorities could have exercised power under Section 42-A of Act of 1953, therefore, in this regard there would be no irregularity in impugned order.

¶22The impugned order reveals that Deputy Director of Consolidation has only on basis of spot inspection has accepted the amended reference and placed reliance on a measurement report submitted by respondents without granting any opportunity to petitioner to confront it. Therefore, Court is of considered opinion that impugned order was passed without giving opportunity to petitioner to place objection to the reports placed on record by respondents, which is an illegality, which goes to root of the case.

¶23I am also of considered opinion that respective arguments have not been noted in impugned order and Revisional Authority has proceeded the case only on basis of reports considering it to be uncontroverted whereas it is specific contention of petitioner before this Court that they have right to controvert despite it was signed. Merely putting signatures on report does not estop the petitioner to oppose it.

¶24In view of above discussion, this Court is of considered opinion that Deputy Director of Consolidation has committed an error, therefore, it is a fit case where this Court may exercise powers granted in writ jurisdiction.

¶25Hence, impugned order is set aside and matter is remitted back to Deputy Director of Consolidation for fresh consideration. Parties are at liberty to file objections to reports as well as to file written submissions as well as to raise oral submissions thereof. The Deputy Director of Consolidation will pass a reasoned order after considering submissions of rival parties in accordance with law expeditiously, preferably within a period of six months.

¶26Writ petition stands disposed of. Order Date :- October 19, 2023 Nirmal Sinha [Saurabh Shyam Shamshery, J.] High Court of Judicature at Allahabad