Chob Singh and Others vs D.D.C.,Etah and Others

B. Dixit, J.—Two short questions arise for determination in this case. First question is as to whether Settlement Officer Consolidation can decide an appeal filed under Section 9B of U.P. Consolidation of Holdings Act, 1953 (in short ''Act'') without making local inspection and the second is as to whether an order passed with the consent of parties under Section 9B of the Act can be challenged in appeal or revision. The questions for determination arises as learned counsel for petitioner argued that the Settlement Officer Consolidation decided appeal without making local inspection and that no appeal or revision lay against an order passed with the consent of parties. As counteraffidavit and rejoinderaffidavit have been exchanged, therefore, the writ petition is being finally disposed of at the stage of admission in accordance with rules of the court.

Section 9B of the Act reads as follows:

"9B. 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 view 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 Principle within the time provided therefore 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 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 subsection (1), or subsection (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."

It is apparent from bare perusal of section 9B (4) that the Settlement Officer Consolidation is required to make local inspection of the unit, after notice to the parties concerned as well as Consolidation Committee before deciding the appeal. It is a mandatory requirement in view of express provision in the Act. Admittedly, no local inspection was made by Settlement Officer Consolidation before deciding appeal and, therefore, it is held that he disposed of the appeal without complying with necessary mandatory requirement of local inspection. The impugned order is to be quashed on this ground alone.

The learned counsel for contesting respondent has argued that the argument that local inspection was not made by Settlement Officer Consolidation is a new argument which was not raised before appellate and revisional authorities and, therefore, it is a new plea which cannot be allowed to be raised for the first time in writ petition. As the case of petitioner is that the land be left for abadi and it was a Statutory obligation on Settlement Officer consolidation to have made local inspection under Section 9B (4). The plea cannot be turned down merely because it has not been raised before the two authorities. It is a legislative mandate that no appeal filed under Section 9B (3) of the Act in respect of Statement of Principles can be decided without having local inspection. For aforesaid reason the argument that the plea of want of local inspection was not raised before Joint Director of Consolidation is immaterial and relief cannot be refused on that ground.

This takes us to second question for determination. It has been argued by learned counsel for petitioners that as the order passed by Consolidation Officer is a consent order, no appeal or revision lay against that order. There is no specific provision under the Act barring appeal and revision against an order passed by Consolidation Officer under Section 9B(2) of the Act. The basis of argument is that a person who consents to an order cannot be an aggrieved person for filing appeal or revision. Under Section 9B(2) of the Act, consent of parties cannot be basis for finalising Statement of Principles. The mandate under said section is that Consolidation Officer has to examine correctness of Statement of Principles even if no objection is filed by any tenure holder against it as prepared by Assistant Consolidation Officer. An implied duty has been cast upon Consolidation Officer to see that Statement of Principles is conformity of object and purpose of the Act. It appears to be for this reason that consolidation Officer has been empowered to modify or alter Statement of Principles as he may consider necessary. Any consent between parties cannot bind him and no principle of estoppel can be attracted against a consenting party that as he has consented for one kind of order and he feels that some other order would have been better then he is to be estopped. The laying down of correct Statement of Principles requires that it be examined by Settlement Officer Consolidation in appeal or before Director of Consolidation in revision under Section 48. The correctness of consolidation operation without prejudice to any one in all fairness requires attention and examination by all the consolidation authorities and, therefore, I am of the opinion that even when consent of a party in preparing Statement of Principles has been there, yet he can take up the matter before higher consolidation authorities by way of appeal and revision, before Settlement Officer Consolidation or Director of Consolidation. However, while deciding appeal the Settlement Officer Consolidation or while deciding revision the Director of Consolidation will give due weight to consent also. They cannot ignore the consent of parties altogether but the matter car, be reexamined in form of appeal or revision before higher authorities.

For aforesaid reasons the writ petition succeeds and is allowed. The order, dated 1.3.95 passed by Deputy Director of Consolidation, Etah is quashed and the case is sent back to the Settlement Officer Consolidation to dispose of the appeal afresh in the light of aforesaid observations.

There shall be no order as to costs. Writ Petition allowed