Devi Shankar vs Deputy Director of Consolidation and Others

Rakesh Sharma, J.—Heard Sri Faujdar Rai, learned Counsel for the petitioner and learned Standing Counsel appearing for respondents No. 1&2.

In the present case, the petitioner by filing this writ petition under Article 226 of the Constitution of India has assailed the order passed by the consolidation officer on 26.8.1987 and the judgment and order passed by the DDC on 9.9.09 and subsequent order dated 26.10.09 by which the DDC, Basti had declined to recall its earlier order passed on 9.9.09. It emerges from the record a title dispute between the contesting parties was adjudicated upon and finalized in the year 1969 on 16.1.1969 by the C.O. This order was passed u/s 9A(2) of the Consolidation of the Holdings Act on merits. Devi Shanker, the present petitioner had filed an appeal before the SOC and the same was dismissed. A revision was also preferred against the appellate order passed by the SOC which was also dismissed. Thus the order passed by the C.O. on 16.1.1969 became final and had binding effect on the parties.

It is relevant to mention that after the judgment and order dated 16.1.1969, the relevant entries ought to have been recorded in the record relating to consolidation. It appears that the order dated 16.1.1969 was not given effect to by making correction in the record. The entry in the revenue papers ought to have been corrected and the possession must have been handed over to the party in whose favour the judgment and order dated 16.1.1969 was passed. In the meantime, Section 52 notification was published. The respondents had filed an application under Rule 109 of C.H. Rules for correction in the record and seeking entry in the revenue papers. The consolidation officer had passed an order on 3.9.86. The petitioner has challenged the validity of the order on various grounds. His application was dismissed by the consolidation officer and the on appeal the fabricated compromise was produced and the order was passed by the SOC. The DDC has taken note that the Assistant SOC Sri Alok Kumar ought to have disposed of the appeal on merit and it has placed reliance on a manufactured fabricated compromise and rendered a judgment on 8.6.07. This order was challenged and a judgment was rendered by the DDC on 9.9.09.

A recall application was submitted by the petitioner which was also dismissed on 26.10.2009. Both the orders passed by the DDC are reasoned and speaking order. The DDC had taken note of the judgment and order dated 16.1.1969 by which the dispute regarding title was already settled by the court of consolidation officer. The judgment dated 16.1.1969 became final and binding on the parties. It is still in vogue. As the appeal against this judgment have already been dismissed on 8.6.67 and thereafter the revisions were also dismissed. The DDC has held that after a substantial judgment, the procedural aspect of the matter was to be seen. Entries in the revenue record ought to have been made and records had to be corrected as a result of final and binding judgment dated 16.1.69 passed by the CO settling the dispute regarding title of the contesting parties. The court has recorded finding of fact that it was a case of abuse of process of law for the long 40 years , that is, from 16.1.1969 records were not corrected. The petitioner was involved in dragging the litigation with ulterior motive. As far as the compromise is concerned, there were 18 contesting parties in the case. The alleged compromise was signed by 6 persons only. Rest of the 12 parties litigants did not sign the compromise dated 14.3..07. The provision under Rule 109 are regarding procedural activity. It is surprising to find when there exists a binding judgment rendered on 8.6.87. Without disturbing the judgment dated 16.1.69 no such challenge can be made as has been done by the petitioner before the consolidation authorities. The DDC has taken note that during last 25years some of the contesting parties have died. Legal heirs were required to be impleaded. Sri Faujdar Rai has placed reliance on the judgments reported in 1966 RD 147 Munshi Singh v. Director of Consolidation and 1998 (89) RD 696 Govind Singh and Ors. v. Deputy Director, Consolidation Bijnore and Ors. in support of his submission that after notification u/s 52 nothing can be done in the case. The submission appears to be misconceived. What is to be seen here is implementation and execution of a valid judgment rendered by the consolidation officer on 16.1.1969 exercising his powers u/s 9 of CH Act. The dispute regarding title between the contesting parties was set at rest long ago. This judgment was affirmed by the SOC and DDC and there was no reason in not implementing this order and carrying out the correction in the consolidation and revenue records. Due to delay in implementing the order, no benefit could be derived by the winning parties. The judgment rendered on 16.1.1969 cannot be treated to be dissolved by not carrying out the correction in the record, a procedural matter. The substantive provisions of law of C.H. Act have to be implemented and substantive provisions of CH Act shall prevail over the procedural matters, i.e., proceedings under Rule 109. The delay has certainly been caused by the petitioner who had lost before the C.O. on 16.1.69. Accordingly in view of the above, there is no legal infirmity in the order. The writ petition is devoid of merit and the same is dismissed. The respondents are directed to carry out the directions contained in the orders dated 16.1.69 immediately. The records shall be corrected and consequences shall follow.