Ganga Dayal vs D.D.C. and Others

A.P. Sahi, J.—This petition arises out of a dispute relating to the valuation of the plots allotted during consolidation proceedings, which gave rise to filing of an objection on 2nd of June 1997 u/s 9B of the U.P. Consolidation of Holdings Act (hereinafter referred to as the ''Act''). This objection u/s 9-B of the Act relates to the statement of principles and an objection decided under the aforesaid provision is subject to appeal. It is also mandatory that before deciding an objection or an appeal, it is incumbent upon the authority concerned to make a local inspection after notices to the parties.

The facts shorn of details are that the objection which was filed on 2nd of June 1997 had not been formally signed by any of the tenure holders including the petitioner. Nonetheless, the Consolidation Officer after having entertained the objection called for a report from the Assistant Consolidation Officer on 31.07.1997. Thereafter, notices were issued and the parties were allowed to file objection fixing 1st October, 1997 as the date for disposal of the objection. The petitioner and the respondents are at variance on this issue of having received notice from the Consolidation Officer, inasmuch as, the petitioner asserts that he had not received any such notice whereas the contesting respondents have asserted that the notice had been duly served on the petitioner and a service report also exists confirming that the petitioner-Ganga Dayal had affixed his signature on the said notice. The objection so filed was thereafter rejected and the report of the Assistant Consolidation Officer pertaining to the valuation of the land was affirmed. The order of the Consolidation Officer dated 01.10.1997 is annexure 1 to the writ petition.

The dispute arose when the petitioner filed a restoration application after almost 6 years on 04.11.2003 alleging that the order dated 01.10.1997 had been passed ex-parte. The restoration application was allowed on 13.05.2004 on the ground that the contesting opposite parties were not present in spite of the notices and that they had not filed any objections. The Consolidation Officer allowed the restoration in the interest of justice and the order dated 01.10.1997 was recalled. Upon recall of the said order dated 01.10.1997, the petitioner moved amendment applications requesting for change of valuation. According to the respondents, the restoration proceedings had been carried out ex-parte without notice to them and the Consolidation Officer passed an ex-parte order on 31.07.2004 changing the valuation as desired by the petitioner.

The respondent-Baij Nath Prasad filed a restoration application on 13.01.2005 to set aside the order dated 31.07.2004. However, in the mean time, a reference had already been prepared by the Consolidation Officer on 10th January, 2009 and forwarded to the Deputy Director of Consolidation, which was accepted on 15.01.2005. The restoration application filed by the respondent-Baij Nath Prasad was rejected on 22.06.2006 and another restoration application filed by one Kesari Devi was rejected on 31.01.2006.

Aggrieved by the orders of the Consolidation Officer, the respondent-Baij Nath Prasad preferred an appeal on 28.06.2006, which was dismissed on 23.11.2006. Thereafter, the respondent-Baij Nath Prasad preferred a revision against the aforesaid orders and the same has been allowed on 03.03.2009, giving rise to the present writ petition.

I have heard Shri Triveni Shankar, learned Counsel for the petitioner and Shri Rajeev Misra appearing on behalf of the contesting respondent Nos. 2 to 8. The parties have exchanged affidavits and as per their consent, the matter is being finally disposed of under the Rules of the Court.

Shri Triveni Shankar, learned Counsel for the petitioner has urged that the respondents had absolutely no right to contest the claim, inasmuch as, they were not the original tenure holders of the plots in question and, therefore, they could not contest the objection filed by the petitioner at the stage of Section 8 and 9-B of the Act. It is urged that once consolidation scheme had become final, even otherwise the contesting respondents could not have raised this dispute through a restoration application and they had no right to file appeal and revision in respect thereto as the respondent Nos. 2 to 8 were not aggrieved persons. He further contends that the order dated 01.10.1997 being ex-parte had been rightly set aside and the request for change of valuation has been rightly accepted by the Consolidation Officer, which did not deserve any interference. He further contends that the acceptance of reference by the Deputy Director of Consolidation has not been contested and, therefore, the order of the Deputy Director of Consolidation accepting the reference is final.

Shri Rajeev Misra, learned Counsel for the contesting respondents, on the other hand, urged that the objection had been decided on 1st of October 1997 after putting to notice to the petitioner and the report of the Assistant Consolidation Officer has been rightly confirmed. He further contends that there was no occasion to entertain the restoration application filed by the petitioner after 6 years and, therefore, the entire exercise conducted by the Consolidation Officer was contrary to law. He further contends that the appeal filed by the contesting respondents was incorrectly rejected and that the Deputy Director of Consolidation after taking into consideration all relevant facts has rightly allowed the revision.

Shri Triveni Shankar, learned Counsel for the petitioner has relied on the decisions of Jai Raj Singh and Anr. v. Additional Collector (A)/Deputy Director of Consolidation Gorakhpur and Ors. reported in 2003 (95) RD 450 and Beni Madho Dubey Vs. Dy. Director of Consolidation and Others, to contend that the contesting respondents had no right to raise any objection with regard to the valuation.

Shri Rajeev Misra, learned Counsel for the contesting respondents, on the other hand, has relied on the decisions of Vishwanath v. Deputy Director of Consolidation, Gorakhpur and Ors. reported in 2009 (106) RD 470 and Ragho Singh v. Mohan Singh and Ors. reported in 2000 RD 689 to contend that the restoration of the petitioner had been allowed by the Consolidation Officer without recording any finding on delay or condoning the delay.

I have heard learned Counsel for the parties and have perused the records including the affidavits filed on their behalf. It is common ground of the parties that the objection, which was filed on 02.06.1997, did not bear the signature of the objectors. However, the respondents had taken a clear stand that notice was given to the petitioner, who was also an objector by the Consolidation Officer, before proceeding to finalize the objection. Section 9-B of the Act is quoted herein below:

[9-B. Disposal of objections on the Statement of Principles.-(1) Where objections have been filed against the Statement of Principles u/s 9, the Assistant Consolidation Officer shall, after affording opportunity of being heard to the parties concerned and after taking into consideration the views 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 Principles within the time provided therefore u/s 9, the Consolidation Officer shall, with a view to examining its correctness, make local inspection of the unit, after giving due notice to the 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 Sub-section (1), or Sub-section (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.]

The report of the Assistant Consolidation Officer was also tendered and which was accepted by the Consolidation Officer. Not only this, the concerned plots were also subjected to local inspection and, thereafter, the order was passed. The petitioner has denied his signature on the service of notice to him. While passing the order of restoration on 13.05.2004 the Consolidation Officer has nowhere recorded any finding as to whether the petitioner had been served with the notices or not. The Consolidation Officer has also not recorded any finding on the issue of delay of filing the restoration application, which was ultimately done after more than 6 years. In the absence of any such finding, in my opinion, the order passed by the Consolidation Officer on 13.05.2004 was deficient on both the aforesaid scores. It was the duty of the Consolidation Officer to have first condoned the delay, if it was permissible in law and should not have merely allowed the restoration application in the interest of justice on the ground that no objection had been filed. The authority has to be satisfied for entertaining a ground of delay and for which a satisfaction has to be recorded. The order dated 13.05.2004 does not record any satisfaction for condoning the delay. The order also reflects that the same proceeded ex-parte.

The reference was also prepared after the order was passed by the Consolidation Officer on 31.07.2004 whereby he had substantially changed the valuation. This valuation was being obviously changed after the proceedings of statement of principles, had become final on a highly belated restoration. At this stage, in my opinion, the contesting respondents had become aggrieved persons and, therefore, the contention raised on behalf of the petitioner that the contesting respondents had no locus to question the valuation at the stage of Section 9-B, is of no relevance. It is more than obvious that the contesting respondents became aggrieved on account of passing of the order dated 31.07.2004 and, therefore, they cannot be non suited on the ground as suggested by the learned Counsel for the petitioner. In my view, the respondents rightly moved the restoration application, copy whereof is annexure 5 to the writ petition. In between, the reference was prepared at the instance of the petitioner and was accepted by the Deputy Director of Consolidation. The contesting respondents had, however, preferred an appeal and had also objected to the reference prepared by the Deputy Director of Consolidation. Not only this, the restoration application had also been filed by the contesting respondents which came to be rejected by the Consolidation Officer on 22.06.2006. In such a situation the remedy of appeal to the contesting respondents was very much available. This has also been observed by the Deputy Director of Consolidation, while passing the order on the objection, against the reference on 31.01.2006. The Deputy Director of Consolidation had clearly observed that it was open to the contesting respondents to approach the appropriate forum for redressal of their grievances against the order passed by the Consolidation Officer. In view of this, the contesting respondents were fully justified in preferring an appeal on 28.06.2006 after their restoration was rejected on 22.06.2006. The Assistant Settlement Officer Consolidation rejected the appeal on the ground that since the contesting respondents were not the original tenure holders of the plots, therefore, they had no right to file a restoration application or even an appeal. In my opinion, the aforesaid view taken by the Assistant Settlement Officer Consolidation was erroneous and further the finding that the appeal has been preferred on technical ground does not hold water. In view of the aforesaid, the Deputy Director of Consolidation was fully justified in allowing the revision filed by the respondents and remitting the matter back to the Consolidation Officer to decide the restoration application filed by the contesting respondents against the order dated 13.05.2004 and 31.07.2004 in accordance with law. In my opinion as well, the objections taken in the restoration application dated 13/15.01.2005 ought to have been clearly examined before rejecting the same. The Consolidation Officer was under a legal duty to have taken notice of the said facts and thereafter ought to have proceeded to pass an appropriate order. Accordingly, this Court does not find any good ground to interfere with the order dated 03rd March, 2009 and the writ petition is accordingly dismissed.