Gulab and Another vs D.D.C.and Others

Sudhir Narain, J.—This writ petition is directed against the order of Assistant Director of Consolidation dated 2221990 and the subsequent order passed by him on 11121990.

The facts in brief are that respondents 2 to 4 filed an application for making a reference in respect of chak No. 1629. The Consolidation Lekhpal submitted a report on 30th September, 1988. This report was forwarded by the Assistant Consolidation Officer to the Consolidation Officer on 1421989. The Assistant Director of Consolidation accepted the reference by his order dated 2221990. The petitioners aggrieved against the said order filed writ petition No. 10345 of 1990 before this Court. In the writ petition the Counsel for the petitioner pressed only on the point that the Assistant Director of Consolidation had passed by impugned order without hearing the petitioners. The Court disposed of the petition with the direction that in case the petitioners so choose may submit an application to recall the order dated 2221990 on the ground that they were not heard. After the said order was passed the petitioners filed an application to recall the order dated 2221990 on the ground that they were not heard. The Deputy Director of Consolidation respondent No. 1 has rejected this application vide order dated 11121990 on the finding that the petitioners were heard by the Assistant Director of Consolidation when the order dated 2221990 was passed.

I have heard Sri R. C. Singh, learned Counsel for the petitioners and Sri P. K. Misra, learned Counsel for the respondents.

Learned Counsel for the petitioner submitted that this Court having permitted the petitioners to submit an application to recall the order dated 2221990 and after the said application having been rejected, it is open to the petitioners to challenge the order dated 2221990 again. It is contended that the order passed by this Court disposing of the writ petition on 641990 was not on merits but it was only in respect of the argument that the petitioners were not heard and in that connection the observation was made that the petitioners can approach the Assistant Director of Consolidation/Deputy Director of Consolidation to recall the order dated 2221990 on the ground that they were not heard.

I have perused the order, dated 641990 passed by this Court. The relevant part of the order is quoted hereunder:

"The only point raised by the Counsel for the petitioners was that the Assistant Director of Consolidation has passed the impugned orderwithout hearing the petitioners. Thus there was denial of the principles of natural justice. This point is a pure question of fact and cannot be gone into by this court in writ jurisdiction.

The petitioners may file a fresh application before the D.D.C. in case they so choose, before the Assistant Director of Consolidation to recall the order dated 22290 on the ground that they were not heard."

It is clear that the only point urged before the Court was that the petitioners were not heard. It was open to the Counsel for the petitioner to urge all other points. Although the grounds were taken in the writ petition but only one point was pressed. In case the petitioners chose to urge only one point in the writ petition and such point is dealt with by the Court while disposing of the writ petition, it is not open to the petitioners to urge other points afterwards on the ground that as on the one point the matter has been decided the other points may be taken for consideration. The petitioners have challenged the order dated 2221990 when the same order was challenged in the earlier writ petition. The application filed by the petitioners before the Deputy Director of Consolidation to recall the order dated 2221990 on the ground that they were not heard has been rejected vide order dated H121^90 on the ground that the allegation of the petitioners that they were not heard when the order was passed on 2221990, is incorrect. There is no legal infirmity in the order dated 11121990. It is a question of fact as to whether the petitioners were heard by the Assistant'' Director of Consolidation before the order dated 2221990 was passed by him.

Learned Counsel for the petitioners has placed reliance upon the decision of the Apex Court in Kshitish Chandra v. Commissioner of Ranchi, AIR 1981SC 707, wherein it was held that when the final order is passed, the order passed on remand by a subordinate Authority can also be challenged. In Bipat v. D.D.C. Gomkhpur and others, 1995 RD 297, it was held that after the remand the finding of the trial Court automatically becomes nonexistent. InAbhaipmkash v. The Chief Engineer (West) Leave I, Irrigation Department, Meerut and others, 1997(1) ESC 485 Allahabad, it was held that where the transfer order was challenged and the Court directed to decide the representation while disposing of the writ petition and after the representation is decided by the authority concerned, the said order can be challenged by filing another writ petition. I Preetam Singh (Dead) by Lrs. v. Assistant Director of Consolidation and others, Judgments Today, 1996 (1) SC 471, wherein the observation was made that the order of remand can be examined finally even though it was not challenged by certain independent proceedings under the provisions, of U.P. Consolidation of Holdings Act. These cases have no application to the facts of the present case. This Court had not remanded the matter after setting aside the order of the Assistant Director of Consolidation dated 2221990. Learned Counsel for the petitioners had urged only one point that the petitioners were not given an opportunity of hearing. This Court disposed of the writ petition with the observation that the petitioners, if so choose, may file an application to recall that order on that ground. The Deputy Director of Consolidation was confined to decide that matter. He was not entitled to review the order dated 2221990.

7, Learned Counsel for the petitioners then urged that the Deputy Director of Consolidation by his order dated 11121990 has not only dismissed the application filed by the petitioners to recall the order on the ground that they were not heard but he has also considered the merits of the case. It may be that the petitioners urged the points on merits and he has considered the same. Firstly, he could not travel beyond the jurisdiction conferred on him by this Court vide order dated 641990 and secondly, he had no power to review the order dated 2221990.

In Khacher Singh v. State of U.P. and others, 1995 AWC 599, it has been held that the second writ petition is not maintainable against the same order which was challenged by a party and the writ petition was dismissed.

In view of the above discussions the writ petition is dismissed.