Ram Murat Rai And Others vs D.D.C.And Others

This writ petition has been filed by Ram Murat Rai and others challenging the order passed by the Deputy Director of Consolidation dated 19.08.1982 (Annexure - 8 to the writ petition) by means of which the Deputy Director of Consolidation has remanded the matter to the Consolidation Officer to hear again and decide on merits the claim set up by the petitioners.

The facts relevant for decision of the controversy are that the objections were filed under Section 9-A of the Consolidation of Holdings Act by Ram Murat and others, the petitioners herein, claiming the title over the land belonging to Ram Lagan, Prabhunath, Kalpnath, Suryanath and Smt. Shyam Raji who were the recorded tenure holders over the plots of Khata No. 153, 155, 32 and 60. The petitioners were recorded as class - 9 occupants i.e. unauthorized occupants over the plots of Khata Nos. 153, 155 and 32. One Raghunath was recorded as class - 9 occupant over the plots of Khata No. 60. Ten cases in all were registered pursuant to the filing of these objections.

The objections were decided by the Consolidation Officer with respect to all the plots of these four Khatas together by treating the Case No. 6164 of 1973 relating to Raghunath as the leading case. The Consolidation Officer in his order dated 30.11.1973 allowed the objections of the petitioners but dismissed the objections filed by Raghunath and expunged the names of recorded tenure holders Ram Lagan and others from the main column.

After the decision of the Consolidation Officer, Ram Lagan and others did not file any appeal immediately but Raghunath filed a Restoration Application on 08.12.1973 which was allowed by the Consolidation Officer on 29.04.1974.

A perusal of the order dated 29.04.1974 shows that the Consolidation Officer restored the case on payment of costs to Ram Lagan and others and these costs were also received by Ram Lagan.

Simultaneously, Raghunath also filed an appeal No. 1031 against dismissal of his Case No. 6164 of 1973 before the Settlement Officer Consolidation which was allowed on 08.10.1974.

From the facts it is evident that the order dated 30th of November, 1973 was set aside firstly by the Consolidation Officer himself in his order allowing the Restoration Application on 29.04.1974; and again the same order dated 30.11.1973 seems to have been set aside by the Settlement Officer Consolidation on 08.10.1974 in appeal filed by Raghunath. This resulted in remand/restoration of the case to the Court of Consolidation Officer.

Ram Lagan who was recorded as tenure-holder alongwith others over the plots of Khata Nos. 153, 155, 63 and 60, thereafter filed a belated appeal along with an application under Section 5 of the Limitation Act before the Settlement Officer Consolidation. Ram Lagan died during the pendency of this appeal and in his place Smt. Vimla wife of Shitla Prasad and daughter of Ram Lagan was impleaded as his legal heir and representatives.

The petitioners who had been recorded as tenure-holders after expunging the names of Ram Lagan and others in the order of the Consolidation Officer dated 30.11.1973, filed their objections to the Application for Condonation of Delay filed by Ram Lagan and their objections were considered favorably by the Settlement Officer Consolidation and he rejected the claim of Ram Lagan for condonation of delay and dismissed the appeal accordingly on 31.08.1981.

Against the rejection of Application under Section 5 and dismissal of appeal by the Settlement Officer Consolidation vide order dated 31.08.1981, Revision was filed by Smt. Vimala under Section 48 of the Act. This Revision has been allowed on 19.08.1982 by the Deputy Director of Consolidation (DDC) and the matter has been remanded to Consolidation Officer to decide afresh. Against this order the writ petition has been filed.

The writ petitioners have filed this writ petition alleging therein that they were shown as class - 9 occupants over the plots of Khatas belonging to Prabhunath, Kalpnath, Suryanath and Smt. Shyam Raji also who had not filed the appeal along with Ram Lagan. In so far as Prabhunath, Kalpnath, Suryanath and Smt. Shyam Raji were concerned, they were not to be considered as aggrieved against the order dated 30.11.1973 passed by the Consolidation Officer and for them the order dated 30.11.1973 became final. Since the petitioners were recorded as tenure-holders after expunging the names of Prabhunath, Kalpnath, Suryanath and Smt. Shyam Raji and also were in possession of the plots in question for a long time, their cases could not have been reopened by the order passed by the Deputy Director of Consolidation.

It has been alleged by the petitioners that before the Deputy Director of Consolidation it was specifically argued on behalf of the petitioners that in Case No. 6164 of 1973 relating to Raghunath, Appeal No. 1031filed by Raghunath was allowed and Case No. 6164 of 1973 was revived. In the garb of restoration of Case No.6164 of 1973 the Settlement Officer Consolidation could not be said to have also reopened the cases of the petitioners which stood finally allowed by the judgment dated 30.11.1973. The appeal of Raghunath having been allowed, only his case was to be considered as having been revived.

It has been alleged that the Deputy Director of Consolidation wrongly rejected the argument of the petitioners on the ground that ten cases were linked and decided together by a common judgment and order dated 30.11.1973. If the said judgment dated 30.11.1973 was set aside in one case, it would be deemed to have been set aside in all other cases also.

The counsel for opposite parties, however, has stated that the order dated 30.11.1973 of the Consolidation Officer had been passed after connecting all the cases/objections filed namely Case Nos. 6978, 6173, 6169, 6167, 7201, 6837, 6874, 7158 and 7159 along with the Case No. 6164 of 1973. Since, pleadings in all ten cases were considered jointly by the Consolidation Officer, setting aside the order of Consolidation Officer by the Settlement Officer Consolidation in appeal filed by Raghunath would amount to reopening of all the cases again. Moreover, from a perusal of the order passed by the Consolidation Officer dated 30.11.1973 it is evident that specific issues with regard to the date of possession of class-9 (unauthorized) occupants were not mentioned nor detailed evidence was taken by the Consolidation Officer. The order dated 30.11.1973 being summary in nature and based on conjectures and surmises was rightly set aside by the Settlement Officer Consolidation in appeal filed by Raghunath. Since the matter has been remanded by the Settlement Officer Consolidation while allowing the appeal of Raghunath on 08.10.1074 and the Consolidation Officer being now seized of the matter, he can also without prejudice to the case of any of the parties, reconsider all evidences and decide afresh after giving due opportunity of hearing to each of the parties.

The counsel for respondents has also rebutted the arguments made by the counsel for petitioners that since only Ram Lagan had filed appeal and not Prabhunath, Kalpnath and others jointly, the orders against Prabhunath, Kalpnath and others had become final and case could not be reopened with respect to them also by saying that in a family settlement all rights/title to the plots in dispute had been transferred by Prabhunath and others to Ram Lagan and he alone being affected by the names of petitioners being recorded had therefore rightly filed the appeal.

From a perusal of the order passed by the Deputy Director of Consolidation impugned in this writ petition, I find that the Deputy Director of Consolidation has rightly taken into account the fact that one appeal had already been filed by Raghunath namely Appeal No. 1031 in Case No. 6164 of 1973 wherein the same judgement and order dated 30.11.1973 was under challenge and he rightly did not agree with the argument made by the counsel for Ram Murat and others (writ petitioners) that the order dated 30.11.1973 was set aside only with respect to Case No. 6164 of 1973. The Deputy Director of Consolidation has taken the view and rightly so, that all ten cases were consolidated and heard together and decided by a common judgment and order dated 30.11.1973. Hence, if the judgment and order dated 30.11.1973 was set aside in one case, it would reopen all other cases also. Raghunath had filed his appeal arraying Ram Lagan, Prabhunath, Kalpnath, Suryanath etc. as opposite parties also and in his appeal he had mentioned that the Consolidation Officer had wrongly tagged all the cases together. The Consolidation Officer having decided all the cases together wrongly, the order dated 30.11.1973 was liable to be set aside. This argument was appreciated by the Settlement Officer Consolidation and he set aside the order dated 30.11.1973 and remanded the matter to the Consolidation Officer to decide afresh. After the restoration of the case on behalf of Raghunath, the order dated 30.11.1973 which was a common judgement and order passed in all ten cases, would be deemed to have been set aside. Therefore, since the matter had been reopened by the Appellate order of the Settlement Officer Consolidation in one case, it would be appropriate that the delay is condoned in appeal filed by Ram Lagan, and his case is also remanded back to the Consolidation Officer to decide afresh.

At the time of argument, the counsel for petitioners also referred to Section 48 as amended on 10.11.1980 by which an explanation was added namely Explanation - III which is under :- Explanation - (III) The power under this section to examine the correctness, legality or propriety of any order includes the power to examine any findings, whether of fact or law, recorded by any subordinate authority, and also includes the power to re-appreciate any oral or documentary evidence.

The counsel for the petitioners has argued on the basis of this Explanation - III that the Deputy Director of Consolidation should not have referred the matter for decision to the Consolidation Officer as he had jurisdiction and power to re-appreciate evidence at the revisional stage. He failed to exercise jurisdiction vested in him in law and has relegated the petitioners to fight their cases again and suffer the consequences of prolonged litigation before the Consolidation Officer whose order would ultimately be again subject to appeal and revision before the higher authorities. In my opinion, The Deputy Director rightly remanded the matter to Consolidation Officer as his is the first Court for determination of factual disputes.

I do not find any infirmity in the order passed by the Deputy Director of Consolidation impugned in this writ petition to exercise extraordinary jurisdiction vested in me under Article 226 of the Constitution.

From a perusal of the record, it is evident that at the time of filing of the aforesaid writ petition as fresh in September, 1982, this Court had directed that till further orders the possession of petitioner be not disturbed. It has been informed by the counsel for both the parties that in pursuance of the orders passed by this Court on 15.09.1982, although order impugned dated 19.08.1982 had not been stayed, still the Consolidation Officer had not proceeded any further with the cases remanded to him by the Deputy Director of Consolidation.

In the facts and circumstances of the case, since the matter is extremely old and has been pending in this Court since 1982, it is hereby directed that the Consolidation Officer shall after giving proper opportunity of hearing decide the case now remanded to him under Section 9-A(2) of UP CH Act as expeditiously as possible, without giving unnecessary adjournments, say within a period of six months from the date a certified copy of this order is produced before him.

The writ petition is dismissed. No order as to costs.