Ramapati vs D.D.C.

@DELETEUPPERDATA

Anjani Kumar Mishra, J.—These two writ petitions are directed against the same impugned order and have therefore been heard together and with the consent of the parties are being disposed of at the admission stage itself, without calling for any counter-affidavit. I have heard Shri Veer Singh, learned Counsel for the petitioners in both the writ petitions and Shri R.C. Singh and Shri H.R. Mishra, learned Senior Advocate for the respondents in these two writ petitions.

These writ petitions challenge the orders of the consolidation authorities passed in proceedings arising out of an objection under section 9-A(2) of the U.P. Consolidation of Holdings Act as also the orders passed in proceedings under Rule 109 of the Rules whereby the orders passed in title proceedings have been given effect to.

The dispute in the writ petition relates to plots of khata Nos. 89-A, 89-B, 90 and 238. These khatas were recorded in the name of Ram Nihal. On the start of consolidation operations, several objections were filed under section 9-A(2) of the Act.

On 26.9.1977, an additional issue was framed by the Consolidation Officer. This issue pertains to the question of res-judicata and the effect of decisions in a civil suit between the parties.

It is submitted that thereafter, the case was pending in the Court of Consolidation Officer (the CO), Bad-lapur which Court was abolished and the matter were transferred to the CO Line Bazar, Jaunpur which was also abolished and thereafter the matter were transferred to the CO, Machhlishahar. On 15.4.1985, the case was dismissed in default in the absence of the parties.

Three separate recall applications were filed by Surya Pal, Ram Karan and Ganga Prasad respectively which were allowed on 19.08.1990. Subsequent to the cases being restored, various dates were fixed and ultimately it is alleged by the petitioners that on 26.8.1996 an ex parte order was passed by the C.O.

It has been submitted that this order dated 26.8.1996 was passed after hearing only the sons of Ganga Prasad and Shree Nath. It is further stated that in 2003, an application was moved under Rule 109-A for implementation of this ex parte order. This application is also alleged to have been allowed ex-parte on 20.8.2003. No notices of this application were ever issued or served upon the petitioners. Since modifications were required in the chaks of the parties, it was mandatory for the petitioners to have been heard before the order was passed. The petitioners came to know about this order in 2005 when the respondents interfered in their possession over the disputed property and thereafter they filed the time barred appeals before the Settlement Officer, Consolidation, (the SOC) Jaunpur. The appeals were against the order dated 26.8.1996 passed on the objection under section 9-A(2) as also the order dated 29/30.9.2003 passed under Rule 109-A. The SOC by his order dated 24.7.2010 refused to condone the delay in filing the appeals and dismissed them on the ground of latches.

The petitioners'' revision against the order dated 24.7.2010 was dismissed on 10.4.2014. Hence this writ petition challenging the order dated 10.4.2014 passed by the DDC, the order dated 24.7.2010 passed by the SOC as also the order dated 26.8.1996 passed by the CO in the title proceedings and the order dated 29/30.9.2003 passed by the CO in proceedings under Rule 109-A.

Primarily two objections have been raised by the learned Counsel for the petitioners. He submits that the order passed by the CO in proceedings under Rule 109-A was ex parte. No notice was ever served upon the petitioners. Since the modifications were required to be made in the chaks of the parties it was mandatory for the CO to have heard the petitioners before passing order which has not been done and the SOC and the DDC have wrongly refused to condone the delay and wrongly and illegally dismissed the appeal and revision, respectively.

As regards the order passed by the CO on 26.8.1996, it is again the case of the petitioners that this order was ex parte. It is submitted that it is established on record that the petitioners were not heard prior to the passing of this order and, therefore, the Courts below have committed manifest illegality in affirming it.

The second submission as regards the title proceedings is that the CO not only passed an ex parte order, he also failed to decide the additional issue that had been framed on 26.7.1977. He submits that this additional issue was as regards the plea of res-judicata and in failing to decide the same, the CO committed manifest illegality and, therefore, the judgment of the Courts below in this regard are illegal and liable to be set aside.

In rebuttal, learned Counsel for the respondents have submitted that the petitioners were all along aware of the pendency of the case before the CO, in so far as the title proceedings are concerned. They, despite knowledge of the pendency of the case, failed to appear and, therefore, the orders were rightly passed and the same cannot be said to be ex parte. They have also relied heavily upon the findings recorded by the SOC as also the DDC in this regard. The crux of the submissions is that the petitioners were grossly negligent in prosecuting their case and despite service of notice and despite knowledge of the pendency of both, the title proceedings and the proceedings under Rule 109-A, their failure to appear before the Courts to press their claim is writ large on the record and, therefore, the impugned orders call for no interference.

When this matter was came up before this Court, initially, the original records of the proceedings before the CO on the objection under section 9-A(2) as also the case under Rule 109-A and the Revisional Courts'' record were summoned. These records were produced before this Court and I have perused the same.

Since the original records have been produced and perused and submissions have been made by the learned Counsel for the parties on the basis all these original records also, no necessity was felt for calling any counter-affidavit.

I have considered the submissions made by the learned Counsel for the parties and have perused the records of the writ petitions as also the original records of the Courts below referred to above.

I have examined the original record with regard to the first submission made by the learned Counsel for the petitioners that an additional issue was framed by the Consolidation Officer on 26.9.1977. The said contention is borne out by the record. By this order an additional issue regarding the impact of earlier decisions on the claim of the parties, had been framed.

The second submission of the learned Counsel for the petitioners'' is that notices were issued only in favour of Amar Bahadur (Amar Pal), Lal Mani and Indra Pal. No notices were issued by the Consolidation Officer to Indravati, Rama Kant, Uma Kant, Luxmi Kant, Vinai Kumar, Shiv Kumar and Manoj Kumar. Thus the claim of the petitioner is that notices were issued to three persons while no notices were sent to seven other persons who were necessary parties.

Apart from the notices issued in 1974, only seven other notices are available on record and these notices are regarding the date fixed, namely, 3.9.1985. No other notice is available on record. These notices have been issued to Satya Dev, Lal Mani son of Sita Ram, Raja son of Ratan Singh, Ram Ratan son of Lal Bahadur, Suraj Pal son of Bhuneshwar, Ramayana son of Ram Terath. The seventh is a very faint carbon copy and it is not possible to decipher the name of the person to whom this notice was sent. Therefore, the second contention of the learned Counsel for the petitioner that no notices was issued to most of them, nor any order was passed holding the service of notice upon them to be sufficient is also borne out on record. However, this by itself, may not be very relevant, in the facts and circumstances of this case.

Regarding the case under Rule 109-A, as many as six notices are available on the record of these proceedings. These notices have been issued fixing 10.6.2003. The notice issued to Surya Pal, has been received by him. The notice issued to Rajendra and Lal Jee sons of Shree Nath has also been served on Rajendra. The notice meant for Raj Nath son of Raj Pati has also been received by him. The other notices available on record, have been issued to Amar Bahadur, Lal Mani and Indra Pal son of Satya Deo respectively.

These three notices, issued to Amar Bahadur, Lal Mani and Indrapal have been served by affixation. No other notice is available on record. It would also be relevant to point out that the original record of the proceedings under Rule 109-A, taken before the SOC does not have any order-sheet.

Indra Pal is petitioner No. 1 in writ petition No. 25401 and it is, therefore clear from a perusal of the array of the parties in this petition that there is no notice on record which has been issued in favour of respondents 2 to 5. Even the notice issued to petitioner No. 1 has been served by affixation, as already stated above. Therefore, the order passed in proceedings under Rule 109-A was ex parte against the petitioners 1 to 5, at least. In so far as petitioners 6 to 9 are concerned, they are sons of Surya Pal, upon whom, notice was served. The order therefore cannot be said to be ex parte against them as their predecessor in interest was served with a notice. It is not clear from the record as to whether Surya Pal died during the pendency of the proceedings or thereafter. However, an order which is ex parte even against some of the persons who were entitled to opportunity of hearing, has to be set aside as a whole, till such time it can be established that the interest of the persons who were served can be separated from those who were not served notice. This is not the case in the instant writ petition.

In so far as the petitioner Nos. 1 and 2 in connected writ petition No. 35220 of 2014 are concerned, no notices has been issued to them, as no such notice is available on the record.

As far as petitioner No. 3, Lal Mani son of Sita Ram is concerned, the notice issued to him has been served by affixation and there is nothing on the record to show that service upon him was held to be sufficient and, therefore, the order passed by the SOC in 2003 in proceedings under Rule 109-A is ex parte against the all three petitioners in writ petition No. 35220 also.

In view of what has been recorded above, the order of the SOC dated 29/30.09.2003 passed in proceedings under Rule 109A is clearly ex parte and the same is liable to be set aside on this ground alone, since the chaks of these persons were required to be modified in such proceedings. It was incumbent that every affected tenure holder was served a notice and was provided an opportunity of hearing, which has not been done in the instant case.

Coming to the order passed by the CO on 28.6.1996 on the objections under section 9-A(2), it would be relevant to refer to the order-sheet of 17.4.1996 which records that the Counsel representing Raj Narayan, Raj Mani and Shree Nath alone was heard and time was granted for submitting written arguments. There is nothing on record to indicate that the written arguments were ever filed and subsequently the final order was passed by the CO on 26.8.1996.

The Courts below, especially the DDC, while passing the impugned order has observed that the order-sheet of the relevant date bears the signatures of the parties. I have perused the original record and such perusal reveals that the order-sheet of 17.4.1996 does not bear the signature of any party or Counsel. It bears the signature of the CO alone. It would further be relevant to note there is no order-sheet of 26.8.1996 and, therefore, the observation of the DDC in this regard is contrary to the record. It can, therefore, safely be recorded that the order dated 26.8.1996 is ex parte against the petitioners and has been passed without hearing them.

As already noted herein above, the Consolidation Officer had framed an additional issue. Perusal of the judgment of the CO clearly shows that this additional issue has not been decided. It is not even being adverted to, in the order passed by the C.O. Once a specific additional issue had been framed, the CO could not have decided the case without considering and recording a specific finding on such issue and, therefore also, the order of the CO is manifestly illegal and liable to be set aside on this ground alone. The Courts below, namely the SOC as also the DDC have wrongly and illegally failed to consider this aspect of the matter, which vitiates their orders.

Since the CO failed to decide the additional issue regarding the plea of the res judicata and the order of the CO in the proceedings under Rule 109-A are established to the ex parte upon examination of the original record of such proceedings and the findings recorded by the appellate and revisional authorities to the contrary are not borne out by the record, it is clear that both the SOC and DDC have passed orders is a cursory manner without examining the record, which approach calls for a stern reprimand. The said authorities must be extremely careful and should ensure that such mistakes are not repeated in future. However, for the same reasons, both the writ petitions deserve to be allowed and the impugned orders deserve to be set aside.

Accordingly the writ petitions are allowed. The orders passed by the Consolidation Officer on 26.8.1996 in the title proceedings and on 29/30.9.2003 passed on the application under Rule 109-A as also the orders dated 24.7.2010 and 10.4.2014 passed by the respondents 2 and 1 respectively, are quashed. The matter is remanded to the Consolidation Officer to pass fresh orders on the objections under section 9-A(2). This exercise may be completed within a period of six months from the date of the certified copy of this order is produced before him. There will, however, be no orders as to costs. The original records that have been produced by the learned Standing Counsel is being returned to him in Court today.