Sidhari vs Dy. Director of Consolidation, Mau and Others

Anjani Kumar Mishra, J.—Heard Sri S.N. Tripathi, learned Counsel for the petitioner and Sri A.P. Kushwaha, learned Counsel for the caveator-respondents. This petition arises out of an objection under section 9-A(2) regarding land situated in Village Salahabad, District Mau and is directed against the order dated 23.8.2014 passed by the Deputy Director of Consolidation.

On 21.8.2012, the contesting respondents filed a time barred objection under section 9-A(2). The Consolidation Officer dismissed this objection on the ground that the objectors were availing two remedies having also filed an appeal and, therefore, held that the objection was not maintainable. It was also dismissed as barred by time having been filed almost two years, after the publication of notification under section 9. The consequential revision filed by the contesting respondents has been allowed, the order passed by the Consolidation Officer has been set aside and the matter has been remanded back to the Consolidation Officer to frame preliminary issues regarding as to whether any final order was passed in the first round of consolidation operations and also as to whether the said order is forged and fabricated. It has been directed that these preliminary issues be decided first and only thereafter if need arises, other issues be framed and decided. It is this order of remand, which is impugned in the instant writ petition.

Sri S.N. Tripathi, learned Counsel for the petitioner has submitted that an order was passed in the favour of the petitioner in the first round of consolidation operations on 26.5.1966 in Case No. 194. This order was incorporated in the revenue records and the entry continued and, therefore, on the start of the second round of consolidation operations, the name of the petitioner was recorded in the basic year. Two years after issuance of notification under section 9, the contesting respondents filed the objection under section 9-A(2). They also preferred an appeal against the order of 26.5.1966 before the Settlement Officer, Consolidation. He therefore submits that the observation of the Consolidation Officer, that the contesting respondents were availing two separate remedies before two different forums, was justified. This appeal was subsequently withdrawn by the contesting respondents prior to the decision in the revision. He therefore submits that the order dated 26.5.1966 after withdrawal of the appeal has become final and the same cannot be challenged by means of the objection, which has been remanded for decision by the Consolidation Officer. He contends that a pure question of law was involved in the revision and there was no justification for remanding the matter back for framing preliminary issues. He has lastly submitted that he is aggrieved by the finding recorded by the Deputy Director of Consolidation in the impugned order that the order dated 26.5.1966 is forged and fabricated.

Learned Counsel for the caveators in rebuttal submitted that the matter has rightly been remanded back for a decision after framing preliminary issues. The parties do not belong to the same family and, therefore, there is no justification for the name of the petitioner being recorded over the land in question. He has further submitted that the ground taken in the objection is one of fraud. Fraud vitiates all solemn proceedings. He has lastly submitted that withdrawal of the appeal is of no consequence first because the order withdrawing the appeal has not been filed alongwith the writ petition and, therefore, it is not clear as to what is the import of this order. Secondly, if the order dated 26.5.1966 is fraudulent, it can always be set aside or ignored being void.

Upon hearing learned Counsel for the parties and upon a perusal of the record including the impugned order, I find no illegality therein. The issues that are being raised before this Court can very well be addressed by the Consolidation Officer, before whom the matter has been remanded by the impugned order. The Deputy Director of Consolidation while passing the order of remand has directed that two preliminary issues be framed and be decided first. Contentions as regards the merits of these very same issues are being raised before this Court.

Under the circumstances, I see no justification for entertaining this writ petition and decide preliminary issues, which have not been decided by any subordinate Court as on date. All the issues that are being raised by means of this writ petition, should be raised before the Consolidation Officer for being decided in accordance with law after hearing the parties and after affording them opportunity of adducing evidence.

The submission of learned Counsel for the petitioner that the Deputy Director of Consolidation has recorded a finding that the order dated 26.5.1966 is a forged and fabricated order, is not correct. No such finding has been returned. On the contrary, the Deputy Director of Consolidation after noticing the rival submissions has directed that a preliminary issue be framed as to whether the order in question is a forged and fabricated order. In case, the Deputy Director of Consolidation had recorded any finding that would have been no justification for him to have directed framing of this preliminary issue and, therefore, the submission made by learned Counsel for the petitioner in this regard lacks substance. Accordingly and for the reasons given above, I find no justification for interfering with the impugned order. The writ petition is accordingly dismissed with the observation that the parties may raise all issues as have been raised before this Court in the proceedings to be taken up by the Consolidation Officer in pursuance of the impugned order of remand.