Smt. Shoaba vs DY. Director of Consolidation, Muzaffarnagar and others

Amreshwar Pratap Sahi, J.—This is an unfortunate dispute between a mother and her daughter. Learned Counsel for the petitioner contends that the order passed by the Deputy Director of Consolidation, during the pendency of the case which has been restored, is an exercise in excess of jurisdiction. Sri Shukla submits that as a matter of fact fraud was played on the petitioner and on the basis of the alleged compromise, the respondent - daughter has succeeded in getting her name mutated. He, therefore, submits that the arguments advanced on behalf of the respondents cannot be accepted. Sri Shukla has relied on the judgment in the case of Suryanath Singh v. Deputy Director of Consolidation, Ballia and others. 2000 RD 259 (HC)

Sri P.K. Rai, learned Counsel for the contesting respondent - Caveator, submits that the facts as disclosed indicate that the name of the answering respondent, after the death of her father, came to be recorded in the year 1997. The appeal against the said order came to be filed by the petitioner in the year 2010. The appeal was allowed and the matter was remitted to the Consolidation Officer before whom the matter, according to the respondents, proceeded ex parte and the Consolidation Officer passed an order on 25.11.2010. The respondents moved a restoration application, which was allowed on 8.9.2011.

During the pendency of this proceeding before the Consolidation Officer, the respondents also preferred a revision against the order of the Settlement Officer Consolidation by which the matter had been remanded to the Consolidation Officer. The Deputy Director of Consolidation has allowed the revision holding that neither the appeal was maintainable nor the proceedings commenced on the basis of such an order could continue.

Aggrieved, the petitioner submits that once the matter is pending before the Consolidation Officer, there was no occasion for maintaining the revision and the Deputy Director of Consolidation committed a manifest illegality by exercising his powers in setting aside the order passed by the appellate authority.

Having considered the aforesaid submission and the facts as brought on record, it is undisputed between the parties that the village came to be notified u/s 4 where after a notification has been issued u/s 6 of The Uttar Pradesh Consolidation of Holdings Act, 1953 cancelling the notification of consolidation. This cancellation of notification has intervened prior to the appeal filed by the petitioner.

The judgment, which has been relied upon by the learned Counsel for the petitioner itself in paras 15 and 16, holds that once a notification has been issued u/s 6 of the Act, no proceeding through an appeal would be maintainable. In view of this settled position of law, and being a natural consequence of the Notification issued u/s 6 of the Act, the appeal itself was not maintainable and, therefore, any proceeding arising out the said appellate order was also without jurisdiction.

In view of this, the findings recorded by the Deputy Director of Consolidation on this issue of law cannot be dislodged and is rather supported by the judgment relied upon by the learned Counsel for the petitioner himself. The proceedings being corum non-judice, the Deputy Director of Consolidation was justified in exercise of his power u/s 48 of the 1953 Act which is wide enough.

Learned Counsel for the petitioner submits that the alleged compromise was on the basis of fraud and, therefore, para 17 of the aforesaid judgment comes to the aid of the petitioner.

The issue of fraud has been raised after almost 13 years of passing of the order in favour of the respondents. Needless to repeat that the petitioner and the respondents are mother and daughter residing in the same village. Nonetheless, this question of fraud as contended on behalf of the petitioner is a pure question of fact. This can only be raised by leading evidence before the appropriate forum in the event the compromise is sought to be assailed on the basis of fraud. The reason being simple namely that fraud can be established only on the basis of evidence, and not on the basis of mere assumption. For this, the petitioner will have to institute a regular proceeding by filing a Suit u/s 229-B of the U.P. Zamindari Abolition & Land Reforms Act to establish the factum of the alleged fraud on the basis whereof restoration has been sought,

Accordingly, I see no merit in the writ petition. The writ petition is, accordingly, dismissed.