Sunder Pala v. Shambhu Singh — 1966 DIGILAW 427 (ALL)

JUDGMENT Nigam, J. - Srimati Sunder Pal a has filed this petition under Article 236 of the Constitution praying for a writ of certiorari quashing the order of the Deputy Director of Consolidation and the Settlement Officer Consolidation. She also prays for a writ of mandamus directed against these two officers to decide the case in accordance with law. 2. In the petition, I have heard the learned counsel for the parties. 3. The facts of the case are not given completely in the writ petition and I have to take some of them from the counter affidavit. It appears that one Debi Bux Singh who was the recorded tenure-holder of the khatas Nos. 25, 27 and 28 in village Khakherwa, Pargana Samrausa. Tahsil Maharaigani. District Rae Bareli, died on June 5. 1961. Thereupon, the name of Shambhu Singh and opposite party No. 2 was recorded in respect of khata No. 27 by order dated August 24, 1961. In respect of khatas Nos. 25 and 28 the names of the same persons were recorded by orders dated June 20, 1961 and July 7, 1961 respectively. These orders were passed in proceedings under Section 9 of the Consolidation of Holdings Act. Subsequently separate chaks were framed in the names of opposite parties Nos. 1 and 2 in respect of their half share in khatas Nos. 25, 27 and 28 and final allotments of chaks were made. It was after this that Smt. Sunder Pala filed an objection on August 21, 1962 before the Settlement Officer (Consolidation). Papers were forwarded to the Consolidation Officer who rejected the objection on April 11, 1963. The petitioner filed a revision on April 11, 1963. The petitioner filed a revision and by order dated August 24, 1963 the case was remanded to the Consolidation Officer for decision. Thereafter the objections were dismissed by the Consolidation Officer on June 16, 1964. A little before that, on May 23, 1964, the village was de-notified under Section 52 of the U.P. Consolidation of Holdings Act. The petitioner filed an appeal against the order dated June 16, 1964. The appeal was dismissed by order dated July 31, 1964. The petitioner preferred a revision which has been rejected. It is this order of the Settlement Officer (Consolidation), copy annexure 3 and the order of the Deputy Director of Consolidation dated December 2, 1964 that are impugned before me. 4. The appeal was dismissed by order dated July 31, 1964. The petitioner preferred a revision which has been rejected. It is this order of the Settlement Officer (Consolidation), copy annexure 3 and the order of the Deputy Director of Consolidation dated December 2, 1964 that are impugned before me. 4. As regards the appeal, the contention of the learned counsel opposite is that as the appeal had been instituted after the de-notification of the village, no appeal could be filed and if any was filed, no effect could be given to orders passed thereunder under the provisions of Section 52(2) of the U.P. Consolidation of Holdings Act as amended by U.P. Act VIII of 1968. It is urged by the learned counsel that in the circumstances the Settlement Officer (Consolidation) was justified in not entertaining the appeal and in deciding it on merits. 5. As regards the revision application, it is accepted by the learned counsel for the parties that under the provisions of the Act as applicable to the facts of the present case, a second appeal and not a revision should have been filed. The learned counsel for the petitioner, however, urges that this is only a minor defect and that if the revision application is restored to its original number it will be open to him to pray that the revision application be converted into a second appeal. No such prayer was made and I am unable to see any force in this contention. If the revision application was incompetent, there is no reason why the petitioners should be given an opportunity to convert the revision application into a second appeal. If he thinks that a second appeal is competent, his case is not prejudiced as the revision application also was filed after the village had been de-notified. 6. The main arguments before me have, however, been entered on the question as to whether the issue of a writ would be infructuous or not. The learned counsel for the petitioner has urged that most of the decisions on which the learned counsel for the opposite parties relies were based on the provisions of the proviso of the U.P. Consolidation of Holdings Act as it stood before its amendment by U.P. Act XXXVIII of 1958. That is so. The learned counsel for the petitioner has urged that most of the decisions on which the learned counsel for the opposite parties relies were based on the provisions of the proviso of the U.P. Consolidation of Holdings Act as it stood before its amendment by U.P. Act XXXVIII of 1958. That is so. The learned counsel for the petitioner, therefore, relies on the decision of a Bench of this Court is Kishen Singh v. Deputy Director of Consolidation and others, 1965 R.D. 298. It does not appear to me that this decision considered the question whether it was desirable to issue a writ because it would be infructuous. This decision certainly considered the question whether the Director would be competent to decide a revision application. That is not the question before me. The learned counsel has also relied on my decision in the case of Om Prakash v. Saiyit Husain Joint Director of Consolidation, U.P. Lucknow Camp at Faizabad and others, 1966 R.D. 233. That decision again does not appear to convey any point raised before me. It appears to me that proceedings under the Consolidation of Holdings Act under Sections 20 etc. raise questions quite apart from those determined under Section 9 and the following sections of the U.P. Consolidation of Holdings Act. Under Section 9 and the following sections rights are determined. Thereafter the question of allotment of chaks is taken up on the basis of the decisions arrived at. The allotment of chaks transfers possession and fresh rights accrue to the persons to whom chaks have been allotted. Thus if a person has not been careful to raise an objection under Section 20 of the Consolidation of Holdings Act, a latter establishment of his rights cannot dislodge the rights that have accrued to the new chak holder under Section 20. The learned counsel refers me to the provisions of Section 21(6) of the old Act. The present clause dealing with the same subject is Section 481(3). That only allows the subordinate authority to make a reference to the Director of Consolidation. That sub-section nowhere allows the Director of Consolidation to change the allotment when no objection has been filed under Section 20. I am, therefore, of opinion that the issue of writ now would be infructuous. 7. That only allows the subordinate authority to make a reference to the Director of Consolidation. That sub-section nowhere allows the Director of Consolidation to change the allotment when no objection has been filed under Section 20. I am, therefore, of opinion that the issue of writ now would be infructuous. 7. In these circumstances as a second appeal was not instituted, as the first appeal was not competent and as the writ petition would be infructuous, I reject the writ petition. There will be no orders as to costs.