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1983 DIGILAW 402 (ALL)

Umesh v. Deputy Director of Consolidation, Banda

1983-05-21

K.N.MISRA

body1983
ORDER K.N. Misra, J. - This writ petition under Article 226 of the Constitution is directed against the order dated 10th March, 1983 (Annexure-9) passed by the Deputy Director of Consolidation under S. 48 of the U. P. Consolidation of Holdings Act (hereinafter referred to as the Act). setting aside the order dated 9th Feb., 1981 (Annexure-8) passed by the Consolidation Officer by which the proceedings in pending cases Nos. 2219 and 2224 under S. 9-A (2) of the Act in respect of holding in dispute were stayed till disposal of a pending civil suit regarding cancellation of sale-deed pertaining to land in dispute. Briefly stated, the facts of the case are as follows : In the basic year record, name of late Smt. Soniya widow of Rameshwar was recorded as Bhumidhar. She died on 19th Aug., 1975. Petitioner claims to be adopted son of Smt. Soniya, who is said to have adopted him on 24th Dec., 1971 and also executed a registered adoption deed. It has further been averred that Smt. Soniya had filed a suit No. 128 of 1971 for the cancellation of a sale-deed dated 18th Dec., 1970 alleged to have been executed by her in favour of Devi Din alias Devi Dayal alias Bade (hereinafter to be referred to as Devi Din). The aforesaid suit was contested by Devi Din and it is still pending. During pendency of said suit, Smt. Soniya died and the petitioner got his name substituted in her place claiming to be the adopted son of Smt. Soniya. The petitioner also claims to be in possession over the land in dispute and that his possession was maintained in proceeding under S. 145. Cr. P. C. In the mean time the village was brought under consolidation operations and the petitioner filed an objection for getting his name recorded, being adopted son of Smt. Soniya whose name was recorded over the land in dispute on Khata Nos. 423 and 350 of the basic year Khatauni. Another objection was filed by Smt. Kamla Devi, opposite party No. 3, alleging herself to be widow of Devi Din and claiming Bhumidhari rights on the basis of sale deed dated 18th Dec., 1970 executed by Smt. Soniya in favour of her husband Devi Din. Opposite Parties Nos. 423 and 350 of the basic year Khatauni. Another objection was filed by Smt. Kamla Devi, opposite party No. 3, alleging herself to be widow of Devi Din and claiming Bhumidhari rights on the basis of sale deed dated 18th Dec., 1970 executed by Smt. Soniya in favour of her husband Devi Din. Opposite Parties Nos. 4 and 5 namely Mahabir Singh and Gajraj Singh also filed an objection alleging themselves to be real brothers of Devi Din and claiming Bhumidhari rights on the basis of aforesaid sale deed dated 18th Dec., 1970, being nearest heir of Devi Din. Opposite Party No. 2 also filed objection alleging himself to be nearest heir of late Smt. Soniya, denying adoption of the petitioner by her. He claimed himself to be Bhumidhar of aforesaid Khatas. All these aforesaid objections under S. 9-A (2) of the Act are pending before the Consolidation Officer and are being contested by the parties as aforesaid. 2. An application was filed by the petitioner before the Consolidation Officer on 7th March, 1980 praying that the cases pending before him be stayed in view of the fact that the suit for cancellation of the sale deed dated 18th Dec., 1970, on the basis of which opposite parties Nos. 3 to 5 are claiming Bhumidhari rights in the land in dispute, is still pending. It was urged that until final decision in the suit, the title of the parties in respect of the land in suit cannot be decided and as such the proceedings in the pending objections be stayed. The Consolidation Officer, vide order dated 21st April, 1980 rejected the aforesaid application. Aggrieved by this order, petitioner filed revision which was heard and allowed by the Assistant Deputy Director of Consolidation, Hamirpur, vide order 27th Sept., 1980 and the case was remanded to the Consolidation Officer with the direction that the said application be considered on merits afresh. After remand the Consolidation Officer, vide order dated 9th Feb., 1981 (Annexure-8) stayed the proceedings in the aforesaid cases pending before him. The said order was challenged in revision. After remand the Consolidation Officer, vide order dated 9th Feb., 1981 (Annexure-8) stayed the proceedings in the aforesaid cases pending before him. The said order was challenged in revision. The revision was allowed by the Deputy Director of Consolidation by the impugned order dated 10th March, 1983, a certified copy of which has been annexed as Annexure-9, and the order dated 9th February, 1981 passed by he Consolidation Officer was set aside and he was directed to decide the pending cases on merits. This order has been challenged by the petitioner in the present writ petition. 3. Learned counsel for the petitioner Sri R. R. K. Trivedi urged that since the suit for cancellation of aforesaid sale-deed, on the basis of which opposite parties are claiming to be Bhumidhars of the land in dispute, is still pending as such until decision of that suit further proceedings in the objections under S. 9-A (2) of the Act pending before the Consolidation Officer deserve to be stayed. His contention was that if the sale deed stands cancelled, there would remain nothing to be decided by the Consolidation authorities regarding claim of Bhumidhari rights of the opposite parties 3 to 5, who are basing their claim on that impugned sale deed. He further contended that the decision of the civil court on the question whether the sale deed deserves to be cancelled on the ground urged in the plaint, would be binding on the parties being a decision of the competent court. In support of his contention learned counsel for the petitioner placed reliance on the decision of a learned single Judge of this Court in Smt Long Shri Devi v. Rajendra Singh (AIR 1978 NOC 91), wherein B. N. Sapru, J, on the facts of that case observed that; "The validity of the gift deed is being gone into in the civil suit and it is in the interest of justice that the matter should be decided first before proceedings can go on in the consolidation courts. In the circumstances, the impugned orders of the Consolidation Officer and the Deputy Director of Consolidation are quashed and the Consolidation Officer is directed not to proceed with the hearing of the case till the civil court finally determines the dispute between the parties about the validity of the deed of gift". In the circumstances, the impugned orders of the Consolidation Officer and the Deputy Director of Consolidation are quashed and the Consolidation Officer is directed not to proceed with the hearing of the case till the civil court finally determines the dispute between the parties about the validity of the deed of gift". Learned counsel for the petitioner, thus, urged that the Consolidation Officer had rightly stayed the proceedings in the cases till the final decision of the aforesaid civil suit and that, in view of aforesaid decision of this Court, the order passed by the Deputy Director of Consolidation, setting aside the said order and directing the cases to be decided on merits, deserves to be quashed by this Court in exercise of powers under Article 226 of the Constitution. I am unable to agree with this contention. 4. This question cropped up for consideration in the case Ram Sewak v. Deputy Director of Consolidation, Deoria, (1982 All LJ 1116), wherein K. P. Singh, J. expressing doubt about the ratio laid down in Smt. Long Shri's case (reported in 1978 Rev Dec 133) : (AIR 1978 NOC 91), referred to the Larger Bench to decide the controversy whether this Court can interfere with interlocutory orders in exercise of its extraordinary jurisdiction under Article 226 of the Constitution. The Division Bench recorded its opinion on said question observing that : "In fact Article 226 is couched in widest possible terms. Its scope is ever expanding. To say therefore that a writ petition against an interlocutory order is not maintainable is not correct. But the Court may refuse to interfere in exercise of its discretion unless it is satisfied of extraordinary situation." 5. Although the question whether proceedings in the pending cases before the Consolidation Officer should or should not be stayed until final decision of the suit for cancellation of the transfer-deed was not specifically referred, but in para.-5 of the report of the said decision (reported in 1982 All LJ 1116 Ram Sewak v. Deputy Director of Consolidation, Deoria) it was observed that : "Before parting with this case it is necessary however to observe that the decision in Smt. Long Shri's case (1978 Rev Dec 133) : (AIR 1978 NOC 91) turned on the facts of the case. It cannot be urged as a matter of law that in every case where a suit for cancellation of sale deed or gift deed is pending or suit for specific performance has been filed, the Consolidation Authorities should stay their hands. Facts of a particular case may justify that order. Finalisation of consolidation proceedings does not affect the suit for cancellation of specific performance etc. In case consolidation proceedings are finalised in favour of ' A' on the strength of sale deed but the same is cancelled or suit for specific performance is decreed in favour of 'B' no difficulty can arise and the name of 'B' can be substituted in place of 'A' and possession be delivered under rules. Normally therefore, proceedings before Consolidation Authorities should not be stayed. It is inequitable as well, because an unscrupulous litigant may file a frivolous suit in Civil Court as in this case which may take ten years or even more in finalisation in appeal and second appeal causing serious prejudice to other side.". (Emphasis supplied). 6. It was, thus, observed by the Division Bench that the decision recorded in Smt. Long Shri's case (AIR 1978 NOC 91 (All)) (supra) turned on the facts of that case. 7. The said question again cropped for consideration before K. P. Singh, J. The learned Judge expressing his doubt about the correctness of law laid down in Long Shri's case (supra) referred to Division Bench the following specific question : "Whether consolidation authorities are bound to stay the proceedings before them if the same question is under consideration before a revenue or civil court." 8. The Division Bench returned its opinion on the question vide order dated 23rd Nov. 1982, (Civil Misc. Writ Petition No. 7490 of 1981, Ram Chandra Dubey v. D. D. C.) and it was observed that : "After a review of the relevant provisions of the Consolidation of Holdings Act, we are of opinion that proceedings pending before the consolidation authorities, cannot be stayed to enable the parties to get judgment from a civil court. The power of civil court and the consolidation courts in a matter which fall within the cognisance of both the parties is same and similar. Section 151 of the Code of Civil P. C. does not authorise the court to invest its jurisdiction where it has not been conferred by law. The power of civil court and the consolidation courts in a matter which fall within the cognisance of both the parties is same and similar. Section 151 of the Code of Civil P. C. does not authorise the court to invest its jurisdiction where it has not been conferred by law. We are, therefore, of the view that Smt. Long Shri, Devi v. Rajendra Singh does not lay down the correct law.". 9. Referring to the observation of learned single Judge in Long Shri's case (AIR 1978 NOC 91) (Supra) to the effect that; "the proper course in a matter like the above, would be for the consolidation court to stay proceedings under S. 151 of the Code of Civil P. C. and to wait for the decision of the civil or revenue court," it was further observed by the Division Bench that : "We are unable to take the view taken in this case by the learned Single Judge, S. 5(2)(a) of the U. P. Consolidation of Holdings Act appears to be exhaustive on the controversy in hand. Only in case where S. 5(2)(a) could be applied that the proceedings of the suit would abate, but where, S. 5(2),(a) does not apply the consolidation proceedings should not be liable to be stayed. S. 151, C. P. C. is intended to enable the courts to ignore the provisions of law which govern the procedure nor could inherent powers of a court be used in order to relieve a party from the consequences of law. It may also be remembered that U. P. Consolidation of Holdings Act is a special Act which had been enacted to provide for the consolidation of agricultural holdings in Uttar Pradesh for the development of agriculture. The proceedings contemplated by this Act are to be expeditiously decided to achieve the purpose of providing for the consolidation of agricultural holdings. We, therefore, are required to make such interpretation of the provisions of Consolidation of Holdings Act as does not defeat the very object and purpose of the Act. To hold that the consolidation proceedings would be held up till the civil suit finally determines the right of the party would be nullifying the purpose for which the Act was enacted.". 10. To hold that the consolidation proceedings would be held up till the civil suit finally determines the right of the party would be nullifying the purpose for which the Act was enacted.". 10. Thus, the aforesaid decision in Smt. Long Shri's case (supra) on which reliance was placed by learned counsel for the petitioner in respect of the aforesaid contention was overruled by the Division Bench in the aforesaid decision, with which I respectfully agree. 11. The aforesaid question had also cropped up for consideration before me in Mithan Singh v. Chandra Pal Singh (1982 All LJ 1445). In said petition learned counsel contended that since his suit is pending in the civil court seeking cancellation of the sale deed in question, the objection filed by the opposite parties seeking their names to be recorded on the basis of the impugned sale deed should be stayed because consolidation authorities cannot determine the void ability of the sale deed in question on the grounds alleged by the petitioner. He contended that this will be duplication in proceedings and the petitioner will be prejudiced. Disagreeing with his contentions it was observed that (Para 3) : "........ If the name of opposite parties 1 to 3 will be recorded on the land in dispute on the basis of the impugned sale deed and the petitioner ultimately succeeds in getting the sale deed cancelled through the competent civil court where his suit is pending, the name of the petitioner will then be recorded in place of opposite parties 1 to 3 on the basis of the order passed in the civil suit. The proceedings in the consolidation courts cannot wait for long and the consolidation authorities have to give effect to the sale deed which is voidable. If the sale deed is challenged by the petitioner on the ground that it is void, then the consolidation authorities can determine the said question but the sale deed cannot be challenged before the consolidation authorities on the ground that it is voidable for reasons stated in the Civil suit. The Consolidation authorities will have no jurisdiction to determine the question and they will have to record the names of opposite parties 1 to 3 which will be subject to the final decision in the civil court (see Ram Nath v. Smt. Munna, 1976 Luck LJ 52 (FB)). The Consolidation authorities will have no jurisdiction to determine the question and they will have to record the names of opposite parties 1 to 3 which will be subject to the final decision in the civil court (see Ram Nath v. Smt. Munna, 1976 Luck LJ 52 (FB)). In this view of the matter the petitioner will not be prejudiced in any manner.". 12. In this view of the matter I am of the opinion that the order dated 9th Feb. 1981, passed by the Consolidation Officer staying the proceedings in the aforesaid objections until final decision in the aforesaid suit for cancellation of sale deed suffered from manifest error and deserved to be set aside and it was rightly set aside by the impugned order. 13. Learned counsel next contended that the impugned order passed by the Deputy Director of Consolidation suffers from manifest error of lack of jurisdiction inasmuch as no revision was maintainable against interlocutory order dated 9th Feb. 1981, passed by the Consolidation Officer staying further proceedings in the objections. Learned counsel referred to Sec. 48 as amended by the Uttar Pradesh Land Laws (Amendment)(Second) Ordinance, 1982 wherein it was provided that no revision was maintainable against interlocutory order. This amendment was incorporated in S. 48 with retrospective effect from Nov. 10, 1980. Learned counsel also referred to the Uttar Pradesh Land Laws (Amendment) Act, 1982 by which Explanation (2) was added to S. 48 of the Act defining 'interlocutory order'. The said Explanation (21 reads thus : "Explanation (2)- For the purpose of this section the expression `interlocutory order' in relation to a case or proceeding, means such order deciding any matter arising in such case or proceeding or collateral thereto as does not have the effect of finally disposing of such case or proceeding." 14. Referring to said Explanation learned counsel urged that since by order dated 9th Feb. 1981, merely further proceedings in the objections were stayed until decision in said civil suit and as such the order was merely interlocutory order because by it the cases were not disposed of finally. Learned counsel contended that since revision itself was not maintainable and as such the impugned order passed by the Deputy Director of Consolidation, being without jurisdiction deserves to be quashed in the present writ petition under Article 226 of the Constitution. Learned counsel contended that since revision itself was not maintainable and as such the impugned order passed by the Deputy Director of Consolidation, being without jurisdiction deserves to be quashed in the present writ petition under Article 226 of the Constitution. In support of his argument learned counsel referred to a Division Bench Decision of this Court (1976 All WC 2911 : (1976 Cri LJ 1660) wherein with regard to expression "interlocutory order" it was observed that :- "The test in determining the final or interlocutory nature of an order is one and the same both in civil as well as criminal cases. That test is whether or not the order in question finally disposes of the rights of the parties or leaves them to be determined by the Court in the ordinary way. If the order does not finally dispose of the rights of the parties and the matters in dispute and leaves the suit or case still a live suit in which the rights of the parties have to be determined the order will remain interlocutory irrespective of the stage at which it is passed and also irrespective of the conclusive decision of the subordinate matters with which it deals. "Every order passed during the proceedings of a case, if it does not finally decide the case, is interlocutory. On that account no distinction can be made amongst different interlocutory orders on the ground that the one is passed at the preliminary stage of the proceedings whereas the other is passed at a later stage. In our opinion every order passed in a case or proceedings which does not finally decide the rights of the parties therein is interlocutory.". 15. Learned counsel for the petitioner also cited Federal Court decision in Mohammad Amin Brothers Ltd. v. The Dominion of India (AIR 1950 FC 77) wherein it was held that : "The test for determining the finality of an order is, whether the judgment or order finally disposed of the rights of the parties. The finality must be a finality in relation to the suit. The fact that the order decides an important and even a vital issue is by itself not material, unless the decision puts an end to the suit.". 16. The finality must be a finality in relation to the suit. The fact that the order decides an important and even a vital issue is by itself not material, unless the decision puts an end to the suit.". 16. Referring to above decision as well as to the aforesaid amendment incorporated in S. 48 of the Act, learned counsel contended that the revision filed by the opposite parties was not maintainable and as such the impugned order passed by the Deputy Director of Consolidation suffers from error of lack of jurisdiction and the impugned order, thus, deserves to be quashed in exercise of powers under Article 226 of the Constitution by this Court. 17. There is no dispute with the proposition of law laid down in the aforesaid decisions. Amendment incorporated in S. 48 by the Uttar Pradesh Land Laws (Amendment)(Second) Ordinance, 1982, operative with retrospective effect from Nov. 10, 1980, leaves no room for doubt that no revision would lie against an interlocutory order. Expression "Interlocutory order" has also been defined by adding Explanation (2) to S. 48 by Uttar Pradesh Land Laws (Amendment) Act, 1982 (Act No. 20 of 1982) according to which "interlocutory order" in relation to a case or proceeding, means such order deciding any matter arising in such case or proceeding or collateral thereto as does not have the effect of finally disposing of such case or proceeding. "The argument of learned counsel for the petitioner, thus appears to be correct that the revision filed by opposite party No. 2 against the impugned order dated 9th Feb. 1981, passed by the Consolidation Officer staying further proceedings in the case was not maintainable as by this order the case was not finally disposed of and merely further proceedings in the case were stayed until final decision in the aforesaid civil suit. 18. It is, thus, clear that the Deputy Director of Consolidation interfered with the order passed by Consolidation Officer exercising powers which were not justified by S. 48 of the Act, under which he purports to exercise power. 19. The question, however, that still remains is whether, even though it is found that the Deputy Director of Consolidation exercised powers which he was not justified to do under S. 48 of the Act, this Court should interfere in exercise of its extraordinary powers under Article 226 of the Constitution. 20. 19. The question, however, that still remains is whether, even though it is found that the Deputy Director of Consolidation exercised powers which he was not justified to do under S. 48 of the Act, this Court should interfere in exercise of its extraordinary powers under Article 226 of the Constitution. 20. I have already indicated above that the aforesaid order dated 9th Feb. 1981, passed by the Consolidation Officer was not legally justified and that he committed a manifest error in staying the proceedings pending before him in all the aforesaid cases under S. 9-A(2) of the Act until decision of the suit regarding cancellation of sale deed. The said order suffers from manifest error in view of the authorities already referred to above. It is, thus, to be seen that if the impugned order passed by the Deputy Director of Consolidation is quashed, the. result would be that the aforesaid wrong and illegal order dated 9th Feb. 1981 passed by the Consolidation Officer would be restored. It is well settled that in writ jurisdiction, illegal order should not be interfered with to restore any wrong and illegal order. In Dip Narain Singh v. State of Bihar (AIR 1978 NOC 297) (Pat) the prayer for quashing the order passed without jurisdiction was refused on the ground that quashing of the order would result in restoring an illegal order. Similar view was taken by K. P. Singh, J. in Kesh Kumar v. Assistant Director of Consolidation, Deoria (1981 Rev Dec 161) : (1981 All LJ 423) In Parahu v. Deputy Director of Consolidation, U. P. At Gorakhpur (1964 All LJ 240) the Division Bench of this Court, considered similar question as to whether this Court should interfere in exercise of powers under Article 226 of the Constitution and quash an order passed by the Deputy Director of Consolidation, passed in exercise of jurisdiction under S. 48 of the Act, which was not justified for him to do so under S. 48 of the Act. After considering that the impugned order was a proper, equitable and a just order and that the order passed by the subordinate consolidation authorities, which was set aside by the Deputy Director of Consolidation was not legally justified, the Division Bench refused to interfere with that order observing that : "....... After considering that the impugned order was a proper, equitable and a just order and that the order passed by the subordinate consolidation authorities, which was set aside by the Deputy Director of Consolidation was not legally justified, the Division Bench refused to interfere with that order observing that : "....... it is not a fit case where this Court should exercise its equitable jurisdiction of issuing a writ under Article 226 of the Constitution for the purpose of setting aside the equitable order and restoring a position which was not fair to the parties.". 21. As observed above, order dated 9th February, 1981 passed by the Consolidation Officer was not a legal and proper order and as such I am not inclined to interfere with the impugned order dated 10th March, 1983 passed by the Deputy Director of Consolidation as it will result in restoring aforesaid wrong and illegal order resulting in miscarriage of justice. 22. In the result the writ petition fails and is hereby dismissed in limine.