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1984 DIGILAW 741 (ALL)

Radhey Shyam v. Deputy Director (Consolidation) Meerut, U. P.

1984-09-18

K.P.SINGH

body1984
JUDGMENT K. P. Singh, J. 1. By means of this writ petition the petitioners have prayed for quashing the judgment of the revisional court dated 10-11-1980. 2. It is not disputed that the disputed chak no. 362 of village Khandawali was recorded in the name of Sukhdev The petitioners applied for mutation of their names in place of the deceased Sukhdev before the Assistant Consolidation Officer who accepted the claim of the petitioners and deleted the name of the deceased Sukhdev and ordered for entry of the names of the petitioners through his order dated 23-11-1978. Against the order of the Assistant Consolidation Officer (contained in Annexure I attached to the writ petition), Smt. Kamlesh filed an appeal on the ground that she was daughter of the deceased Sukhdev and that the aforesaid deceased Sukhdev had executed a will in favour of appellant Smt. Kamlesh. The contesting opposite party Jitendra in the present writ petition is son of Mst. Kamlesh, and he was substituted during the pendency of the appeal. The appeal was dismissed on the ground that Mst. Kamlesh was not a party in the proceeding, hence she had not right to prefer the appeal as is evident from the judgment of the appellate authority dated 10-9-1980. 3. Against the judgment of the appellate authority a revision petition was filed which was also dismissed by the revisional authority through its judgment dated 10-11-1980. Aggrieved by the judgment of the revisional authority the petitioners have approached this Court under Article 226 of the Constitution. 4. The learned counsel for the petitioners contends before me that the revisional authority has patently erred in observing that the order dated 23-12-1978 passed by the Assistant Consolidation Officer could not be binding upon the consolidation officer and would be treated as void. He has also emphasized that no objection was filed by Mst. Kamlesh or any body before the Assistant Consolidation Officer, hence the revisional authority acted illegally in proceeding on the assumption that some objection filed on behalf of Mst. Kamlesh is pending before the Consolidation Officer. He has also emphasized that no objection was filed by Mst. Kamlesh or any body before the Assistant Consolidation Officer, hence the revisional authority acted illegally in proceeding on the assumption that some objection filed on behalf of Mst. Kamlesh is pending before the Consolidation Officer. The learned counsel for the contesting opposite party has submitted in reply that the objection filed by her mother is pending before the consolidation officer and the revisional authority has rightly observed and has correctly indicated that the order of the Assistant Consolidation Officer dated 23-12-1978 would not bind the Consolidation Officer and will be treated as null and void. 5. After hearing the learned counsel for the parties, I think that the present writ petition is misconceived. It is against the observation made in the impugned judgment dated 10-11-1980. Similar observation was made by the appellate authority in its order dated 10-9-1980 that the order dated 23-12-1978 passed by the Assistant Consolidation Officer would not be binding and that the consolidation officer would decide the claims of the parties. The petitioners had not filed any revision petition against the observation made by the appellate authority but they have preferred the present writ petition against the similar observations made by the revisional authority. No writ lies against the findings when ultimately the impugned order dismissed the revision petition filed by the contesting opposite party. 6. Moreover in the present case I find that there is a dispute as to whether the mother of the opposite party had filed any objection before the Assistant Consolidation Officer. If it is a fact that the mother of the contesting opposite party had filed an objection before the Assistant Consolidation Officer, the Assistant Consolidation Officer acted illegally in passing the order in favour of the petitioners on 23-12-1978. It appears that the appellate authority and the revisional authority have proceeded on the assumption that Smt. Kamlesh had filed an objection before the Assistant Consolidation Officer which is pending some where. It appears that the appellate authority and the revisional authority have proceeded on the assumption that Smt. Kamlesh had filed an objection before the Assistant Consolidation Officer which is pending some where. The appeal and the revision petition filed on behalf of the contesting opposite party were dismissed on the ground that the appellant was not a party in the proceedings in which favourable order to the petitioner was passed and because of the observation made by the appellate authority that the order of the Assistant Consolidation Officer would not be binding upon the Consolidation Officer, the revision petition was also dismissed. As the question whether Mst. Kamlesh predecessor-in-interest of the contesting opposite party had filed an objection Is a disputed question of fact in the circumstances of the present case, it cannot be safely inferred that the observation by the consolidation authorities to the effect that no objection was filed is quite correct. Much emphasis was laid by the learned counsel for the petitioner that no objection had been filed by any body, hence the observation regarding the order of the Assistant Consolidation Officer dated 23-12-1978 being null and void should be quashed. I think that the contention of the learned counsel for the petitioners is wholly misconceived and deserves to be rejected. Rule 25-A of the U. P. Consolidation of Holdings Act reads as below – "The Assistant Consolidation Officer shall, as far as possible, deal with the objections filed by a tenure holder with regard to matters referred to in clause (i) of sub-section (1) of Section 9-A, and sub-section (1) of Section 9-B in the village itself. In deciding disputes on the basis of conciliation in terms of sub-section (1) of Section 9-A, he shall record the terms of conciliation in the persence of at least two members of the consolidation committee of the village. These terms shall then be read over to the parties concerned and their signatures or thumb impressions obtained. The members of the consolidation committee present shall also sign the terms of conciliation. The Assistant Consolidation Officer shall then pass the orders deciding the dispute in terms of conciliation specifying the precise entries to be made in the records. Details of the operative part of the orders passed by the Assistant Consolidation Officer shall be noted in the Misilband register. The Assistant Consolidation Officer shall then pass the orders deciding the dispute in terms of conciliation specifying the precise entries to be made in the records. Details of the operative part of the orders passed by the Assistant Consolidation Officer shall be noted in the Misilband register. No ex- parte order or orders in default shall be passed by the Assistant Consolidation Officer." 7. In the present case it is clear that name of the deceased Sukhdev appeared over the disputed land and the petitioners had applied that their names should be mutated in place of the name of the deceased. When Assistant Consolidation Officer could not decide the claim either exparte or in default it is apparent that the order passed by the Assistant Consolidation Officer on 23-12-1978 in favour of the petitioners was against the Rules. On the observation of the appellate authority and the revisional court the claims of the parties shall be decided by the consolidation officer, hence the order passed by the Assistant Consolidation Officer would not bind the Consolidation Officer and would be treated as null and void and cannot be said to be suffering from any mistake of law. Rather, looking to Rule 25-A of the U. P. Consolidation of Holdings Act, I think that the order in favour of the petitioners is against the rules and without jurisdiction. Therefore, it has been rightly observed as null and void. 8. In view of the above discussion, the writ petition is devoid of merits and deserves to be dismissed, Accordingly, I dismiss the writ petition but I make no order as to costs. --- Petition dismissed.