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1989 DIGILAW 746 (ALL)

Markandey Singh v. Deputy Director of Consolidation, Varanasi

1989-10-23

M.P.SINGH

body1989
ORDER M.P. Singh, J. - The present writ petition is directed against the orders dated 27-12-1983 and 18-6-1984 passed by the Deputy Director, Consolidation, Varanasi. 2. The disputed plot No. 151 measuring .5 acres is situate in village Parsipur, Pargana Kaswar Raja District, Varanasi. 3. The facts of the present case can be split up into three parts: FIRST PART 4. After the issue of Notification under Section 4 of U.P. Consolidation of Holdings Act, the petitioner filed a time barred objection under Section 9-A(2) of the Act on 13-4-1973. The petitioner's case was that it was a cultivatory land and has wrongly been excluded from the consolidation Scheme. He prayed for the assessment of the valuation and also for the allotment of the same in his favour. 5. The said plot was recorded as Abadi in the name of Ram Pratap Singh, father of the contesting Respondents. 6. The Consolidation Officer sent for the report of Vakil Commissioner. The report was submitted on 12-12-1973. He was examined on 21-1-1974. It was found by the Commissioner that the land was an Abadi. 7. The Consolidation Officer has held that it had no jurisdiction to decide the matter inasmuch as the land in dispute was not a land within the meaning of the Act. 8. The Consolidation Officer while passing the said order relied upon a Division Bench decision of this Court reported in 1974 Rev Dec 5, Triloki Nath v. Ram Gopal in which it has been held; "The procedure prescribed in Sections 9 to 11 of the Act which refers to correction of records of right can only apply provided the area which is the subject-matter of dispute fulfils the requirement of the definition of the word `land' as envisaged in the Act. There is nothing in these sections which would empower the consolidation courts to correct their records of rights even with respect of those areas which do not come within the purview of the definition of land as contemplated by the Consolidation of Holdings Act. If the area does not come within the circumscribed limit over which the Consolidation Courts have been given jurisdiction to adjudicate, they will have no power to adjudicate upon such claims for correction of their records. If the area does not come within the circumscribed limit over which the Consolidation Courts have been given jurisdiction to adjudicate, they will have no power to adjudicate upon such claims for correction of their records. Such a correction can only be effected by Consolidation Courts or by the District Deputy Director of Consolidation as mentioned in Section 5(a) after the rights of the parties have been decided by a competent courts." 9. The order of Consolidation Officer dated 24-4-1974 was affirmed in the appeal as well as in the revision. Against the order dated 13-4-1976 dismissing the petitioner's revision, a Review Petition was filed which was also dismissed on 10-5-1976. On 12-5-1976 a Second Review Petition was filed by the petitioner. This too was dismissed on 24-10-1978. 10. The effect of these orders is that it has been finally decided between the parties that the land in dispute is an Abadi and the Consolidation Authorities had no jurisdiction. SECOND PART 11. During the pendency of the Second Review petition dated 12-5-1976, the petitioner filed a Second time barred objection on 13-3-1977. By means of this objection, it was prayed that delay in filing the same may be condoned and valuation of the plot may be accordingly done and allotment may be made in his favour. 12. On this objection, the report of Consolidator was called for who submitted the same on 19-4-1977. After the report was obtained, the Consolidation Officer condoned the delay in filing the said objection and sent back the case to the Assistant Consolidation Officer for making reference. On 24-6-1977, the Deputy Director Consolidation sent the file to the Consolidation Officer for making the final reference after the valuation of plot is ascertained. The -Consolidation Officer thereafter submitted reference to the Regional Deputy Director Consolidation who accepted the same with the adjustment changes on 12-7-1977. This part of the proceedings was behind the back of respondent and without any notice to him. THIRD PART. 13. After the order said to have been passed by the Regional Deputy Director Consolidation on 12-7-1977, nothing was done for about five years. A letter No. 1033 PL/302/82 dated 20-1-1982 was sent from the office of the Director-of Consolidation, U.P, Lucknow to the officer of the Deputy Director, Consolidation, Varanasi. THIRD PART. 13. After the order said to have been passed by the Regional Deputy Director Consolidation on 12-7-1977, nothing was done for about five years. A letter No. 1033 PL/302/82 dated 20-1-1982 was sent from the office of the Director-of Consolidation, U.P, Lucknow to the officer of the Deputy Director, Consolidation, Varanasi. On 11-8-1982, a letter was sent by the Deputy Director to the joint Director bringing to his notice that according to the instructions issued by the Director of Consolidation, Lucknow, proceedings under Rule 109 of U.P. Consolidation of Holdings Rules are to be completed and necessary information may be sent to him. After the receipt of the said letter, the Joint Director made enquiries from his Reader regarding the registration number and the circumstances under which the file was sent to Lucknow and the notices were also issued to the parties to ascertain the correct facts. He rightly suspected about the genuineness of the said proceedings. 14. On 6-9-1982, the Reader submitted his report informing the Joint Director, Consolidation that the aforesaid file was not entered in the Register and he was unable to explain under which circumstances, the file was sent to Luck now. 15. Sri Surendra Narain respondent No. 2 filed a detail affidavit dated 23-11-1984 which is Annexure-12 to the Counter-affidavit bringing to the notice of the Joint Director, Consolidation about the fraud played by the petitioner while getting the order from the Director Consolidation Lucknow. A detailed reading of this affidavit clearly shows that the petitioner has not come to the court with clean hands. He has tried to obtain the order from the consolidation authorities fraudulently. It has been specifically stated in the affidavit that he came to know about the forged reference on 20-9-1982. Surendra Singh respondent No. 3 filed an application with the prayer that the file of the first part of the litigation may be summoned, after making an enquiry, action may be taken against the person found responsible for this fraud. He also prayed that the reference of 1982 may be rejected. The entire proceedings was done behind the back of the respondent. 16. The Deputy Director of Consolidation, by means of the order dated 27-12-1983 set aside the order dated 12-7-1977. The petitioner's application for recall of the order dated 27-12-1983 was also rejected on 18-6-1984. He also prayed that the reference of 1982 may be rejected. The entire proceedings was done behind the back of the respondent. 16. The Deputy Director of Consolidation, by means of the order dated 27-12-1983 set aside the order dated 12-7-1977. The petitioner's application for recall of the order dated 27-12-1983 was also rejected on 18-6-1984. Now, this petition is directed against these two orders dated 18-6-34 and 27-12-1983. 17. It is an admitted fact that the order of Consolidation Officer dated 27-4-1974. Settlement Officer Consolidation dated 26-12-1974 and the order dated 13-4-1976 passed by the Deputy Director-Consolidation against the petitioner have become final, since they have not been challenged by means of any writ petition. In order to nullify the interest of these two orders, the petitioner fraudulently manufactured an order dated 12-7-1977. 18. Every court and Tribunal has a reserved power to be exercised in those cases which have been obtained by a party by playing fraud on court. 19. By means of the order dated 27-12-1983, it has been found that the order dated 12-7-1977 was a forged one. 20. The said order dated 27-12-1983 is a well reasoned order passed after hearing both the parties and under no circumstances, it can be said to be an ex parte one. This order is quite just and equitable and cannot be interfered with by this Court, particularly in the present case, where the petitioner has not come to the court with clean hands. The findings, thus recorded are pure findings of facts. 21. Now, I come to the second impugned order dated 18-6-1984. 22. After the order dated 17-12-1983 was passed, the petitioner filed an application to set aside the same on the ground that it was an ex parte order. The Deputy Director of Consolidation after examining the matter came to the conclusion that it was not an ex parte order, but was on merit after hearing the parties. These findings led to the dismissal of the said application on 18-6-1984. This order also finds support from the record. I do not find any error apparent on the face of record. In my opinion, both the impugned orders are correct. 23. The learned counsel for the petitioner has contended that both the orders of Deputy Director, Consolidation are based on irrelevant considerations. They deserve to be quashed. This order also finds support from the record. I do not find any error apparent on the face of record. In my opinion, both the impugned orders are correct. 23. The learned counsel for the petitioner has contended that both the orders of Deputy Director, Consolidation are based on irrelevant considerations. They deserve to be quashed. In order to support this contention he has relied upon a case reported in 1984 All CJ 172, Dwarika v. A.J. Khan. The controversy in that case was that the restoration application was decided without considering the material evidence. The revision was decided by comparing the signature and thumb impression of the applicant. It was held that since, the first order was not sustainable, subsequent order fails automatically. The point decided in that case is not at all relevant for the instant case. 24. Another case relied upon by him is reported in 1986 All LJ 1514, Zohra Fatma v. Dy. Director, Consolidation. In that case, the Deputy Director has rejected the restoration application treating it to be a review petition. Here, in the instant case, the application for recalling the order dated 27-12-1983 has been dismissed on merits and not on technical grounds. This case also does not help the petitioner. 25. The third case referred by him is reported in 1984 All CJ 705, Paras Nath v. Dy. Director, Consolidation, wherein, it has been held that the Revisional Authority should analyse each and every aspect and should consider all the evidence admissible. This case actually supports the contention of the contesting respondents and justifies the impugned orders. 26. Though, the writ petition can be dismissed only on the ground that the petitioner has not come to the court with clean hands inasmuch as, he has played fraud in bringing into existence a forged order dated 12-7-1977 said to have been passed by the Deputy Director, Consolidation, but I have considered the merits of the case also and I do not find any illegality in the impugned order. 27. The Writ petition is accordingly dismissed writ costs.