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2003 DIGILAW 2757 (ALL)

MOHAMMAD AMIR v. DEPUTY DIRECTOR OF CONSOLIDATION

2003-11-24

S.N.SRIVASTAVA

body2003
S. N. SRIVASTAVA, J. ( 1 ) PRESENT petition has been filed assailing the impugned orders dated 12. 6. 2003 and 4. 4. 2002, passed by Deputy Director of Consolidation, Moradabad camp at Bijnor and Consolidation officer, Bijnor. ( 2 ) A brief resume of necessary facts is that Bhoore deceased had taken in challenge in appeal the order passed by Consolidation Officer in proceeding under Section 9 (2) of the U. P. C. H. Act. During the pendency of appeal, aforesaid Bhoore breathed his last on 5. 12. 1997. Consequent upon the death of Bhoore, two sets of substitution applications came to be filed-one by petitioners sons of Sibte Hassan on 9. 2. 1998 in place of the deceased claiming on the strength of will allegedly executed by the deceased in their favour and the second set of substitution application came to be filed by Smt. Niyazan widow of the deceased on 15. 1. 1998. It would transpire that the Settlement Officer of Consolidation, who was seized of the appeal, relegated the matter to the Consolidation Officer for recording evidence only for determination of the moot question of substitution. It would further transpire that consequent upon the order of the settlement Officer of Consolidation, the Consolidation Officer registered the mater as case No. 479/co-II and directed the parties to file evidence in support of their case. The petitioners preferred revision before the Deputy Director of Consolidation assailing the said order on the premises that the Consolidation Officer had exceeded the brief in registering the case and in directing the parties to file objection and cross-objection instead of confining himself to the direction contained in the order of Settlement Officer of Consolidation and further the Settlement officer of Consolidation could himself adjudicate on the question and instead, he relegated the matter to the Consolidation Officer. The Deputy Director of Consolidation dismissed the revision observing that the Consolidation Officer was well within his competence to invite objection and cross-objection inasmuch as that it was not possible to adjudicate on the claim which was based on the Will without inviting objection and cross-objection and held that the definition of the word evidence not only consists of evidence but includes the documentary evidence to be produced for determination of the disputed question, ( 3 ) I have heard learned counsel for the petitioner and also the learned counsel representing the opposite parties. ( 4 ) FROM a perusal of the order by the Settlement Officer of Consolidation, it is explicit that two sets of applications were filed--one by widow of the deceased Bhure and other by petitioners, which had its genesis in the Will, By means of the impugned order, the Settlement Officer of consolidation directed Consolidation Officer to record evidence and thereafter, send papers to his end for decision attended with further direction that after recording evidence, the entire paper be placed before him (appellate authority to pass appropriate orders in the matter of substitution ). In the circumstances, if consequent upon matter being remitted to him with the aforesaid direction, the Consolidation Officer has registered a case, it is ex facie with the object of recording evidence only and not otherwise to proceed to pass final orders. In the instant case, concededly substitution application was filed before the appellate authority and therefore, it is the appellate authority only which is competent to pass appropriate orders in the matter of substitution. It is also worthy of notice that though in the consolidation proceeding, no separate procedure like Civil Procedure Code is envisaged to deal with the situation pertaining to disposal of substitution as has arisen in the instant case. The fair procedure for the authorities exercising powers of deemed court and having trapping of quasi-judicial authority would be to call in aid the well established procedure as embodied in the Civil Procedure Code. In connection with this, i would like to advert myself to amended provisions of Order XXII Rule 5, C. P. C. "5. Determination of question as to legal representative.-Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court: provided that where such question arises before an appellate court, that Court may, before determining the question, direct any subordinate court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefor, and the appellate court may take the same into consideration in determining the question. " ( 5 ) THE amended provisions of the Civil Procedure Code no doubt contemplates a situation when there erupts a dispute relating to substitution, which in consequence entails recording of evidence. " ( 5 ) THE amended provisions of the Civil Procedure Code no doubt contemplates a situation when there erupts a dispute relating to substitution, which in consequence entails recording of evidence. In such situation, it is envisaged that the matter may be referred to the trial court for recording of evidence only. Reverting to the facts of the present case, it should be noticed that situation warranted recording of evidence qua two sets of application for substitution in the locus of the deceased Bhure--one claiming substitution by virtue of inheritance being widow of the deceased and other staking claim to substitution on the basis of Will. Since recording of evidence qua the Will was rendered imperative in the facts and circumstances of the case, the order directing Consolidation Officer, which is also an authority competent to receive evidence, was rightly passed by the appellate authority. It is mere apprehension and has no foundation in the fact that fresh case under Section 9 of the U. P. C. H. Act has come to be registered and as a consequence, objections were invited for being decided by the Consolidation Officer. The order of Settlement Officer of Consolidation leaves no manner of doubt that the matter has been remitted to the Consolidation Officer with qualified order of recording of evidence and to submit his report/opinion and not otherwise to pass final orders by the Consolidation Officer and in the circumstances it should not induce any doubt in the mind of the petitioner about the purpose for which the case has been remitted to the Consolidation Officer. It appears to me that under some misconception, the petitioner knocked the door of revisional authority as well as this Court that fresh case has been registered under Section 9 of the U. P. C. H. Act. It is regrettable that the matter has suffered protraction since the year 1998 before the Consolidation Officer without any valid justification or basis. It appears to me that under some misconception, the petitioner knocked the door of revisional authority as well as this Court that fresh case has been registered under Section 9 of the U. P. C. H. Act. It is regrettable that the matter has suffered protraction since the year 1998 before the Consolidation Officer without any valid justification or basis. ( 6 ) I would not flinch from observing that the authorities under the Consolidation Act though not are court of civil judicature but are Courts within the meaning of Indian Evidence Act, have to proceed in a judicial manner which should approximate as nearly as is reasonably possible to that adopted in regular courts in the interest of justice but at the same time, it cannot travel beyond the jurisdiction as envisaged for them in the Act by reason of being an authority competent to receive evidence. No doubt, the Settlement Officer of Consolidation relegated the matter to the Consolidation Officer ; it was qualified with the proviso to record evidence. It has not been shown that the Consolidation Officer has acted beyond the directions contained in the order of Settlement Officer of Consolidation and therefore, the argument that the Consolidation officer exceeded the bounds of his Jurisdiction in registering the case, has no substance. The deputy Director of Consolidation rightly observed that the question as to rival claims of substitution necessitated recording of evidence in support of pleadings and its objection and further the definition of evidence included in its sweep documentary evidence. In the circumstances, the petitioners do not appear to be aggrieved nor anything has been indicated that the impugned order in any way impinged upon their interests or affected their rights. The mode in my considered view, adopted by the Consolidation Officer was quite in accordance with law and in the circumstances, the petition has no substance and is liable to be dismissed in limine. Before closing, I would like to administer caution in the matter that the observations in the body of this judgment should not be misconstrued nor should be stretched so far as to imply that non-substitution in the proceedings under the U. P. Consolidation of Holdings Act may be fraught with the consequence of abatement of the matter inasmuch as firstly the U. P. Consolidation of Holdings Act does not envisage abatement as a consequence of non-substitution. As a matter of fact, consolidation being a State controlled statutory forum with quasi-judicial trapping, it would be open to the Consolidation Courts in such situation to adopt such procedure and modes which may be conducive to the litigant public and may not jeopardize the interest of the people seeking redress of their grievance in this forum. No formulaic procedure or modes can be foisted upon the Consolidation Courts. ( 7 ) IN the above conspectus the petition falls and is accordingly dismissed. However; in the facts and circumstances, I feel called to direct that the Consolidation Officer would proceed with the hearing in the matter with all expedition and submit all papers including report/opinion with all possible promptitude to the Settlement Officer of Consolidation within a period not exceeding two months from the date of presentation of a certified copy of this order. The office shall dispatch certified copy of this order to the Deputy Director of Consolidation and also consolidation Officer, Bijnor II for necessary compliance within three weeks so as to reach the end of the authority as expeditiously as possible. .