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2003 DIGILAW 2843 (ALL)

Dadhibal v. Board of Revenue

2003-12-04

ASHOK BHUSHAN

body2003
ASHOK BHUSHAN, J. ( 1 ) HEARD Sri R. C. Singh, the learned counsel for the petitioners and Sri A. B. Singh, learned counsel appearing for the contesting respondents. ( 2 ) COUNTER and rejoinder-affidavits have been exchanged, with the consent of the parties, the writ petition is being finally decided. ( 3 ) BRIEF facts giving rise to the writ petition are : dispute between the parties arose under Section 9 of U. P. Consolidation of Holdings Act, 1953. In basic year records with regard to khata in dispute name of both the parties were recorded. Objections were filed by the respondents claiming that they are sole tenure holder and petitioners have no share in the khata. The consolidation Officer and Settlement Officer of Consolidation decided the case in favour of contesting respondents against which a revision being Revision No. 1345/1233 was filed by the petitioners under Section 48 of U. P. Consolidation of Holdings Act. The revision filed by the petitioners was allowed by the order of Deputy Director of Consolidation dated 16th April, 1977 against which a writ petition being Writ Petition No. 580 of 1977 was filed by the contesting respondents. The writ petition was dismissed after considering the arguments of both the parties on merits by this Court vide its judgment dated 8th March, 1978. A special leave petition was filed in the Apex Court against the judgment of High Court which too was dismissed on 16th july, 1979. Proceedings for giving effect to the order of Deputy Director of Consolidation dated 17th April, 1977 was initiated by the petitioners on which report was submitted by Consolidation officer. The reference proceedings could not be finalised due to pendency of Writ Petition No. 580 of 1977. After dismissal of the writ petition as well as special leave petition before the Apex court, the Deputy Director of Consolidation passed order dated 14th September, 1979 approving the reference for giving effect to the order of Deputy Director of Consolidation dated 16th April, 1977. In the reference proceedings, the contesting respondents objected the reference. The objection of the contesting respondents against the proposed reference were considered and some of the objections were accepted. The Deputy Director of Consolidation by the order dated 14th september, 1979 approved the reference for giving effect to the order of Deputy Director of consolidation dated 16th April, 1977. In the reference proceedings, the contesting respondents objected the reference. The objection of the contesting respondents against the proposed reference were considered and some of the objections were accepted. The Deputy Director of Consolidation by the order dated 14th september, 1979 approved the reference for giving effect to the order of Deputy Director of consolidation dated 16th April, 1977. The order of the Deputy Director of Consolidation passed under Section 48 (3) of U. P. Consolidation of Holdings Act dated 14th September. 1979 was incorporated in the revenue records including C. H. Form 45. The petitioners also, it appears, had moved an application on 5. 9. 1980 for reference under Rule 109 of U. P. Consolidation of holdings Rules, 1954. In proceedings under Rule 109a of U. P. Consolidation of Holdings rules, 1954 a report was submitted that since the Deputy Director of Consolidation has already passed an order under Section 48 (3) of U. P. Consolidation of Holdings Act approving the reference on 14th September, 1979 which has already been incorporated in C. H. Form 45, hence it is not necessary to proceed under Rule 109a. The Assistant Consolidation Officer submitted a report on 9th September, 1980 stating that no proceedings under Rule 109 is required. It appears that at this stage an application was filed on 5th December, 1981 by Kanta, father of respondent no. 4, to the Collector stating that without taking proceedings under Rule 109a, the entries in records have been expunged by Lekhpal, hence action be taken against the said Lekhpal. The collector on the said application directed the Sub-Divisional Officer to take appropriate steps. The Sub-Divisional Officer passed an order on 17th February, 1984 on the said application of kanta that Lekhpal committed error in amending the entries without drawing proceedings under rule 109a of U. P. Consolidation of Holdings Rules, 1954. The Sub-Divisional Officer held that after notification under Section 52 (2) of U. P. Consolidation of Holdings Act, proceedings under rule 109 were required to be undertaken and thus the entries made by Lekhpal are not in accordance with Rules and are being set aside and earlier position in the records is restored. The sub-Divisional Officer further observed that in case the petitioners want their names to be recorded in the revenue records they may initiate proceeding under Rule 109a. The sub-Divisional Officer further observed that in case the petitioners want their names to be recorded in the revenue records they may initiate proceeding under Rule 109a. Against the order dated 17th February, 1984 reference was made by the petitioner under Section 218 of U. P. Land revenue Act before the Commissioner, Gorakhpur Division, Gorakhpur. The petitioner in the aforesaid reference has pleaded before the Commissioner that entries in the revenue records were corrected in view of the order of Deputy Director of Consolidation dated 14th September, 1979. The Commissioner noted the order dated 14th September, 1979 of the Deputy Director of consolidation. The Commissioner also noted the judgments of the High Court and the Apex court relied by the petitioner accepting his claim and Commissioner observed that it appears that on the basis of the judgment of High Court and Apex Court, as mentioned above, the sub-Divisional Officer observed that proceedings under Rule 109a, may be taken by the petitioners. The Commissioner ultimately took the view that the reference is not maintainable since the order of Sub-Divisional Officer was only an administrative order. A revision was filed by the petitioner before the Board of Revenue. The Board of Revenue also took the view that the order of Sub-Divisional Officer was administrative order against which revision does not lie. The writ petition was, thus, dismissed on 30th April, 1996. The petitioner has filed this writ petition challenging the order of Sub-Divisional Officer dated 17th February, 1984 and that of commissioner and Board of Revenue. ( 4 ) THE learned counsel for the petitioners contended that the order passed by Sub-Divisional officer dated 17th February, 1984 was illegal and amount to setting at naught the judgment given in favour of the petitioners by the High Court and the Apex Court as mentioned above. The contention of counsel for the petitioners is that entries in the record were made in pursuance of the final judgment of Deputy Director of Consolidation dated 16th April, 1977 which was upheld by the High Court and Apex Court. The contention of counsel for the petitioners is that entries in the record were made in pursuance of the final judgment of Deputy Director of Consolidation dated 16th April, 1977 which was upheld by the High Court and Apex Court. The counsel contended that for giving effect to the order dated 16th April, 1977 proceedings under Section 48 (3) of U. P. Consolidation of holdings Act was undertaken in which after considering the objections of the respondents order was passed by the Deputy Director of Consolidation on 14th September, 1979 and the entries were made in the record in pursuance of the order of Deputy Director of Consolidation on 14th september, 1979. The counsel for the petitioners also stated that proceedings under Rule 109a were also initiated by the petitioners but the said proceedings were dropped by the consolidation authorities themselves with the observation that since the entries have already been incorporated in the record in pursuance of the order of Deputy Director of Consolidation dated 14th september, 1979, proceedings under Rule 109a will not be required to be undertaken. The learned counsel for the petitioners has further contended that the Deputy Director of consolidation has ample power to get the orders implemented and since the entries were being corrected in view of the order of Deputy Director of Consolidation himself under Section 48 (3)of U. P. Consolidation of Holdings Act dated 14th September, 1979, there was no illegality in the correction of entries and the Sub-Divisional Officer committed error in setting aside these entries in the record. ( 5 ) SRI A. B. Singh, learned counsel for the respondents, supported the order passed by sub-Divisional Officer, Commissioner and Board of Revenue and contended that the respondents had already filed an application before the Deputy Director of Consolidation for recall of the order dated 16th April, 1977 which was wrongly rejected by the Deputy Director of consolidation against which Writ Petition No. 13296 of 1981 was filed in the High Court which is pending. The counsel for the respondents contended that petitioners are required to take recourse to the proceedings under Rule 109a since the village was de-notified under Section 52 (2) of the U. P. Consolidation of Holdings Act on 4th August, 1979. ( 6 ) I have considered the submissions and perused the record. The counsel for the respondents contended that petitioners are required to take recourse to the proceedings under Rule 109a since the village was de-notified under Section 52 (2) of the U. P. Consolidation of Holdings Act on 4th August, 1979. ( 6 ) I have considered the submissions and perused the record. ( 7 ) THE dispute regarding title of the parties was decided by Deputy Director of Consolidation vide his order dated 16th April, 1977. Against the said order Writ Petition No. 580 of 1977 was filed by contesting respondents which was dismissed on merits by this Court on 8th March, 1978. Special leave petition filed by the respondents before the Apex Court was also dismissed on 16th July, 1979. The reference proceedings for giving effect to the order of Deputy Director of Consolidation dated 16th April, 1977 was initiated much before the de-notification. In reference proceedings objections were filed by the respondents and after considering the objections the reference proceedings were decided on 14th September, 1979. The reference proceedings which were pending under Section 48 (3) of U. P. Consolidation of Holdings Act much before denotification were rightly continued and finalised on 14th September, 1979. No objection with regard to maintainability or continuance of the said proceedings was taken by the respondents. The entries in the records including C. H. Form 45 were made by the Lekhpal in obedience of the order of Deputy Director of Consolidation dated 14th September, 1979. The objection against the proposed reference raised by the respondents was considered by the Deputy director of Consolidation. The application filed by Kanta before the Collector that Lekhpal has wrongly corrected the entries in the record without there being any proceeding under Rule 109a of U. P. Consolidation of Holdings Rules, 1954 was not a bona fide application. The case of the respondents on merits have already been rejected up to the Apex Court and reference under section 48 (3) of U. P. Consolidation of Holdings Act for giving effect to the order of Deputy director of Consolidation was also allowed on 14th September, 1979 after hearing the respondents. The order dated 14th September, 1979 has been filed as Annexure-4 to this writ petition. The said order clearly contains the details as to how the order dated 16th April, 1977 will be given effect to. The order dated 14th September, 1979 has been filed as Annexure-4 to this writ petition. The said order clearly contains the details as to how the order dated 16th April, 1977 will be given effect to. Under the order dated 16th April, 1977, the petitioners were entitled for valuation from the contesting respondents since entire chak was carved out in favour of the respondents. The approval of reference by Deputy Director of Consolidation contained all the details for giving effect to the judgment and entries made by Lekhpal were in pursuance of the order of Deputy Director of Consolidation dated 14th September, 1979. The application of Kanta filed against Lekhpal before the Sub-Divisional Officer to take action was allowed with finding that action of the Lekhpal in correcting the entries was without authority and jurisdiction. The sub-Divisional Officer lost sight that the entries were corrected in pursuance of the order of deputy Director of Consolidation dated 14th September, 1979 passed under Section 48 (3 ). The sub-Divisional Officer also did not apply his mind to the fact that dispute between the parties have already been settled up to the Apex Court in which the petitioners are entitled to have their share. The entries made in the records by Lekhpal cannot be said to be forged or fictitious entries. The Sub-Divisional Officer clearly exceeded in his jurisdiction directing for expunction of the entries made in the record by the Lekhpal in pursuance of the judgment of Deputy Director 01 Consolidation dated 14th September, 1979. The effect of the order of Sub-Divisional Officer dated 17th February, 1984 was that the order implementing the judgment of Deputy Director of consolidation dated 16th April, 1977 which was affirmed up to the Apex Court was set at naught and by administrative order he restored the earlier position. The Commissioner and Board of revenue also did not apply their mind to the correct facts. The course of justice are meant for doing substantial justice and not to give weight to too technical objections mala fidely taken by a person. The order of Sub-Divisional Officer dated 17th February, 1984 even do not note the order of Deputy Director of Consolidation dated 14th September, 1979 which order is clearly mentioned in C. H. Form 45 while making Amaldaramad of the order in the said form. The order of Sub-Divisional Officer dated 17th February, 1984 even do not note the order of Deputy Director of Consolidation dated 14th September, 1979 which order is clearly mentioned in C. H. Form 45 while making Amaldaramad of the order in the said form. The proceedings under Section 48 (3) of U. P. Consolidation of Holdings Act which was decided on 14th September, 1979 had already started since before the de-notification under Section 52 (2), hence there was no illegality in finalizing the said proceedings. The Deputy Director of consolidation having already approved the reference, which was submitted by subordinate consolidation authorities for giving effect to the order dated 16th April, 1977 of the Deputy director of Consolidation, no exception can be taken to the action of the Lekhpal in giving effect to the said order in the revenue records. The Deputy Director of Consolidation under the U. P. Consolidation of Holdings Act, 1953 has ample jurisdiction to pass order for giving effect to the final orders passed under U. P. Consolidation of Holdings Act, 1953, Moreover, the petitioners have also initiated proceedings under Rule 109a of U. P. Consolidation of Holdings Rules, 1954 much before the filing of application of Kanta before the Sub-Divisional Officer. The petitioners has filed as Annexure-11 to the writ petition the report of the consolidation authorities on the application of the petitioners dated 5. 9. 1980 given under Rule 109a. The Consolidation authorities themselves have stated that since the order has already been passed by Deputy director of Consolidation in reference which have been given effect to in C. H. Form 45, there is no necessity to proceed under Rule 109a. The petitioners have clearly stated in paragraph 16 of the writ petition regarding application filed by them under Rule 109a. ( 8 ) IN view of the aforesaid facts, the view taken by the Sub-Divisional Officer that petitioners ought to have taken proceedings under Rule 109a of U. P. Consolidation of Holdings Rules, 1954 for correcting the entries in the record is wholly untenable. The objection raised by the contesting respondents before the Sub-Divisional Officer was frivolous and without any substance. ( 9 ) IN the result, the writ petition succeeds and is allowed with costs. The orders dated 17. 2. 1984, 5. 11. 1988 and 30. 4. 1996 (Annexures-8, 9 and 10 respectively to the writ petition) are quashed. The objection raised by the contesting respondents before the Sub-Divisional Officer was frivolous and without any substance. ( 9 ) IN the result, the writ petition succeeds and is allowed with costs. The orders dated 17. 2. 1984, 5. 11. 1988 and 30. 4. 1996 (Annexures-8, 9 and 10 respectively to the writ petition) are quashed. The cost is assessed as Rs. 5,000 which shall be payable by the contesting respondents to the petitioners. . .