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2004 DIGILAW 2358 (ALL)

Vijendra Singh v. Deputy Director of Consolidation, Bulandshahr

2004-11-24

S.K.SINGH

body2004
JUDGMENT S. K. Singh, J.—Heard counsel for the petitioner. 2. Challenge in this petition is the order passed by the Deputy Director of Consolidation dated 20.9.2004 by which revision filed by the petitioner has been dismissed and the order of the Consolidation Officer dated 2.9.2003 has been confirmed by which Consolidation Officer had granted stay to opposite party to the order of the Consolidator. 3. In view of the arguments of the learned counsel for the petitioner the following facts emerge. Admittedly the property belongs to one Kasturi Devi. It is said that on her death, by the order of the Consolidator who is empowered vide Section 6A (1) of the U. P. Consolidation of Holdings Act as introduced by U. P. Consolidation of Holdings (Amendment) Act, 2002, U. P. Act No. 3 of 2002, the name of the petitioner and the respondent Nos. 3 and 4 was directed to be mutated/recorded. On filing the application by the respondent No. 3, the Consolidation Officer by the order dated 2.9.2003 stayed the effect of the order dated 16.7.2003 till publication under Section 9 of the U. P.C.H. Act. Revision against that order filed by the petitioner failed and thus both the orders are under challenge. 4. Submission of the learned counsel for the petitioner is based on provisions of Section 6A (1) and (2) of the U. P. Act No. 3 of 2002. It is submitted that under Section 6A (1) of the Act the Consolidator is empowered to dispose of the matter of succession in the undisputed cases. It is submitted that there is proviso to Section 6A of the Act which says that no case shall be entertained, continued or disposed of under this section after start of the proceeding under Section 8. Further submission is that an order made under sub-section (1) shall not be a bar to an objection under Section 9 and therefore exercise by Consolidation Officer is not justified. To understand the submission of the learned counsel for the petitioner it will be useful to quote entire Section 6A as introduced by U. P. Act No. 3 of 2002 : "6A. To understand the submission of the learned counsel for the petitioner it will be useful to quote entire Section 6A as introduced by U. P. Act No. 3 of 2002 : "6A. Special provision with respect to undisputed succession or transfer.—(1) After the publication of notification under sub-section (2) of Section 4 of Section 4A and before start of the proceeding under Section 8, a case of undisputed succession shall be disposed of by the Consolidator, and a case of undisputed mutation on the basis of transfer shall be disposed of by the Assistant Consolidation Officer, in such manner and after making such inquiry as may be prescribed : Provided that no case shall be entertained, continued or disposed of under this section after start of the proceeding under Section 8. (2) An order made under sub-section (1) shall not be a bar to an objection under Section 9." 5. In view of the aforesaid, the Court has examined the matter. Needless to say that perusal of Section 6A of the Act itself makes it clear that the power has been given to the Consolidator to decide undisputed cases of succession or transfer. Before this Court there is no evidence that the matter which was decided by the Consolidator was undisputed. Order of the Consolidator has not been placed on the record by which that fact could be ascertained. Amaldaramad of the order of Consolidator dated 16.7.2003 as appears in the khatauni do not mention that all the parties were present and the order was passed with the consent of all the parties. Filing of the application by the opposite party before the Consolidation Officer itself makes it clear that they never consented to the order which was passed by the Consolidator. If this is permitted that order of Consolidator is final and if on publication of notification under Section 9 parties are to file objection then any party can be able to obtain order in his favour and then leave the other party to litigate for long time. The intention of giving powers to Consolidator under Section 6A of the Act appears to be that if the case is undisputed then order can be passed. The intention of giving powers to Consolidator under Section 6A of the Act appears to be that if the case is undisputed then order can be passed. In view of the aforesaid as and when a dispute arises and if the party claiming benefit of the order of the Consolidator is not able to satisfy that the opposite parties have consented and there was no dispute at the time of the passing of the order, no benefit can be extended to him. The emphasis has been placed by the learned counsel on proviso to Section 6A (1) of the Act which speaks that no case shall be entertained, continued or disposed of under this section after start of the proceeding under Section 8 of the Act as order under sub-section (1) of Section 6A shall not be a bar to adjudication under Section 9 of the Act. The argument appears to have no force in the facts of present case. The effect of the order of the Consolidation Officer is that the order dated 16.7.2003 was stayed till the publication under Section 9 of the U. P.C.H. Act as then the parties will get an opportunity to file their pleading and get their rights decided. Section 6A of the Act appears to be enacted only for undisputed cases to provide speedy remedy for recording the names but that cannot be permitted to be misused by any litigant. As soon as matter is disputed the rights of the parties has to be decided after contest and, therefore, if till disposal of the matter after contest, the order of the Consolidator has been stayed by the Consolidation Officer then no exception can be taken to it. As soon as matter is disputed the rights of the parties has to be decided after contest and, therefore, if till disposal of the matter after contest, the order of the Consolidator has been stayed by the Consolidation Officer then no exception can be taken to it. There may be situation that by obtaining an order from Consolidator behind the back of other party even in respect to a disputed matter, beneficiary may transfer the property and may cause damage to the same, which will be detrimental to the interest of other side and, therefore, this Court is of the considered view that on the facts even accepting for the sake of argument technical aspect as submitted by the learned counsel for the petitioner, that the order was passed by the Consolidation Officer without any opportunity to him, as it has not been proved that consolidator has passed order in an undisputed case with the consent of opposite party, no prejudice can be said to have occasioned to the petitioner calling for any interference in the equity jurisdiction. On own submission of the learned counsel for the petitioner proceedings to lay any claim in the consolidation proceedings on publication under Section 9 of Act is not barred and, therefore, if by the order of the Consolidation Officer the matter has been permitted to proceed on the merits and till then operation and effect of the order of the Consolidator has been stayed this Court is not satisfied that petitioner has suffered any prejudice. If Consolidation Officer by keeping this fact in mind that petitioner may misuse and cause damage to the property, on being satisfied that order of the Consolidator was passed without any notice and opportunity to the applicant has passed the impugned order this Court is of the view that this is not a fit case for interference at the instance of the petitioner. It is always open for him to get his rights adjudicated. In fact the order of the Consolidation Officer is only of grant of stay to the order of the Consolidator which otherwise also being interlocutory in nature, on the facts is not amenable to either revisional jurisdiction or before this Court under Article 226 of the Constitution of India. It is always open for him to get his rights adjudicated. In fact the order of the Consolidation Officer is only of grant of stay to the order of the Consolidator which otherwise also being interlocutory in nature, on the facts is not amenable to either revisional jurisdiction or before this Court under Article 226 of the Constitution of India. It appears that petitioner behind the back of the opposite parties, taking help of the powers as conferred on the Consolidator obtained an order in his favour and thereafter he intends to stick on it, so that he may get an advantage in the proceedings which are to proceed before the consolidation courts. 6. For the reasons recorded above, this Court is not satisfied that it is a fit case for interference. Writ petition accordingly fails and is dismissed in limine.