AZIZ MOHAMMAD v. DEPUTY DIRECTOR OF CONSOLIDATION ALLAHABAD AND
2008-03-07
ASHOK BHUSHAN
body2008
DigiLaw.ai
ASHOK BHUSHAN, J. Heard Sri Rahul Sripat, learned Counsel for the petitioners and Sri S. C. Verma appearing for respondents No. 4,5 and 6. 2. By this writ petition, the petitioners have prayed for quashing the order dated 29th August, 1981 passed by Deputy Director of Consolidation and the order dated 30th December, 1980 passed by Settlement Officer of Consolidation. 3. This writ petition arises out of proceedings under section 20 of U. P. Consolidation of Holdings Act, 1953. In consolidation proceedings the father of the petitioners Khudabux was abetted Chak No. 175. Respondent No. 3, Baba Din (now represented by his legal heirs) was allotted Chak No. 643. The father of the petitioner was allotted Chak on Plots No. 3521, 3516 and 3322. The Consolidation Officer vide order dated 23rd February, 1977 amended the chak of the petitioners by which petitioners father was alloted seven biswa area of Plot No. 4061. An appeal was filed by respondent No. 3 against the said order of Consolidation Officer before the Settlement Officer of Consolidation on 2nd August, 1978 praying that petitioners father be given chak on his original holding and his chak, which is between his chak and chak of his co-tenant holder be removed. The Settlement Officer of Consolidation dismissed the appeal by order dated 30th December, 1980. Against the dismissal of appeal, respondent No. 3 filed a revision being Revision No. 15 before the Deputy Director of Consolidation. The Deputy Director of Consolidation by order dated 29th August, 1981 allowed the revision, affecting the Chak Nos. 643, 175 and 1210. Against the order dated 29th August, 1981, this writ petition has been filed. 4. Petitioners case in the writ petition is that order of the Settlement Officer of Consolidation as well as the Deputy Director of Consolidation were passed without giving any notice and opportunity to the petitioners. Petitioners case is that petitioners father, Khudabux, died more than 14 years ago (in the year 1981) and respondent No. 3 impleaded Khudabux as respondent No. 2 in his appeal, who was already dead. Petitioners case further is that before the Deputy Director of Consolidation, the petitioners were not impleaded and without hearing the petitioners the revision was allowed by the Deputy Director of Consolidation. 5. A counter affidavit has been filed by heir of respondent No. 3, who has been impleaded in place of respondent No. 3.
Petitioners case further is that before the Deputy Director of Consolidation, the petitioners were not impleaded and without hearing the petitioners the revision was allowed by the Deputy Director of Consolidation. 5. A counter affidavit has been filed by heir of respondent No. 3, who has been impleaded in place of respondent No. 3. The counter affidavit has been filed by son of respondent No. 3. The son of respondent No. 3 executed a sale deed of Plot No. 4061 in favour of respondents No. 4, 5 and 6 on 14th June, 1985 and 15th July, 1985. A counter affidavit has also been filed by respondents No. 4, 5 and 6. Respondents No. 7 and 8 have not appeared despite issue of notice. 6. The respondents case in the writ petition is that petitioners were well aware of the proceedings and have participated before the Settlement Officer of Consolidation as well as the Deputy Director of Consolidation and on this ground alone they are not entitled for any indulgence from this Court. It is further submitted that respondent No. 3 was original tenure holder of Plot No. 4061 and there was no error committed by the Deputy Director of Consolidation in giving part of Plot No. 4061 to respondent No. 3. The respondents No. 4, 5 and 6 claimed to be bona fide purchaser of Plot No. 4061. 7. I have considered the submissions of the Counsel for the parties and perused the record. 8. The specific case of the petitioners in the writ petition in paragraph 10 is that respondent No. 3 did not implead the petitioners and impleaded Khudabux, who was already dead. Petitioners have further stated in paragraph 12 of the writ petition that they have neither knowledge of appeal nor revision and the order was ex-parte passed. In the counter affidavit filed on behalf of heirs of respondent No. 3 except that petitioners had full knowledge of the proceedings and they have participated, no other facts have been mentioned nor any material has been brought on the record to show that vakalatnama had been filed and Counsel had been appeared before the Deputy Director of Consolidation for the petitioners. The copy of the order-sheet of the Deputy Director of Consolidation has also not been brought on the record to satisfy that petitioners have filed vakalat-nama.
The copy of the order-sheet of the Deputy Director of Consolidation has also not been brought on the record to satisfy that petitioners have filed vakalat-nama. Copy of the memo of appeal filed by respondent No. 3 has been brought on the record as Annexure-1 to the writ petition, which indicates that Khudabux was im-pieaded as respondent No. 2 in the appeal. The factum of death of Khudabux is also not denied. The petitioners have come up with specific plea that Khudabux was dead much before filing of appeal before the Settlement Officer of Consolidation; the certificate of Pradhan of village has also been brought on the record by the petitioners to prove the factum of death; but the respondents except carrying that petitioners had appeared and participated did not bring anything on record to prove participation of the petitioners in the proceedings. The respondents have even failed to show that petitioners were party in the proceedings before the Deputy Director of Consolidation. The case of the petitioners that the order was passed against dead person is to be accepted. 9. The order of Deputy Director, of Consolidation allowing the revision filed by respondent No. 3, thus, cannot be sustained and is hereby set-aside. However, in facts of the present case specially when the case of the petitioners is that order of Deputy Director of Consolidation was passed without they being heard before the Deputy Director of Consolidation, ends of justice be served in remitting the matter to the Deputy Director of Consolidation to decide Revision No. 15 filed by respondent No. 3 after hearing parties afresh. The petitioners, the heirs of respondent No. 3 as well as respondents No. 4 to 8 will be heard by the Deputy Director of Consolidation. The petitioners and respondents No. 3, 4, 5 and 6 having appeard, it is not necessary to issue any fresh notice by Deputy Director of Consolidation to them but notices be issued to respondents No. 7, 8 and 9, i. e. , Bafati, Sher Ali sons of Sakoor and Gaon Sabha before deciding the revision. The matter having been pending before this Court for a very long period, it is in the interest of justice that the revision be ex-peditiously decided on merits within a period of six months from the date of production of a certified copy of this order.
The matter having been pending before this Court for a very long period, it is in the interest of justice that the revision be ex-peditiously decided on merits within a period of six months from the date of production of a certified copy of this order. Till the revision is decided by Deputy Director of Consolidation, the status quo with regard to land in dispute as existing on the date shall be maintained by the parties. 10. The writ petition is allowed to the extend as indicated above. 11. Parties shall bear their own costs. Petition Allowed. .