Shiv Balak and others v. D. D. C. , Unnao Camp Lucknow and others
2010-05-28
YOGENDRA KUMAR SANGAL
body2010
DigiLaw.ai
Yogendra Kumar Sangal, J. - 1. This writ petition has been filed by the petitioners with the prayer to issue a writ, order or direction in the nature of certiorari quashing the orders dated 24.04.2010 passed by the Deputy Director of Consolidation (D.D.C) contained in Annexure No. 1. He further prayed to issue a writ of mandamus commanding the opposite parties to maintain status-quo in regard to the possession over the disputed land as per order dated 11.03.2005 passed by the S.O.C. (Settlement Officer Consolidation) and 07.08.1987 passed by the C.O. (Consolidation Officer). 2. Heard learned counsel for the petitioners, learned Standing Counsel for the respondent nos. 1 to 3 and perused the record. 3. As per petition's case land of Khata No. 103 situated in village Sikandarpur Amaulia, Paragana Lalganj, district Lucknow was recorded in the name of one Gurudin. After his death name of his two heirs Ishwari and Baiju were recorded. Both were having equal share in the land of this Kahata. Ishwari died leaving behind heir Ghasite his son. As he was minor, Baiju get recorded his name as sole tenure holder taking benefit of minority of Ghasite. Baiju was having three sons, Matroo, Dulare and Lalita. After the death of Baiju, all the three sons were recorded as tenure holder. Further details are given, how many sons all these three have and their names were recored on the land of Khata No. 103 after the death of their father. In 1981, consolidation proceedings started in the village. Heirs of Ghasite filed objections before the C.O. claiming their half share in the property in dispute. After providing opportunity of hearing to the parties vide order dated 07.08.1987 Consolidation Officer held that objector/heir of Ghasite has share in the land of Khata No. 103. Aggrieved by this order, respondent nos. 4 to 7 preferred an Appeal before the S.O.C. who after hearing the parties counsel affirmed the order of C.O. and rejected the appeal. Aggrieved by this order, a Revision was filed before the D.D.C. After giving opportunity of hearing to the parties counsel and perusing the record, learned D.D.C. has allowed the Revision by the impugned order and remitted the matter to C.O. for afresh finding in the matter in the light of the directions given by him in the judgement. Aggrieved by this judgement, this writ petition has been filed. 4.
Aggrieved by this judgement, this writ petition has been filed. 4. Learned counsel for the petitioners challenged the findings of D.D.C. on the grounds that the D.D.C. was not empowered in Revision proceedings to set aside the concurrent findings of both the courts below. However, if he was of the opinion that both the courts below have not considered the arguments raised by the parties' counsel properly and some important evidence was ignored by the courts below in giving the findings, he himself was empowered to go through the entire record and give his own finding in the matter. No useful purpose is going to be served to remand the matter to the Consolidation Officer again to start second round of litigation between the parties. 5. In the facts and circumstances of the case, issuing notices to the respondent nos. 4 to 11 are hereby dispensed with subject to this condition that if any application for alteration or modification etc. of this order is moved, that shall be considered. 6. Learned counsel for the respondent argued that giving reasons, learned D.D.C. found that important evidence was ignored by the courts below. some more evidence is required in the matter. Facts and evidence were not properly appreciated by the courts below so he passed the remand order for fresh decision by the C.O. Learned counsel for the petitioners cited case Law 1999 Rajshwa Law Times 184 Ramveer Vs. D.D.C. and argued that under Section 48 of Consolidation of Holdings Act, D.D.C. is empowered to go through the record himself and in place of remitting the matter to the Consolidation Officer, he should have decided the same at his level. Another case law 1996 (87) RD 1992 Pritam Singh Vs. Assistant D.D.C. was also cited. In this case, apex Court held as follows: " When the matter was in Revision before the Assistant D.D.C., he had the entire matter before him and his jurisdiction was unfettered. While in Seisin of the matter in his revisional jurisdiction, he was in complete control and position to test the correctness of the order made by the S.O.C. effecting remand. In another words, in exercise of revisional jurisdiction, D.D.C. can examine the finding recorded by the S.O.C. as to abandonment of the land in dispute by those tenants who had been recorded at the crucial time in the Khasra of 1359 Fasli.
In another words, in exercise of revisional jurisdiction, D.D.C. can examine the finding recorded by the S.O.C. as to abandonment of the land in dispute by those tenants who had been recorded at the crucial time in the Khasra of 1359 Fasli. That power is superior court the Assistant D.C. had even if the remand order of S.O.C. had not been specifically put to challenge in separate and independent proceedings. It is noteworthy that the court of Assistant D.C. is the court of revisional jurisdiction otherwise having suo motu power to correct any order of the subordinate officer. In this situation, the Assistant Director (Cons.) should not have follow fettered in it complete justice between the parties when the entire matter was before him.............................................." 7. From the impugned order it reveals that in first paragraph detail of the case and in second paragraph detail of the facts that written arguments of the parties' counsel are taken on record, are given and in paragraphs 3 & 4 of the judgement, learned D.D.C. has mentioned what is detailed in the written arguments of both the parties. In the concluding paragraph of the judgement, he had not appreciated the arguments of both parties counsel. No decision has taken what evidence was ignored by both the courts below. It is also not detailed what more evidence is required in the matter and which party was intending to adduce hat evidence and refused by the courts below. Simply, he has mentioned that arguments of the parties were not duly appreciated by the courts below. What was the wrong in appreciation of the arguments of the parties counsel, it is also not explained. Giving such observation which are general in nature, he set aside the findings of both the courts below and remanded the matter to C.O. Apex Court in 2009 (27) LCD 712 Ram Awadh Vs. Ramdas held that D.D.C. under Section 48 of the Act does not have jurisdiction to interfere with the concurrent findings of fact without any basis and on assumptions. 8.
Ramdas held that D.D.C. under Section 48 of the Act does not have jurisdiction to interfere with the concurrent findings of fact without any basis and on assumptions. 8. I have also gone through the law of apex Court cited on behalf of the petitioners referred above, which provides that as entire matter was before the D.D.C. and his jurisdiction was unfettered and he was in complete control and position to test the correctness of the order made by the courts below so he should have himself gone through the record and decide the dispute at his level. No where It was pointed out specifically which point of evidence was not considered by the courts below. On what point and evidence appreciation of courts below was not found correct by him. Which party was intending to adduce further evidence in the matter and was stopped by the courts below to adduce that evidence, it is also not clear from the impugned order. On what points wrong conclusion has been drawn by the courts below, it is also not clear from the impugned order. 9. In the facts and circumstances of the case, considering the arguments raised, I am of the view that no useful purpose would be served to remit the matter to the C.O. to start second round of litigation between the parties. Already sufficient time has expired in the litigation between the parties. Under the provisions of law, learned D.D.C. is also empowered to permit the parties to file documentary evidence in support of their respective cases and opposite party may rebut by filing the documents. 10. In the facts and circumstances of the case, Interference by this Court in writ jurisdiction in the matter is required. Accordingly, the writ petition is allowed and the judgment and order passed by the learned D.D.C. is hereby set aside and matter is remitted back to the learned D.D.C. to decide the dispute between the parties on his own level in the light of the observations made above. However, it is made clear that no party to the case will be permitted to get adjourned the hearing in the Revision. If any party seeks adjournment of case, not less than Rs.
However, it is made clear that no party to the case will be permitted to get adjourned the hearing in the Revision. If any party seeks adjournment of case, not less than Rs. 1,000/- shall be imposed as cost on that party and it will be pre-condition to permit that party to join the hearing on next date subject to he deposits earlier cost ordered. Learned D.D.C. will expedite the disposal of the Revision, if possible within three months from the date when the certified copy of this order is placed before him.