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2010 DIGILAW 2133 (ALL)

JEEV LAL v. DEPUTY DIRECTOR OF CONSOLIDATION

2010-07-21

POONAM SRIVASTAV

body2010
JUDGMENT Hon’ble Mrs. Poonam Srivastav, J.—Heard Smt. Anita Tripathi and Sri Tripathi B.G. Bhai Advocates appearing on behalf of petitioners and Sri Sabhapati Tiwari Advocate appearing on behalf of respondent No. 2. 2. Office report dated 14.5.2001 in respect of notice sent to respondent No. 3, is that neither acknowledgement nor undelivered cover has been received back after service. There is yet second office report commencing from 1.3.2005 up till 21.3.2009 to the same effect. In the circumstances, service is deemed to be sufficient in view of Chapter VIII Rule 12 Explanation 2 of High Court Rules. 3. Counter and rejoinder affidavits have been exchanged between petitioners and respondent No. 2. Writ petition is listed for admission. As agreed between counsels for respective parties, writ petition is being heard finally. 4. The dispute arises out of proceedings for allotment of chaks. The order impugned in the instant writ petition is dated 18.1.2000 passed by respondent No. 1 Dy. Director Consolidation, Basti. 5. Petitioners are chak holder No. 29 whereas respondent No. 2 is chak holder No. 127. At the stage of Assistant Consolidation Officer, petitioners were alloted two chaks one on plot No. 29 alongwith their original plot No. 31 and second on plot No. 2/1. Petitioners had no grievance. However, respondent No. 3 filed an objection before Consolidation Officer which was rejected vide order dated 30.3.1999. The order was once again challenged by respondent No. 3 before Settlement Officer Consolidation who allowed appeal of respondent No. 3 on 31.5.1999. 6. Petitioners’ chaks were not at all disturbed by order of Settlement Officer Consolidation. However, respondent No. 2 was not satisfied with the order passed in appeal as he was dislodged from his original holding. He preferred a revision before Dy. Director of Consolidation challenging the order passed by Settlement Officer Consolidation in favour of respondent No. 3. Petitioners were though arrayed as parties but since they had no grievance whatsoever with the order of Consolidation Officer as well as Settlement Officer Consolidation, they did not file any objection. 7. Revision of respondent No. 2 was allowed on 18.1.2000 which resulted in disturbing petitioners’ chaks. In fact, respondent No. 2 filed photostat copy of sale deed before Dy. Director of Consolidation and on the basis of sale deed, certain land on the southern side of plot No. 31 was purchased by respondent No. 2. 7. Revision of respondent No. 2 was allowed on 18.1.2000 which resulted in disturbing petitioners’ chaks. In fact, respondent No. 2 filed photostat copy of sale deed before Dy. Director of Consolidation and on the basis of sale deed, certain land on the southern side of plot No. 31 was purchased by respondent No. 2. Only on its basis, chaks of petitioners stood altered. The said order was passed without even calling for an objection from petitioners, who were being disturbed on account of the order of Dy. Director of Consolidation. Apparently, the impugned order is without any opportunity of hearing to petitioners. In fact, petitioners were fully satisfied with the orders of Consolidation Officer and Settlement Officer Consolidation, therefore, there was no occasion to prefer objection before Dy. Director of Consolidation. Bare perusal of the impugned order, it is evident that order has been passed on the basis of sale deed which was for the first time produced before revisional Court and that too photostat copy of the same. Since chaks of petitioners remained intact up till stage of S.O.C. and it was interfered for the first time by Dy. Director Consolidation. They had no occasion to raise their claim. It is also clear that chaks were altered only on the basis of sale deed which was introduced for the first time in revision and without setting aside findings of the S.O.C., order was passed by D.D.C. In case Dy. Director Consolidation admitted sale deed as evidence at the stage of revision, only option left for him to have remanded the matter to Settlement Officer Consolidation. 8. Petitioner’s counsel has pointed out that respondent No. 2 raised no grievance whatsoever in the memo of revision. Only relief sought in revision was against respondent No. 3. Introduction of the sale deed at that stage amounts to setting up altogether a new case. 9. In the case of Indra Dip v. A.D.C. and others, 2004 (96) R.D. 102, this Court held that it was obligatory on the part of Dy. Director Consolidation to have referred and discussed the reasons and finding given by two Courts below which are based on assessment of evidence. In the event Dy. Director Consolidation did not agree with the findings of the Courts below then matter should have been referred and sent back for afresh decision. 10. Director Consolidation to have referred and discussed the reasons and finding given by two Courts below which are based on assessment of evidence. In the event Dy. Director Consolidation did not agree with the findings of the Courts below then matter should have been referred and sent back for afresh decision. 10. Similarly, in the case of Smt. Kumari v. State of U.P. and others, 2004 (96) R.D. 642, it was Ruled that when there is departure from judgment of Courts below, it must be based on strong reasons and if no reason is assigned, order is unsustainable and was set aside. Similar view was expressed in the case of Ikram Ullah and others v. Dy. Director, Consolidation, Ghazipur and others, 2004 (96) R.D. 186, that the order bereft of reason cannot be left to stand and matter needs afresh adjudication in accordance with law. 11. In the case of Jamuna Prasad v. Dy. Director, Consolidation, Nainital and others, 2005 (99) R.D. 630, Unttranchal High Court held that revisional Court cannot travel beyond pleadings of parties and it is not allowed to reassess evidence once the fact finding authority has already arrived at a conclusion of assessment of evidence. 12. In view of all these decisions and discussion in the foregoing paragraphs, I am of the considered view that Dy. Director Consolidation not only exceeded its jurisdiction but also committed manifest error of law in setting aside the two orders without any reason and on the basis of sale deed, which was admitted at the stage of revision for the first time, ground of revision did not consist of any allegation against present petitioners, on the contrary grievance was against respondent No. 3 and petitioners were taken by surprise, also they had no opportunity to defend themselves. 13. The order dated 18.1.2000 passed by respondent No. 1 Dy. Director Consolidation, Basti, is set aside. Matter is remanded to Dy. Director Consolidation, Basti, to decide afresh after giving an opportunity of hearing to petitioners as well as respondent No. 3. The writ petition is allowed. 14. Possession of petitioners shall not be disturbed till matter is finally adjudicated by Courts below. —————