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Allahabad High Court · body

2010 DIGILAW 3000 (ALL)

Gautam and others v. Dy. Director of Consolidation, Azamgarh and others

2010-09-27

VIKRAM NATH

body2010
Vikram Nath, J.: - Heard Sri S.C. Verma, learned counsel for the petitioners and Sri M.D. Singh Shekhar, learned Senior Counsel assisted by Sri R.P. Singh, learned counsel appearing for the respondent no.4. 2. As all the parties are represented, with the consent of the learned counsel for the parties this petition is being finally heard at the admission stage itself. 3. Certain objections filed by the respondent no.4 are said to be pending before the Consolidation Officer, Sagari, District Azamgarh since 1987. The said objections were barred by time as such an application under Section 5 of the Limitation Act for condonation of delay in filing the objections was also filed. The petitioners, who are the opposite parties in the objections, objected to the condonation of delay and the matter was agitated up to the stage of Deputy Director of Consolidation whereupon it was finally determined that the delay shall stand condoned and the objections be decided on merits. This was the first round of litigation between the parties. Thereafter the matter is said to be proceeding for recording of the evidence in the case before the Consolidation Officer, Sagari, District Azamgarh. As the Consolidation Officer was not proceeding to decide the matter despite long pendency, a writ petition was filed before this Court being Writ Petition No.9977 of 2009 by the respondent no.4 for a mandamus to the Consolidation Officer to decide the objections expeditiously within a fixed time frame. The said writ petition was disposed of by order dated 25.2.2009 in the following terms : "Heard the learned counsel for the petitioner and the learned standing counsel. The grievance of the petitioner is that after the delay in filing objections was condoned by the Deputy Director of of Consolidation, the Consolidation Officer is not proceeding to decide the objections on merits. The matter is being adjourned on every date and a general date is being fixed. In the circumstances the petitioner is praying for a direction to the Consolidation Officer to expedite the disposal of the objections. The matter is being adjourned on every date and a general date is being fixed. In the circumstances the petitioner is praying for a direction to the Consolidation Officer to expedite the disposal of the objections. Considering the facts and circumstances of the case this petition is disposed of with the direction to the Consolidation Officer, Sagari, Azamgarh (respondent No.1)to expedite the disposal of the objections preferably within a period of four months from the date of production of a certified copy of this order strictly in accordance with law after affording opportunity of hearing to the parties concerned." 4. The said order was filed before the Consolidation Officer, Sagari, District Azamgarh and the matter proceeded. After a lapse of about 15 months, at the time when the evidence of the respondent no.4 had closed and the evidence of the petitioners was to be led, the petitioners were not producing their witnesses and as such after 2 - 3 opportunities the Consolidation Officer passed an order on 8.6.2010 that in case the witnesses are not produced on the next date he shall proceed to close the evidence of the petitioners and proceed in the matter. At this stage the petitioners filed a transfer application dated 16.6.2010 before the Settlement Officer Consolidation for transferring the case from the Court of Consolidation Officer, Sagari, District Azamgarh to some other Consolidation Officer within the district. The Settlement Officer Consolidation by order dated 25.6.2010 allowed the transfer application only recording that the transfer appears to be justified and accordingly transferred the case to the Court of Consolidation Officer, Phoolpur, District Azamgarh. 5. According to the respondent no.4 the said order had been passed exparte without any notice to him. He accordingly applied on 6.7.2010 before the Settlement Officer Consolidation, Azamgarh for recalling the order dated 25.6.2010. In the application it was also mentioned that the order of the High Court dated 25.2.2009 was not brought to the knowledge of the Settlement Officer Consolidation and therefore also the order dated 25.6.2010 was bad in law. The said recall application dated 6.7.2010 filed by the respondent no.4 was allowed on 7.7.2010 by the Settlement Officer Consolidation and the order dated 25.6.2010 was recalled. The said recall application dated 6.7.2010 filed by the respondent no.4 was allowed on 7.7.2010 by the Settlement Officer Consolidation and the order dated 25.6.2010 was recalled. The reason given in the said order was that as the High Court had directed that the pending case be decided by the Consolidation Officer, Sagari, District Azamgarh and this fact having not been brought to his notice the order dated 25.6.2010 was not justified. Accordingly it was recalled and it was further provided that the record be sent to the Court of the Consolidation Officer, Sagari, District Azamgarh for proceeding in the matter as per the directions of the High Court. Against the order dated 7.7.2010, the petitioners filed a revision which has been dismissed by the Deputy Director of Consolidation vide order dated 16.8.2010. Aggrieved by these two orders the present writ petition has been filed. 6. Sri S.C. Verma, learned counsel appearing for the petitioners firstly submitted that this Court never intended in its' directions contained in the order dated 25.2.2009 that it was the Consolidation Officer, Sagari who alone could have decided the objections and the case could not have been transferred to any other Court of competent jurisdiction. As such the interpretation given by the Settlement Officer Consolidation and the Deputy Director of Consolidation is not in accordance with law. The only intention of this Court while issuing the directions was that the matter may be expedited before the Consolidation Officer where the case is pending or could have been transferred in accordance with law, for which the Settlement Officer Consolidation had ample powers and he had rightly transferred the case. He has further submitted that the respondent no.4 apparently cannot have any justification for insisting that the case be transferred to the Court of Consolidation Officer, Sagari, District Azamgarh and he alone may decide the matter. According to him it does not lie in the mouth of the respondent no.4 to insist that his case be decided by a particular officer. 7. On the other hand Sri M.D. Singh Shekhar, learned Senior Counsel appearing for the respondent no.4 has submitted that the petitioners have been delaying the disposal of the objections for the last more than 23 years. 7. On the other hand Sri M.D. Singh Shekhar, learned Senior Counsel appearing for the respondent no.4 has submitted that the petitioners have been delaying the disposal of the objections for the last more than 23 years. Initially they contested on the delay condonation matter up to the stage of the Deputy Director of Consolidation and now when the stage of recording of evidence had arrived after the directions of this Court, they are trying to delay it by filing transfer application. According to him this process of law cannot be abused by the petitioners by adopting such delaying tactic in the proceedings. It has further been submitted by him that the Settlement Officer Consolidation had allowed the transfer application firstly without any notice or opportunity to the respondent no.4 and secondly without recording any reason. As such the order of the Settlement Officer Consolidation dated 25.6.2010 was bad in law. He has further submitted that the petitioners, before filing the transfer application and even after when the matter had been decided by the Settlement Officer Consolidation and the Deputy Director of Consolidation, restoring the case back to the Consolidation Officer, Sagari, District Azamgarh, have not been producing their evidence as is apparent from the certified copy of the order sheet which has been produced by him. It has also been submitted by him that the transfer application filed by the petitioners contained vague allegations against the Presiding Officer of the Court of Consolidation Officer, Sagari, District Azamgarh and such transfer application deserved to be rejected outright and as such the Settlement Officer Consolidation committed illegality in allowing the transfer application and that too without recording any reasons. According to him entertaining transfer applications on such wild and vague allegations would adversely affect and demoralise the Presiding Officers. According to him no transfer can be ordered for the mere asking or else this procedure/remedy would be misused by the party who is not interested in getting the matter decided for ulterior motives. This tool can also be abused to pressurise the Presiding Officers for ulterior motives. 8. According to him no transfer can be ordered for the mere asking or else this procedure/remedy would be misused by the party who is not interested in getting the matter decided for ulterior motives. This tool can also be abused to pressurise the Presiding Officers for ulterior motives. 8. In reply Sri Verma has submitted that in the matter of transfer it is very difficult to be specific and to substantiate the allegations on which the transfer is sought and once a party which is apprehensive of not getting justice from any court applies for transfer of its case, its application should be considered on merits and should not be thrown out for want of evidence. 9. Having considered the submissions advanced on behalf of the parties, the Court has noticed firstly that the transfer application contains vague allegations as no specific averments were made in order to substantiate the allegations made for transferring the case and the same could not be supported by any evidence. Transfer applications should not be made a tool given in the hands of unscrupulous litigants to delay the proceedings or to demoralise and pressurise the Presiding Officers in order to achieve and be successful in illegal designs. 10. Secondly that the Settlement Officer Consolidation has passed the order of transfer without affording any opportunity to the respondent no.4 although it is well settled that before passing an order of transfer of the case in which parties are appearing, both the parties should be given notice. 11. Thirdly that the reasons given by the Settlement Officer Consolidation and the Deputy Director of Consolidation for recalling the order dated 25.6.2010 cannot be sustained in law in as much as this Court never intended in its directions contained in the order dated 25.2.2009 that the matter be decided by the Consolidation Officer, Sagari, District Azamgarh only and not any other officer competent to decide the objections. The directions issued in the nature of mandamus for early disposal of a case should not be interpreted to mean that it is to be decided by the same court. Normally the writ of mandamus is issued to the authority or the court where the matter is pending. However, when such matter is transferred to a court of competent jurisdiction by a Competent Authority the mandamus would go to the said authority or court. Normally the writ of mandamus is issued to the authority or the court where the matter is pending. However, when such matter is transferred to a court of competent jurisdiction by a Competent Authority the mandamus would go to the said authority or court. Thus the interpretation given by the Settlement Officer Consolidation and the Deputy Director of Consolidation cannot be sustained and the orders passed by them cannot be sustained. 12. In view of the foregoing discussions in the opinion of the Court the matter may be transmitted to the Settlement Officer Consolidation to pass appropriate orders on the transfer application filed by the petitioners after affording due opportunity of hearing to the respondent no.4, who is an affected party, within a period of one month from today. Both the parties shall appear before the Settlement Officer Consolidation on 6.10.2010 and the Settlement Officer Consolidation shall forthwith proceed to decide the transfer application in accordance with law within the time allowed above. 13. It is made clear that the Settlement Officer Consolidation shall decide the transfer application on its own merits after taking into consideration the basic principles of transfer in which the learned counsels appearing for both the parties would assist him. 14. It is further provided that the case shall be decided by the Consolidation Officer before whom the matter finally reaches by the order of the Settlement Officer Consolidation within the next three months. The Settlement Officer Consolidation shall fix a date for the parties to appear before the Consolidation Officer, Sagari, District Azamgarh (Respondent No.3) where the case is already pending on account of its territorial jurisdiction or any other Consolidation Officer as may be directed by the Settlement Officer Consolidation in case the transfer application is allowed for reasons to be recorded. 15. It is further made clear that both the parties shall cooperate in the disposal of the case before the Consolidation Officer and in case the Consolidation Officer finds that any of the parties is causing delay, he would be free to proceed with the matter to finally decide the same after recording the reasons and the conduct of such party causing unnecessary delay. 16. Petition stands allowed as above. The orders dated 25.6. 2010 & 7.7.2010, passed by the Settlement Officer Consolidation, Azamgarh and order dated 16.8.2010, passed by the Deputy Director of Consolidation, Azamgarh are hereby quashed.