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2014 DIGILAW 1360 (ALL)

RAMJI v. SETTLEMENT OFFICER OF CONSOLIDAITON

2014-04-28

ANJANI KUMAR MISHRA

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JUDGMENT Hon’ble Anjani Kumar Mishra, J.—This writ petition has been filed challenging the orders dated 26.8.2013 passed by the Consolidation Officer (the CO) in case No. 258, and the order dated 11.3.2014 passed by the Settlement Officer, Consolidation (the SOC) in appeal No. 48 under Rule 109 of the U.P. Consolidation of Holdings Rules. 2. I have heard Shri Brijesh Chandra Naik, learned counsel for the petitioner and, Shri R.P. Singh, who has filed caveat on behalf of respondent No. 5, Shri Ranjeet Asthana, learned counsel for the respondent No. 7, Shri B.B.P. Srivastava, learned counsel for the respondent No. 4 and Shri P.K. Giri, learned counsel for the respondent Nos. 3 and 6. 3. An order was passed by the CO on 26.8.2013, copy whereof is annexed as Annexure-6 to the writ petition. This order purports to have been passed under Rule 109 (1) of the Rules whereby the report of the Assistant Consolidation Officer/Consolidator has been accepted. 4. It has been contended by the learned counsel for the petitioner that alongwith the report of the ACO a correction table was also appended. He, therefore, submits that by the order impugned, modifications are sought to be made in the chaks of the parties which is not permissible in proceedings under Rule 109-A (1). Such an order could have been passed only in proceedings under Rule 109-A (2) of the Rules and in such a case the petitioner was entitled to notice and opportunity of hearing before any order could be passed for modification in his chak as provided under Rule 109-A (2). He, therefore, contended that the order of the CO being ex parte was patently illegal and, therefore, challenged by means of an appeal before the SOC, which has been dismissed on 11.3.2014. Hence this writ petition challenging both the orders passed by the CO as also the SOC. 5. On a query by this Court as to why no revision was preferred by the petitioner, the learned counsel for the petitioner referring to Rule 109 (3) has submitted that the order passed by the SOC is final as provided under the said Rule and, therefore the same is not revisable. 6. In this context it is relevant to refer Section 48 (1) of the Act which is quoted herein below: “48 (1). 6. In this context it is relevant to refer Section 48 (1) of the Act which is quoted herein below: “48 (1). Revision and reference.—(1) The Director of Consolidation may call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings, or as to the correctness, legality or propriety of any order [other than an interlocutory order] passed by such authority in case or proceedings, may, after allowing the parties concerned any opportunity of being heard, make such order in the case or proceedings as he thinks fit.” From a perusal of the aforesaid provision, it is clear that the revisional power of the Deputy Director of Consolidation (the DDC) is very wide and he can call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself about the regularity of the proceedings or its correctness legality or propriety. The only embargo is that such an order should not be an interlocutory order. Thus from a plain reading of the aforesaid provision it emerges that even an order passed by the SOC in an appeal under Rule 109-A (2) would also fall within the ambit of Section 48 (1) and would therefore be revisable. 7. Even otherwise, since, as submitted by the learned counsel for the petitioner, it is the Rule 109-A (2) which provides that the order passed by the SOC shall be final, it cannot override the provisions of the Act itself, and, therefore, I am not inclined to agree with the submission made by the learned counsel for the petitioner. The rules which have been framed under the Act are subordinate legislation and cannot override the provisions of the Act itself and under the circumstances, the submission of the learned counsel for the petitioner lacks merits. 8. In view of the above discussion, it is clear that the petitioner has an alternative statutory remedy available to him by means of a revision under Section 48 (1) of the Act before the DDC which statutory remedy has not been availed by him. In these circumstances, this writ petition is liable to be dismissed on the ground of alternative remedy. 9. In these circumstances, this writ petition is liable to be dismissed on the ground of alternative remedy. 9. It has further been submitted by the learned counsel for the petitioner that the contesting opposite parties are pressing for implementation of the impugned orders on the spot, and he is likely to be severely prejudiced if interim protection is not granted to him. He states that his crops are lying on the spot and he is not being to permitted to remove the same by the local police which is acting in connivance with the contesting respondents in the writ petition. 10. In view of the aforesaid submission, it is provided that the petitioner may file a revision alongwith stay application before the DDC within the next two weeks i.e. on or before the 12th May, 2014. Till 12th May, 2014 the impugned order shall not be given effect to on the spot. In case, the revision as also the application of interim relief is filed within time specified above, the DDC shall pass an order on the stay application within a period of seven days thereafter in accordance with law after hearing the parties. In case, the revision and interim application are not filed within the period specified herein above, the petitioner will not be entitled to any benefit under the order. Accordingly and subject to the aforesaid observations/directions, this writ petition is disposed of.