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2014 DIGILAW 1475 (ALL)

Ram Sewak v. D. D. C.

2014-05-06

ANJANI KUMAR MISHRA

body2014
JUDGMENT Anjani Kumar Mishra,J. This writ petition has been filed by the petitioner challenging the order passed by the Deputy Director of Consolidation (the DDC) in Revision No. 62 under section 48)1) of UP Consolidation of Holdings Act, whereby the revision has been dismissed and the order of remand passed by the Settlement Consolidation Officer has been affirmed. 2. It has been submitted by the counsel for the petitioner that in view of amendment made in section 48 whereby Explanation-3 was added, the DDC has all the powers to decide the matter himself instead of remanding it to the Consolidation Officer. He, therefore, submits that the order of remand passed by the DDC is illegal. 3. The dispute between the parties relates to the validity of separate wills set up by the parties. Both these wills are alleged to have been executed by Har Bhan. In mutation proceedings prior to start of consolidation operation, respondent was recorded over the land in dispute on the basis of will dated 16.9.1975. 4. On the start of consolidation operations, the respondent filed an objection claiming on the basis of a will which is a registered one. 5. Ram Sewak, the petitioner also set up an unregistered will. The objection was decided on the basis of a compromise dated 17.11.2008 which was partly accepted by the Consolidation Officer and partly rejected vide his order dated 12.12.2008. 6. Aggrieved by this compromise order, the respondent preferred a restoration application which was rejected by the order dated 22.5.2009. 7. Against the order rejecting the restoration application, the respondent preferred a revision before the DDC. The DDC by the impugned order, allowed the revision and has remanded the matter for decision on merits after hearing the parties and after affording them opportunity to adduce evidence. 8. The learned counsel for the petitioner has assailed this order of remand primarily on the ground that the DDC in exercising jurisdiction under section 48 of UP Consolidation of Holding Act has the power to appreciate the evidence on record and pass an order thereafter. Under these circumstances he has vehemently submitted that the order of remand is an order which will only prolong the litigation and lead to harassment of the parties. In support of his contention, he has relied upon the following decisions: 1. 1986 RD 164; Bashir Ahmad Vs. DDC 2. 2009 RD (106); Sheikh Nathu Vs. Under these circumstances he has vehemently submitted that the order of remand is an order which will only prolong the litigation and lead to harassment of the parties. In support of his contention, he has relied upon the following decisions: 1. 1986 RD 164; Bashir Ahmad Vs. DDC 2. 2009 RD (106); Sheikh Nathu Vs. DDC 3. 2008 RD (104) 521; Babu Lal Vs. DDC 4. 2006 RD (101) 383; Bhagwat Prasad Vs. DDC 5. 2007 RD (103) 402; Pheku Vs. DDC and 6. 2007 RD (102) 113, Sita Ram Vs. DDC. 9. In the case of Bashir Ahmad (Supra), it has been held that an order remanding the case to the Consolidation Officer when the entire evidence was before him was not proper and the DDC should have decided the matter himself as he was exercising very comprehensive power under section 48 of the Act. 10. Again in the case of Sheikh Nathu (Supra), this Court has found that the Consolidation Officer and the Settlement Officer of Consolidation on the basis of the material available on record held the objection of the respondents to be meritless. The DDC remanded the matter without setting aside the findings of the subordinate authorities. This Court, therefore, held that this order of remand amounted to giving a fresh lease of life to the litigation and that remand order should not be passed in a routine manner. Yet again in the case of Babu Lal (Supra) this Court has held that order of remand is to be resorted to in very exceptional cases/ circumstances as it consumes precious time of the Court and causes monetary loss to both sides, besides unwarranted harassment. 11. The Court again in the case of Bhagwat Prasad (Supra) has held that the revisional court is fully empowered to examine the findings on fact or on law and there is no need to remand the case. Under the circumstances, directions were issued to the revisional court to decide the revision itself. Same view has been taken in the case of Pheku Vs. DDC (Supra). 12. In the Case if Sitaram Vs. DDC (Supra), this Court set aside the order of remand and directed the DDC to decide the matter himself after taking additional evidence, if necessary. 13. The submissions of the counsel for the petitioner are undoubtedly legally sound. Same view has been taken in the case of Pheku Vs. DDC (Supra). 12. In the Case if Sitaram Vs. DDC (Supra), this Court set aside the order of remand and directed the DDC to decide the matter himself after taking additional evidence, if necessary. 13. The submissions of the counsel for the petitioner are undoubtedly legally sound. However, in the instant case this Court is not inclined to set aside the order of remand passed by the DDC and to direct him to decide the dispute between the parties himself for the reasons given below. 14. It is admitted case that two separate wills were set up by the parties. The objection was decided by the Asstt. Consolidation Officer (The ACO) on the basis of a compromise. It is settled legal position that the Asstt. Consolidation Officer is empowered to pass order only on the basis of conciliation and not on merits. Under these circumstances, it can be safely stated that the validity of the wills set up was not examined by the ACO when he passed the order on the basis of compromise. In this connection, it is also relevant to note that the compromise was not accepted as a whole. 15. The order passed on the basis of compromise was challenged by means of a reivision without any intermediate appeal having been preferred. The DDC remanded the matter for a decision afresh after affording opportunity to the parties to adduce evidence. 16. From the narration of the above facts, it is clear that no evidence was led by the parties. Even if, evidence, if any, was filed, no occasion arise for appreciation of the same. Moreover, in view of the fact that the parties were settling their dispute by means of an alleged compromise there was no occasion for them to have adduced evidence as regards their respective claims on merits. 17. Explanation-3 to section 48 of the Act empowers the DDC to reappreciate the evidence on record and further empowers him to record a finding contrary to one that has been recorded by the Court below. However, in the instant case that there has been no previous appreciation of evidence . Therefore, the DDC cannot be said to have failed to exercise his jurisdiction to reappreciate the evidence in the absence of any appreciation of the same by the subordinate courts. 18. However, in the instant case that there has been no previous appreciation of evidence . Therefore, the DDC cannot be said to have failed to exercise his jurisdiction to reappreciate the evidence in the absence of any appreciation of the same by the subordinate courts. 18. Under these circumstances, I am of the opinion that the order of remand is not liable to be interfered with. 19. In my considered opinion, there is another reason on account of which the order passed by the DDC requires no interference. 20. While deciding WP No. 42 (Cons) of 2007; Hari Lal & others Vs. DDC, Barabanki which involved a similar controversy, I have recorded as under: "Even otherwise, it is evident from the scheme of the Act itself that the orders passed by the first court, namely, the Assistant Consolidation Officer or Consolidation Officer, whether in title proceedings or in allotment proceedings, are subject to appeal before the SOC and, thereafter, subject to the revisional jurisdiction of the DDC under section 48 of the Act. It is also well settled that the right of appeal is a statutory right and no appeal can be filed unless the statute provides for the same. However, once the statute provides for an appeal against any order passed in the proceedings under the Act, which is further subject to the revisional jurisdiction under section 48, in case the contention of the learned counsel for the respondent is accepted, the petitioners would stand deprived of their right to appeal or revision, as is provided under the Act. Since this statutory remedy of appeal is provided under the Act, allowing the order of the DDC to stand, in my opinion, it would deprive the petitioners not only of the statutory remedy of appeal but also a subsequent revision, which for all practical purposes is a second appeal available to a party under the scheme of the Act. In any case, every party should be provided at least one appeal in the proceedings in view of the scheme of the Act itself, and this requirement would stand fulfilled if the matter is remanded to the SOC for a fresh decision. Against the order passed by the SOC, the aggrieved party will have the remedy of filing a revision, a second innings, which would be in accordance with the general scheme of the Act itself. Against the order passed by the SOC, the aggrieved party will have the remedy of filing a revision, a second innings, which would be in accordance with the general scheme of the Act itself. In view of the same and also in view of the fact that the DDC has passed the order without considering the case of the petitioners and without adverting to the evidence filed by them, the impugned order is liable to be set aside". 21. Thus, is the facts and circumstances of this case, setting aside the order of remand and directing the DDC to decide the case himself would, in my considered opinion, amount to doing violence to the basic scheme of the Act itself. 22. For the reasons aforesaid, the order impugned is affirmed and the writ petition is dismissed.