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2014 DIGILAW 2097 (ALL)

Ashok Kumar v. D. D. C.

2014-07-16

ANJANI KUMAR MISHRA

body2014
JUDGMENT Anjani Kumar Mishra,J.: - Heard Sri Brijesh Shukla,, learned counsel for the petitioner and Sri Rajeev Sisodia, who has filed caveat on behalf of respondent no. 4 namely Kalyan Singh. 2. This writ petition is being disposed of finally with the consent of the parties without issuing any notice to respondent no. 5 - Rajesh, who is real brother of respondent no. 4. 3. Under the circumstances, it would be open for respondent no. 5 to file an application for recall of this order in case he feels aggrieved. 4. This writ petition arises out of an application filed by respondent nos. 4 and 5 on 1.4.2003. This application, a copy whereof has been filed as Annexure-2 to this writ petition, does not specify the section under which it has been filed. 5. By means of this application, the applicants have prayed for mutation of their names over Khasra No. 85 of village Sarangpur, pargana - Daranagar, Teshil and district Bijnore on the basis of a registered sale deed alleged to have been executed by Lal Singh, son of Nandan Singh in favour of the applicants. It appears that the said application was referred to the Consolidation Officer and was registered as Case No. 365, Kalyan Singh Vs. Lal Singh. The alleged sale deed dated 11.12.1987 was stated to have been executed by Lal Singh in favour of Jagan Singh,father of respondent nos. 4 and 5. 6. The case No. 365 registered in the Court of Consolidation Officer- Ist, Bijnore was dismissed in default on 9.10.2003. A restoration application filed by respondent no. 4 alone on 30.5.2006 was also dismissed in default. On 14.7.2008, the third restoration application was filed on 31.1.2011. During pendency of this third restoration, an application was filed to the effect that since Lal Singh (Vendor) had died, notice of the restoration application may be served upon his heir (the petitioner). At this stage, it relevant to point out that Lal Singh (Vendor) the recorded tenure holder died in the year 1998 and consequent to his death his heirs, the petitioner, was recorded over the land in dispute. 7. In pursuance of the application filed by the contesting respondents for issuance of notice to the petitioner, notices were issued and the same are stated to have been served by affixation. 7. In pursuance of the application filed by the contesting respondents for issuance of notice to the petitioner, notices were issued and the same are stated to have been served by affixation. Subsequently, by order dated 4.2.2011, restoration application was allowed and the orders dated 14.7.2008 and 9.10.2003 were recalled. 8. Subsequently, by order dated 23.2.2011, the objection was allowed and it was directed that Jagan Singh (Vendee) in the sale deed dated 11.12.1987 be recorded over the land in dispute in pursuance of the registered sale deed in his favour and since vendee was no more, his sons be recorded in his place. 9. It is the case of the petitioner that the notice alleged to have been served by affixation was never served upon him and he was not aware of the proceedings. He came to know about the order dated 23.2.2011 on receiving information about the same from the Halka Lekhpal and thereafter on 5.7.2011 filed an application for recalling the orders dated 5.7.2011 alongwith an application for condonation of delay. It has further been submitted that during pendency of this restoration application filed by the petitioner, the respondents preferred an appeal against the order dated 23.2.2011 seeking modification of the same. The petitioner filed his objection in the said appeal. The Settlement Officer of Consolidation, Bijnore (the SOC) by his order dated 10.7.2012 allowed the appeal and modified the order dated 23.2.2011. The modification made by the appellate court was that the name of the son of the vendor Lal Singh (namely the petitioner) be expunged and in his place the name of the contesting respondent nos. 4 and 5, sons of the vendee Jagan Singh be recorded. 10. Aggrieved, the petitioner preferred a revision challenging the order dated 10.7.2012 passed by the SOC as also the order dated 23.2.2011 passed by the Consolidation Officer. 11. This revision filed by the petitioner has been rejected by the impugned order on the reasoning that notices were duly served upon him by affixation and since the petitioner did not appear despite this notice, there was no justification for setting aside the orders impunged in the revision. 12. Sri Brijesh Shukla, on the basis of the facts noted above, has submitted that the order passed by the Consolidation Officer was ex parte. The petitioner was never impleaded as a party in the objection. 12. Sri Brijesh Shukla, on the basis of the facts noted above, has submitted that the order passed by the Consolidation Officer was ex parte. The petitioner was never impleaded as a party in the objection. No notice was ever served upon him. He categorically denied service of any notice by affixation and has stated that the entire proceedings were drawn surreptitiously. He further submitted that no sale deed was executed by his father in favour of Jagan Singh and the alleged sale deed dated 11.12.1987 is a forged and fictitious document. The alleged vendor never sought mutation over the land in dispute on the basis of the alleged sale deed and it is for the first time in the year 2003 that the sons of the alleged vendee Jagan Singh applied for mutation. Lastly, he has submitted that the petitioner had earlier sought mutation in proceedings under section 34 of the Land Acquisition Act which were dismissed on the ground that they were barred by section 49 of the UP Consolidation of Holdings Act. He, therefore, submits that the impugned orders are liable to be set aside. 13. In rebuttal Sri Rajeev Sisodia has tried to support the impugned orders, but has ultimately agreed that it would be appropriate to remand the matter to the Consolidation Officer for a fresh decision on merits after hearing the parties. 14. Having heared learned counsel for the parties and on a perusal of the record as also orders passed by the Deputy Director of Consolidation, it is clear that the order passed by the Consolidation Officer were so passed without hearing the petitioner. There was no personal service upon the petitioner and the service is alleged to have been made only by way of affixation. In view of this fact and also fact that the vendee Jagan Singh never tried to got his name mutated over the property in dispute which he is said to have purchased by him through a registered sale deed dated 11.12.1987 and the first attempt for mutation was made by his sons in the year 2003 without furnishing any explanation as to why for 16 long years no mutation was sought. It appears fit that the writ petition be allowed, the impugned orders be set aside and the matter be remitted to the Consolidation for passing a fresh order after affording the parties to adduce evidence and after hearing them. 15. Accordingly, I set aside the orders dated 28.6.2014 passed by the Deputy Director of Consolidation, Bijnore (Respondent no. 1) as also order dated 10.7.2012 passed by The Settlement Officer of Consolidation, Bijnore (Respondent no. 2) and the order dated 23.2.2011 passed by the Consolidation Officer-I, Bijnore (Respondent no. 3) and remand the matter to the Consolidation Officer to decide the case afresh after hearing the parties and after affording them adequate opportunity of producing evidence. It is further directed that the parties shall appear before the Consolidation Officer alongwith certified copy of this order on 12th August, 2014. The Consolidation Officer (Respondent no. 3) shall thereafter afford the parties opportunity for adducing the evidence in support of their claim and he shall thereafter proceed to decide the objection in according with law after hearing all the concerned parties. He will further endeavour to decide the case as expeditiously as possible preferably within a period of four months thereafter without granting any necessary adjournments to either of the parties. 16. Accordingly and subject to the directions as aforesaid, the writ petition is allowed. However, there will be no order as to costs.