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2014 DIGILAW 2976 (ALL)

Rahamatullah v. Additional Collector/D. D. C.

2014-09-23

ANJANI KUMAR MISHRA

body2014
JUDGMENT Anjani Kumar Mishra, J. 1. Heard Sri Shailesh Kumar Tripathi, learned Counsel for the petitioner and Sri B.B. Jauhari holding brief of Sri Shishir Kumar Srivastava, who has filed caveat on behalf of respondents 2 to 4. This petition arises out of a reference under section 48(3) of the U.P. Consolidation of Holdings Act and is directed against the orders dated 17.4.2014, 29.9.2006 and 28.8.2006 passed by the Deputy Director of Consolidation. 2. The facts of the case briefly stated are that a reference was accepted by the order dated 5.10.2001. Against this order, a recall application was filed by the petitioner and his brother Bismillah. During the pendency of the said recall application, a writ petition was filed challenging the order dated 5.10.2001. This writ petition was filed on 11.5.2006. Subsequently, an application was filed on 28.8.2006 before the Deputy Director of Consolidation, with the prayer that the recall application filed on 12.4.2006 be permitted to be withdrawn. The Deputy Director of Consolidation after hearing the parties and upon a consideration of the withdrawal application, passed an order on 29.9.2006 holding that the order dated 5.10.2001 had been passed after hearing the parties and the same had been challenged by means of Writ Petition No. 27403 of 2006, which establishes that the order was not ex parte and, therefore, dismissed the recall application imposing cost of  Rs. 500/-, which were required to be deposited within a period of one month, failing which it was liable to be recovered as arrears of land revenue. 3. The writ petition filed by the petitioner was disposed of by the order dated 2.8.2013 directing the Deputy Director of Consolidation to decide the recall application filed on 12.4.2006. It is thereafter that an application was filed by the petitioner on 20.8.2013 seeking recall of the order dated 29.9.2006, whereby the recall application dated 12.4.2006 has been dismissed. This recall application, filed on 20.8.2013, has been dismissed by the order impugned. Hence this writ petition. 3-A. Learned Counsel for the petitioner has submitted that the Deputy Director of Consolidation has wide powers to examine all documents that are filed before him and he also has the power to receive additional evidence. In support of this contention, he has relied upon the judgment in Bihari v. State of U.P. 1973 RD 342. Hence this writ petition. 3-A. Learned Counsel for the petitioner has submitted that the Deputy Director of Consolidation has wide powers to examine all documents that are filed before him and he also has the power to receive additional evidence. In support of this contention, he has relied upon the judgment in Bihari v. State of U.P. 1973 RD 342. Reliance has been placed upon paragraph 4 of the said judgment, wherein it has been held that the Deputy Director of Consolidation while exercising powers under section 48 of the U.P. Consolidation of Holdings Act has been held to have jurisdiction to receive additional evidence. 4. On the strength of the authority cited above, learned Counsel for the petitioner has submitted that the application for withdrawal of a recall application dated 28.8.2006 had been filed by an imposter. It does not bear the thumb impression of the petitioner and the Deputy Director of Consolidation should have examined this aspect of the matter. Failure on the part of the Deputy Director of Consolidation, respondent No. 1, to consider this aspect of the matter vitiates the impugned order. 5. He has also relied upon the averments made in paragraph 20 of the writ petition, which are quoted below "That learned Court below had committed grass illegality in passing impugned order dated 29.9.2006, arbitrarily in manner without look about controversy the thumb impression is correct in accordance with law or not, arbitrary impose fine of  Rs. 500/-, and had directed that fine be deposited within a month, thus the impugned order itself without jurisdiction and preserve, so far liable to be quashed by this Hon'ble Court." 6. He has lastly submitted that since the cost imposed were never recovered, this fact further establishes that the order of 2006 was an ex parte order. 7. Learned Counsel for the respondents in rebuttal has supported the impugned order. He has further submitted that the recall application dated 12.4.2006 has been filed by the petitioner and his brother Bismillah. Even though, this recall application was dismissed by the order dated 29.9.2006, Bismillah or his heirs, who are on the record of this writ petition, have not disputed the order sought to be recalled. 8. He has further submitted that the recall application dated 12.4.2006 has been filed by the petitioner and his brother Bismillah. Even though, this recall application was dismissed by the order dated 29.9.2006, Bismillah or his heirs, who are on the record of this writ petition, have not disputed the order sought to be recalled. 8. Upon hearing learned Counsel for the parties and upon a perusal of the record especially the recall application filed by the petitioner, it would be relevant to note that this recall application is absolutely silent as regards the submissions that are being made by the Counsel for the petitioner before this Court. This recall application, a copy whereof is Annexure-7 to this writ petition, reveals that not a word has been stated about the withdrawal application dated 28.8.2006. It is, therefore, clear that the petitioner has not set up a case before the Court below that he had not filed the withdrawal application. He has also admittedly not made any prayer before the Court below that the signature/thumb impression on the withdrawal application be examined by a finger print expert 9. This Court therefore finds that the petitioner by means of this writ petition is raising issues which had not been raised earlier in the recall application filed by him. The submissions, therefore, are not found to be bona fide and an altogether new plea cannot be permitted to be raised for the first time before the Writ Court. 10. I, therefore, find that the submissions made by learned Counsel for the petitioner lack force. The writ petition is therefore dismissed.