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2014 DIGILAW 3812 (ALL)

Zarif v. Dy. Director of Consolidation

2014-12-22

ANJANI KUMAR MISHRA

body2014
JUDGMENT Anjani Kumar Mishra, J. 1. Heard Sri K. Ajit, learned Counsel for the petitioners as also learned Counsel for the caveator. The writ petition arises out of proceedings for allotment of chaks and seeks quashing of the order dated 2.5.2014 and 26.7.2014 passed by the Deputy Director of Consolidation, Moradabad, Camp Rampur. The orders passed by the Settlement Officer, Consolidation on 25.9.2012 and 11.11.2013 are also under challenge. 2. Facts of the case as submitted by learned Counsel for the petitioners are that the proceedings for allotment of chaks, as against the petitioners, became final at the stage of the Settlement Officer, Consolidation and the petitioners were satisfied by the chaks so proposed. 3. It appears that respondent No. 7, Shahjahan, filed an objection under section 21(1) of the U.P. Consolidation of Holdings Act, impleading the respondents 4 and 5 therein. The petitioners or their predecessor in interest was not a party to such objection and the order passed therein did not affect their chaks. 4. The contesting respondents 4 and 5 are said to have filed an appeal against the order passed in the objection filed by Sahjahan. The petitioners' predecessor in interest, Bashir Ahmad, who was not party to the objection, was also impleaded as a respondent therein. This appeal was allowed on 25.9.2012 and the chak, carved out in the name of Bashir Ahmad, was affected. 5. The petitioners filed a restoration application against this order alleging therein that Bashir Ahmad was dead and that no notice or information had been issued to him and that the appellate order was passed against a dead person. 6. This restoration application was allowed and the order dated 25.9.2012 was set aside. Subsequently this appeal was dismissed for default. 7. It is the case of the petitioners that a restoration application was allowed ex-parte and simultaneously the appeal was also allowed reiterating the earlier order dated 25.9.2012 passed by the Settlement Officer, Consolidation. The consequential revision filed by the petitioners was dismissed on 25.4.2014. 8. It is submitted that this order was passed without hearing the petitioners, who were revisionists in the Court below and, therefore, they filed a restoration application. The Deputy Director of Consolation by the order dated 26.7.2014 dismissed the restoration application on the finding that the petitioners had been afforded proper opportunity of hearing. 8. It is submitted that this order was passed without hearing the petitioners, who were revisionists in the Court below and, therefore, they filed a restoration application. The Deputy Director of Consolation by the order dated 26.7.2014 dismissed the restoration application on the finding that the petitioners had been afforded proper opportunity of hearing. Hence this writ petition challenging the orders passed by the Settlement Officer, Consolidation, both on the merits of the appeal and the restoration application as also the orders passed by the Deputy Director of Consolidation, whereby the revision and restoration application of the petitioners had been rejected. 9. The contention of learned Counsel for the petitioners is that no proper opportunity of hearing was afforded to the petitioners, both at the appellate and revisional stages. The second submission of learned Counsel for the petitioners is that the appeal filed by the contesting respondents was directed against an order passed on the objection filed by Sahjahan, wherein the petitioners or their predecessor in interest was not a party and, therefore, the petitioners could not have been impleaded as respondents in this appeal. Not only was the petitioners' predecessor in interest, Bashir Ahmad, wrongly impleaded, an illegal order was passed against said Bashir Ahmad, without any notice or information to him. Besides, the order was against a dead person, as Bashir Ahmad was dead. The third submission of learned Counsel for the petitioners is that the Settlement Officer, Consolidation had already decided an appeal pertaining to the chaks of the petitioners and, therefore, the order passed in the appeal filed by the contesting respondents affecting the chaks of the petitioners amounted to review of the earlier order. He has lastly submitted that the Settlement Officer, Consolidation has not discussed the merits of the appeal and has only reiterated and affirmed the earlier ex parte order passed on 25.9.2012. He has further assailed the appellate order on the ground that by the modifications made by this order in their chaks, the petitioners have been allotted less fertile land. The impugned orders are cryptic and the chaks of the petitioners have been disturbed without any grievance having been raised against the petitioners. He has again tried to assail the orders on the ground that the order dated 25.9.2012 had been passed without issuing any notices or summons to Bashir Ahmad, who in any case was dead. 10. The impugned orders are cryptic and the chaks of the petitioners have been disturbed without any grievance having been raised against the petitioners. He has again tried to assail the orders on the ground that the order dated 25.9.2012 had been passed without issuing any notices or summons to Bashir Ahmad, who in any case was dead. 10. Learned Counsel for the caveator on the other hand has supported the impugned order. He has submitted that Bashir Ahmad was alive when the order dated 25.9.2012 was passed against him by the Settlement Officer, Consolidation. He has referred to this order, wherein the submissions made on behalf of Bashir Ahmad have been noticed. His next submission is that by the order impugned, only the spot position of the petitioners' chak has been shifted from one place to another on the same plot and, therefore, the petitioners are in any way aggrieved by the amendment made. He has further submitted that the contention of learned Counsel for the petitioners that the appeal was decided on merits, when in fact submissions were made only on the merits of the restoration application, is unfounded. The order clearly records that the appeal was being decided on merits with the consent of the parties. He has emphasised that the petitioners were duly heard before the impugned appellate order was passed and this hearing was on the merits of the appeal also. 11. Upon hearing learned Counsel for the parties and upon a perusal of the record, it would be relevant to note that primarily the submissions made by learned Counsel for the petitioners are technical in nature. He has not been able to point out any substantial prejudice that has been caused to the petitioners by the impugned orders. He has only tried to submit that in case the impugned orders are affirmed, the contesting respondents shall start raising a demand for a chak road to access their chaks through the chak of the petitioners. 12. He has not been able to point out any substantial prejudice that has been caused to the petitioners by the impugned orders. He has only tried to submit that in case the impugned orders are affirmed, the contesting respondents shall start raising a demand for a chak road to access their chaks through the chak of the petitioners. 12. Apart from this rather vague ground, the other grounds are that the initial order of the Settlement Officer, Consolidation was an ex-parte order, passed against a dead person and that the restoration application of the petitioners was allowed and simultaneously the appeal was also allowed without hearing the petitioners on the merits of the appeal and that this order amounted to review of an earlier appellate order, whereby the chaks of the petitioners had been modified in proceedings arising out of a separate and different objection. 13. From the facts of the case noticed above, it is clear that the question as to whether notices or summons were issued and served upon Bashir Ahmad, the pre-decessor in interest of the petitioners, is of no consequence at this stage. Admittedly, the restoration application filed by the petitioners on this ground was allowed and thereafter fresh orders have been passed after hearing them. 14. The contention of learned Counsel for the petitioner that this order on merits was passed without affording them opportunity to address the Court on the merits of the appeal is also without force. The Settlement Officer, Consolidation has categorically recorded that he is deciding the appeal on the merits with the consent of the parties and after hearing them. 15. Under the circumstances, therefore the questions as to whether the earlier order was ex parte or not, or was passed without issuance of notices or service or summons, or was passed against a dead person are of no consequence as a subsequent order has been passed after hearing the petitioners. It is no doubt true that this order of the appellate Court reiterates and reaffirms an earlier order, which is said to be ex parte. However, nothing prevented the Settlement Officer, Consolidation from reiterating an earlier order, even if passed ex parte, once he had heard the parties and the impugned appellate order cannot be faulted on this ground. 16. It is no doubt true that this order of the appellate Court reiterates and reaffirms an earlier order, which is said to be ex parte. However, nothing prevented the Settlement Officer, Consolidation from reiterating an earlier order, even if passed ex parte, once he had heard the parties and the impugned appellate order cannot be faulted on this ground. 16. In so far as the submissions that the Settlement Officer, Consolidation in allowing the appeal of the contesting respondents had reviewed an earlier order passed in an appeal arising out of a separate and different objection also cannot be sustained. Both the appellate orders were passed in appeals arising out of separate and distinct objections and, therefore, I am not prepared to accept the contention that the subsequent appellate order amounts to reviewing the earlier order. A review cessarily implies a fresh decision after a case has been decided on account of any error in the earlier judgment. Two separate orders passed in cases arising out of separate objections and between the separate parties cannot amount to review of one by the other order. 17. As regards the submission of learned Counsel for the petitioners that the petitioners' pre decessor in interest had wrongly been impleaded in the appeal especially when he was not a party in the objection filed by Sahjahan also cannot be sustained. In proceedings for allotment of chaks, even a minor change in the chak of one tenure holder can result in modifications being required in the chaks of several persons as a chain reaction and it may not always be possible to foresee and to implead every other person, who is likely to be affected, in case the prayer made in such proceedings is allowed. It is in this context that the consolidation authorities in proceedings for allotment of chaks are empowered to issue notices to persons likely to be effected by an order proposed to be passed and thereafter to pass appropriate orders after hearing such persons. In the instant case, the petitioners, as already held hereinabove, were heard before the order was passed against them and, therefore, the same cannot be said to be illegal. 18. I find substance in the submission of learned Counsel for the caveator that the petitioners have not been able to point out any substantial prejudice that may have been caused to them by the impugned order. 18. I find substance in the submission of learned Counsel for the caveator that the petitioners have not been able to point out any substantial prejudice that may have been caused to them by the impugned order. They have merely been shifted from one place to another on the same plot, which is admittedly the original holding of the petitioners and for the same reason, the orders passed cannot be faulted with. Accordingly and for the reasons that the orders impugned have been passed after hearing the petitioners and also because learned Counsel for the petitioners has not been able to point out any substantial prejudice having been caused to the petitioners by such orders, I find no merit in the writ petition, which is accordingly dismissed.