Abdul Salam v. Deputy Director Of Consolidation Rampur
2015-12-16
ANJANI KUMAR MISHRA
body2015
DigiLaw.ai
JUDGMENT Anjani Kumar Mishra,J. Heard learned counsel for the petitioners and Shri R.K. Khan for the respondent no. 7. 2. This writ petition arises out of an objection under Section 9-A (2) of the UP Consolidation of Holdings Act and seeks quashing of the order dated 10.07.2015 as also the order dated 10.06.2013 passed by the respondent no. 1 and respondent no. 2, respectively. 3. The facts of the case briefly stated are that the land in dispute in the basic year, was recorded in the name of Gulam Sabir son of Amir Hussain. An objection under Section 9-A (2) was filed by one Gulam Sabir praying that his parentage be corrected to Amir Hussain in place of Mohammad. 4. This objection was registered as case no. 259. It was decided by the Assistant Consolidation Officer ( the ACO) vide order dated 18.05.1997 allegedly on the basis of a compromise between the members of the Consolidation Committee and the parties. This is specifically recorded in the order. This order further records that the name of the father of the deceased tenure-holder Gulam Sabir be recorded as Amir Hussain. Subsequently, by an order passed in the year 2000, the names of the petitioners were substituted/ mutated. 5. It appears that against this order, the contesting respondents filed a revision no. 296/428 alleging therein that the land in question had been given to the petitioners on batai who fraudulently got their names recorded over the same. 6. In the revision, the reports were obtained from the subordinate consolidation authorities which indicated that the land in question was recorded in the name of Gulam Sabir son of Amir Hussain since 1325 fasli. In the khatauni 1398 to 1403 fasli, it was recorded in the name of Gulam Sabir son of Amir Hussain. It was this entry which was got changed by the order of the ACO dated 18.05.1997 and the parentage of Gulam Sabir was changed from Mohammad Hussain to Amir Hussain. 7. The Deputy Director of Consolidation (the DDC) by his order dated 12.11.2009 set aside all the orders and remanded the matter back to the Consolidation Officer (the CO) for afresh decision. 8. Upon remand, the CO, by his order dated 01.06.2013, directed that the name of the petitioners be expunged and it be recorded in the name of Latif etc. the contesting respondents in the writ petition. The appeal no.
8. Upon remand, the CO, by his order dated 01.06.2013, directed that the name of the petitioners be expunged and it be recorded in the name of Latif etc. the contesting respondents in the writ petition. The appeal no. 69/397 filed by the petitioner was allowed and the petitioners were ordered to be recorded over the land in question. 9. The primary ground for allowing the appeal was that the consolidation operations have been closed on account of issuance of notification under Section 52 of the Act. The contesting respondents thereafter filed revision no. 310/168 which has been allowed by the impugned order and the order passed by the CO has been affirmed. 10. The consequential revision of the respondents has been allowed. The DDC has recorded that the parentage of Gulam Sabir could have been changed only on the basis of documentary evidence. Therefore, the order should have been passed by the CO and not by the ACO. 11. The order passed by the DDC and that passed by the CO are, therefore, under challenge, in this writ petition. 12. The contention of the learned counsel for the petitioners is that the revision filed by the respondents had been preferred after close of consolidation operations and, therefore, the same was not liable to be entertained. It was not only entertained but was wrongly and illegal allowed and the matter was remanded back to the CO. He, therefore, submits that all the orders are without jurisdiction. I am not prepared to accept this contention because there is no averment in the writ petition that this revision, though belated was not accompanied by any application for condonation of delay or that the delay had, in fact, not been condoned. 13. In my considered opinion, an appeal or revision filed after issuance of notification under Section 52 of the Act, if accompanied by an application for condonation of delay, which is ultimately allowed, it would necessarily mean that the appeal or revision would be deemed to have been preferred within the time and, therefore, before the issuance of notification under Section 52 of the Act. The relevant material as also averments, in this regard, are not available on record of this writ petition and, therefore, this contention cannot be accepted. 14. Even otherwise, this contention is being raised after the petitioners acquiesced to the order of remand passed in the year 2009.
The relevant material as also averments, in this regard, are not available on record of this writ petition and, therefore, this contention cannot be accepted. 14. Even otherwise, this contention is being raised after the petitioners acquiesced to the order of remand passed in the year 2009. Thereafter the CO, the SOC and also the DDC have decided the matter by separate orders. This aspect, therefore, is not liable to be considered on this belated stage. 15. All the other contentions raised on behalf of the petitioners are basically about lacuna in the case of the respondents. Since initially an objection where-from the proceedings arose, was an objection filed by the father of the petitioners, it is for them to establish their case and they cannot be permitted to derive any benefit from the weakness, if any, in the case of the respondents. 16. Even otherwise, there are serious infirmities in the order passed by the ACO on the basis of a compromise on 18.05.1997. This objection filed by Gulam Sabir is supposed to have been decided on the basis of a compromise. This order is three line order and in the second line, it is categorically mentioned that the tenure-holder is dead and yet, the name of his father was ordered to be changed on the basis of an alleged compromise. This Court is unable to understand as to who was the party, who entered into a compromise when the objector, the recorded tenure-holder, Gulam Sabir, was dead on the date of order was passed. It is further clear that there was no written compromise and that the alleged compromise was an oral compromise. No dead person could have been party to an oral compromise. 17. Moreover, I agree with the observation of the DDC that the parentage of Gulam Sabir could have been changed only on the basis of documentary evidence. 18. Despite a pointed query, made to the learned counsel for the petitioners in this regard, the only documentary evidence that could be pointed out was a voter ID card wherein Gulam Sabir is shown to be the son of Mohammad Hussain. It is contended that it was on this basis that the order of the ACO was rightly passed. 19.
Despite a pointed query, made to the learned counsel for the petitioners in this regard, the only documentary evidence that could be pointed out was a voter ID card wherein Gulam Sabir is shown to be the son of Mohammad Hussain. It is contended that it was on this basis that the order of the ACO was rightly passed. 19. It would be relevant to observe that this voter ID card is of the year 1995, the same year, in which the objection was filed under Section 9-A (2) of the Act. It is also admitted that the Gulam Sabir was aged about 65 years at the time of death. It is surprising that there was no documentary evidence available to show the parentage of the said Gulam Sabir. None has been filed on the record of the writ petition and despite repeated queries, the learned counsel for the petitioners could not produce any documentary evidence in this regard or even show that such documentary evidence having been filed in the proceedings, at any stage. 20. In view of the foregoing discussion, I find no illegality in the impugned orders. The only two things in favour of the petitioners are the compromise order and the votor ID card which for the reasons given above, both have been discarded by me. 21. Accordingly the writ petition is found to be devoid of merits and is, accordingly dismissed.