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2015 DIGILAW 492 (ALL)

Jai Shree v. Consolidation Officer

2015-03-17

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri S.C. Tripathi, for the petitioner. The writ petition has been filed for following relieves "(i) To issue a writ of mandamus, order or direction in the nature of mandamus, commanding the respondent consolidation officer not to proceed any further in Case No. 50/69, Indrajeet v. Sarkar, in the impugned proceedings under Rule 109-A as the proceedings as a whole are not maintainable in the eyes of law. (ii) To issue a writ of mandamus, order or direction in the nature of mandamus, commanding the consolidation officer to treat the order dated 7.11.2014 as well as 26.12.2014 ineffective and in operative in law treating the same as if kept in abeyance during continuance of the respondents proceedings in Appeal No. 1211/1389 under section 11(1) of U.P.C.H. Act. (iii) To issue a writ of mandamus, order or direction in the nature of mandamus, commanding the respondent consolidation officer to implement the order dated 26.12.2014 in the khatauni so that the earlier order dated 7.11.2014 be treated as a dead order. (iv) To issue any further writ order or direction to which the petitioner be found entitled in law." 2. Khata 18 of village Kamsin, tahsil Machhalishahar, district Jaunpur was recorded in the name of the petitioner, in basic consolidation year. Indrajeet (respondent-3) filed an objection (registered as Case Nos. 270 to 274) under section 9-A of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act), claiming co-tenancy of 1/2 share along with the petitioner. Consolidation Officer, by order dated 15.12.1998, allowed the objection of respondent-3 and directed for recording his name as co-tenant of 1/2 share. The petitioner filed an appeal (registered as Appeal No. 2178) under section 11(1) of the Act, from the aforesaid order, which was dismissed in default by order dated 19.5.2011. The petitioner filed an application for recall of the order dated 19.5.2011 and restoration of the appeal, which is pending. 3. Respondent-3 filed an application (registered as Case No. 50/69) under Rule 109-A of the Rules, for giving effect to the order of Consolidation Officer, dated 15.12.1998. The Consolidation Officer vide his order dated 7.11.2014 allowed the application of respondent-3 and issued parwana dated 7.11.2014 to Tahsildar for recording the name of Indrajeet, as co-tenant, over new plots recorded in the name of the petitioner. The Consolidation Officer vide his order dated 7.11.2014 allowed the application of respondent-3 and issued parwana dated 7.11.2014 to Tahsildar for recording the name of Indrajeet, as co-tenant, over new plots recorded in the name of the petitioner. On its basis, mutation was incorporated in the revenue record by tahsil authority on 16.12.2014. 4. In the meantime, the petitioner filed an application for recall of the order of Consolidation Officer dated 7.11.2014, which is allowed by order dated 26.12.2014. Hence this writ petition has been filed. 5. The Counsel for the petitioner submitted that the appeal of the petitioner was dismissed in default on 19.5.2011 and recall/restoration application, filed by the petitioner on 24.5.2011, was pending. In the meantime, parwana amaldaram was issued by Ahalmad of Settlement Officer Consolidation, on 9.6.2011, without order of competent authority and without notice to the petitioner. On which, ex-parte order was passed on 7.11.2014. The order dated 7.11.2014 was recalled by Consolidation Officer by order dated 26.12.2014 but in the meantime amaldaramad has been made by tahsil authorities on 16.12.2014. The order of Consolidation Officer dated 7.11.2014 has been recalled as amaldaramad made on its basis is liable to be nullified. Settlement Officer Consolidation is illegally delaying disposal of the recall/restoration application of the petitioner, filed in the appeal, although it was within time and the order of dismissal of the appeal in default, is liable to be recalled. Due to inaction of respondents-1 and 2, grave injustice is being caused to the petitioner. He relied upon the judgment of this Court in Uma Shankar v. DDC and others, 1982 RD 172 in which it has been held that on reversal of the judgment, the law raises an obligation on the party who received the benefit of the erroneous judgment, to restore the right and possession of other party. Right of restitution is not liable to be kept in abeyance, due to pendency of the litigation. Ambrish Kumar v. State of U.P. and others, 2006 (100) RD 666 in which it has been held that as and when the restoration application is allowed and something comes in favour of the respondents, completion of the present exercise will have to be modified. 6. I have considered the arguments of the Counsel for the petitioner and examined the record. 6. I have considered the arguments of the Counsel for the petitioner and examined the record. By the order of Consolidation Officer dated 15.12.1998, the objection of respondent-3 was allowed and his name was directed to be recorded as co-tenant of 1/2 share. The petitioner filed an appeal (registered as Appeal No. 2178) under section 11(1) of the Act, from the aforesaid order, which was dismissed in default by order dated 19.5.2011. While passing the order dated 19.5.2011, Settlement Officer Consolidation further directed that after necessary action, the record would be consigned to record room. In pursuance of subsequent direction, Ahalmad issued parwana amaldaram on 9.6.2011. The argument that parwana amaldaram was issued by Ahalmad of Settlement Officer Consolidation, on 9.6.2011, without order of competent authority, has no force. 7. After dismissal of the appeal on 19.5.2011, respondent-3 filed an application (registered as Case No. 50/69) under Rule 109-A of the Rules, for giving effect to the order of Consolidation Officer, dated 15.12.1998. The Consolidation Officer vide his order dated 7.11.2014 allowed the application of respondent-3 and issued parwana dated 7.11.2014 to Tahsildar for recording the name of Indrajeet, over new plots recorded in the name of the petitioner as co-tenant with him. On its basis, mutation was incorporated in the revenue record by tahsil authority on 16.12.2014. Subsequently order dated 7.11.2014 was recalled on 26.12.2014. On the basis of order dated 26.12.2014, the petitioner wants to nullify the mutation, which had already been incorporated. 8. Section 52 (2) of the Act, provides that any order passed by competent authorities in the cases or proceedings pending under the Act, on the date of issue of notification under section 52 (1) of the Act, shall be given effect to by such authorities as may be prescribed. The procedure for giving effect to such order has been prescribed under Rule-109-A of the Rules. The orders, which are required to be given effect to under section 52 (2) are orders of final nature. Thus the order of Consolidation Officer dated 15.12.1998 was given effect to on 16.12.2014, after dismissal of the appeal of the petitioner, in default on 19.5.2011. Restoration application of the petitioner is still pending. The orders, which are required to be given effect to under section 52 (2) are orders of final nature. Thus the order of Consolidation Officer dated 15.12.1998 was given effect to on 16.12.2014, after dismissal of the appeal of the petitioner, in default on 19.5.2011. Restoration application of the petitioner is still pending. In Ambrish Kumar v. State of U.P. and others, (Supra) relied upon by the Counsel for the petitioner, it has been held as and when the restoration application is allowed and something comes in favour of the respondents, completion of the present exercise will have to be modified. Phrase "and something comes in favour of the respondents" means that some substantive order is passed in favour of the other party. Thus so long as the order of Consolidation Officer dated 15.12.1998 is not set aside, no substantive order will be passed in favour of the petitioner. Mere allowing the restoration application or pendency of the appeal will be of no effect as by these orders no substantive right will accrue to the petitioner and no relief can be granted to him. Right of restitution will not arise to the petitioner till the order of Consolidation Officer dated 15.12.1998 is not set aside. The order dated 15.12.1998 was given effect to and not the orders dated 19.5.2011 and 7.11.2014, as these orders are merely consequential orders. Right of restitution is a substantive right, which will accrue to the petitioner, when order depriving such right i.e. order of Consolidation Officer dated 15.12.1998, will be set aside and not before that. 9. There is other ground also which prevents this Court in exercising equity jurisdiction. Consolidation Officer by dated 15.12.1998, held respondent-3 as co-sharer in the land in dispute having 1/2 share. In the absence of there being any order, staying the operation of the order dated 15.12.1998 or before setting aside the order dated 15.12.1998, respondent-3 cannot be deprived from obtaining fruit of the order in his favour. Equity lies in favour of respondent-3. In view of aforesaid discussions, the writ petition has no merit and is dismissed.