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2015 DIGILAW 563 (ALL)

Ganga Saran v. Deputy Director of Consolidation

2015-03-25

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri S.N. Tripathi, for the petitioners and Sri R.C. Singh, holding brief of Sri Deo Prakash Singh, for respondent-2. The writ petition has been filed for quashing the order of Deputy Director of Consolidation dated 12.1.2015, passed in proceedings under section 12 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 2. The dispute relates to mutation of the names of respondents-2 to 4 over chaks 266, 268 and 272 of village Garhi, tappa Gagaha, tahsil Bansgaon, district Gorakhpur. During consolidation, aforementioned chaks were carved out in the names of Hansraji widow of Ramrup and Hem Chand son of Dubar. Pauhari Sharan, Ram Saran and Tulsi (respondents-2 to 4) (hereinafter referred to as the respondents) through their guardian, Smt. Kadamiya (mother) filed an application (registered as case No. 291) under section 12 of the Act, for mutating their names as well as the name of Sri Shankar Ji (deity) over 1/2 share of Smt. Hansraji, on the basis of registered sale deed dated 12.10.1977 allegedly executed by Smt. Hansraji. It is alleged by the respondents that Assistant Consolidation Officer issued proclamation. Thereafter, Smt. Hansraji and Smt. Kadamiya appeared before Assistant Consolidation Officer on 24.12.1977, who recorded conciliation proceedings in presence of two members of Consolidation Committee, which was signed by them and on its basis he directed for mutation of the names of the respondents and Sri Shankar Ji (deity) over 1/2 share of Smt. Hansraji, over the chaks in dispute. 3. Thereafter, Smt. Hansraji filed a time barred appeal (registered as Appeal No. 171), on 16.10.1979, along with delay condonation application, which was allowed by Assistant Settlement Officer Consolidation by order dated 7.3.1981 and order of Assistant Consolidation Officer dated 24.12.1977 was set aside and the matter has been remanded to Consolidation Officer to decide the mutation application on merit in accordance with law. The respondents filed a revision (registered as Revision No. 390). Deputy Director of Consolidation, by order dated 27.10.1983 held that signatures of the members of Consolidation Committee were not found on the order of Assistant Consolidation Officer dated 24.12.1977. The respondents filed a revision (registered as Revision No. 390). Deputy Director of Consolidation, by order dated 27.10.1983 held that signatures of the members of Consolidation Committee were not found on the order of Assistant Consolidation Officer dated 24.12.1977. But reasons recorded by Assistant Settlement Officer Consolidation in his order dated 7.3.1981 that (i) although Smt. Hansraji had executed sale deed in respect of her 1/2 share but her name was directed to be deleted from the entire chaks in dispute, (ii) no sale deed can be obtained by Sri Shankar Ji (deity) were incorrect. On these findings, he partly allowed the revision and send the record to Consolidation Officer, to complete the deficiency in the compromise. 4. The respondents filed a writ petition (registered as Writ Petition No. 5532 of 1984) from the aforesaid order. This Court, by judgment dated 27.1.2006, held that Deputy Director of Consolidation had recorded contradictory findings. Once its was found that the conciliation proceeding was not signed by members of Consolidation Committee, he should have himself decided the validity of the order of Assistant Consolidation Officer dated 24.12.1977. Similarly, if he was satisfied on merit, he should have decided the case finally, instead of remanding the case to Consolidation Officer. On these findings the writ petition was allowed and the order of Deputy Director of Consolidation dated 27.10.1983 was set aside and the matter has been remanded to Deputy Director of Consolidation to decide the revision afresh on merit. 5. After remand, Deputy Director of Consolidation, after hearing the parties, by order dated 12.1.2015 held that although the record of appellate Court was received but record of Assistant Consolidation Officer was not received. The parties were given time to reconstruct the record of Assistant Consolidation Officer, then the respondents produced photostat copy of certified copy of the conciliation recorded by Assistant Consolidation Officer and order of Assistant Consolidation Officer dated 24.12.1977, which bears the signatures of transferor, guardian of transferee and marginal witnesses. Hansraji did not deny the execution of sale deed nor during her life time, filed any suit for cancellation of the sale deed. While deciding the appeal, Assistant Settlement Officer Consolidation ought to have decided on these points. On these findings the revision was allowed, order of Assistant Settlement Officer Consolidation dated 8.12.1981 was set aside and the matter has been again remanded to appellate Court to decide the appeal afresh. While deciding the appeal, Assistant Settlement Officer Consolidation ought to have decided on these points. On these findings the revision was allowed, order of Assistant Settlement Officer Consolidation dated 8.12.1981 was set aside and the matter has been again remanded to appellate Court to decide the appeal afresh. Hence this writ petition has been filed. 6. The Counsel for the petitioners submits that Assistant Settlement Officer Consolidation and Deputy Director of Consolidation, in their orders dated 7.3.1981 and 27.10.1983 held that conciliation proceeding and the order of Assistant Consolidation Officer dated 24.12.1977 were not signed by the members of Consolidation Committee. This finding has been upheld by this Court. As such, there was no compliance of Rule 25-A of the Rules and Assistant Consolidation Officer had no jurisdiction to pass the order dated 24.12.1977. Deputy Director of Consolidation ought to have set aside order dated 24.12.1977 and remanded the mutation application to Consolidation Officer for trial on merit but Deputy Director of Consolidation has failed to apply his mind to the controversy raised before him and decide it. The order of remand has been passed without application for mind. By remanding the case again and again time is being wasted and the parties are being harassed. The respondents, by playing fraud, obtained the order dated 24.12.1977. On coming to know about this order, Smt. Hansraji filed an appeal before Settlement Officer Consolidation. Shortly thereafter, she was murdered, as such, she could not get time to file suit for cancellation of the sale deed dated 12.10.1977, adverse inference drawn by Deputy Director of Consolidation in this respect is illegal and is liable to be set aside. The original record of Assistant Consolidation Officer has been misplaced as such no useful purpose will be served in remanding the case to Settlement Officer Consolidation for examining the validity of conciliation proceeding and the order of Assistant Consolidation Officer dated 24.12.1977. The remand is futile exercise. In such circumstances, order of Deputy Director of Consolidation dated 12.1.2015 is liable to be set aside. 7. I have considered the arguments of the Counsel for the parties and examined the record. The remand is futile exercise. In such circumstances, order of Deputy Director of Consolidation dated 12.1.2015 is liable to be set aside. 7. I have considered the arguments of the Counsel for the parties and examined the record. As noted above, before Assistant Settlement Officer Consolidation, four points were pressed i.e. (i) the proclamation was not issued to all the co-sharers (iii) all the co-sharers have not signed conciliation/compromise, (iii) no sale deed can be executed in favour of Sri Shankar Ji (deity) and (iv) Assistant Consolidation Officer had no jurisdiction to appoint sarvarakar of Sri Shankar Ji (deity). Assistant Settlement Officer Consolidation without any discussion held the aforesaid points were verified from the record. Thus Assistant Settlement Officer Consolidation in his order dated 7.3.1981 has not recorded findings that conciliation proceeding and the order of Assistant Consolidation Officer dated 24.12.1977 were not signed by the members of Consolidation Committee. However, Deputy Director of Consolidation, under some confusion, in his order dated 27.10.1983 held that Assistant Settlement Officer Consolidation had found that conciliation proceeding and the order of Assistant Consolidation Officer dated 24.12.1977 were not signed by the members of Consolidation Committee. This findings has no basis. On the other hand, photostat copy of conciliation proceeding and the order of Assistant Consolidation Officer dated 24.12.1977 shows that it bears signature/thumb impression of Kadamiya, Smt. Hansraji and two more persons. 8. It is admitted that record of appeal is still available. When Smt. Hansraji, in the memorandum of appeal filed by her, has not challenged her thumb impression and signatures of two person (who according to the respondents, were member of Consolidation Committee), then the conclusion would be different. Four points noticed in the order dated 7.3.1981 i.e. (i) the proclamation was not issued to all the co-sharers (ii) all the co-sharers have not signed conciliation/compromise, (iii) no sale deed can be executed in favour of Sri Shankar Ji (deity) and (iv) Assistant Consolidation Officer had no jurisdiction to appoint sarvarakar of Sri Shankar Ji (deity) have no substance. The disputed chaks were carved out in the names of Smt. Hansraji and Hem Chandra, alone, no other co-sharers were having any concern in it. Similarly under Rule 14, Assistant Consolidation Officer was competent to appoint a guardian of minor and a deity is a perpetual minor. The property can be purchased for the benefit of deity. 9. The disputed chaks were carved out in the names of Smt. Hansraji and Hem Chandra, alone, no other co-sharers were having any concern in it. Similarly under Rule 14, Assistant Consolidation Officer was competent to appoint a guardian of minor and a deity is a perpetual minor. The property can be purchased for the benefit of deity. 9. If the grounds raised in memorandum of appeal are not found sufficient, then it would be fully within jurisdiction of Settlement Officer Consolidation to dismissed the appeal finally. In case, Settlement Officer Consolidation allows the appeal, it will be well within his jurisdiction to set aside the order of Assistant Consolidation Officer and remand the case to Consolidation Officer for trial on merit. I do not find any reason to interfere with the remand order. The writ petition has no merit and is dismissed.