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2016 DIGILAW 1151 (ALL)

Ganesh v. State of U. P.

2016-03-31

RAN VIJAI SINGH

body2016
JUDGMENT Ran Vijai Singh, J. – Heard Sri P.C. Srivastava along with Sri Prakash Dwivedi, learned counsel for the petitioners, learned standing counsel for the State-respondents, Sri S.S. Singh, learned counsel for respondent no. 5 and Sri Brij Kumar Yadav holding brief of Sri R.B. Yadav, learned counsel appearing for Gaon Sabha. 2. Through this writ petition prayer has been made to issue writ of certiorari quashing the order dated 20.6.2006 passed by Deputy Director of Consolidation (in short DDC) in revision no. 102 (Ram Pyare v. Ganesh and others) and order dated 2.12.78 passed by Assistant Consolidation Officer, Judwariya. 3. Vide order dated 20.6.2006 DDC has allowed revision by setting aside the order dated 19.8.2004 passed by Assistant Settlement Officer of Consolidation in Appeal No. 157 (Ganesh v. Ram Pyare) by which the matter was remitted before the Consolidation Officer after setting aside the order dated 2.12.78 passed by Assistant Consolidation Officer for taking fresh decision. 4. The facts giving rise to this case are that vide order dated 2.12.78 the Assistant Officer of Consolidation has recorded the name of Sri Ram Pyare son of Sri Achyutanand and Sri Prem Nath son of Sri Krishnanand Singh in place of the petitioner's father. After coming to know they preferred an appeal along with application for condonation of delay. The Assistant Settlement Officer has condoned the delay and allowed the appeal by setting aside the order dated 2.12.78 passed by Assistant Consolidation Officer (in short A.C.O.) with direction to the Consolidation Officer to decide the matter afresh. The order was passed for the reasons that the petitioners have disputed the alleged agreement made between the parties. The statement before the Assistant Settlement Officer of Consolidation (in short A.S.O.C.) was that neither the petitioner's father nor the petitioners have ever signed the compromise on which basis the order dated 2.12.78 was passed. 5. Aggrieved respondents have filed Revision No. 102 (Ram Pyare v. Ganesh) against the order passed by the A.S.O.C. on 19.8.2004. The revision was barred by time, therefore, the application for condonation of delay along with affidavit was also filed. The delay was condoned by the DDC and on merit the DDC came to the conclusion that since entire material was available before the A.S.O.C. therefore, he erred in remanding the matter. The revision was barred by time, therefore, the application for condonation of delay along with affidavit was also filed. The delay was condoned by the DDC and on merit the DDC came to the conclusion that since entire material was available before the A.S.O.C. therefore, he erred in remanding the matter. The DDC has opined that the A.S.O.C. was competent to decide the entire matter himself instead of remanding the same, while doing so reliance was placed upon the judgement of this Court in the case of 2004 RD Page 214 and 2003 RD page 765. 6. Sri Srivastava, learned counsel for the petitioners while assailing this order submits that the Revision itself was not maintainable against the order of remand passed by the Settlement Officer of Consolidation while exercising power under section 11 of the Consolidation of Holdings Act (in short the Act) therefore the order impugned passed by the DDC is without jurisdiction. In his submissions the effect of this order would be that the petitioner's right of appeal in case the order is passed against the petitioner will be vanished. 7. So far as first submission of learned counsel for the petitioner with regard to maintainability of the revision against the order of remand passed by the A.S.O.C. while exercising power under section 11 of the Act is concerned, a Division Bench of this Court in the case ofDeena Nath and others v. Deputy Director of Consolidation, Ballia and others ( 2010 (6) AWC 6099 ) has held that an order of remand, passed by Settlement Officer of Consolidation while exercising the power under section 11 of the Act, is revisable under section 48 of the Act therefore first submission of the petitioner carries no weight in the eye of law. 8. 8. So far as second submission is concerned, the law has been settled in this regard by the Apex Court in P. Venkateswarlu v. Motor and General Traders, AIR 1975 SC 1409 , Ashwin Kumar K. Patel v. Upendra J. Patel and others AIR 1999 SC 1124, and P. Purushottam Reddy and another v. Pratap Steels Ltd., 2002 (48) ALR 319 (SC) following the same this Court also in Raj Narain and others v. Deputy Director of Consolidation 2009(106) RD 98 and Alimuddin and Others v. D.D.C. and Others 2013 (4)ADJ, 49, has held that the remand order should not be passed as a matter of routine and in case entire material is available before the appellate court/authority, the appellate court/authority instead of remanding the same decide the case on merit itself as it would provide speedy justice to the parties. 9. In view of the foregoing discussions and settled legal position I do not find any error in the impugned order. The writ petition is dismissed. 10. However, while dismissing the writ petition, it is observed that the A.S.O.C./Settlement Officer of Consolidation, who so ever is present and holding the court, shall decide the appeal expeditiously without granting unnecessary adjournment to learned counsel for the parties if possible within a period of ten months from the production of certified copy of the order of this Court. The parties are directed to appear before the Settlement Officer of Consolidation along with certified copy of the order of this Court. In the meanwhile during the pendency of the appeal before the Settlement Officer of Consolidation the parties shall maintain status quo as on date on the spot and will not create any third party right over the land in dispute. Petition dismissed.