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2016 DIGILAW 2833 (ALL)

Barsati Devi v. D. D. C. , Gorakhpur

2016-08-17

RAM SURAT RAM (MAURYA)

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JUDGMENT Ram Surat Ram (Maurya),J. Sri A.K. Shukla for the petitioner and Sri Sanjay Kumar Srivastava for the caveator. The writ petition has been filed against the orders of Consolidation Officer dated 6.2.2014, Settlement Officer, Consolidation dated 26.3.2015 and 30.6.2015 as well as Deputy Director of Consolidation dated 30.7.2016, passed in the title proceeding under U.P. Consolidation of Holdings Act, 1953(hereinafter referred to as "the Act"). The dispute between the parties is in respect of land recorded in basic consolidation year in khata no.28 of village Ansar, tappa Haveli, pargana Hasanpur Magahar, tehsil Sahjanwa, district Gorakhpur. It is alleged that before Assistant Consolidation Officer shares of the parties were decided on the basis of conciliation by order dated 5.8.1987. Thereafter a time barred objection was filed by Surendra Pratap and others (respodnents-4 to 8) on 9.10.1987 alongwith a delay condonation application. On this objection Assistant Consolidation Officer submitted his report on 25.11.1987 mentioning that the village was notified under Section 9 of the Act on 3.1.1987 and thereafter Assistant Consolidation Officer had decided the shares of the parties by order dated 5.8.1987. The petitioner, thereafter filed an objection before Consolidation Officer that as the one order has already been passed by Assistant Consolidation on 5.8.1987 in respect of khata in dispute, therefore, another objection under Section 9 of the Act is not maintainable so long as the aforesaid order is not set aside and Consolidation Officer has no jurisdiction to proceed with the aforesaid issue. Consolidation Officer, however, by the impugned order dated 6.2.2014 has directed to hear this objection of the petitioner at the time of final hearing and proceeded to record evidence of the parties. The petitioner filed an appeal against the aforesaid order, which was dismissed by Settlement Officer, Consolidation by order dated 26.3.2015 in default. Recall application filed by the petitioner for recalling the aforesaid order of default was also dismissed by Settlement Officer, Consolidation by order dated 13.4.2015. The petitioner challenged the aforesaid order in the revision before Deputy Director of Consolidation, who by order dated 30.7.2016 dismissed the revision. I have considered the arguments of the counsel for the petitioner. Under Section 9A(1) of the Act, Assistant Consolidation Officer has jurisdiction to decide the objection of the parties on the basis of conciliation. If conciliation is not possible, then he will refer the dispute to Consolidation Officer, who shall decide it on merit. I have considered the arguments of the counsel for the petitioner. Under Section 9A(1) of the Act, Assistant Consolidation Officer has jurisdiction to decide the objection of the parties on the basis of conciliation. If conciliation is not possible, then he will refer the dispute to Consolidation Officer, who shall decide it on merit. According to the petitioner as the conciliation before Assistant Consolidation Officer had taken place and on its basis Assistant Consolidation Officer had decided the dispute by order dated 5.8.1987, therefore, so long as order dated 5.8.1987 is set aside another objection in respect of the land in dispute is not maintainable and liable to be dismissed. It is the question of jurisdiction and without deciding the issue of jurisdiction Consolidation Officer had no jurisdiction to proceed in the matter. Admittedly, at the time of passing order dated 5.8.1987, respondents 4 to 8 were not appearing before Assistant Consolidation Officer. Thus this does not operate as res judicata against respodnents-4 to 8. Otherwise also, under the Act, there is no provision, which bars entertaining of objection after order of Assistant Consolidation Officer. Thus order dated 5.8.1987 is not binding nor exclude the jurisdiction of Consolidation Officer in the proceeding in the objection of respondents-4 to 8. The application of the petitioner for deciding the question of jurisdiction before deciding the objection is hereby rejected. The writ petition has no merit and it is dismissed.