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2016 DIGILAW 3958 (ALL)

Satya Prakash Agrawal v. Distt/D. D. C.

2016-12-08

ASHWANI KUMAR MISHRA

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JUDGMENT Ashwani Kumar Mishra, J. Following orders were passed in the matter on 1.12.2016: - "This matter has been taken up upon a mention made on behalf of the petitioners. Learned counsel for the petitioners submits that despite best endeavours, notice has not been accepted by the counsels appearing for the respondents. Let this matter appear in the additional cause list on 8th December, 2016. Learned counsel for the petitioners undertakes to intimate about fixing of such date to the counsels appearing for the respondents, once again". 2. Order passed by this Court on 1.12.2016 has been served upon H.K. Gupta, learned counsel for the respondent and communication of it has also been sent by registered post, which are taken on record. 3. List of cases shown in the additional cause list have been revised. Learned counsel for the petitioners is present but none appears on behalf of the respondents. 4. In the facts and circumstances of the case, as the counsel for the respondents are not appearing dispute notice the Court has no other alternative but to proceed ex-parte. 5. Learned counsel of the petitioners is not pressing the impleadment application and consequently it is consigned to records. 6. This petition is directed against an order passed by the Deputy Director of Consolidation in proceedings under Section 48 of the U.P. Consolidation of Holdings Act, whereby, the revision has been allowed and the matter has been remitted back for a fresh consideration of cause by the consolidation officer. 7. Facts in brief, giving rise of filing of this petition are that Plot No. 111 belong to Bechey Lal, Prem Shanker and Babu Ram etc. consisting an area of 4 bigha, 15 biswa and 1 biswansi. It is alleged that 10 biswa land out of this plot was transferred by Bechey Lal in favour Smt. Rita Ghosal on 5.1.1975. Petitioner claims that by way of a subsequent sale-deed dated 29.6.1986, this land was transferred to him. It is further stated that application under Section 12 of the Act was moved by the petitioner, which was allowed by the Assistant Consolidation Officer on 14.8.1988. According to the petitioner, this very land was again transferred by one Kali Charan, who claims to be power of attorney holder of Bechey Lal in favour of contesting respondent on 4.8.1991. It is further stated that application under Section 12 of the Act was moved by the petitioner, which was allowed by the Assistant Consolidation Officer on 14.8.1988. According to the petitioner, this very land was again transferred by one Kali Charan, who claims to be power of attorney holder of Bechey Lal in favour of contesting respondent on 4.8.1991. An application filed under Section 12 of the Act by the purchaser was allowed on 11.7.1991. In this proceeding, petitioners were not impleaded as party and consequently, they preferred an appeal challenging the order dated 11.7.1991. Petitioner's appeal was allowed by the Settlement Officer Consolidation, after returning a finding that it was the land possessed by the petitioner of 10 biswa over which he has perfected his right that a subsequent transfer was made by power of attorney holder Kali Charan and the same was impermissible. It was held that once such land has already been transferred, it could not be subjected to a subsequent transfer. Various findings on factual aspects were returned. 8. Aggrieved by the order passed by the Settlement Officer Consolidation, a revision was preferred by the Opp. Party, in which the order impugned has been passed. The Deputy Director of Consolidation has held that proper opportunity of adducing evidence was not provided in appeal. It is also recorded that before the Consolidation Officer, parties were not represented and no evidence was led and it was only at the stage of appeal that evidence had been filed by the petitioner. In such view of the matter, the Deputy Director of Consolidation has remitted the matter back to the Consolidation Officer with the observation that parties may adduce their evidence and contest the matter on merits. It is this order which is assailed in the present writ petition. 9. I have heard Sri H.M.B. Sinha for the respondent. Despite service of notice, none appeared on behalf of the respondents, and have perused the record. 10. In view of the facts, brought on record, it is apparent that at the stage of passing of order under Section 12 of the Act, petitioners admittedly were not impleaded as party and, therefore, no evidence on its behalf was led. At the stage of appeal, contesting Opp. Parties appeared. 10. In view of the facts, brought on record, it is apparent that at the stage of passing of order under Section 12 of the Act, petitioners admittedly were not impleaded as party and, therefore, no evidence on its behalf was led. At the stage of appeal, contesting Opp. Parties appeared. From a perusal of the order of Settlement Officer, Consolidation, it transpires that evidence was led on behalf of the petitioner and an opportunity of rebuttal was also sought. It appears that no rebuttal was filed on behalf of the respondent and in the absence of materials brought on their behalf, various findings were returned by the Settlement Officer, Consolidation. 11. The Deputy Director of Consolidation has opined that the appellate authority proceeded in haste in declaring the sale-deed dated 4.6.1991 to be void, without giving proper opportunity to the respondents to bring on record their evidence. The revisional court further noticed that there was an issue as to whether it was the same land which had been transferred to the petitioner which was again subjected to transfer, through the power of attorney holder, in favour of contesting respondents. The revisional authority has found that sufficient facts could not be brought on record on behalf of the respondents and the appellate court proceeded to return a finding in the absence of such materials. A further finding has been returned in the order that opportunity of hearing has been denied. It has further been noticed that the land transferred to the respondent is claimed to be a separate parcel of land upon which a restaurant has been constructed. The finding returned by the revisional authority that proper opportunity has been denied by the Settlement Officer, Consolidation, on account of which the respondent stood prejudiced, is based upon materials brought on record, which cannot be said to be perverse or erroneous. In such circumstances, the revisional authority was justified in allowing the revision and setting aside the order passed by the appellate authority. 12. Sri Sinha, learned counsel for the petitioners, submits that in the facts and circumstances of the case, even if the finding in revision is upheld, there would be no reason for the proceedings to be remitted back to the Consolidation Officer, and the Settlement Officer Consolidation can proceed to grant appropriate opportunity, as may be warranted, in the interest of justice, and the appeal be decided afresh. This submission merits consideration. The proceedings accordingly stands restored. The required exercise, in that regard, shall be undertaken, at the earliest possible, within a period of 4 months. It shall be open for the appellate authority to call for a fresh survey report of the entire plot.