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2017 DIGILAW 2669 (ALL)

KARAM SINGH v. DY. DIRECTOR OF CONSOLIDATION

2017-11-17

MANOJ MISRA

body2017
JUDGMENT : Manoj Misra, J. Heard Sri C.S. Agnihotri for the petitioner; learned Standing Counsel for the respondents 1, 2 and 11; Sri R.N. Rai for the respondents 6 to 9; and Sri S.K. Pundir for the respondents 3, 4 and 5. 2. Learned counsel for the petitioner states that the respondent no.10 (Gaon Sabha) is represented by Sri Anuj Kumar. Sri Anuj Kumar is not present. However, learned counsel for the remaining parties are in agreement that since the dispute is between the private parties, the matter may be heard and finally decided. Accordingly, with the consent of the learned counsel for the parties, this petition is being finally disposed of at the admission stage. 3. Facts giving rise to this petition, in brief, are as follows:- Aggrieved by allotment of chak up to the stage of the Consolidation Officer four appeals were filed before the Settlement Officer of Consolidation, Muzaffarnagar (second respondent). Appeal No.1385 was filed by Ahal Singh; Appeal No.1386 was filed by Krishna Pal Singh; Appeal No.1388 was filed by Teja Singh; and Appeal No.1387 was jointly filed by Ramendra, Susheel and Ram Kumar. Ramendra and Susheel were adult on the date of filing of the appeal whereas Ram Kumar was minor on the date of filing of the appeal and was represented by his natural mother. 4. Appeal No.1385 filed by Ahal Singh was allowed in part whereas Appeal No.1386, 1388 and 1387 were all dismissed. 5. In respect of Appeal Nos. 1385, 1386 and 1388 a consolidated order was passed on 07.03.2001; whereas in respect of Appeal No.1387 a separate order dismissing the appeal was passed on the same date i.e. 07.03.2001. 6. Krishna Pal Singh and Teja Singh filed restoration application. The restoration application was rejected by order dated 04.05.2002 upon finding that the order was passed after hearing the counsel for the parties and on merit. Thereafter, a second restoration application was filed by Krishna Pal Singh and Teja Singh which was also rejected on 03.01.2003. Thereafter, third restoration application was filed. 7. In the meantime, Ram Kumar, who was one of the co-appellants in Appeal No.1387, filed a restoration application stating that he has attained majority and that his interest was not safeguarded by the guardian and therefore the matter may be restored and heard again. This restoration application filed by Ram Kumar was dismissed on 05.02.2002 as not pressed. 7. In the meantime, Ram Kumar, who was one of the co-appellants in Appeal No.1387, filed a restoration application stating that he has attained majority and that his interest was not safeguarded by the guardian and therefore the matter may be restored and heard again. This restoration application filed by Ram Kumar was dismissed on 05.02.2002 as not pressed. Thereafter, Ram Kumar filed an application seeking recall of the order dated 05.02.2002 by claiming that by playing fraud some endorsement was obtained that he does not wish to press the restoration application. 8. On the restoration application, the Settlement Officer of Consolidation re-heard the matter and, by the order impugned dated 03.07.2003, straight away proceeded to pass order on merit thereby disposing off all the three appeals afresh by setting aside the orders passed by the Consolidation Officer and altering the chaks allotted. 9. Against the order dated 03.07.2003, the petitioner (Karam Singh), who was affected by the order passed by the Settlement Officer of Consolidation, preferred three separate revisions because they were in respect of three separate proceedings. The Deputy Director of Consolidation by the order impugned dated 03.10.2006 dismissed the revision preferred by the petitioner. 10. Assailing the order dated 03.10.2006 passed by the Deputy Director of Consolidation the present petition has been filed. 11. The learned counsel for the petitioner has submitted that as the restoration application of Krishna Pal Singh and Teja Singh was dismissed on merit on 04.05.2002 thereafter the restoration application on their behalf could not have been considered because there is no power of review and accordingly the Settlement Officer of Consolidation had no power to enter on the merits of the appeal while deciding the restoration application. Therefore, the Deputy Director of Consolidation ought to have allowed the revision and set aside the order passed by the Settlement Officer of Consolidation. 12. The learned counsel for the petitioner further submitted that in so far as the order passed on the restoration application of Ram Kumar is concerned, the Settlement Officer of Consolidation had not addressed the merits of the restoration application but straight away entered the merits of the appeal and proceeded to pass the order on merit even though the appeal already stood decided and there was no power of review vested in the Settlement Officer of Consolidation. It has been submitted that the Settlement Officer of Consolidation should have first considered whether the order dated 05.02.2002 rejecting the restoration application of Ram Kumar as not pressed was obtained fraudulently and if it was obtained fraudulently, then the restoration application of Ram Kumar to recall the order dated 07.03.2001 should have been restored and thereafter he ought to have considered whether to recall the order dated 07.03.2001 or not on the ground stated in the said restoration application. It has been submitted that since the Settlement Officer of Consolidation has straight away addressed the merits of the appeal without dealing whether the order dismissing the restoration application was justified as also whether sufficient ground existed to recall the order dated 07.03.2001, the order passed by the Settlement Officer of Consolidation is manifestly erroneous in law and as such is liable to be set aside. It has been submitted that the Deputy Director of Consolidation fell in error by not addressing the matter in the right perspective and mechanically upholding the order passed by the Settlement Officer of Consolidation. 13. Sri R.N. Rai and Sri S.K. Pundir, learned counsel for the contesting respondents, have submitted that no doubt the restoration application of Krishna Pal Singh and Teja Singh had earlier been dismissed but since the matter relates to allotment of chak and all parties were affected by allotment, therefore, if the restoration application of Ram Kumar was entitled to be allowed, then the matter had to be addressed on merits and since it has come on record that Ram Kumar was minor, the order passed by the Settlement Officer of Consolidation calls for no interference. 14. I have heard learned counsel for the parties and have perused the record. 15. It is not in dispute that the restoration application filed by Krishna Pal Singh and Teja Singh seeking recall of the order dated 03.07.2001 passed in Appeal Nos.1385, 1386 and 1388 was rejected on merit and thereafter a second restoration application was also rejected. Once that is the position, in view of the settled legal position, as laid down by Full Bench of this Court in Shivraji v. Deputy Director of Consolidation, Allahabad, 1997 (88) RD 562, that there exists no power of review with the consolidation authorities, the third application for restoration at their instance was clearly not maintainable. Once that is the position, in view of the settled legal position, as laid down by Full Bench of this Court in Shivraji v. Deputy Director of Consolidation, Allahabad, 1997 (88) RD 562, that there exists no power of review with the consolidation authorities, the third application for restoration at their instance was clearly not maintainable. Therefore what requires to be considered is whether the application filed by Ram Kumar, a co-appellant in appeal no.1387, was entitled to be allowed or not. 16. From the facts, which have been brought on record, it appears that in so far as Ram Kumar is concerned, he moved restoration application on attainment of majority. The said restoration application, according to the case of the petitioner as also from the record, appears to have been dismissed as not pressed. The order dismissing the restoration application as not pressed is dated 05.02.2002. Ram Kumar moved an application to recall the order dated 05.02.2002 on the ground that the same was passed on the basis of an endorsement fraudulently obtained from him that he does not wish to press the restoration application. 17. Accordingly, the issue that required to be addressed first was whether any fraud was played upon Ram Kumar for getting his restoration application dismissed as not pressed. If the Settlement Officer of Consolidation had come to the conclusion that fraud was played upon Ram Kumar for fraudulently obtaining his endorsement to get the restoration application dismissed as not pressed, then the Settlement Officer of Consolidation could have restored the restoration application of Ram Kumar for consideration on merit. Thereafter, if the restoration application of Ram Kumar was found in order and reasonable ground was shown to restore the appeal, then the Settlement Officer of Consolidation could have entered on the merits of the case, after recalling the earlier order dated 07.03.2001. 18. In the instant case, the Settlement Officer of Consolidation, without considering whether the restoration application filed by Ram Kumar was entitled to be allowed or not, straight away addressed the merits of the appeal and has proceeded to pass the order. Such a procedure adopted by the Settlement Officer of Consolidation is against the settled legal principle that Consolidation Authorities have no power of review though they can recall the order if the same has been obtained ex-parte without service of summons or by playing fraud. Such a procedure adopted by the Settlement Officer of Consolidation is against the settled legal principle that Consolidation Authorities have no power of review though they can recall the order if the same has been obtained ex-parte without service of summons or by playing fraud. The Deputy Director of Consolidation therefore fell in error by not correcting the mistake committed by the Settlement Officer of Consolidation. Accordingly, this Court is of the view that the order passed by the Settlement Officer of Consolidation dated 03.07.2003 and the order dated 03.10.2006 passed by the Deputy Director of Consolidation, Muzaffarnagar are liable to be set aside and are accordingly set aside. 19. A direction is issued to the Settlement Officer of Consolidation, Muzaffarnagar to restore the restoration application filed by Ram Kumar (the fourth respondent) seeking recall of the order dated 05.02.2002 to its original number. Thereafter, the Settlement Officer of Consolidation shall first consider whether sufficient ground has been made out to recall the order dated 05.02.2002 or not. If he finds that sufficient ground has been made out to recall the order dated 05.02.2002, he shall restore the restoration application seeking recall of the order dated 07.03.2001 and thereafter shall proceed to decide the said restoration application in accordance with law after giving opportunity of hearing to the parties concerned and, only thereafter, in case he finds that sufficient ground has been made out to recall the order dated 07.03.2001, after recalling the same, he shall address the merits of the appeals in accordance with law. 20. As the matter has remained pending for nearly 11 years on the issue of restoration alone, it is hereby provided that the Settlement Officer of Consolidation shall endeavour to conclude the proceeding, as directed above, expeditiously, preferably, within a period of five months from the date of production of certified copy of this order. 21. The petition stands allowed to the extent indicated above.