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2017 DIGILAW 2831 (ALL)

Bijendra Singh v. Additional District Magistrate

2017-12-05

MANOJ MISRA

body2017
JUDGMENT : MANOJ MISRA, J. 1. Heard learned counsel for the petitioners; learned Standing Counsel for the respondents 1 and 2; Sri Mahesh Narain Singh for the respondent No. 3; and Sri Sushil Kumar Pal for the respondent No. 4. 2. A perusal of the record would reveal that by order dated 07.04.2016, passed on a restoration application, the Settlement Officer of Consolidation had recalled his earlier order dated 24.01.2009 and had restored Appeal Nos. 163 and 176 for rehearing. Against the order passed by the Settlement Officer of Consolidation, three separate revisions were filed by each of the three petitioners. The Deputy Director of Consolidation by his order dated 12.04.2017 on the basis of alleged consent of the parties assumed jurisdiction to alter the chak of the parties, and thereby altered the chaks, even though the revision before him was only against the restoration order. The fourth respondent challenged the order dated 12th April, 2017 in Writ-B No. 22743 of 2017 on the ground that the factum of consent recorded in the order dated 12th April, 2017 was incorrect and that the order passed by the Deputy Director of Consolidation was without jurisdiction inasmuch as the revision was preferred only against the restoration order. 3. The aforesaid Writ-B No. 22743 of 2017 was dismissed as withdrawn under order dated 23.05.2017 with liberty to the petitioner (fourth respondent) to file an appropriate application before the Deputy Director of Consolidation in respect of his grievance raised before the writ court. 4. Pursuant to the liberty given by the writ court, the fourth respondent filed a restoration application challenging the factum of consent for alteration of chak as also the jurisdiction of the Deputy Director of Consolidation to proceed to alter the chaks when the revision was preferred only against an order allowing the restoration application. 5. Various other submissions were also made in the recall application which need no mention at this stage. 6. The Deputy Director of Consolidation by the order impugned dated 10.11.2017 set aside the earlier order dated 12th April, 2017 and dismissed the revisions preferred against the restoration order upon finding that since the restoration order of the Settlement Officer of Consolidation recorded satisfaction that the order under recall was passed without opportunity of hearing to the party affected, it called for no interference. 7. 7. The learned counsel for the petitioners has urged that the fourth respondent had acted upon the earlier order passed by the Deputy Director of Consolidation and therefore he had no locus to seek recall of the said order on the grounds taken. The second submission on behalf of petitioners is that the Deputy Director of Consolidation was not justified in deciding the matter while a prayer to transfer the proceedings to another authority was pending. The third submission made was that the Deputy Director of Consolidation has failed to address whether the restoration application was rightly allowed by the Settlement Officer of Consolidation or not. 8. The learned counsel for the respondents has supported the order passed by the Deputy Director of Consolidation dated 10.11.2017. 9. I have given thoughtful consideration to the submissions of the learned counsel for the petitioners. 10. Before dealing with the submissions of the learned counsel for the parties, it would be appropriate to observe that there was no compromise between the parties in respect of chak allotted under the order dated 12.04.2017. The Deputy Director of Consolidation dealt with the merits of the allotment on the basis of alleged consent of the parties even though the order under challenge before him was only a restoration order and therefore the chak allotment was beyond the scope of the revision as framed. Further, it does not appear from the record that the Deputy Director of Consolidation exercised his power suo motu. Under the circumstances, he ought not to have addressed the issue of chak alteration. 11. Coming to the submissions of the learned counsel for the petitioner, in so far as the first contention of the learned counsel for the petitioners is concerned, suffice it to say that so long the order operates, a person is bound by the order and, therefore, if that order is implemented it would not mean that the person who suffers the order has given up his right to challenge the order. Otherwise also, the record reflects that the fourth respondent had rushed to this Court and had challenged the order passed by the Deputy Director of Consolidation on the ground that the consent was never given by him for allotment. 12. Otherwise also, the record reflects that the fourth respondent had rushed to this Court and had challenged the order passed by the Deputy Director of Consolidation on the ground that the consent was never given by him for allotment. 12. Under the circumstances, merely on account of an application for delivery of possession, pursuant to the order which was then in operation, it cannot be said that the fourth respondent had given up right to challenge the order which he had earlier challenged before this Court in writ jurisdiction and was given liberty to challenge before the court below. Accordingly, the first contention of the learned counsel for the petitioner fails and is accordingly rejected. 13. In so far as the second contention of the learned counsel for the petitioner is concerned, as this Court is of the view that the Deputy Director of Consolidation had travelled beyond the scope of revision by entering into the merits of allotment when the revision was only against the restoration order, this Court finds no good reason to interfere with the order on the ground that judicial propriety demanded that the matter is not dealt with during pendency of transfer application. More so, when justice has been done and now parties can raise their grievances with regard to allotment before the Settlement Officer of Consolidation. 14. The third submission of the learned counsel for the petitioners also cannot be accepted because the petitioners had themselves agreed for adjudication on merits in the earlier round of litigation before the Deputy Director of Consolidation meaning thereby that they had conceded that the restoration order passed by the Consolidation Officer was unassailable. Otherwise also, the Settlement Officer of Consolidation, while passing the restoration order dated 07.04.2016, has recorded satisfaction that the restoration applicant had not been heard and served with notice of the proceeding. Such restoration order therefore calls for no interference. 15. The petition is dismissed.