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2017 DIGILAW 653 (ALL)

Jagat Narayan Singh v. D. D. C.

2017-02-28

ANJANI KUMAR MISHRA

body2017
JUDGMENT Anjani Kumar Mishra,J. Heard Shri R.C. Singh, learned counsel for the petitioner and Shri Shailendra Kumar Singh for the caveator Gauri Shankar, respondent no. 2. The instant writ petition has been filed seeking a writ of certiorari for quashing the order dated 28.10.2016 passed by the Deputy Director of Consolidation, whereby he has allowed a restoration application filed by the caveator, respondent no. 2 and has set aside an order dated 05.06.1999, which was allegedly a compromise order. 3. The facts of the case briefly stated are that the dispute in the writ petition pertains to plot no. 866 situated in Village Chitrasenpur, Pargana Kaswar Raja, Tehsil and District Varanasi. Admittedly this plot is valuable road side land as it is situated adjacent to the G.T. Road. 4. The disputed plot appears to have been allotted in the chak of one Kedar Singh, since deceased and succeeded by the respondents 3 to 8. 5. An objection under Section 9B of the U.P. Consolidation of Holdings Act appears to have been filed by one Smt. Lalmati praying that the plot no. 866-B be declared chak out. 6. It has been averred in the writ petition that the Consolidation Officer, by his order dated 27.05.1989, allowed the objection and plot no. 866 was excluded from consolidation operations. However, copy of the order passed by the Consolidation Officer has not been filed on record. 7. The respondents 3 to 8, aggrieved by the order passed by the Consolidation Officer, filed a restoration application on 06.06.1990. 8. The restoration application was rejected and the order rejecting the restoration application was challenged by means of a revision no. 355/887. 9. It appears that the respondents 5 to 8, also filed an appeal against the order of the Consolidation Officer dated 27.05.1989. This appeal was also dismissed on 20.01.1993. Against which order another revision was preferred by said respondents 3 to 8. 10. It appears that both these two revisions were decided on the basis of a compromise, vide order dated 05.06.1999. 11. Against the compromise order, the caveator, respondent no. 2 filed a recall application on 28.05.2009. This restoration application has been allowed by the impugned order dated 28.10.2016 after condoning the delay in filing the same on the ground that the signature of the caveator on the compromise differed substantially with his signature on the restoration application. 12. 11. Against the compromise order, the caveator, respondent no. 2 filed a recall application on 28.05.2009. This restoration application has been allowed by the impugned order dated 28.10.2016 after condoning the delay in filing the same on the ground that the signature of the caveator on the compromise differed substantially with his signature on the restoration application. 12. Accordingly, the revisional Court came to the conclusion that the applicant Gauri Shankar was not the signatory to the compromise, as was alleged by him in the restoration application. It is this order which is impugned in the writ petition. 13. From the facts narrated above, it emerges that the two revisions, which were decided by means of a compromise order dated 05.06.1999 arose from proceedings under Section 9-B of the U.P. Consolidation of Holdings Act. One revision was directed against the order of the Consolidation Officer as also the Settlement Officer Consolidation, whereby plot no. 866 had been excluded from consolidation operations and consequential appeal was dismissed. 14. The other revision had been filed challenging an order dismissing the restoration application filed for recalling the order dated 27.05.1989, whereby plot no. 866 had been declared chak out. 15. However, perusal of the order passed by the Deputy Director of Consolidation on 05.06.1999, allegedly on the basis of a compromise, reveals that by this order not only plot no. 866 has been included in consolidation operations, the Deputy Director of Consolidation has also modified the chaks of the parties. A chak road has also been effected as is clear from the perusal of the correction table appended to this order. 16. A pointed query was made to learned counsel for the petitioner as to how the Deputy Director of Consolidation, while dealing with revisions arising out of an objection under Section 9-B of the U.P. Consolidation of Holdings Act, was competent to pass an order modifying the chaks of the parties. 17. Any order for modification of a chak or chaks belonging to tenure holders can only be passed in a revision arising out of an objection under Section 21 of the Act. 18. The order passed by the Deputy Director of Consolidation was therefore, prima facie found to be beyond the scope of the revision itself. 19. 17. Any order for modification of a chak or chaks belonging to tenure holders can only be passed in a revision arising out of an objection under Section 21 of the Act. 18. The order passed by the Deputy Director of Consolidation was therefore, prima facie found to be beyond the scope of the revision itself. 19. Learned counsel for the petitioner, thereafter, sought time to examine this aspect of the matter and has, at the subsequent hearing relied upon the following judgments: - 1. Brahmin Nijog Vs. Badu Nijog and others, AIR 2003 Orissa 64. 2. (Sahu) Shyam Lal Vs. Mshayamlal, 1933 AIR (All) 649. 3. Dr. Parmeshwar Dutt Shukla Vs. D.D.C. and Others, 2015 (127) R.D. 666. 4. Kale and others Vs. Deputy Director of Consolidation and others, AIR 1976 Supreme Court 807. 20. Learned counsel for the respondents has supported the impugned order. He has also submitted that the compromise order, apart from being vitiated by fraud, was also beyond the scope of the revision pending consideration before the Deputy Director of Consolidation. 21. I have considered the submissions made by learned counsel for the parties and have perused the record. 22. In so far as the finding returned by the Deputy Director of Consolidation that the signature of Gauri Shankar on the compromise and his admitted signature on the restoration application differed materially, the same is a finding of fact arrived at after appreciation of the evidence available on record. The finding is neither perverse nor vitiated in any manner and the same, therefore, cannot be interfered with by this Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India. 23. There is yet another aspect of the matter, which is relevant. It is the case of the petitioner that all the parties in the revision were signatories to the compromise including the caveator, respondent no. 2. 24. However, perusal of the compromise order, especially the correction table appended thereto, reveals that a chak road was also modified by this order. 25. There is nothing on record to indicate that the Gaon Sabha, through its authorized agent, was a signatory to the compromise. The compromise order is therefore, even otherwise, clearly vitiated. 26. 2. 24. However, perusal of the compromise order, especially the correction table appended thereto, reveals that a chak road was also modified by this order. 25. There is nothing on record to indicate that the Gaon Sabha, through its authorized agent, was a signatory to the compromise. The compromise order is therefore, even otherwise, clearly vitiated. 26. The only question, which survives for consideration is whether the order passed by the Deputy Director of Consolidation on 05.06.1999, whereby he has also modified the chaks of the various tenure holders in a revision arising out of an objection under Section 9-B of the U.P. Consolidation of Holdings Act, is beyond jurisdiction or not. 27. On this issue, the contention of learned counsel for the petitioner is that a compromise, in view of the provisions contained in the Civil Procedure Code, can also be regarding something which is not the subject matter of the proceedings. He, however, admits that the provisions of the Civil Procedure Code are not strictly applicable to proceedings under the U.P. Consolidation of Holdings Act and only its general principles are applicable. 28. The second contention raised is that a compromise was a lawful compromise and, therefore, the same must be implemented. Besides, constructions have been raised over the land, which was subject matter of the compromise. The compromise has therefore, been acted upon and for this reason also the compromise order should not have been set aside. 29. It is next contended that the respondent no. 2, in his objection had admitted that he was a signatory to the compromise and, therefore, his restoration application was not liable to be allowed. 30. In the case of (Sahu) Shyam Lal, it has been held that where a compromise decree, in its operative portion, incorporates the compromise, such a decree is not a nullity. 31. It necessarily follows that the Court concerned has to consider as to whether a compromise between the parties is to be incorporated in the decree or the operative portion. This will entail a consideration in this regard, as also application of a judicial mind to this specific aspect. There is no such application of mind by the Deputy Director of Consolidation in the case at hand. 32. As already noticed herein above, the compromise, in any case, was not a valid compromise as it effected the interest of the Gaon Sabha. There is no such application of mind by the Deputy Director of Consolidation in the case at hand. 32. As already noticed herein above, the compromise, in any case, was not a valid compromise as it effected the interest of the Gaon Sabha. The Gaon Sabha was not signatory to the compromise. 33. Any compromise or a compromise decree, for the matter, to which a person effected, is not a party, is not a valid and binding compromise. The case cited therefore, does not help the petitioner. 34. In Brahmin Nijog, the issue before the Court was as to whether a compromise relating to the administration of a temple was valid. This judgment is clearly distinguishable on facts and therefore, not applicable to the case at hand. 35. The judgment in the case of Parmeshwar Dutt Shukla relates to chak allotment proceedings and to the bar created by Section 11-A of the U.P. Consolidation of Holdings Act. Even this judgment has no application in the facts and circumstances of the instant case, more especially, on the point under consideration. 36. The case of 'Kale and others' was on the question as to whether a family arrangement may be oral and the conditions, where under a family settlement, requires registration. No such issue is involved in the instant case and, therefore, even this judgment does not help the petitioner in any manner. 37. The Deputy Director of Consolidation while exercising revisional powers under Section 48 of the U.P. Consolidation of Holdings Act is empowered to call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings; or as to the correctness, legality or propriety of any order, other than an interlocutory order, passed by such authority in the case or proceedings. 38. The revisions that were filed and decided by the compromise order, pertained to proceedings under Section 9-B of the Act. The only question inherent therein was whether plot no. 866 was to be included in consolidation operations or was to be declared chak out and also whether the orders passed by the subordinate authority in this regard were valid and proper orders. While considering these revisions, no question as to the allotment on plot no. 866 in the chak of any tenure holder was in issue. 866 was to be included in consolidation operations or was to be declared chak out and also whether the orders passed by the subordinate authority in this regard were valid and proper orders. While considering these revisions, no question as to the allotment on plot no. 866 in the chak of any tenure holder was in issue. The allotment of this plot upon its being included in consolidation operations, would require consideration in accordance with provisional consolidation scheme and no proceedings in this regard were the subject matter of the revisions. 39. Under the circumstances, this Court is constrained to hold that the compromise order, in so far as it modified the chaks of the parties, including the chak road, belonging to the Gaon Sabha, was clearly without jurisdiction. Therefore, upon the said order having been set aside, by the impugned order, substantial justice has been done between the parties. The order, therefore, warrants no interference while exercising equity jurisdiction under Article 226 of the Constitution of India. 40. For the same reason, the contention of learned counsel for the petitioner that the compromise order has already been acted upon, is of no consequence and any interference by the writ Court in the impugned order would amount to perpetuating a legal order, which is also without jurisdiction. 41. The writ petition is accordingly dismissed.