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2018 DIGILAW 1154 (ALL)

ABU YADAV v. D. D. C. , AZAMGARH

2018-05-08

SALIL KUMAR RAI

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JUDGMENT : Salil Kumar Rai, J. Heard learned counsel for the parties. 2. The dispute in the present writ petition as well as in the consolidation proceedings from which the present writ petition arises relates to Plot Nos. 561 and 562 of which the petitioner as well as respondent Nos. 3 to 5 were recorded as co-tenure holders. It has been alleged in the writ petition that during the consolidation proceedings held in the Village, petitioner filed objections under Section 9-A of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act, 1953') alleging that respondent Nos. 3 to 5 have been wrongly recorded as co-tenure holders of the disputed plots and he was the sole tenure holder of the same. It has been alleged in the writ petition that on the aforesaid objections filed by the petitioner, Case No. 6676 was registered under Section 9-A of the Act, 1953 and the said objections were decided by order dated 11.4.1972 passed by the Assistant Consolidation Officer (hereinafter referred to as, 'A.C.O.') on a compromise entered into between the parties and the said order was also recorded in the Revenue Records. However, Appeal against the aforesaid order dated 11.4.1972, was filed by respondent Nos. 3 to 5 before the Settlement Officer of Consolidation (hereinafter referred to as, 'S.O.C.'), which was allowed by the S.O.C. vide his order dated 30.7.1991. Consequently, the petitioner filed Revision under Section 48 of the Act, 1953 before respondent No. 1-Deputy Director of Consolidation, Azamgarh (hereinafter referred to as, 'D.D.C.'), which was dismissed by the D.D.C. vide his order dated 7.2.2000 on the ground of delay. The orders dated 7.2.2000 passed by the D.D.C. and 30.7.1991 passed by the S.O.C. have been challenged in the present writ petition. 3. It has been stated in the counter affidavit filed by respondent Nos. 3 to 5 that the alleged order dated 11.4.1972 passed by the A.C.O. is a forged and fraudulent order and no Case No. 6676 was ever registered in the Court of A.C.O. and consequently the reference to the aforesaid order of the A.C.O. in the Revenue Records is also forged. 4. 3 to 5 that the alleged order dated 11.4.1972 passed by the A.C.O. is a forged and fraudulent order and no Case No. 6676 was ever registered in the Court of A.C.O. and consequently the reference to the aforesaid order of the A.C.O. in the Revenue Records is also forged. 4. It has been contended by learned counsel for the petitioner that the D.D.C. has erred in law in dismissing the Revision filed by the petitioner on the ground of delay inasmuch as it was evident from the records that the order dated 30.7.1991 passed by the S.O.C. was passed ex-parte and without issuing notice to the petitioner and without affording any opportunity of hearing to the petitioner. It has been further contended by learned counsel for the petitioner that the S.O.C. had erred in law in entertaining the Appeal filed by the respondent Nos. 3 to 5 and in condoning the delay in filing the same as the Appeal was filed almost 15 years after the order dated 11.4.1972 passed by the A.C.O. 5. Rebutting the contention of learned counsel for the petitioner, learned counsel for respondents has argued that the D.D.C. had rightly dismissed the Revision filed by the petitioner as petitioner had not been able to establish that the order dated 30.7.1991 passed by the S.O.C. was passed without affording him any opportunity of hearing and the same is not liable to be interfered under Article 226 of the Constitution of India as through his order dated 30.7.1991, the S.O.C. has merely remanded back the matter to the Consolidation Officer for a decision on merits. 6. I have considered the rival submissions of learned counsel for the parties and perused the record. 7. A perusal of the records annexed with the writ petition show that the Appeal against the alleged order dated 11.4.1972 passed by the A.C.O. was filed by respondent Nos. 3 to 5 on 20.1.1987. A perusal of the order dated 7.2.2000 passed by the D.D.C. also shows that in the aforesaid Appeal the petitioner had filed his Vakalatnama on 27.6.1987. The recital in the order dated 7.2.2000 passed by the D.D.C. regarding filing of Vakalatnama by the petitioner has not been denied by the petitioner in the writ petition. 3 to 5 on 20.1.1987. A perusal of the order dated 7.2.2000 passed by the D.D.C. also shows that in the aforesaid Appeal the petitioner had filed his Vakalatnama on 27.6.1987. The recital in the order dated 7.2.2000 passed by the D.D.C. regarding filing of Vakalatnama by the petitioner has not been denied by the petitioner in the writ petition. In the circumstances, the findings recorded by the D.D.C. in his impugned order dated 7.2.2000 that the proceedings before the S.O.C. were not ex-parte against the petitioner and the order dated 30.7.1991 was passed by the S.O.C. after affording opportunity of hearing to the petitioner is based on evidence on record. On the basis of the aforesaid findings, the D.D.C. has also rejected the averment of the petitioner explaining the delay in filing the Revision before the D.D.C. alleging that they had no knowledge of the proceedings in Appeal before the S.O.C. and the consequential order dated 30.7.1991 passed by the S.O.C. The aforesaid findings of the D.D.C. are based on evidence on record and not liable to be interfered under Article 226 of the Constitution of India. Further, a perusal of the order dated 30.7.1991 passed by the S.O.C. shows that in his aforesaid order, the S.O.C. has recorded the fact that the records relating to the alleged case instituted by the petitioner under Section 9-A of the Act, 1953 and the order dated 11.4.1972 passed by the A.C.O. are not available in the file, and therefore implies that no such order was ever passed by the A.C.O. The alleged order dated 11.4.1972 passed by the A.C.O. has also not been filed with the writ petition or any affidavit filed by the petitioner and merely a Revenue Record referring to the aforesaid order has been filed by the petitioner. 8. In the circumstances, the averment of the petitioner regarding existence of the order dated 11.4.1972 passed by the A.C.O. cannot be relied upon to hold the orders dated 7.2.2000 passed by the D.D.C. and 30.7.1991 passed by the S.O.C. as illegal. 9. For the aforesaid reason, it is not a fit case for interference under Article 226 of the Constitution of India. The writ petition lacks merit, and is, accordingly dismissed. 9. For the aforesaid reason, it is not a fit case for interference under Article 226 of the Constitution of India. The writ petition lacks merit, and is, accordingly dismissed. However, the concerned Consolidation Officer is directed to decide the matter as directed by the S.O.C. vide his order dated 30.7.1991 within a period of four months from the date a certified copy of this order is produced by either of the parties. 10. As an interim order was passed in favour of the petitioner in the present writ petition, parties shall maintain status quo with regard to the disputed plots till the decision of the concerned Consolidation Officer.