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2018 DIGILAW 384 (ALL)

BABU v. ABDUL SHAKOOR

2018-02-12

SALIL KUMAR RAI

body2018
JUDGMENT : SALIL KUMAR RAI, J. 1. Heard counsel for the petitioner and Sri Sanjai Srivastava representing respondent no.1. 2. During the consolidation operations held in the village, a dispute arose between Nabi Bux i.e. the father of the petitioner and Abdul Shakoor i.e. deceased respondent no.1. On the basis of an alleged compromise between Nabi Bux and respondent no.1, an order dated 13.9.1973 was passed by Assistant Consolidation Officer, District Kanpur directing that the name of respondent no.1 be deleted from the records and the name of Nabi Bux be recorded as the sole tenure holder in Khata No.70. Against the aforesaid order dated 13.9.1973, Abdul Shakoor filed Appeal No. 41 of 1978 before the Settlement Officer of Consolidation, District Kanpur. The aforesaid appeal was time barred and therefore a prayer was made to condone the delay in filing the said appeal on the ground that Abdul Shakoor did not know about the order dated 13.9.1973 and the same was fraudulently passed and Abdul Shakoor had never entered into any compromise with Nabi Bux. The said appeal was dismissed by the Settlement Officer of Consolidation vide his order dated 26.10.1979 on the ground that the same was highly time barred and the delay in filing the appeal had not been sufficiently explained by Abdul Shakoor. Against the judgment and order dated 26.10.1979, Abdul Shakoor filed a revision under Section 48 of the Uttar Pradesh Consolidation of Holdings Act, 1953 before the Deputy Director of Consolidation, District Kanpur (hereinafter referred to as, D.D.C.) which was registered as Revision No. 122. The D.D.C. vide his order dated 28.2.1980 allowed the said revision opining that the right of the parties as determined during the consolidation operations are final, therefore, it would be appropriate that Abdul Shakoor is granted an opportunity to contest the case on merits especially in the circumstances that he has denied putting his thumb impression on any compromise allegedly entered into between the parties. It is the aforesaid order dated 28.2.1980 which is put to challenge in this writ petition. 3. It is the aforesaid order dated 28.2.1980 which is put to challenge in this writ petition. 3. Counsel for the petitioner has argued that the order dated 26.10.1979 passed by Settlement Officer of Consolidation was according to law and Appeal No. 41 of 1978 filed by Abdul Shakoor was dismissed by the Settlement Officer of Consolidation on the ground that the same was highly belated and the delay in filing the said appeal had not been sufficiently explained by Abdul Shakoor. In the circumstances, counsel for the petitioner has argued, that D.D.C. had erred in law in allowing Revision No. 122 filed by Abdul Shakoor and the writ petition is thus liable to be allowed and the order dated 28.2.1980 passed by D.D.C. is liable to be quashed. 4. Rebutting the arguments of counsel for the petitioner, counsel for respondent has argued that Abdul Shakoor had never entered into any compromise with Nabi Bux i.e. the father of the petitioner and Appeal No. 41 of 1978 filed by Abdul Shakoor was not time barred in view of his allegation that he had never put his thumb impression on the compromise allegedly executed between Abdul Shakoor and Nabi Bux. It has been argued by counsel for respondent that the compromise was a fraudulent act on the part of Nabi Bux and the order dated 13.9.1973 was fraudulently obtained by Nabi Bux and fraud vitiates all proceedings. The order dated 28.2.1980 passed by D.D.C. is according to law and the writ petition is liable to be dismissed. 5. I have considered the rival submissions and perused the records. 6. While passing the order dated 28.2.1980, the D.D.C. has recorded its opinion that the rights determined during the consolidation operations attained a finality and therefore it would be appropriate that the dispute between Abdul Shakoor and Nabi Bux be decided on merits especially in the light of the allegation made by Abdul Shakoor that he had not entered into any compromise with Nabi Bux regarding Khata No.70 and had not put his thumb impression on any compromise and the order dated 13.9.1973 was fraudulently obtained by Nabi Bux. In view of the aforesaid reasoning given by D.D.C., it is not a fit case for interference under Article 226 of the Constitution of India and the writ petition is liable to be dismissed. In view of the aforesaid reasoning given by D.D.C., it is not a fit case for interference under Article 226 of the Constitution of India and the writ petition is liable to be dismissed. However, apart from the aforesaid, a perusal of the order dated 13.9.1973 passed by the Assistant Consolidation Officer shows that there is no recital in the aforesaid order passed by the Assistant Consolidation Officer that the alleged compromise between Nabi Bux and Abdul Shakoor was recorded in presence of two members of the consolidation committee of the village and signed by them and the requirements/procedure as prescribed in Rule 25-A of the Uttar Pradesh Consolidation of Holdings Rules, 1954 had been complied with. For the aforesaid reason also, the order dated 13.9.1973 was not valid and the petitioner cannot claim any right on the basis of the aforesaid order dated 13.9.1973 passed by the Assistant Consolidation Officer. 7. For the aforesaid reason, the writ petition lacks merit and is hereby dismissed.