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2018 DIGILAW 630 (ALL)

DHANPAL v. D. D. C.

2018-03-15

SALIL KUMAR RAI

body2018
JUDGMENT : SALIL KUMAR RAI, J. 1. Heard Sri V.K. Singh, counsel for the petitioners, Sri S.D. Kautilya, Advocate representing respondent no. 2 as well as Standing Counsel who represents respondent no. 1. 2. Petitioner no. 1 is the son of one Ved Raj and petitioner nos. 2 to 4 are the grandsons of aforesaid Ved Raj. The said Ved Raj died on 26.8.1999. Plot Nos. 37/5, 37/9, 37/3, 34/8 and 34/10 which were part of Chak No. 240 was allotted to Ved Raj and Plot No. 244/9 which was part of Chak No. 356 was allotted to respondent no. 2. 3. Against the settlement made by the Assistant Consolidation Officer, respondent no. 2 filed his objection before the Consolidation Officer regarding chak allotted to him on Plot No. 530. The aforesaid objection was dismissed by the Consolidation Officer vide his order dated 26.3.1999. Against the order dated 26.3.1999, respondent no. 5 filed an appeal before the Settlement Officer of Consolidation which was partly allowed by the Settlement Officer of Consolidation vide his order dated 24.12.1999. Not satisfied with the arrangements of chaks as made by the Settlement Officer of Consolidation, respondent no. 2 filed a revision under Section 48 of the Act before the Deputy Director of Consolidation i.e. respondent no. 1 which was registered and numbered as Revision No. 3. A perusal of memorandum of revision instituting the aforesaid revision (which has been annexed with the writ petition as Annexure No. 1) shows that respondent no. 2 had prayed for allotment of chaks on Plot Nos. 311, 313, 314 as well as Plot Nos. 470, 471 and 473. The contention of respondent no. 2 as evident from the memorandum of revision was that plots allotted to respondent no. 2 were near the river and therefore not suitable for agriculture. It is pertinent to record that the plots mentioned by respondent no. 2 in his memorandum of revision were not allotted to Ved Raj and therefore Ved Raj was not impleaded as a respondent in the revision. However, on 14.9.2000, respondent no. 2 filed an application in Revision No. 3 praying for permission to implead Ved Raj as a respondent in the said case. Any order permitting respondent no. 2 to implead Ved Raj as a respondent in the said revision has not been annexed either with the writ petition or different affidavits filed by respondent no. However, on 14.9.2000, respondent no. 2 filed an application in Revision No. 3 praying for permission to implead Ved Raj as a respondent in the said case. Any order permitting respondent no. 2 to implead Ved Raj as a respondent in the said revision has not been annexed either with the writ petition or different affidavits filed by respondent no. 2 and the petitioners and there is no averment in the pleadings of either parties referring to any order passed by respondent no. 1 permitting respondent no. 2 to implead Ved Raj as a respondent in the revision. However, it appears from the records annexed with the supplementary counter affidavit that a notice dated 28.9.2000 was issued to Ved Raj in the aforesaid case. Evidently, the aforesaid notice was issued and the impleadment application was filed after the death of Ved Raj. It has been stated in the counter affidavit filed by respondent no. 2 that the application filed for impleading Ved Raj and not his heirs (who are petitioners in the case) was a consequence of the fact that after the death of Ved Raj, no mutation proceedings were instituted by the heirs of Ved Raj and the revenue records reflected the name of Ved Raj. It is also pertinent to state that no reasons have been given in the impleadment application to implead Ved Raj as respondent in the aforesaid case. It has been contended by the petitioners in the writ petition that no notice was ever served on the petitioners and the notice annexed with the supplementary counter affidavit was issued to Ved Raj and therefore could not have been served on either of the petitioners. It has been further stated by the petitioners in the writ petition that as no notice was served on the petitioners, therefore, the petitioners had no information about the proceedings in the revision and could not appear in the same and argue their case. However, it has been categorically stated by the respondent in the supplementary counter affidavit filed by him that notice dated 28.9.2000 was received by petitioner no. 1 who was the eldest member of the family and the petitioner no. 1 continuously appeared in the case and had also signed the order-sheet. The aforesaid averment made by respondent no. However, it has been categorically stated by the respondent in the supplementary counter affidavit filed by him that notice dated 28.9.2000 was received by petitioner no. 1 who was the eldest member of the family and the petitioner no. 1 continuously appeared in the case and had also signed the order-sheet. The aforesaid averment made by respondent no. 2 has not been categorically denied by the petitioners in their rejoinder affidavit and it has been merely stated by the petitioners that they had not signed any Vakalatnama and had not argued their case before respondent no. 2 and had also not appeared before him. However, in the rejoinder affidavit, the petitioners have not denied the signature of petitioner no. 1 on the order-sheet of the case which has been annexed with the supplementary counter affidavit filed by respondent no. 1 and shows the signature of respondent no. 2. Respondent no. 1 vide his order dated 26.6.2002 allowed Revision No. 3 instituted by respondent no. 2 and altered the arrangements of chaks allotted to Ved Raj and respondent no. 2 whereby chaks allotted to Ved Raj on Plot No. 37/9 was allotted to respondent no. 2 and chak consisting of Plot No. 1364 was allotted to Ved Raj. A perusal of the order dated 26.6.2002 passed by respondent no. 1 shows that the aforesaid arrangement has been made by respondent no. 1 on the ground that the chak allotted to Ved Raj on Plot No. 37/9 etc. was Uran Chak and the chak allotted to respondent no. 2 on Plot Nos. 244/9 and 263 was not suitable for agricultural purposes. The order dated 26.6.2002 has been challenged in the present writ petition. 4. It has been argued by counsel for the petitioners that Ved Raj had died before Revision No. 3 was filed by respondent no. 2 and therefore respondent no. 2 was liable to implead the petitioners as respondents in the aforesaid case and on the failure of respondent no. 2 to either implead the petitioners in Revision No. 3 or to substitute them in place of Ved Raj, no orders could have been passed by respondent no. 1 affecting the chak of Ved Raj and consequently of the petitioners. It has been further argued by counsel for the petitioners that as the petitioners were not impleaded in Revision No. 3 instituted by respondent no. 1 affecting the chak of Ved Raj and consequently of the petitioners. It has been further argued by counsel for the petitioners that as the petitioners were not impleaded in Revision No. 3 instituted by respondent no. 2, they could not have filed any Vakalatnama or argued their case before respondent no. 1 and the order dated 26.6.2002 passed by respondent no. 1 has been passed in violation of the principles of natural justice and is therefore liable to be set-aside. Rebutting the arguments of counsel for the petitioners, counsel for respondent no. 2 has argued that as the revenue records reflected the name of Ved Raj against the chak allotted to him, therefore, there was no occasion for respondent no. 2 to substitute the petitioners in place of Ved Raj and respondent no. 2 had rightly filed impleadment application praying to implead only Ved Raj as a respondent in the aforesaid revision. It has been further argued by counsel for respondent no. 2 that it would be evident from the records that petitioner no. 1 had appeared in the proceedings before respondent no. 1 and had participated in the same and therefore the impugned order dated 26.6.2002 passed by respondent no. 1 has been passed after hearing the petitioners and is not in violation of the principles of natural justice. It has been further argued by counsel for respondent no. 2 that the petitioners are not aggrieved by the impugned order passed by respondent no. 1 as through the aforesaid order Ved Raj and consequently petitioners have been allotted chak on Plot No. 1364 which is part of their original holdings and the previous chak allotted to the petitioners was Uran Chak. 5. Considered the rival submissions of counsel for the parties. 6. From the pleadings of the parties and from the records annexed with the writ petition and different affidavits filed by the parties, it is not clear as to whether any order was passed by respondent no. 1 permitting respondent no. 2 to implead Ved Raj as a respondent in Revision No. 3. In case, no such order was passed, respondent no. 1 could not have proceeded to hear Revision No. 3 and consequently pass an order in the said case affecting the chak of Ved Raj and consequently the petitioners. In case, any order permitting respondent no. 2 to implead Ved Raj as a respondent in Revision No. 3. In case, no such order was passed, respondent no. 1 could not have proceeded to hear Revision No. 3 and consequently pass an order in the said case affecting the chak of Ved Raj and consequently the petitioners. In case, any order permitting respondent no. 2 to implead Ved Raj as a respondent in Revision No. 3 was passed by respondent no. 1 and Ved Raj was consequently impleaded as respondent in the aforesaid case, it was incumbent upon respondent no. 2 to substitute the heirs of Ved Raj i.e. the petitioners in place of the aforesaid Ved Raj. On failure of respondent no. 2 to substitute the petitioners in place of Ved Raj, Revision No. 3 had abated against the petitioners in view of the law laid down in judgment of this Court reported in Gajjoo vs Deputy Director of Consolidation & Anr., 1995 RevDec 231. Consequently, the proceedings before respondent no. 1 affecting the chak of the petitioners would be null and void. Further, the petitioners could not have argued their case before respondent no. 1 unless they were impleaded as respondents in Revision No. 3 or substituted in place of already existing respondents and any appearance by either of the petitioners before respondent no. 1 has no legal significance and not relevant for adjudication of the present writ petition. The appropriate course for respondent no. 1 was to direct respondent no. 2 to either implead or substitute the petitioners in Revision No. 3 and after the said impleadment or substitution, as the case may be, respondent no. 1 could have proceeded to hear the case and pass orders affecting the chak allotted to the petitioners. As no such steps were taken either by respondent no. 1 or respondent no. 2 , the order dated 26.6.2002 passed by respondent no. 1 is illegal. Further, the mere fact that through his impugned order dated 26.2.2002, respondent no. 2 has allotted chak to the petitioners/Ved Raj allegedly on the original holdings of Ved Raj and the chaks allotted to Ved Raj previous to the aforesaid order were Uran Chak is not relevant and did not absolve respondent no. 1 from following the procedure prescribed in law and did not empower him to pass order without giving any opportunity of hearing to the concerned chak holder. 1 from following the procedure prescribed in law and did not empower him to pass order without giving any opportunity of hearing to the concerned chak holder. It is also pertinent to note that in his impugned order dated 26.2.2002, respondent no. 1 has not considered the effect of alteration of chak on petitioners or Ved Raj. The aforesaid clearly shows that the order dated 26.2.2002 was passed by respondent no. 2 without any application of mind on his part. It is evident that the order dated 26.2.2002 has been passed by the Deputy Director of Consolidation without following the procedure prescribed in law and is contrary to law. 7. For the reasons given above, the writ petition is allowed. The order dated 26.2.2002 passed by respondent no. 1 is set aside. The matter is remanded back to respondent no. 1 to pass fresh orders in Revision No. 3 after directing respondent no. 2 to implead the petitioners in the aforesaid revision and after giving sufficient opportunity of hearing to the petitioners in the said case. Respondent no. 2 shall pass fresh orders within four months from the date a certified copy of the order is produced before him by either of the parties. 8. With the aforesaid directions, the writ petition is allowed.