Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 1329 (ALL)

Bhai Ram v. D. D. C. Varanasi

2019-05-15

RAJIV JOSHI

body2019
JUDGMENT : Rajiv Joshi, J. 1. Since pleadings between the parties have already been exchanged, therefore, with the consent of learned counsel for the parties, this writ petition is being decided finally at the admission stage itself in terms of the Rules of the Court. 2. Heard Sri Dhirendra Srivastava, learned counsel for the petitioners and Sri I.N. Singh and Sri Shashank Shekhar Singh, learned counsel for the respondents. 3. Present writ petition has been filed for quashing the order dated 30.7.2016 passed by Deputy Director of Consolidation, Varanasi in Revision No. 1601 of 2014, whereby the revision as well as restoration application was allowed and the matter was remitted to the Settlement Officer of Consolidation to decide the appeal afresh. 4. It reflects from the record that on the basis of registered Bakshishnama dated 26.1.1998 executed by maternal grandfather of the petitioners in favour of father of the petitioners, the name of their father was mutated in the revenue record. During consolidation operation, the contesting respondents filed an objection under Section 9A (2) of U.P. Consolidation of Holdings Act 1953 (hereinafter referred to as an Act), which was allowed and the name of the petitioners along with contesting respondents were recorded in the revenue record vide order dated 5.3.1997. 5. The petitioners challenged the order dated 5.3.1997 passed by Consolidation Officer by means of appeal before the Settlement Officer of Consolidation, which was allowed vide order dated 30.4.2013. The contesting respondents filed a revision against the said order under Section 48 (1) of the Act, which was dismissed by Deputy Director of Consolidation vide order dated 1.3.2014. Subsequently, it appears that after the dismissal of revision, an application was filed by respondent no.2-Pramod Kumar on the ground that during the pendency of the appeal, his father Shyam Nath died on 17.6.2012 and at the instance of the father of the petitioners, a substitution application was filed, which was allowed by Settlement Offcer of Consolidation on 7.9.2012 in which four sons of Shyam Nath were substituted in his place, but the respodent no.2-Pramod Kumar was not substituted. 6. 6. It was further stated in the application that his brother Vinod, who died on 7.5.2011 i.e. prior to the death of Shyam Nath, was substituted and therefore, the order passed by the Settlement Officer of Consolidation against dead person, is nullity and even the respondent no.2 was not the party/substituted before the appellate authority, and therefore, the order be recalled, as no opportunity of hearing has been given to respondent no.2 while passing the impugned order. 7. The Deputy Director of Consolidation vide impugned order dated 30.7.2016 allowed the application for recalling the order dated 1.3.2014 passed by Deputy Director of Consolidation and simultaneously set aside the order dated 30.4.2013 of the Settlement Officer of Consolidation and the matter was remanded to the Settlement Officer of Consolidation to decide the appeal on merits after hearing the respondent no.2. 8. The order dated 30.7.2016 passed by the Deputy Director of Consolidation is impugned in present writ petition. 9. Contention of learned counsel for the petitioners is that Deputy Director of Consolidation on the one hand, allowed the recall application filed by respondent no.2-Pramod Kumar and simultaneously reversed its earlier order dated 1.3.2014 and remanded the matter to Settlement Officer of Consolidation for deciding the appeal on merit. It is further argued that since the entire material was before the revisional authority, it should have decided the matter on merit itself and Deputy Director of Consolidation has not exercised his power as per Section 48 of the Act. 10. On the other hand, learned counsel for the respondents submits that the order passed by Settlement Officer of Consolidation is against dead person as one of the son of Shyam Nath, namely, Vinod was substituted, although he died much prior to the death of Shyam Nath i.e. 7.5.2012 and therefore, the Deputy Director of Consolidation has rightly allowed the application filed by the respondent no.2 remanding the matter to Settlement Officer of Consolidation for deciding the matter afresh. 11. I have considered the rival submissions and perused the record. 12. It is on record that earlier the Deputy Director of Consolidation dismissed the revision vide order dated 1.3.2014 and the said order was recalled at the instance of respondent no.2, who was not substituted before revisional authority. 11. I have considered the rival submissions and perused the record. 12. It is on record that earlier the Deputy Director of Consolidation dismissed the revision vide order dated 1.3.2014 and the said order was recalled at the instance of respondent no.2, who was not substituted before revisional authority. It is also apparent that one of the heirs of Shyam Nath, namely Vinod was wrongly substituted as he had already died prior to the death of Shyam Nath. The Deputy Director of Consolidation on the basis of material available before him should have decided the revision on merits, if any ground for recalling the earlier order has been made out. 13. Explanation 3 of Section 48 of the Act specifically provides that it is within the competence of Deputy Director of Consolidation to examine the correctness, legality or propriety of any order and the said power includes the power to examine any finding, whether of fact or law, recorded by any subordinate authority, and also includes the power to re-appreciate any oral or documentary evidence. Explanation 3 of Section 48 of the Act reads as under: "[Explanation (3). -The power under this section to examine the correctness, legality or propriety of any order includes the power to examine any finding, whether of fact or law, recorded by any subordinate authority, and also includes the power to re-appreciate any oral or documentary evidence.]" 14. From the aforesaid explanation to Section 48, it is apparent that it is within the jurisdiction of Deputy Director of Consolidation to decide the matter himself after giving opportunity to respondent no.2 and other persons and the matter should not have been decided in the manner the Deputy Director of Consolidation has decided. In fact, there was no necessity to remand the matter before Settlement Officer of Consolidation as entire evidence and material was available before Deputy Director of Consolidation. 15. In view of the above, the order dated 30.7.2016 passed by Deputy Director of Consolidation in Revision No. 1601 of 2014 as well as restoration application no. 1401 of 2014 is quashed and the matter is remitted to Deputy Director of Consolidation to restore the revision as well as restoration application on its original number and decide the same in accordance with law. 16. 1401 of 2014 is quashed and the matter is remitted to Deputy Director of Consolidation to restore the revision as well as restoration application on its original number and decide the same in accordance with law. 16. Since, the matter is an old one, therefore, the Deputy Director of Consolidation is directed to conclude the revision and restoration application, expeditiously, within a period of six months from the date of production of certified copy of this order. 17. In the result, writ petition succeeds and is allowed.