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2020 DIGILAW 130 (ALL)

Ishtekhar v. Dy. Director of Consolidation Rampur

2020-01-10

SALIL KUMAR RAI

body2020
ORDER : Salil Kumar Rai, J. 1. Heard the counsel for the parties. 2. The chaks in dispute in the present writ petition as well as in the consolidation proceedings from which the present writ petition arises are Chak Nos. 77, 175 and 834. It is admitted between the parties that Achchan was the original tenure holder of Chak No. 77, Kaishar Jhan wife of Jafar Ali was the original tenure holder of Chak No. 175 and Habib Begum wife of Ahmed Hussain was the original tenure holder of Chak No. 834. There is some dispute between the parties regarding the date of death of the tenure holders of the disputed chaks. However, the said dispute is not relevant for adjudication of the present writ petition and, therefore, the details of the dispute are not being referred in the present order. It is sufficient to state that there is no dispute that the original tenure holders had died by 2004. Further, there is no dispute between the parties that the tenure holders died while the village was under consolidation operations. In November, 2004, the petitioner filed an application under Section 12 of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act, 1953') registering Case No. 18 before the Assistant Consolidation Officer for being recorded as tenure holder of Chak Nos. 77, 175 and 834 in place of its original tenure holders. The claim of the petitioner was that the original tenure holders had died and he was the nephew and legal heir of the deceased original tenure holders and, therefore, the disputed chaks had devolved on him in accordance with Section 171 of the Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950 (hereafter referred to as, 'Act, 1950'). The respondent nos. 2 to 4 allege themselves to be the grandson of Habib Begum, i.e., chak holder no. 834, respondent no. 5 alleges to be the daughter of Achchan, i.e., chak holder no. 77 and respondent no. 7 alleges herself to be the daughter of Kaishar Jhan, i.e., chak holder No. 175. It is alleged in the writ petition that a public proclamation was made regarding the aforesaid case and the notice was affixed on the doors of the village school. 5 alleges to be the daughter of Achchan, i.e., chak holder no. 77 and respondent no. 7 alleges herself to be the daughter of Kaishar Jhan, i.e., chak holder No. 175. It is alleged in the writ petition that a public proclamation was made regarding the aforesaid case and the notice was affixed on the doors of the village school. It is admitted by the parties that the respondents who claim themselves to be the heirs of the deceased original tenure holders did not appear in Case No. 18. The respondents allege that they had no notice of the case and, therefore, they could not appear in the said case. The Assistant Consolidation Officer vide his order dated 9.12.2004 allowed Case No. 18 and directed that the petitioner be recorded as tenure holder of Chak Nos. 77, 834 and 175. A reading of the order dated 9.12.2004 shows that it has been passed as a result of some compromise entered into between the parties in the said case before the Members of the Consolidation Committee. The respondent nos. 2 to 5 and respondent no. 7 filed Appeal No. 75/403 of 2013-14 under Section 11(1) of the Act, 1953 against the order dated 9.12.2004 passed by the Assistant Consolidation Officer. The appeal was filed on 10.7.2013, i.e., almost 9 years after the order passed by the Assistant Consolidation Officer and, therefore, a delay condonation application was filed praying that the delay in filing the appeal be condoned. The Settlement Officer of Consolidation vide his orders dated 23.10.2013 and 27.11.2013 fixed dates for hearing the appeal on merits and by order dated 27.11.2013 gave the petitioner a last opportunity to file his written arguments in the case or to orally argue the case before 5.12.2013 which was fixed for delivery of final orders in the case on merits. The orders dated 23.10.2013 and 27.11.2013 were challenged by the petitioner in Revision No. 221 of 2012-13 which was allowed by the revisional court vide its order dated 10.1.2014 and the matter was remanded back to the appellate court to decide the appeal on merits after giving the petitioner an opportunity to file his evidence rebutting the evidence submitted by the respondents. Subsequently, the Settlement Officer of Consolidation vide his order dated 27.1.2014 dismissed Appeal No. 75/403 of 2013-14 filed by the respondents on grounds of delay. Subsequently, the Settlement Officer of Consolidation vide his order dated 27.1.2014 dismissed Appeal No. 75/403 of 2013-14 filed by the respondents on grounds of delay. Aggrieved, the respondents filed Revision No. 318 under Section 48 of the Act, 1953 which has been allowed by the Deputy Director of Consolidation vide his order dated 22.8.2014. Through his order dated 22.8.2014, the Deputy Director of Consolidation has set-aside the order dated 9.12.2004 passed by the Assistant Consolidation Officer and has also directed that the respondents be recorded as the tenure holders of the disputed chaks because they were the heirs of the deceased original tenure holders. The order dated 22.8.2014 passed by the Deputy Director of Consolidation has been challenged in the present writ petition. 3. It is evident from a reading of the order dated 22.8.2014 passed by the Deputy Director of Consolidation that the respondents have been accepted as the heirs of the deceased original tenure holders on the basis of pass-port and other official records as well as certificates issued by the state authorities acknowledging the relationship between the respondents and the deceased original tenure holders. There is nothing on record to show that the petitioner had denied the relationship between the respondents and the deceased original tenure holders as claimed by the respondents in their appeal and in revision. It was argued by the counsel for the petitioner that as the delay in filing Appeal No. 75/403 of 2013-14 had to be first considered by the Settlement Officer of Consolidation, therefore, the petitioner had filed a counter affidavit denying the facts stated in the affidavit filed in support of the delay condonation application and there was no occasion for the petitioner to challenge the relationship between the respondents and the deceased original tenure holders as alleged by the respondents in appeal and in revision. The said argument cannot be accepted as the petitioner himself had filed a revision against the order dated 27.11.2013 whereby a last opportunity was given to him by the appellate court to argue the case on merits before 5.12.2013 and the revisional court vide its order dated 10.1.2014 directed the appellate court to afford opportunity to the petitioner to file his evidence rebutting the evidence filed by the respondents. A reading of the order dated 10.1.2014 passed by the revisional court also shows that the grievance of the petitioner in the revision filed against the order dated 27.11.2013 was for an opportunity to file evidence refuting the case of the respondents. In view of the aforesaid, the argument of the counsel for the petitioner that there was no occasion for him to challenge the relationship between the respondents and deceased original tenure holders as alleged by the respondents cannot be accepted. 4. Apart from the aforesaid, the case of the respondents in the courts below was that the petitioner was not the nephew of the deceased tenure holders. It was the case of the respondents in the courts below that the petitioner is a 'Turk' by caste while the deceased original tenure holders were 'Pathan' by caste and, therefore, the petitioner cannot be the nephew of the deceased original tenure holders. It has been admitted by the petitioner in Paragraph No. 10 of his rejoinder affidavit that he was 'Turk' by caste and the deceased original tenure holders were 'Pathan' by caste. Interestingly, in Paragraph No. 10 of his rejoinder affidavit, the petitioner also admits that he is not a blood relation of the deceased original tenure holders but was affectionately referred as nephew by the deceased original tenure holders. The aforesaid statement in Paragraph No. 10 of the rejoinder affidavit, demolishes the case of the petitioner. It is evident that the petitioner is not the heir of the respondents because of any blood relationship with them and, therefore, the claim of the petitioner has been rightly rejected by the Deputy Director of Consolidation and was wrongly accepted by the Assistant Consolidation Officer on an application filed by the petitioner alleging himself to be the nephew of the deceased original tenure holders. At this stage, it would be relevant to note that in the rejoinder affidavit, the petitioner has taken up a new case that the deceased original tenure holders had executed Wills dated 8.2.1985, 6.2.1987 and 10.1.1989 bequeathing the disputed chaks in his favour. The case of the petitioner in the courts below was never based on any Will allegedly executed by the original tenure holders and the petitioner cannot be permitted to raise the said plea for the first time in this Court through a rejoinder affidavit. The case of the petitioner in the courts below was never based on any Will allegedly executed by the original tenure holders and the petitioner cannot be permitted to raise the said plea for the first time in this Court through a rejoinder affidavit. It is also evident from the different records annexed with the writ petition and the findings recorded by the Deputy Director of Consolidation that the initial order dated 9.12.2004 was a result of some fraud practised by the petitioner. It is evident from a reading of the impugned order dated 22.8.2014 passed by the Deputy Director of Consolidation that one of the Members of the Consolidation Committee before whom the parties had allegedly entered into a compromise has filed an affidavit denying his thumb-impression on the compromise. Despite repeated queries, the counsel for the petitioner has not been able to explain as to who were the parties before the Assistant Consolidation Officer with whom the petitioner entered into a compromise before the Consolidation Committee allegedly under Rule 25-A of the Uttar Pradesh Consolidation of Holdings Rules, 1954. The said query was raised by the Court in light of the admitted case of the parties that the respondents had not appeared before the Assistant Consolidation Officer. The petitioner has not been able to establish any blood relationship with the deceased original tenure holders which would bring him within the purview of Section 171 of the Act, 1950. In fact, the petitioner has admitted that he is not the nephew of the deceased original tenure holders. For the said reason, the writ petition at the instance of the petitioner challenging the order passed by the Deputy Director of Consolidation accepting the claim of the respondents is also not maintainable. 5. For all the aforesaid reasons, there is no illegality in the order dated 22.8.2014 passed by the Deputy Director of Consolidation accepting the claim of the respondents. The writ petition lacks merit and is, hereby, dismissed. 6. Interim order, if any, stands vacated.