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2020 DIGILAW 191 (ALL)

Satya Narayan Shukla v. State Of U. P.

2020-01-17

PRAKASH PADIA

body2020
JUDGMENT : Prakash Padia, J. 1. Heard Sri Yogesh Mishra, learned counsel for the petitioners. 2. Learned Standing Counsel accepted notice on behalf of respondent Nos.1 to 6, Sri Azad Rai, learned counsel for respondent No.7 and Sri Abhishek Kumar, learned counsel for respondent No.8. 3. The petitioners have preferred the present writ petition challenging the order dated 31.07.2019 passed by the Deputy Director of Consolidation, Ballia, copy of which is appended as Annexure No.4 to the writ petition. 4. It appears from perusal of the record that earlier an order was passed by the Deputy Director of Consolidation on 27.6.1997. An application was filed by the present petitioners to recall the aforesaid order. On the aforesaid application, order dated 27.12.2017 was passed by the respondent No.1 by which the order dated 27.6.1997 was recalled. The order dated 27.12.2017 was challenged by the respondent No.8 before this Court by filing Writ B No.2648 of 2018 (Gorakhnath Shukla Vs. D.D.C. Ballia). In the aforesaid writ petition, an interim order was granted in favour of respondent No.8 namely Gorakhnath Shukla by the Co-ordinate Bench of this Court on 13.3.2018. The order passed on 13.3.2018 is reproduced below:- “By means of the present petition, the order dated 27.12.2017 passed by the Deputy Director of Consolidation in Restoration Application No.1118 (Brij Kumar v. Vijay Narayan & Ors.) has been challenged. By the order impugned, the Restoration Application No.1118 filed by Smt. Shakuntala Devi was allowed and the order dated 27.6.1997 on the reference under Section 48(3) of the U.P. Consolidation of Holdings Act, 1953 (in short the C.H. Act) passed by the Deputy Director of Consolidation was recalled on the ground that it was an ex-parte order. The order impugned is under challenge on the ground that a suit for partition of 1/4th share of the petitioner, Gorakhnath Shukla was decided on a compromise arrived between four co-sharers including the predecessor-in-interest of the restoration applicant namely Smt. Shakuntala (the co-sharer). After identification of the shares of the petitioner to the extent of 1/4th, separate Chak No.143-A of the petitioner has been carved out and further the reference was accepted by the Deputy Director of Consolidation vide order dated 27.6.1997. After identification of the shares of the petitioner to the extent of 1/4th, separate Chak No.143-A of the petitioner has been carved out and further the reference was accepted by the Deputy Director of Consolidation vide order dated 27.6.1997. Submission is that there is no finding with regard to the validity or correctness of the order dated 9.1.1991 passed in Appeal No.3007 based on the compromise between the parties as also the order dated 3.3.1990 in Case No.1701 by the Consolidation Officer under Section 9 of the C.H. Act, identifying 1/4th share of the petitioner. The assertion of the restoration applicant challenging the genuineness of the said order has not been accepted by the Deputy Director of Consolidation. The order dated 27.6.1997 was recalled only on the ground that the restoration applicant namely the subsequent purchaser was not heard. It is contended that after implementation of the order dated 27.6.1997, various sale deeds were executed by Brij Kumar, the predecessor-in-interest of respondent No.3. Even the share of the petitioner after identification in his chak had been sold by the predecessor of the petitioner Brij Kumar. Thus, in effect the compromise regarding identification of the share of the petitioner had been acted upon much earlier. The assertion of learned counsel for the petitioner with regard to the merits of the order dated 27.12.2017 in view of the submissions noted hereinabove requires a deeper scrutiny. Shri Manish Kumar Nigam, learned counsel appearing for respondent No.3 prays for and is granted three weeks time to file counter affidavit. One week, thereafter, is granted for filing rejoinder affidavit bringing on record the order dated 9.1.1991 passed by the Settlement Officer Consolidation as also the order dated 3.3.1990 passed by the Consolidation Officer in the proceeding under Section 9 of the C.H. Act. In the meantime, let notices be issued to respondent Nos.4 and 5 returnable at an early date. Steps to be taken within one week by both ways i.e. by ordinary process as well as Registered Post A.D. List on the date fixed in the notice. Till the next date of listing, the effect and operation of the order dated 27.12.2017 passed by the Deputy Director of Consolidation, Ballia in Restoration Application No.1118 (Brij Kumar v. Vijay Narayan & Ors.) shall remain stayed.” 5. Till the next date of listing, the effect and operation of the order dated 27.12.2017 passed by the Deputy Director of Consolidation, Ballia in Restoration Application No.1118 (Brij Kumar v. Vijay Narayan & Ors.) shall remain stayed.” 5. It is argued by Sri Yogesh Mishra, learned counsel for the petitioners that the aforesaid interim order was granted in favour of the respondent No.8 only till the next date of listing. Specific averments has been made in paragraph 9 of the writ petition that after the aforesaid interim order dated 31.3.2018 was passed, the writ petition was listed on 3.5.2018 but on the said date, interim order dated 13.3.2018 was not extended. It is further argued that after the interim order granted in favour of the respondent No.8 was not extended, an application was filed by the petitioners for compliance of the order dated 27.6.1997. On the said application, a report was submitted by the Assistant Consolidation Officer on 12.6.2019. Thereafter, the said report was placed before the Deputy Director of Consolidation on 27.6.2019. Taking into consideration of the report dated 12.6.2019, impugned order dated 31.7.2019 was passed by the Deputy Director of Consolidation to comply with the order dated 13.3.2018 in terms of Rule 109 of U.P. Consolidation of Holdings Rules, 1954. It is argued by learned counsel for the petitioners that once the interim order granted by this Court was not extended, there was no occasion for the respondent No.4 to pass the order dated 31.7.2019 6. On the other hand, learned counsel for the respondent No.8 argued that the writ petition filed by the petitioners is not maintainable. It is argued that only direction was given by the respondent No.4 to comply with the order dated 13.3.2018 passed by this Court and if there is any anomaly in the aforesaid order, petitioners have full right to approach the aforesaid authority namely respondent No.4. 7. In the rejoinder affidavit, it is argued by learned counsel for the petitioners that in spite of the fact that there is no interim order, respondents are bent upon to interfere in the possession of the petitioners. 8. Heard learned counsel for the parties and perused the record. 9. 7. In the rejoinder affidavit, it is argued by learned counsel for the petitioners that in spite of the fact that there is no interim order, respondents are bent upon to interfere in the possession of the petitioners. 8. Heard learned counsel for the parties and perused the record. 9. In the facts and circumstances of the case and without entering into merits of the case, the present writ petition is disposed of permitting the petitioners to raise all their grievances/objections before the respondent No.4 as raised in the writ petition within a period of two weeks from today along with certified copy of this order and photo copy of the present writ petition. If such a representation is filed within the stipulated period before the respondent No.4, the respondent No.4 shall pass appropriate orders in accordance with law expeditiously and preferably within a period of one month from the date of filing of such representation before him certainly after giving opportunity to the parties concerned and without granting unnecessary adjournments to either of the parties. 10. With the aforesaid observations, the writ petition is disposed of.