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2020 DIGILAW 537 (UTT)

HIRDAYANAND v. STATE OF UTTARAKHAND

2020-12-04

SHARAD KUMAR SHARMA

body2020
JUDGMENT Hon'ble Sharad Kumar Sharma, J. (Via Video Conferencing) The petitioners had filed this writ petition, challenging the Revisional Court's order dated 13.03.2013, as was passed by the Deputy Director Consolidation, Udham Singh Nagar, whereby the Revision, which was preferred by the respondents being aggrieved as against the Appellate Court's order was allowed and the appellate Court proceedings under Section 11 of the Consolidation of Holdings Act were quashed, holding thereof that the Appeal under Section 11 of the Act, was the remedy which was not available to the petitioners as against the order of the Consolidation Officer. 2. If the objection, which was preferred by the petitioners is taken into consideration, in fact, the said objection, which was filed by the petitioners, they themselves have invoked the remedy under Section 20 of the Consolidation of Holdings Act and not under Section 9, as it has been shown to be there by striking of Section 20 in the objection and the justification for this Court, for the said reason is that the objection filed on 07.02.1998, contained the following reliefs:- ^^6- ;g fd mijksDr xkVk la[;k 45d jdck 4 ch?kk 7 foLok dk lhŒ,pŒ 21 ls [kkfjt dj /kkjk 9 esa fuLrkj.k rd iwoZor ugha j[kk x;k rks oknh dh viwrZuh; {kfr gksxh vkSj oknh cs?kj ckj gks tk;sxk tks pdcUnh dh ewy Hkkouk ds foijhr gksxkA /kkjk 9 ds fuLrkj.k ds iwoZ dCtk ifjorZu u fd;k tk;sA Ñik gksxhA** 3. In fact, by the relief claimed itself it was a case under Section 20 and not under Section 9, as relief was that no alteration in possession, to be made prior to deciding Section 9, meaning thereby there was an independent proceedings pending under Section 9 of the Consolidation of Holdings Act. 4. In fact, if the relief itself is taken into consideration, rectification sought for was in relation to gata No. 45, having an area of 4 bigha, 7 biswansis of land, which was sought to be made in CH21, it was claimed to be maintained during the pendency of the principal proceedings under Section 9 of the Act. 4. In fact, if the relief itself is taken into consideration, rectification sought for was in relation to gata No. 45, having an area of 4 bigha, 7 biswansis of land, which was sought to be made in CH21, it was claimed to be maintained during the pendency of the principal proceedings under Section 9 of the Act. Meaning thereby, the manner in which the relief was modulated, in fact the objection dated 07.02.1998 was not an objection which was preferred under Section 9 of the Act, but rather it was an objection which was having the trappings of under Section 20, seeking a rectification of CH21, which was prepared under Section 24A of the Consolidation of Holdings. But, however, the objection thus preferred by the petitioners was rejected by the Consolidation Officer, by an order dated 27.04.1998. Under a wrongful legal advice being aggrieved against the order dated 27.04.1998, which was rendered by the Court of Consolidation Officer in Case No. 112, the petitioners have filed an Appeal being Appeal No. 38 of 1998, Shivpoojan Vs. Nanhu and Another as to be an appeal under Section 11(1) of the Consolidation of Holdings Act. 5. It was this Appeal, which was preferred by the petitioners by invoking Section 11 of the Act, was on the pretext that as if the principal objection which was filed by the petitioners was falling under Section 9, though in fact as already dealt above; it was exclusively an objection under Section 20, because a rectification in CH21 the relief which was sought and even in the relief clause also, it showed that Section 9 proceedings was independently pending consideration and objection thus considered by the Consolidation Officer, was not under Section 9, but it was rather under Section 20 because the rectification of CH21, was sought by the petitioners in their objection. 6. The Appellate Court by the judgement dated 17.11.2004, had directed for making rectification of Gata No. 45 in the revenue records and the talika as appended with the order dated 17.11.2004. The correction made in the talika may itself, would be beyond the competence of the appellate Court while exercising powers under Section 11, which is statutorily contemplated to be an Appeal of an Order under Section 9A2 and not otherwise. 7. The correction made in the talika may itself, would be beyond the competence of the appellate Court while exercising powers under Section 11, which is statutorily contemplated to be an Appeal of an Order under Section 9A2 and not otherwise. 7. The respondents herein preferred a Revision as against the Appellate Courts' order dated 17.11.2004, whereby CH21 was directed to be rectified by the Appellate Court allegedly exercising its power as an appeal under Section 11(2), for which, he was not competent to pass an order. On a Revision being considered by the Deputy Director Consolidation being Revision No. 52/10(3)/2004-05, Nanhu Singh Vs. Hridayanand and others, the Revisional Court had made the following observations:- ^^tksr pdcUnh vf/kfu;e esa dksbZ Hkh {ks=kf/kdkj cUnkscLr vf/kdkjh dks pdksa esa la'kksèku ckcr iznÙk ugha fd;k x;kA cUnkscLr vf/kdkjh pdcUnh m/keflag uxj }kjk vius {ks=kf/kdkj ls ijs tkdj vkyksP; fu.kZ;kns'k fnukad 17-11-2004 ikfjr fd;k x;k gSA blds vfrfjDr pdcUnh desVh xzke f'keyk cgknqj }kjk fl}kUrksa ds fooj.k i= ¼lh,p&21½ esa la'kks/ku ckcr dksbZ Hkh ;kpuk ugha dh x;h gS] ,slh fLFkfr esa fuxjkuh Lohdkj fd;k tkuk o cUnkscLr vf/kdkjh pdcUnh m/kefalag uxj dk fu.kZ;kns'k fnukad 17-11-2004 fujLr fd;k tkuk U;k;laxr gSA** 8. In fact, if the finding, which has been recorded by the Deputy Director Consolidation is taken into consideration, he has simplicitor observed that the proceedings initiated by the petitioners by way of Case No. 112, in fact, since was the proceedings carried under Section 20 of the Consolidation of Holdings Act; hence it was held that the Appeal preferred by the petitioner being Appeal No. 255/100/38 was rightly rejected by the Revisional Court's order dated 13.03.2013, for the reason being that the Court of Settlement Officer Consolidation, while exercising its powers under Section 11, could not have rectified the entries which were made in CH21. 9. 9. This Court is of the view that once a statute contemplates a different set of proceedings, for e.g. Section 9, Section 20 and Section 21, under the Act, all these proceedings are independent to one another because they entail a determination of an independent issues/rights for e.g. Section 9 contemplates a right of declaration and partition; Sections 20 and 21 contemplate with regard to allocation of chaks and allotments of the land for public purposes, and that is why the Act itself has provided a different Appellate Forum which is available as against the proceedings provided under the Act and thus the Appeal under Section 21, would be the appropriate remedy which was available to the petitioners as against the order passed by the Consolidation Officer and no Appeal would have been maintainable under Section 11 and hence the order passed by the Deputy Director Consolidation cannot be faulted of, the same is upheld. Consequently, the writ petition is dismissed. 10. However, the dismissal of the writ petition of the petitioners would be without prejudice to the rights of the petitioners to avail an appropriate appellate remedy available to them in accordance with the provisions of Section 20 to be read with Section 21 of the Consolidation of Holdings Act. If the Appeal is preferred by the petitioners within a period of six weeks from the date of receipt of the certified copy of this order, the Appellate Court would liberally construe the aspect of limitation in view of the provisions contained under Section 53B of the Consolidation of Holdings Act.