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2023 DIGILAW 521 (ALL)

Jyoti Jaisawal v. Additional District Magistrate

2023-02-21

DINESH PATHAK

body2023
JUDGMENT Dinesh Pathak, J. Heard learned counsel for the parties and perused the record. 2. Instant writ petition is arising out of proceeding under Rule 109- A of U.P. Consolidation of Holdings Rules. Petitioner, by way of instant writ petition, has invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, assailing the orders passed by all the three Consolidation Courts in application under Rule 109-A of U.P. Consolidation of Holdings Rules (in brevity C.H. Rules) filed on behalf of contesting respondent. She has also challenged the consequential orders dated 14.09.2022 and 05.11.2022 passed by Consolidation Officer. 3. Grievance of the petitioner is that Consolidation Authorities have illegally allowed the application under Rule 109-A of C.H. Rules filed on behalf of the contesting respondent, despite the fact that against the order dated 25.6.2001, which has been sought to be implemented, revisions were pending before the Deputy Director of Consolidation, therefore, Consolidation Authorities have got no jurisdiction to entertain the application under Rule 109-A of C.H. Rules and pass any order. 4. Facts culled out from the averments made in the writ petition are that Dhanesara (predecessor in the interest of petitioner) has moved an objection under Section 9-A(2) of U.P. Consolidation of Holdings Act, (in brevity U.P.C.H. Act), which was allowed by order dated 18.5.1985 passed by Consolidation Officer. Having aggrieved, contesting respondent has preferred appeal. Settlement Officer of Consolidation, vide order dated 25.6.2001, has allowed the appeal and quashed the order passed by the Consolidation Officer. Some of the affected persons have preferred revision, claiming them-self as successors of Dhanesara, assailing the order dated 25.06.2001 passed by Settlement Officer of Consolidation. In the meantime, to implement the order dated 25.6.2001, contesting respondent has moved an application in the year 2014 under Rule 109-A of C.H. Rules. Consolidation Officer, vide order dated 13.1.2016, has allowed the application. Having been aggrieved, petitioner has preferred appeal assailing the order dated 13.1.2016. Settlement Officer of Consolidation has dismissed the appeal vide his order dated 15.11.2020. Deputy Director of Consolidation, on revision being filed on behalf of the petitioner has dismissed the same vide order dated 10.6.2022. Subsequent there to consequential orders date 14.09.2022 and 05.11.2022 have been passed by Consolidation Officer for giving effect to the orders passed under Rule 109-A of C.H. Rules in the land record. Deputy Director of Consolidation, on revision being filed on behalf of the petitioner has dismissed the same vide order dated 10.6.2022. Subsequent there to consequential orders date 14.09.2022 and 05.11.2022 have been passed by Consolidation Officer for giving effect to the orders passed under Rule 109-A of C.H. Rules in the land record. Having been aggrieved against said orders instant writ petition has been filed by the petitioners. 5. It is submitted by counsel for the petitioner that while the revision under Section 48 of U.P.C.H. Act is pending before the Deputy Director of Consolidation, the Consolidation Authorities have no jurisdiction to entertain the application under Rule 109-A of C.H. Rules. It is further submitted that petitioner is claiming his right and title over the property in question on the basis of the unregistered Will-deed dated 3.7.2001. Assailing the order dated 25.6.2001 passed by Settlement Officer of Consolidation several heirs and legal representatives of Dhanesara have preferred the revisions. During the pendency of the aforesaid revisions, present petitioner has also preferred his revision dated 23.2.2021 assailing the order dated 25.6.2001. It is further submitted that the Consolidation Authorities have given a perverse finding with respect to the non-pendency of the revision on behalf of the petitioner. Even assuming that no revision was filed on behalf of the petitioner, revision filed on behalf of the other heirs and legal representatives of Dhanesara was pending at the relevant date, therefore, pendency of the revisions cannot be ignored by the Consolidation Authorities. It is further submitted that in the aforesaid revisions stay order dated 29.12.2001, was passed for maintaining status quo on spot. However, on 03.08.2014 all revisions were ordered to be dismissed in default. By subsequent order dated 16.12.2014, revisions were restored to their original numbers, therefore, interim order dated 29.12.2012 was automatically revived. It is next submitted that the impugned orders passed by the Consolidation Courts allowing the application under Rule 109-A of C.H. Rules and it's consequential orders are liable to be quashed being illegal, unwarranted under law and tainted with irregularities. 6. Per contra, learned counsel for the contesting respondent has contented that mere pendency of the revision is not sufficient to impede the further proceedings under Rule 109-A of C.H. Rules. 6. Per contra, learned counsel for the contesting respondent has contented that mere pendency of the revision is not sufficient to impede the further proceedings under Rule 109-A of C.H. Rules. He has made emphasis that no revision filed on behalf of the petitioner was pending at the time of the order passed by the Consolidation Officer and Settlement Officer of Consolidation in application under Rule 109-A of C.H. Rules. At very belated stage, petitioner has preferred the revision dated 23.2.2021 assailing the order dated 25.6.2001 passed by Settlement Officer of Consolidation. In this backdrop of the facts learned counsel for contesting respondent has supported the orders passed by the Consolidation Courts in allowing the application under Rule 109-A of C.H. Rules and their finding of fact with respect to the non-filing of any revision at the behest of the present petitioner. It is next contended that the instant writ petition is liable to be dismissed in limine being misconceived and devoid of merits. 7. Having considered the rival submissions advanced by the learned counsel for the parties and perusal of record, the question for consideration in the instant writ petition lies in a narrow compass as to whether the application under Rule 109-A of U.P. C.H. Rules is maintainable during pendency of the revision under Section 48 of U.P.C.H. Act, arising out of regular proceeding under Section 9-A(2) of U.P.C.H. Act, before the Deputy Director of Consolidation. As per submission made by counsel for the petitioner, application under Rules 109-A of C.H. Rules is not maintainable, inasmuch as right, title and interest of the parties over the property in question is still subjudice before the court competent. Therefore, the order passed by Settlement Officer of Consolidation is not liable to be implemented in the land record. Submissions as made by the counsel for the petitioner with respect to the non maintainability of the application under Rule 109-A of C.H. Rules is unfounded on the facts of the case and the law. Intention of legislation under Rule 109-A of C.H. Rules is to giving effect to the orders passed by the court competent in land record unless there is any legal impediment in implementation thereof. Legislation never intended to protract the lis between the parties without any valid reason by way of any judicial order or statutory provisions. 8. Intention of legislation under Rule 109-A of C.H. Rules is to giving effect to the orders passed by the court competent in land record unless there is any legal impediment in implementation thereof. Legislation never intended to protract the lis between the parties without any valid reason by way of any judicial order or statutory provisions. 8. In the given circumstances, proceeding under Section 9-A(2) of U.P.C.H. Act was initially allowed in favour of the Dhanesara (predecessor in the interest of petitioner) vide order dated 18.5.1985. However, on appeal being filed on behalf of the contesting respondent, Settlement Officer of Consolidation has quashed the order passed by the Consolidation Officer, vide order dated 25.6.2001. As per record, petitioner himself has filed a revision at a very belated stage on 23.2.2021 assailing the order dated 25.6.2001. During this period much water has flowed under the bridge, inasmuch as application under Rule 109-A of C.H. Rules filed on behalf of the contesting respondent was allowed, vide order dated 13.1.2016 passed by the Consolidation Officer and the same was affirmed in appeal filed on behalf of the petitioners, vide order dated 5.11.2020, passed by the Settlement Officer of Consolidation. At a very belated stage, after order dated 5.11.2020 passed by Settlement Officer of Consolidation, petitioner awaken and preferred revision dated 23.2.2021 assailing the order dated 25.6.2001. Bonafides of the petitioner, in the above circumstances, is under cloud. He is claiming his right, title and interest on the basis of the unregistered Will-deed dated 8.7.2001 said to have been executed by Dhanesara, who herself has died on 16.7.2001 after the order dated 25.6.2001 passed by Settlement Officer of Consolidation. Meaning thereby, Dhanesara had no legal right, title and interest over the property in question inasmuch as appeal had been decided against her, vide order dated 25.6.2001, acknowledging the right, title and interest of the contesting respondent over the property in question. There is no legal impediment in entertaining the application under Rule 109-A of C.H. Rules on behalf of contesting respondent. Even there is no specific judicial order passed by the court competent to impede the further proceeding of Rule 109-A of C.H. Rules. Mere pendency of any appeal/revision before the higher court against the order passed by the inferior court, does not amount any stay order impeding the further proceeding going on under the relevant provision of law. Even there is no specific judicial order passed by the court competent to impede the further proceeding of Rule 109-A of C.H. Rules. Mere pendency of any appeal/revision before the higher court against the order passed by the inferior court, does not amount any stay order impeding the further proceeding going on under the relevant provision of law. In the matter of Sunil Kumar v. D.D.C. Barabanki & Ors. reported in [2019 (142) RD 798], Co-ordinate Bench of this Court has held that, mere pendency of the appeal before the Settlement Officer of Consolidation does not tantamount any impediment for giving effect to the order passed by the Consolidation Officer. Restitution of the original entry which was disturbed by the order passed by the Consolidation Officer and the same was reversed by the Settlement Officer of Consolidation in appeal cannot be denied on the pretext of pendency of revision. 9. In this conspectus, as above, I am of the considered view that the application under Rule 109-A of C.H. Rules filed on behalf of the contesting respondent during the pendency of the revision before the court competent is maintainable in the eye of law. All the consolidation courts have rightly allowed the same after considering the case of the parties in detail. So far as the right, title and interest of the petitioner is concerned opportunity is still open to him to get his right, title and interest adjudicate upon before the court competent i.e. Deputy Director of Consolidation before whom revision is still pending consideration. Any outcome of the revision filed on behalf of the petitioners will affect the land record, which has been modified by the orders passed by the Consolidation Authorities under Rule 109-A of C.H. Rules, and, accordingly, land record would be corrected as per the final adjudication made by the Deputy Director of Consolidation. There is nothing on the record to demonstrate as to how petitioner is prejudiced, or if there is any likelihood of causing any miscarriage of justice to him, owing to the orders impugned. There is no illegality, perversity and the ambiguity in the orders under challenge so as to warrant the indulgence of this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. 10. As such instant writ petition, being misconceived and devoid of merits, is dismissed with no orders as to costs. 11. There is no illegality, perversity and the ambiguity in the orders under challenge so as to warrant the indulgence of this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. 10. As such instant writ petition, being misconceived and devoid of merits, is dismissed with no orders as to costs. 11. Deputy Director of Consolidation, before whom revision is pending, is hereby directed to decide the revision on its own merits without being influenced with any observation made by this Court in deciding the instant writ petition arising out of Rule 109-A of C.H. Rules. 12. Before parting, learned counsels for the parties have prayed to issue a direction for expeditious disposal of the revision pending before the Deputy Director of Consolidation concerned. 13. Considering the old matter, contesting since long, Deputy Director of Consolidation concerned is hereby directed to decide the revision in accordance with law after giving opportunity of hearing to the parties concerned expeditiously, preferably within a period of five (5) months from the date of production of certified copy of this order.