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2024 DIGILAW 2416 (ALL)

Afsar Ali Khan v. Liyakat Khan

2024-11-26

CHANDRA KUMAR RAI

body2024
JUDGMENT : Chandra Kumar Rai, J. 1. Heard Sri Hari Manish Bahadur Sinha, learned counsel for the petitioners, Sri E.A. Khan, learned counsel for respondent Nos. 1, 2 & 7, Sri Syed Mohd. Khalid, learned counsel for respondent No. 5, Sri Shivaji Singh Sisodiya, learned counsel for respondent Nos. 11, 12, 20 & 21, Sri B.N. Pathak, learned Standing Counsel for the State-respondents and perused the record. 2. Brief facts of the case are that against the basic year entry of plot of Khata No. 206 Situated in village-Thiria Nijawat Khan, Pergana, Tehasil & District Bareilly as well as plot of Khata No. 464 recorded in C.H. Form-45, three sets of objection were filed. First Set of objection was filed by Shafi Raza Khan & others, second set of objection was filed by custodian enemy property and third set of objection was filed by Abdul Wahid Khan. Consolidation Officer vide order dated 16.09.2015 dismissed the objection of respondent No. 1 and divided the share giving 1/32 share to petitioners and 1/2 share was ordered to be recorded as custodian property. Against the order of Consolidation Officer dated 16.09.2015 appeals under Section 11 (1) of Uttar Pradesh Consolidation and Holdings Act, hereinafter referred to as U.P.C.H. Act, being Appeal Nos. 90/2015-16 ( Abrar Khan and others vs. Liyakat Khan and others ) and Appeal No. 131/15-16 ( Shafi Raza and others vs. Abrar Khand and others ) were filed by petitioner and respondent No. 1 before the Settlement Officer, Consolidation, Bareilly. The aforementioned appeals were heard together and vide order dated 19.05.2016 the Appeal No. 131/15- 16 was dismissed, while Appeal No. 90 of 2015-16 was allowed. Against the appellate orders dated 19.05.2016, revisions under Section 48 U.P.C.H. Act were filed by both the parties, which were registered as Revision No. 2016531213000007 ( Shafi Raza and others vs. Abrar Khan and others ) and Revision No. 2016531213000008 ( Afsar Ali Khan and others vs. Liyakat Khan and others ). The aforementioned revisions were heard by the Deputy Direction of Consolidation, Bareilly, who vide order dated 28.05.2018 allowed both the revisions and set aside the orders of Consolidation Officer dated 16.09.2015 as well as Settlement Officer, Consolidation dated 19.05.2016 and remanded the matter back before the Consolidation Officer, Bareilly, to decide the matter afresh after affording proper opportunity of hearing to both the parties. Hence this writ petition on behalf of petitioners for following relief:- "Issue a writ, order or direction in the nature of certiorari and quash the impugned order dated 28.05.2018 (Annexure No. 6 to the writ petition) passed by Deputy Director of Consolidation in both revision and remand back to the Deputy Direction of Consolidation to decide revision as fresh." 3. This Court entertained the matter on 20.08.2018 and passed the following order:- "Heard learned counsel for the petitioners and learned Standing Counsel. The contention of learned counsel for the petitioners is that in view of amendment of Section 48 Sub Section 3, it is apparent that Deputy Director of Consolidation has power to examine the correctness and propriety of any order includes the power to examine any finding either of fact or law, recorded by any subordinate authority and also includes the power to re-appreciate any oral or documentary evidence. Matter requires consideration. Notice on behalf of respondent no. 25 has been accepted by learned Standing Counsel. Issue notice to respondent nos. 1 to 24 returnable at an early date. Steps be taken within ten days by registered/speed post. All the respondents are directed to file their counter affidavits within six weeks. Till the next date of listing, the effect and operation of impugned order dated 28.05.2018 passed by Deputy Director of Consolidation in Revision Nos. 2016531213000007 and 2016531213000008 shall remain stayed." 4. Counsel for the petitioners submitted that the dispute has been decided by Consolidation Officer and Settlement Officer Consolidation after considering the evidence on record. He submitted that the petitioners and contesting respondents were not satisfied with the order of the appellate court, accordingly, they have filed revision under Section 48 of U.P.C.H. Act. He further submitted that the Deputy Director of Consolidation, instead of deciding the revisions on merit, has remanded the matter back before the Consolidation Officer, Bareilly, which is abuse of process of law. He further submitted that in view of provisions contained under Section 48 Explanation-3 of the U.P.C.H. Act, the Deputy Director of Consolidation should decide the entire dispute on merit. He further submitted that the impugned revisional order passed by Deputy Director of Consolidation be set aside and the matter be sent back before the Deputy Director of Consolidation to decide the revision on merit himself rather to remand the matter before the Consolidation Officer, Bareilly for fresh adjudication. 5. He further submitted that the impugned revisional order passed by Deputy Director of Consolidation be set aside and the matter be sent back before the Deputy Director of Consolidation to decide the revision on merit himself rather to remand the matter before the Consolidation Officer, Bareilly for fresh adjudication. 5. On the other hand, learned counsel appearing for the private respondents as well as learned Standing Counsel for the State submitted that no interference is required against the order impugned passed by Deputy Director of Consolidation remanding the matter back before the Consolidation Officer to decide the revisions afresh in accordance with law. They submitted that the order impugned is a remand order, as such, the writ petition is not maintainable. They further submitted that petitioners have opportunity to appear before the Consolidation Officer, who will decide the matter afresh in accordance with law rather writ petition before this Court under Article 226 of the Constitution of India. 6. I have considered the arguments advanced by the learned counsel for the parties and perused the record. 7. There is no dispute about the fact that title objection filed under Section 9A (2) of U.P.C.H. Act, has been decided by Consolidation Officer and appeals filed by both the parties have also been decided by Settlement Officer Consolidation, Bareilly. There is also no dispute about the fact that against the order of Consolidation Officer and Settlement Officer Consolidation, revison filed by both the parties have been allowed by Deputy Director of Consolidation and the matter has been remitted back before Consolidation Officer to decide the dispute afresh. 8. In order to appreciate the controversy involved in the matter perusal of Section 48 of U.P.C.H. Act will be necessary which is as under:- " Section 48 in U.P Consolidation of Holdings Act, 1953 48. 8. In order to appreciate the controversy involved in the matter perusal of Section 48 of U.P.C.H. Act will be necessary which is as under:- " Section 48 in U.P Consolidation of Holdings Act, 1953 48. Revision and reference: (1) The Director of Consolidation may call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings; or as to the correctness, legality or propriety of any order [Substituted by U.P. Act No. 8 of 1963] [other than an interlocutory order] [Inserted by U.P. Act No. 20 of 1982 (w.e.f. 10.11.1980).] passed by such authority in the case or proceedings, may, after allowing the parties concerned an opportunity of being heard, make such order in the case or proceedings as he thinks fit. (2) Powers under sub-section (1) may be exercised by the Director of Consolidation also on a reference under sub-section (3). (3) Any authority subordinate to the Director of Consolidation may, after allowing the parties concerned an opportunity of being heard, refer the record of any case or proceedings to the Director of Consolidation for action under sub-section (1). [Explanation. (1) For the purposes of this section, Settlement Officers, Consolidation, Consolidation Officers, Assistant Consolidation Officers, Consolidator and Consolidation Lekhpals shall be subordinate to the Director of Consolidation. Explanation (2) - For the purposes of this section the expression 'interlocutory order' in relation to a case or proceeding, means such order deciding any matter arising in such case or proceeding or collateral thereto as does not have the effect to finally disposing of such case or proceeding. [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". 9. This Court in the case reported in Lakshmania vs. D.D.C. Deoria , 2020 (148) RD 114 and others has considered the scope of Section 48 of U.P.C.H. Act Paragraph No. 44 of the judgment rendered in Lakshmania (supra) is as under:- " 44. In this case, the objections were filed in the year 1981, and, therefore, the amended provisions of Section 48 , operative retrospectively, would squarely apply. In this case, the objections were filed in the year 1981, and, therefore, the amended provisions of Section 48 , operative retrospectively, would squarely apply. Under the amended statute, the Revisional Court has been conferred with unique powers by virtue of the added Explanation 3 to go into the correctness, legality or propriety of an order passed by an Authority below, whether on fact or law, and includes the powers to appreciate any oral or documentary evidence. Thus, to the understanding of this Court, in view of the added Explanation by U.P. Act No. 3 of 2002, retrospectively w.e.f. 10.11.1980, the Revisional Court is in no manner inhibited from examining any question of fact or law, or appreciating evidence whether documentary or oral, virtually like any other Court of fact and law. It is a unique position that the Revisional Authority enjoys, under Section 48 of the Act, conventionally not associated with the exercise of revisional jurisdiction." 10. Considering the entire facts and circumstance of the case the revisional order dated 28.05.2018 passed by Deputy Director of Consolidation, Bareilly, is liable to be set aside and the same is hereby set aside. The writ petition stands allowed and the matter is remanded back before the Deputy Director of Consolidation, Bareilly to restore both the revisions on their original numbers and decide the same afresh after affording opportunity of hearing of both the parties, in light of the provisions contained under Section 48 of U.P.C.H. Act, expeditiously, preferably, within a period of three months from the date of production of a certified copy of this order before him. It is further directed that till the disposal of the revisions by Deputy Director of Consolidation, Bareilly, parties shall maintain status-quo and no third party interest shall be created by the parties in respect to plot in question.