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2024 DIGILAW 2434 (ALL)

Jokhan v. State of U. P.

2024-11-28

CHANDRA KUMAR RAI

body2024
JUDGMENT : Chandra Kumar Rai, J. 1. Learned counsel for the petitioner is permitted to implead Settlement Officer of Consolidation as respondent no.6 in the array of the parties of the writ petition during course of the day. 2. Heard learned counsel for the petitioners and Mr. Ashish Chand Nishad, learned Standing Counsel for the State respondents. 3. The instant petition has been filed for the following reliefs: "i. issue a writ, in the nature of certiorari to quash the order dated 26.10.2023 passed by D.D.C. Gorakhpur by which the application of petitioners under Section 48 (3) of U.P.C.H. Act was illegally rejected and order dated 12.4.2022 passed by the Consolidation Officer by which the application of petitioners under Rule 109 of U.P.C.H. Rules was illegally rejected. ii. issue a writ of mandamus directing the respondent no.2 to reconsider the application of petitioners under Section 48 (3) of U.P.C.H. Act and also direct the consolidation authority to implement the order passed by the consolidation authority within stipulated time." 4. On 13.11.2024 following order was passed by this Court: "1. Stamp reporter has reported laches of 210 days in filing the instant petition, which has been explained by the petitioners in the writ petition. 2. Learned counsel for the petitioner submitted that in the proceeding under Section 9 A (2) of U.P. Consolidation of Holdings Act, 1953 Consolidation Officer has decided the proceeding vide order dated 31.3.2006. He further submitted that the appeal under Section 11 (1) of U.P. Consolidation of Holdings Act, 1953 filed by one Sunil Kumar Banerji has been dismissed by the Settlement Officer of Consolidation vide order dated 20.7.2006. He further submitted that after dismissal of the appeal, the proceeding under Rule 109-A of U.P. Consolidation of Holdings Rules, 1954 has been initiated by the petitioners on 26.8.2016. He next submitted that the revision under Section 48 of U.P. Consolidation of Holdings Act, 1953 filed by Sunil Kumar Banerji has been dismissed by the Deputy Director of Consolidation vide order dated 4.7.2018. He further submitted that village has been de-notified under Section 52 of U.P. Consolidation of Holdings Act, 1953 on 19.10.2013. He next submitted that the revision under Section 48 of U.P. Consolidation of Holdings Act, 1953 filed by Sunil Kumar Banerji has been dismissed by the Deputy Director of Consolidation vide order dated 4.7.2018. He further submitted that village has been de-notified under Section 52 of U.P. Consolidation of Holdings Act, 1953 on 19.10.2013. He further submitted that proceeding under Rule 109-A of U.P. Consolidation of Holdings Rules, 1954 has been dismissed as not maintainable by the Consolidation Officer on the ground that village has been de-notified on 19.10.2013 and the instant proceeding has been initiated on the basis of the order of Consolidation Officer dated 1.3.2006, as such, the proceeding under Rule 109-A of U.P. Consolidation of Holdings Rules, 1954 is not maintainable. He further submitted that the petitioners initiated proceedings under Section 48 (3) of U.P. Consolidation of Holdings Act, 1953 for the implementation of the orders passed by the Consolidation Authorities, which has also been dismissed vide order dated 26.9.2023. 3. Mr. Sanjay Kumar Ray, learned Standing Counsel for the State-respondents shall obtain instruction in the matter within two weeks. 4. Put up this case as fresh on 28.11.2024." 5. Learned counsel for the petitioners submitted that the petitioners have also filed an appeal under Rule 109-A (3) of U.P.C.H. Rules before Settlement Officer of Consolidation on 16.4.2022, which has been registered as Appeal No.2022540531000213. He further placed the grounds of appeal, which is annexed as Annexure No.SA-1 to the supplementary affidavit. He further submitted that the fact regarding pendency of appeal under Rule 109-A (3) of U.P.C.H. Rules could not be disclosed in the writ petition. He further submitted that necessary pleading regarding pendency of appeal has been made in the supplementary affidavit dated 22.11.2024. He further submitted that under legal advise petitioners have initiated proceedings under Section 48 (3) of U.P.C.H. Act for the implementation of the order passed in the proceedings under Section 9 A (2) of U.P.C.H. Act. He further submitted that in view of the pendency of the petitioners' appeal under Rule 109-A (3) of U.P.C.H. Rules necessary direction be issued to the Settlement Officer of Consolidation, Gorakhpur/ respondent no.6 for deciding the petitioners' appeal on merit without affecting by the order dated 26.10.2023 passed by the Deputy Director of Consolidation under Section 48 (3) of the U.P.C.H. Act. 6. Mr. 6. Mr. Ashish Chand Nishad, learned Standing Counsel submitted that the necessary direction can be issued for the expeditious disposal of the petitioners' appeal under Rule 109-A (3) of U.P.C.H. Rules. 7. I have considered the argument advanced by learned counsel for the parties and perused the records. 8. There is no dispute about the fact that the application under Rule 109-A of U.P.C.H. Rules filed by the petitioners has been dismissed as not maintainable by the Consolidation Officer on the ground that village has been de-notified on 19.10.2013 and proceeding under Rule 109-A (3) of U.P.C.H. Rules has been initiated on 25.9.2023 on the basis of the order of Consolidation Officer dated 1.3.2006 passed under Section 9 -A (2) of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as "U.P.C.H. Act"). There is also no dispute about the fact that revision under Section 48 of U.P.C.H. Act was decided finally on 4.7.2018. 9. It is material that appeal under Section 11 (1) of U.P.C.H. Act against the order of Consolidation Officer dated 1.3.2006 was decided vide order dated 20.7.2006 and revision under Section 48 of U.P.C.H. Act filed by one Sunil Kumar Banerjee was dismissed vide order dated 4.7.2018, as well as village has been de-notified under Section 52 of U.P.C.H. Act on 19.10.2013 as such, the proceedings under Rule 109-A of U.P.C.H. Rules initiated on 25.9.2023 cannot be dismissed as not maintainable. 10. Considering the entire facts and circumstances of the case, the writ petition is finally disposed of directing respondent no.6/Settlement Officer of Consolidation, Gorakhpur to decide the aforementioned petitioners' appeal no.2022540531000213, under Rule 109-A (3) of U.P.C.H. Rules in accordance with law after affording proper opportunity of hearing to both parties as well as considering the aforementioned aspect of the matter that revision was finally dismissed on 4.7.2018 & village has been de-notified on 19.10.2013. The aforementioned appeal shall be decided within period of three months from the date of production of certified copy of this order before respondent no.6. It is made clear that dismissal of revision vide order dated 26.10.2023 passed by Deputy Director of Consolidation, under Section 48 (3) of U.P.C.H. Act shall not come in the way of respondent no.6/Settlement Officer of Consolidation to decide the aforementioned appeal under Rule 109-A (3) of U.P.C.H. Rules on its own merit as mentioned above.