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2024 DIGILAW 436 (ALL)

Chhotee v. D. D. C.

2024-02-08

DINESH PATHAK

body2024
JUDGMENT Dinesh Pathak, J Heard learned counsel for the petitioner, learned Standing counsel and perused the record on board. 2. Vide order dated 15.09.2023 passed by this Court, notices upon the private respondents are deemed to be sufficient. However, no one has appeared on behalf of private respondents, therefore, the instant writ petition is being decided exparte against them. 3. Petitioner is aggrieved with the remand order dated 20.10.1996 passed by the Deputy Director of Consolidation in Revision No.672 (Chunnu v. Smt. Tirri and others) and Revision No.673 (Smt. Tirri v. Chunnu and others). 4. Facts culled out from the record are that during Provisional Consolidation Scheme, chak no.312 had been proposed to Lalu son of Maiku. Owing to death of recorded chak holder, following four set of objections have been filed under Section 12 of U.P.C.H. Act. (i) objection filed by Lundi and others being daughters of Lalu; (ii) objection filed by the Chhotu being brother of Lalu; (iii) objection filed by Smt. Tirri (one of the daughters of Lalu) on the basis of the will deed dated 17.9.1977 said to have been executed by Lalu and; (iv) objection filed by the Chunnu, claiming himself as nephew, on the basis of will deed dated 25.9.1977 said to have been executed by Lalu. 5. Consolidation Officer, vide order dated 20.03.1980, has decided the matter in favour of Smt. Tirri daughter of Lalu acknowledging the will deed dated 17.9.1977 executed in her favour. Having been aggrieved, following two appeals were preferred:- (i) Appeal No.1568 (Chunnu v. Tirri) and (ii) Appeal No.1569 (Chhotu v. Tirri). 6. Settlement Officer of Consolidation, vide order dated 12.12.1980, has dismissed the appeal No.1568, however, allowed the appeal No.1569 acknowledging the right and title of Chhotu (present petitioner) being a real brother of recorded chak holder Lalu. Having been aggrieved with the order dated 12.12.1980 passed by the Settlement Officer of Consolidation, following two revisions were preferred:- (i) Revision No.672 ( Chunnu v. Smt. Tirri and others) and (ii) Revision No.673 ( Smt. Tirri v. Chunnu and others). 7. The Deputy Director of Consolidation, vide order impugned dated 20.10.1986, has allowed both the revisions and relegated the parties before the Consolidation Officer to get the matter decided afresh. Having been aggrieved with the remand order, instant writ petition has been preferred by Chhotu. 8. 7. The Deputy Director of Consolidation, vide order impugned dated 20.10.1986, has allowed both the revisions and relegated the parties before the Consolidation Officer to get the matter decided afresh. Having been aggrieved with the remand order, instant writ petition has been preferred by Chhotu. 8. Learned counsel for the petitioner submits that the Deputy Director of Consolidation has illegally decided the revision exparte sans opportunity of hearing to the petitioner inasmuch as during pendency of the revision, Smt. Tirri has filed transfer application and, owing to the pendency of the said transfer application, hearing of the revision was deferred. However, all of sudden same has been taken for hearing and decided by exparte order dated 20.10.1986 whereas transfer application itself was decided on 30.10.1986. It is further submitted that the Deputy Director of Consolidation has remanded the matter on new fact with respect to the death of recorded tenure holder Lalu whereas none of the parties has raised any question qua date of death of Lalu. It is further submitted that, vide order impugned dated 20.10.1986, the Deputy Director of Consolidation has illegally made an observation to implead the Gaon Sabha treating the recorded tenure holder Lalu died issue-less, whereas, his daughters were alive and contested the matter. It is further submitted that under Section 48(3) of U.P.C.H. Act, the Deputy Director of Consolidation has an ample power to decide the revision on merits of the case and appraise the evidence on record instead to remit the matter before the court subordinate. It is further submitted that there is no justification to compel the parties to lead evidence on new fact. It is further submitted that sufficient evidence is already available on record to decide the revision on merits. Therefore, instant writ petition may be allowed and order impugned passed by the Deputy Director of Consolidation may be quashed being illegal, unwarranted under the law and cryptic. 9. Having considered the submissions as advanced by learned counsel for the petitioner and perusal of the record, it is manifested that instant writ petition is arising out of proceeding under Section 12 of U.P.C.H. Act to decide the succession of deceased chak holder namely Lalu. Deputy Director of Consolidation has relegated the parties before Consolidation Officer to get the matter decided afresh on merits. Deputy Director of Consolidation has relegated the parties before Consolidation Officer to get the matter decided afresh on merits. He has reopened the case on the fact of date of death of recorded tenure holder Lalu whereas sufficient evidence was available on record to decide the aforesaid point. Perusal of the orders passed by the Consolidation Officer and Settlement Officer of Consolidation reveals that they have discussed the case of each and every party in detail including the date of death of Lalu and, thereafter, decided the respective cases of the parties. The Deputy Director of Consolidation has miserably failed to discuss all the evidence available on record and illegally remitted the matter before the Consolidation Officer rather to decide the same itself on merits. The D.D.C. has not justified in reopening the case by remitting it before the Consolidation Officer whereas entire evidence was available on the record to determine the date of death of Lalu. It is not a case of any party that they have not been afforded opportunity of hearing to adduce evidence in their support. The statement of parties, copy of the family register, copy of the will deed and other documents are available on record to examine the matter on merits in exercise of power under Section 48 of U.P.C.H. Act read with its explanations. So far as plea qua deciding the revision sans opportunity of hearing accorded to petitioner is concerned, it is evident from Annexure No.5 (order sheet of the revision pending before the D.D.C.) and Annexure No.6 (order sheet of the transfer application) that vide order dated 5.2.1986 hearing of the revisions were deferred owing to the pendency of the transfer application. Thereafter, all of sudden the revisions were heard and decided, vide order dated 20.10.1986, whereas transfer application was pending and same was allowed by order dated 30.10.1986 (Annexure No.3). Thus, petitioner came with specific plea that he has not been afforded opportunity of hearing before passing the order impugned dated 20.10.1986. Having perused the order sheets of revision and transfer application, I am convinced that the revisions have been decided in absence of the present petitioner, though Smt. Tirri was heard, who had filed the transfer application. 10. It is no more res-integra that the D.D.C. has got an ample power to decide the matter on merits in exercise of it's power under Section 48 of U.P.C.H. Act. 10. It is no more res-integra that the D.D.C. has got an ample power to decide the matter on merits in exercise of it's power under Section 48 of U.P.C.H. Act. He even can take evidence and re-appriciate the evidence on record. As per Explanation 3 to Section 48 of U.P.C.H. Act, the D.D.C. has been intrusted to examine the correctness, illegality or propriety of any order including the power to examine any finding, whether of fact or law, recorded by any subordinate authority (as defined under Explanation 1), and also includes the power to reappreciate any oral or documentary evidence. 11. For ready reference, Order under Section 48 of U.P.C.H. Act is quoted herein below:- "[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] [other than an interlocutory order] 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.]" 12. [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.]" 12. In support of his submission, explaining the wide power of D.D.C. under Section 48 of U.P.C.H. Act, learned counsel for the petitioner has cited the case of Shiv Balak and others v. D.D.C., Unnao Camp Lucknow and others reported in [2010(5)A.W.C. 5307 (L.B.)] and Sita Ram v. Deputy Director of Consolidation and others reported in [2007(102)R.D.113]. 13. In this conspectus, as above, I found substance in the instant writ petition. The D.D.C. has utterly failed to exercise his power under Section 48 of U.P.C.H. Act and unjustifiable relegated the parties before the Consolidation Officer to make them indulge in long drawn litigation. As such, writ petition deserves to be allowed. 14. Resultantly, instant writ petition is allowed. Impugned order dated 20.10.1986 passed by the Deputy Director of Consolidation is hereby quashed. Parties are relegated before the D.D.C. concerned to get the revision decided afresh. Both the revision, which have been decided by order impugned dated 20.10.1986, are hereby restored to its original number. 15. It is expected that both revisions shall be decided by a reasoned and speaking order after giving opportunity of hearing to the parties concerned without granting unnecessary adjournment, expeditiously, preferably, within a period of eight months from the date of production of a certified copy of this order.