Writ Petition No. 714 of 2003 · Uttarakhand High Court

assisted by Sri Kamlesh Lohni, Advocate holding brief of Sri Jagdish Bisht, learned counsel for the petitioner, Sri R.C. Arya, learned brief holder for respondent nos.1 and 6 as well as Sri Rajendra Singh, learned counsel for respondent nos.2 to 5. By means of this writ petition, the petitioner has sought writ in the nature of certiorari to quash the order dated 18.7.2003 passed by Deputy Director Consolidation, District Haridwar (annexed as Annexure No.6 to this writ petition). Brief facts of the case, as narrated in the writ petition, are that the petitioner being aggrieved with the provisional consolidation scheme filed an objection (Annexure No.1 to this writ petition) before the Assistant Consolidation Officer, Manglore on 14.2.1989 stating therein that the entries made in CH 5 in relation to Khata No.81 of gata No.953 constituting of total area of 0-1-18 has been wrongly recorded in the name of respondent nos.2 to 5. Besides the objection of the petitioner, respondent nos.2 to 5 also filed objection before the Assistant Consolidation Officer. The Assistant Consolidation Officer vide his order 2 dated 7.9.1989 (Annexure No.2 to this writ petition), without going into merits, decided the case on the basis of comprise entered into by the respondent nos.2 to 5. Feeling aggrieved with the aforesaid order, the petitioner preferred an appeal u/s 11 (1) of U.P. Consolidation of Holdings Act, 1953 (hereinafter to be referred as the Act). On this, Assistant Settlement Officer Consolidation vide his judgment dated

4.3.2003 (Annexure No.4 to this writ petition) allowed the appeal of the petitioner and remanded the matter for decision afresh before the Consolidation Officer. Being aggrieved with the remand order dated 4.3.2003, the respondent nos.2 to 5 preferred a revision bearing no.716/2003 u/s 48 of the Act. The same was allowed by the Deputy Director of Consolidation, Haridwar vide its judgment and order dated 18.7.2003 (Annexure No.6 to this writ petition). Vide this order, the order dated 7.9.1989 passed by Assistant Consolidation Officer was upheld and the remand order dated 4.3.2003 passed by Assistant Settlement Officer of Consolidation was set aside. Against that judgment and order dated 18.7.2003, the petitioner have preferred the present writ petition. Learned counsel for the respondent nos.2 to 5 was allowed to file the counter affidavit, however, no counter affidavit has been filed by them.

Learned counsel for the petitioner argued that the order dated 4.3.2003 passed by Assistant Settlement Officer Consolidation, Haridwar is a remand order, by which it was directed that the Consolidation Officer shall decide the matter on merit, after giving proper opportunities of written and oral evidence to the parties. In this way, it is clear that this remand order is not a final order. He further argued that as the order dated 4.3.2003 is an interlocutory order, hence, the revision preferred by the respondent nos.2 to 5 3 under Section 48 of the Act, is not maintainable at this stage. Reliance was placed on the judgment of the Apex Court reported in AIR 1981 Supreme Court 707 as well as the judgment reported in 1996 RD 104. Learned counsel for the petitioner further argued that as per Section 48 of the Act, the revision is only maintainable against the case decided finally. Learned counsel for the respondent nos.2 to 5 has also conceded on this point.

It is to be seen now whether the remand order dated 4.3.2003 passed by Assistant Settlement Officer Consolidation was not open to revision it being an interlocutory order within the meaning of Section 48 of the Act which excludes, in no uncertain terms, an interlocutory order from the purview of revisional jurisdiction. An order of remand being (cid:145)an interlocutory order(cid:146) cannot terminate the proceeding and its correctness can be challenged in appeal from the final order. (Reliance is placed on the judgment of Apex Court in case of (cid:147)Kshistish Chandra Bose V. Commissioner of Ranchi(cid:148) reported in AIR 1981 Supreme Court 707 as well as on the judgment of Hon(cid:146)ble Allahabad High Court in case of (cid:147)Ajab Singh and others Vs. Jt. Director of Consolidation(cid:148) reported in 1996 RD 104). In view of these authorities, I am of the considered view that the order of remand passed Assistant Settlement Officer Consolidation was an (cid:145)interlocutory order(cid:146) and, therefore, not open to revision.

Its legality can, however, be examined in revision against the final judgments and orders rendered pursuant to the order of remand and if at that stage the Deputy Director of Consolidation finds that the order of remand was legally erroneous, all subsequent proceedings, viz. the order passed by Consolidation Officer pursuant to the remand order as also the appellate order passed in 4 appeal preferred against such order of the Consolidation Officer would become non est. Since the order of remand is neither appealable nor revisable, its correctness is open to examination at subsequent stage when the matter comes up finally in revision. The impugned order dated 18.7.2003 is therefore, liable to be quashed on this ground. In the above circumstances, having considered submissions of the learned counsel for the parties and after going through the material available on record, I am of the view that the present writ petition is liable to be allowed.