High Court
Case Details
Court No. - 18 Case :- WRIT - B No. - 952 of 2021 Petitioner :- Mohd. Majhar And 3 Others Respondent :- Deputy Director Of Consolidation And 8 Others Counsel for Petitioner :- Yashwant Singh,Kaushal Kumar Singh Counsel for Respondent :- C.S.C. Hon'ble Chandra Kumar Rai,J.
Legal Reasoning
7. There is no dispute about the fact that against the order passed in the year 1962, a miscellaneous application has been filed by the petitioner before the Deputy Director of Consolidation for recalling the order passed by the Assistant Consolidation Officer in the proceeding under Section 9- A(2) of the U.P. C.H. Act. There is also no dispute about the fact that the Deputy Director of Consolidation has rejected the petitioner's application with the liberty that petitioner should approach the appropriate court for the relief claimed in the miscellaneous application. 8. The relevant portion of order impugned dated 18.2.2021 is as under:- उभय प्ቌ कके वविदቛኋन अधधिविकቛኋगण कको ससुननके तथቛኋ पतቛኋविलली कቛኋ अविलकोकन करनके सके स्प्ቖ हहआ वक पቛኋथቕኍ मसुहम्मद विजजैर आवद दቛኋरቛኋ वदनቛኋाሪक 01-08-2016 कको सहቛኋयक चकबन्दली अधधिकቛኋरली कके आदकेश वदनቛኋाሪक 07-02-1962 कको पቛኋथरनቛኋ पत पस्तसुत वकयቛኋ गयቛኋ, धजस पर सहቛኋयक चकबन्दली अधधिकቛኋरली ककी आख्यቛኋ वदनቛኋाሪक 19-08-2016 वि चकबन्दली अधधिकቛኋरली ककी आख्यቛኋ वदनቛኋाሪक 16-09-2016 पቛኋ् हहई। जको अन्तगरत धिቛኋरቛኋ 48(3) मम दजर हहआ तथቛኋ वदनቛኋाሪक 27-04-2017 कको न्यቛኋयቛኋलय दቛኋरቛኋ वनस्तቛኋररत कर वदयቛኋ गयቛኋ , धजसकके वविरू्ቍ मको० सቛኋवबत आवद दቛኋरቛኋ पसुनस्थቛኋरपन पቛኋथरनቛኋ पत पस्तसुत वकयቛኋ गयቛኋ, जको वदनቛኋाሪक 30-07-2018 कको स्विलीकቛኋर हहआ तथቛኋ आदकेश वदनቛኋाሪक 27-04- 2017 वनरस्त कर वदयቛኋ गयቛኋ। इस पकቛኋर मቛኋ० उच्च न्यቛኋयቛኋलय कके आदकेश वदनቛኋाሪक 06- 01-2020 कके अनसु्ቅम मम पቛኋथरनቛኋ पत कቛኋ वनस्तቛኋरण वकयቛኋ जቛኋनቛኋ हजै। उलकेखनलीय हजै वक सहቛኋयक चकबन्दली कके आदकेश वदनቛኋाሪक 07-02-1962 कके वविरु्ቍ पቛኋथरनቛኋ पत वदनቛኋाሪक 01- 08-2016 कको पस्तसुत वकयቛኋ गयቛኋ हजै , जको वविधधिसाሪगत नहीሻ हजै, क्योሱवक वकसली भली आदकेश कको पककीणर पቛኋथरनቛኋ पत कके आधिቛኋर पर खणणቄኌत वकयके जቛኋनके कቛኋ पቛኋवविधिቛኋन नहीሻ हजै। अगर पቛኋथቕኍ मसु० विजजैर सहቛኋयक चकबन्दली अधधिकቛኋरली कके आदकेश वदनቛኋाሪक 07-02-1962 सके ्ቌसुब्धि हजै, तको उन्हम वनयमቛኋनसुसቛኋर सम्ቌ न्यቛኋयቛኋलय मम वनधिቛኋरररत धिቛኋरቛኋ कके अन्तगरत चቛኋरቛኋजकोई करቛኋनली चቛኋवहए। ऐसली णस्थवत मम पቛኋथቕኍ कቛኋ पककीणर पቛኋथरनቛኋ पत वविधधिसाሪगत नहीሻ हजै , जको वनरस्त वकयके जቛኋनके यकोग्य हजै। आदकेश अततः आदकेश हहआ वक उपरकोक तथ्योሱ एविाሪ वविविकेचनቛኋ कके आधिቛኋर पर पቛኋथቕኍ कቛኋ पककीणर पቛኋथरनቛኋ पत वदनቛኋाሪक 01-08-2016 वनरस्त वकयቛኋ जቛኋतቛኋ हजै। बቛኋद आविश्यक कቛኋयरविቛኋहली साሪवचत अवभलकेखቛኋगቛኋर हको। वदनቛኋाሪकतः- 18-2-21 ह०अपठनलीय (मधिधूसधूदन दधूबके) उप साሪचቛኋलक चकबन्दली, आजमगढ़। 9. It is relevant to mention that if somebody wants to challenge the order passed under U.P. Consolidation of Holdings Act, the complete procedure has been provided for filing restoration/recall/appeal/revision subject to limitation provided under the U.P.C.H. Act. The provisions relating to bar and finality of the consolidation proceeding has been provided under sections 49 & 52 of U.P.C.H. Act with certain conditions. In the present matter the order dated 7.2.1962 has been challenged on 1.8.2016 i.e. after 54 years by way of Misc. Application before Deputy Director of Consolidation which is nothing but abuse of process of law. There is no pleading in the writ petition about the initiation and conclusion of consolidation proceeding in the village however in the objection filed by contesting respondent to the restoration application filed by petitioners, it has been stated that first consolidation took place in the village in the year 1959-60 and second consolidation operation is going on in the village in question as such challenge to the order passed in first consolidation operation by way of Misc. application after about 54 years has been rightly refused by the Deputy Director of Consolidation vide impugned order dated 18.2.2021. 10. Considering the entire facts and circumstances of the case as well as considering the finding recorded by the Deputy Director of Consolidation no interference is required by this Court under Article 226 of the Constitution of India.
Arguments
1. Heard Sri Ravi Kant Singh, counsel for the petitioners and the learned standing counsel for the state-respondents. 2. The instant writ petition has been filed for quashing the order dated 18.2.2021, passed by respondent no.1 in reference no.42 under Section 48(3) of the U.P. C.H. Act. 3. Brief facts of the case are that against the order dated 7.2.1962 passed by the Assistant Consolidation Officer under Section 9-A(2) of the U.P. C.H. Act in respect to khata no.296, plot no.1805, area 490 kari, situated in village Amilo, Tahasil- Sadar, District - Azamgar, a miscellaneous application dated 1.8.2016 has been filed on behalf of petitioner before Deputy director of Consolidation with the prayer that necessary inquiry be conducted with respect to the order dated 7.2.1962 passed by Assistant Consolidation Officer in Case No.1182 and entry be corrected accordingly. The report was submitted in the matter and the case was registered as reference Case No.10 under Section 48(3) of U.P. C.H. Act before Deputy Director of Consolidation. The aforementioned reference Case No.10 was decided vide order dated 27.4.2017 by which order dated 7.2.1962 passed by the Assistant Consolidation Officer in Case No.1182 was set aside. Against the order dated 27.4.2017, contesting respondents filed an application dated 8.6.2017 for setting aside the order dated 8.4.2017 along with the prayer for condonation of delay, stating that order dated 27.4.2017 has been passed after about 55 years from the date of the order dated 7.2.1962 as well as in violation of principle of natural justice. The restoration application dated 8.6.2017 filed by contesting respondents was allowed and reference case was again registered as reference Case No.42 and the same was heard and disposed of in view of the direction issued by this Court in Writ B No.3 of 2020 to decide the matter within 6 months. The Deputy Director of Consolidation vide order dated 18.2.2021 rejected the misc. application dated 1.8.2016 filed by petitioners. Hence, this writ petition. 4. Counsel for the petitioners submitted that petitioners filed a Misc. Application to recall the order dated 7.2.1962, passed in the proceeding under Section 9-A(2) of the U.P. C.H. Act by the Assistant Consolidation Officer. It is further submitted that the application has been rejected arbitrarily in spite of the report submitted by consolidation authorities that record of the case is not available. He also submitted that the order passed on 7.2.1962 is fraudulent, as such, the application filed by the petitioner should be allowed. It is also submitted that the Deputy Director of consolidation has illegally rejected the application on the ground that the petitioner should avail the appropriate remedy for recalling the order dated 7.2.1962. 5. On the other hand, learned standing counsel submitted that the petitioners should file an appropriate application before the court concerned. It is also submitted that the miscellaneous application before the Deputy Director of Consolidation is not maintainable. It is also submitted that the Deputy Director of Consolidation while passing the impugned order, has mentioned this fact that petitioner should avail the appropriate remedy before the appropriate court. He further submitted that filing of miscellaneous application after inordinate delay is abuse of process of law. 6. I have considered the arguments advanced by learned counsel for the parties and perused the records.
Decision
11. The writ petition has no merit and is, accordingly, dismissed. Order Date :- 21.4.2023/C.Prakash Digitally signed by :- CHANDRA PRAKASH High Court of Judicature at Allahabad