Uttarakhand High Court
Alok Pratap Chand And Another ... vs Bharat Bhushan Bhatnagar on 2 March, 2020
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No.2352 of 2017 (M/S)
Alok Pratap Chand and another ......Petitioners
Versus
Bharat Bhushan Bhatnagar ....Respondent
Present: Mr. Anant Dhaka, Advocate holding brief of Mr. Jitendra Chaudhary, Advocate for the
petitioners.
Mr. M.S. Bhandari, Advocate for the respondent.
Hon'ble Sharad Kumar Sharma, J.
The precise cause, for the petitioner to file the present writ petition, is that by virtue of the revisional courts, impugned order/ judgment; as rendered in the Consolidation Revision No.52/02 of 2015-16, Bharat Bhushan Bhatnagar vs Alok Pratap Singh and another, the revisional court of Deputy Director Consolidation while exercising its powers of revision under Section 48 of the Act, had allowed the revision vide its impugned judgment dated 17.03.2017. As a consequence of rendering of the impugned judgment by the Revisional court, it had set aside the order passed by the court of Consolidation Officer dated 11.09.2015, by virtue of which the Consolidation Officer had rejected the recall application filed by the respondent on 25.08.2014 i.e. almost after 22 years, seeking to recall the order/judgment dated 21.07.1992, rendered by the court of Consolidation Officer, in Case No.1194 of 1992, Ramesh Pratap vs Balbeer Swaroop; by which the objection which was preferred by the predecessors of petitioner under Section 9 (A) (2) for declaration of his title, has been allowed, and they have been directed to be recorded in the revenue records as tenure ‐2‐ holder after deleting the name of Balveer Swaroop, from the revenue records.
2. As a consequence of impugned revisional courts judgment dated 17.03.2017, the recall preferred by respondents after 22 years on 25.08.2014, to recall the judgment dated 21.07.1992, has been allowed and order of rejecting recall application dated 11.09.2015 as passed by the Consolidation Officer has been set aside directing the court of Consolidation Officer to reconsider the objection under Section 9A (2), as a fresh Case No.1194 of 1992, which otherwise earlier stood decided on 21.07.1992, on its own merits.
3. The brief facts which emerges for consideration in the present writ petition are, that the backdrop under which the proceedings have reached up to this stage, is that with the advent of the consolidation proceedings by issuance of notification under Section 4 of the Consolidation of Holdings Act on 20.09.1986, the village where the land in dispute is situated was brought under Consolidation proceedings. The objection from the respective tenures as against the records prepared by the Consolidation Authorities under Section 9 of the Act, who are adversely affected, was invited from the respective tenure holders. In consonance thereto an objection by invoking the provisions contained under Section 9A(2) of the Consolidation of Holdings Act was filed by the predecessor of the petitioner in relation to Gata No.41/1 having an area of 1.6824 hectares ‐3‐ situated in Village Sahdaura, Tehsil Kiccha, District Udham Singh Nagar praying for the following relief:
Þvr% Jheku th ls izkFkZuk gS fd xzke 'kgnkSjk ds xkVk 41@1 jdck 1-6824 ls izfroknh dk uke [kkfjt djrs gqq, eq[kkyQkuk dCts ds vk/kkj ij izkFkhZ dk uke ladze.kh; Hkwfe/kjh esa ntZ djus dh d`ik djsaAß
4. In the objection thus preferred on 21.02.1992 by Ramesh Pratap Chand i.e. the predecessor of the petitioners, which has registered as Case No.1194 of 2016-17, the proceedings drawn before the competent court of Consolidation Officer Kiccha; and the Consolidation Officer after considering the veracity of the rival contentions and the claim as raised to be recorded in the revenue records, as against the disputed khasra; which constituted to be a part of the objection preferred under Section 9-A(2); it was adjudicated by the Court of Consolidation Officer on merits by an order/judgment dated 21.07.1992.
5. What is pertinent to be observed at this stage itself is that if the order of the Consolidation Officer dated 21.07.1992, deciding the objection under Section 9 (A) (2), if that itself is taken into consideration, it recorded the finding that the predecessor of the present respondent Balveer Swaroop was earlier noticed, he had thereafter appeared in the proceedings of Case No.1194 of 2016-17, before the court of Consolidation Officer. He recorded his statement, admitting the fact of possession of the predecessor of the petitioner over disputed land and consequently, he as per the consensus extended by him, with regards to the effect of admitted possession, the Consolidation Officer on 21.07.1992; directed to delete the name of ‐4‐ Balveer Singh, S/o Mr. Ram Swaroop; from the revenue record and to record the name of Ramesh Pratap Chand S/o Mr. Nagandra Pratap Chand, who objected, by filing his objection under Section 9A(2) on 21.02.1992. What is relevant to be observed at this juncture itself is that when in the proceedings before the Consolidation Officer, which had culminated by the decision dated 21.07.1992; itself was taken into consideration, it is reflected that the report was submitted by the Consolidation Officer on 26.02.1992, which was taken as to be the basis for determining the effect of possession of the predecessor of the petitioner for last 25 to 26 years, while allowing the objection vide judgment dated 21.07.1992 of the Consolidation Officer.
6. The case of the petitioner is that apart from the fact that before the Consolidation Officer; Late Balveer Singh was noticed; and he has also appeared and participated in the proceedings and had even recorded his statement and it was then only the judgment dated 21.07.1992 was passed on merits. Hence it cannot be said that the judgment dated 21.07.1992; happens to be an ex-parte judgment decided by the Consolidation Officer by way of Case No.1194/92-1993. It is not only that after the determination of rights which was made by the judgment dated 21.07.1992; the predecessor of the petitioners had invoked the proceedings under Section 34 of Land Revenue Act, 1901, by way of Mutation Case No.30/287 of 2000-2001, Bharat Bhushan vs. Balveer Swaroop Bhatnagar. When the court of Tehsildar was seized with the proceedings it had yet again recorded the finding that in the proceedings held before it under Section 34 of the Act of 1901, that notice were served by publication on Balveer Singh, he ‐5‐ had yet again participated in the proceedings and no objection was filed and consequently the mutation application too was allowed directing recording the name of the petitioner in the revenue records by an order dated 09.04.2001; passed by Tehsildar, Kiccha, District Udham Singh Nagar.
7. At this stage, it would be pertinent to observe that after the culmination of the proceedings before the Consolidation Officer and after participation and exchange of pleading on 21.07.1992, and even after culmination of the proceedings yet again before the court of Tehsildar after the order dated 09.04.2001; both the proceedings had recorded the finding that the predecessors of the petitioner Balveer Singh had participated in the proceedings. Meaning thereby at the most even if at all it could be taken for granted, as argued by the counsel for the respondent that Balveer Singh was not heard at the stage when Section 9A(2) application preferred by the predecessor of the petitioner was being argued, if this argument was at all tenable, then obviously as soon as the mutation proceedings was brought into question and allowed by an order dated 09.04.2001, of Tehsildar, in that eventuality, it was even at that stage itself that the respondent or his predecessors ought to have drawn an appropriate proceeding before a competent court, for setting aside the order dated 21.07.1992 if it is alleged to be ex-parte or by filing an appeal against the said order of Consolidation Officer, under Section 11(2) of the Consolidation of Holdings Act. But the fact remains that after the mutation has been carried by the order dated 09.04.2001 of Tehsildar under law the presumption of the validity of the entries would be drawn in view of the provisions contained under Section ‐6‐ 44 to be read with Section 57 of the Uttar Pradesh Land Revenue Act, 1901 which are quoted hereunder:-
"44. Presumption as to entries in the annual register.-All entries in the annual register shall, until contrary is proved, be presumed to be true.
57. Presumption as to entries.-All entries in the record-of-rights prepared in accordance with the provisions of this Chapter shall be presumed to be true until the contrary is proved ; and all decisions under this Chapter in cases of dispute shall, subject to the provisions of sub-Section (3) of Section 40, be binding on all Revenue Courts in respect of the subject-matter of such disputes; but no such entry or decision shall affect the right of any person to claim and establish in the Civil Court may interest in land which requires to be recorded in the registers prescribed by [* * *] Section 32."
8. In the absence of the challenge, being given initially even to the order of 09.04.2001, as passed by Tehsildar in the proceedings under Section 34 of Land Revenue Act 1901 by recall or by filing of an appeal under Section 210 of the Act, then at least the said proceedings could be taken as to be cut of, of the knowledge to the predecessor of the respondent to the orders dated 21.07.1992 as passed by Consolidation Officer in the proceedings under Section 9 (A)(2), and at least it was at that point of time when at least he had an opportunity to have his recourse of filing a recall application by invoking the provisions contained under Section 41 of Consolidation Act to be read with Chapter IX/X of the Land Revenue Act of 1901; for filing of an appropriate recall application; if at all according to him, the order passed by the Consolidation Officer was an ex-parte order. Ever since 1992 or ever since 2001, thereafter, the respondent had kept silent in relation to the declaration of right made in favour of the petitioners' predecessors till 2014; when for the first time the respondent ‐7‐ had filed an application for recall invoking the provisions contained under Section 41 of the Consolidation Act, to be read with Section 201 of the Land Revenue Act of 1901. The said application as preferred by the respondent on 25.08.2014; the predecessors of the respondent have recorded the reason particularly as that contained in paras 3-4 of the recall application that they could not gather the knowledge of the proceedings of Case No.1194/1992-93 and furthermore that no notice was served upon him and hence they could not get the knowledge, hence, the order dated 21.07.1992; was an ex-parte order, even that in the Consolidation proceedings an imposter had appeared and recorded the statement of their predecessor, which according to them deserves to be recalled and their entries which has been expunged as a consequence of the order dated 09.04.2001 of Tehsildar under Section 34 of Land Revenue Act 1901, deserves to be restored.
9. The said recall application of the respondents dated 25.08.2014, was taken into consideration by the court of Consolidation Officer and by virtue of the order dated 11.09.2015, the same was rejected by the court of Consolidation Officer, alongwith the delay condonation application, which too stood rejected. Being aggrieved against the said order the revision was preferred under Section 48 of Consolidation of Holdings Act, by the predecessor of the respondent being Revision No.52/02/2015-16. The said revision has been allowed by the impugned Revisional Court's judgment dated 17.03.2017, as a consequence thereto ‐8‐ the proceedings under Section 9 A(2) of 1992, has been remitted back for its fresh decision by the court of Consolidation Officer.
10. The counsel for the petitioner has challenged the said impugned judgment dated 17.03.2017, on the following grounds:-
1. That in the proceedings before the Consolidation Officer as decided on 21.07.1992; the predecessor of the respondent was impleaded as a party, he had appeared before the court, and has recorded his statement and then only the decision was rendered on 21.07.1992 on merits, hence the order was not ex-parte to attract Section 41 of the Act.
2. He further submits that when under the strength of the adjudication of 21.07.1992, which was a declaration of right, made under Section 9 (A)(2) of the Act, when the mutation proceedings under Section 34 of the Land Revenue Act of 1901, were initiated even in those proceedings too the contest was put in and the same was also adjudicated on merits, by an order dated 09.04.2001, by way of Case No.30/287 of 2000-01, which yet again has attained finality as no appeal was filed under Section 210 of the Land Revenue Act, 1901, by the respondents.
3. The revenue entries recorded on the basis of judgment dated 21.07.1992 of declaration of rights, the entries recorded thereafter, becomes final under Section 44 and 57 of the Land Revenue Act, 1901.
‐9‐
11. The petitioner contends that if at all the knowledge of the judgment dated 21.07.1992; if could be said that it was not acquired by the respondents earlier; then at least they had acquired the knowledge of the judgment dated 21.07.1992, when the proceedings under Section 34 of Land Revenue Act, 1901, was decided on 09.04.2001 by Tehsildar, and that too after their contest. Hence filing of a recall application at a much later only stage only on 25.08.2014, surprisingly the recall application which has been preferred by the respondent is by invoking the provisions contained under Section 41 of Consolidation Act, 1953 to be read with Section 201 of the Land Revenue Act of 1901, alleging thereof that the judgment dated 21.07.1992 was ex-parte. If the provisions of Section 41 of the Uttar Pradesh Consolidation of Holdings Act, 1953 itself is taken into consideration, which reads as hereunder:-
"41. Application of U.P. Land Revenue Act, 1901- Unless otherwise expressly provided by or under this Act, the provisions of Chapters IX and X of the U.P. Land Revenue Act, 1901 shall apply to all proceedings including appeal and applications under this Act."
12. Section 41, it simply attracts the applicability of the provisions contained under Chapter IX and X of the Land Revenue Act of 1901, and Chapter IX of the Land Revenue Act 1901, as contained in it the provisions under Section 201, which provides with the power of recall only of an order/judgment which is passed ex-parte or by default. The provision of Section 41 of Consolidation Act, if it is to be read with Section 201; where it grants an ambit of interference by recall, it's only as against an ex- parte order, its not the case at this stage by the respondents, when the recall which was filed on 25.08.2014, by the predecessor of the present ‐ 10 ‐ respondent, for the reason being and as it has already observed that the judgment dated 21.07.1992; was a judgment which was passed after a contest and also because of the fact that an order of 09.04.2001, which was rendered thereafter, as a consequence thereto in the mutation case, too was on a merit adjudication; after the contest put in by the predecessor of the respondent and hence until and unless it is established by the applicant to the application for recall, under Section 41; that the judgment happens to be an ex-parte. The provisions contained under Section 41 of the Consolidation Act of 1953, to be read with Section 201 would not be attracted in the circumstances of the present case, which is not a case made out or established by the respondent before the courts below.
13. The plea taken by the respondent counsel in the recall application, that an imposter was produced before the court of Consolidation Officer, while recording the statement on their behalf as referred in para 3 and 4 of the application for recall, is a theory, which cannot be accepted by this Court, at this belated stage for the reason, that if it is to be read in consonance to the proceedings which was held under Section 34 of Land Revenue Act 1901; thereafter then too at least the knowledge would be attributed to the respondent on 09.04.2001 or at least on the date when he has put in appearance in Section 34 proceedings. Even after acquiring the knowledge in 2001; there was no reason assigned in the application of recall which was filed only on 25.08.2014, by respondent to recall the judgment dated 21.07.1992 why it was filed belatedly; despite of having acquired the knowledge, yet the application for recall under Section ‐ 11 ‐ 41 of the Act, since having being filed on 25.08.2014; was yet again highly belated as per the provisions of the Limitation Act, which has been made applicable in the proceedings of recall application preferred under Section 41 to be read with Section 201 of Land Revenue Act of 1901.
14. The said application for recall was decided by the Court of Consolidation Officer by an order dated 11.09.2015 and consequently while rejecting the delay condonation application; it has also resulted into the rejection of restoration application dated 25.08.2014.
15. It is being aggrieved against the said order of rejecting the restoration application of the respondents that they had preferred a revision under Section 48 of the Act, and the revision thus preferred by them being Revision No.52/02 of 2015-16; has been allowed by the court of Deputy Director Consolidation, by the impugned judgment dated 17.03.2017, which is under challenge before this Court. Apart from the reasons, which has already been given above and which is also a ground of challenge by the petitioner to the impugned judgment dated 17.03.2017; he had placed reliance on a Full Bench judgment reported in 1997 (31) ALR, 681, Smt. Shivraji and Others v. Dy. Director of Consolidation, Allahabad and others, wherein in its para 40 it is held as under:-
"40. On the discussions in the foregoing paragraphs, it is our considered view that it is not open for the consolidation authorities to review/recall their final orders passed in proceedings under the U.P. Consolidation of Holdings Act in exercise of inherent powers. Thus, the question formulated earlier is answered in the negative.
‐ 12 ‐ The writ petition will be placed before the appropriate Bench for disposal in the light of this judgment."
16. The Full Bench of Allahabad High Court has held that the Consolidation Courts; which are statutory Courts created under an Act are judicial courts, and are not vested with the powers of review or recall until and unless the same is specifically vested with them under the statute itself and procedure which is contemplated under the Act, under which it is created. There could be an argument to be carved out by respondent that his case in accordance with the grounds taken in the recall application dated 25.08.2014, it was attracting the provisions contained under Section 41 of the Act; but I am not in agreement with the argument extended by the counsel for the respondent the reason being because the scope of interference under Section 41 of Consolidation Act to be read with Section 201 of Land Revenue Act, is specifically attracted only where it is established that the order/judgment sought to be recalled invoking Section 41 of the Act, happens to be an ex-parte order. Since in the present case, there is a specific finding recorded in the judgment dated 21.07.1992; that it is a judgment passed on merits after recording the statement of the predecessor of the respondent, the provisions of Section 41, would not be attracted and the restrictions as contained in para 40 of the Full Bench Judgment will come into play.
17. There is another limb of argument which has been argued by the counsel for the respondent that in view of a decision rendered by this Court in Writ Petition No.219 of 2005, Swarn Singh vs. State, this Court ‐ 13 ‐ has held that in the light of the judgment rendered by the Hon'ble Apex Court as reported in AIR , 1981, Supreme Court 707, Kshitish Chandra Bose v. Commissioner of Ranchi. Para 6 of the judgment is extracted hereunder:-
"6. Mr. Sinha appearing for the respondent was unable to cite any authority of this Court taking a contrary view or overriding the decisions referred to above. In this view of the matter we are of the opinion that it is open to the appellant to assail even the first judgment of the High Court and if we hold that this judgment was legally erroneous then all the subsequent proceedings, namely, the order of remand, the order passed after remand, the appeal and the second judgment given by the High Court in appeal against the order of remand would become non est."
18. The Court has held that an order of remand passed by the Court is an interlocutory order and hence the writ petition would not be maintainable. In answer to this argument as extended based on the said ratio laid down by the judgment dated 26.07.2017 rendered (in Writ Petition No.219 of 2005, Swaran Singh vs State of Uttarakhand), it is hereby observed that the concept of an order being an order of remand is interlocutory cannot be permitted to abuse the process where the said stand cannot be extracted to be derived by the applicant/respondent to the application under Section 41 of Consolidation Act 1953, dated 25.08.2014; particularly when the knowledge itself is comparatively attributed in view of the finding recorded by both the courts below at least in the order of 09.04.2001. The spirit of the adjudication as made by this Court in the light of the judgment rendered by the Apex Court holding that an order of remand is the interlocutory order no writ petition would be maintainable, was in those situations only where the remand made by the court was only a ‐ 14 ‐ situation where the rights of parties were yet to be adjudicated on merits after contest, but it is not a scope open in the present case to be reconsider the matter afresh, where the right has already been crystallized on merit by the judgment of the court below dated 21.07.1992. Hence, this judgment on which the reliance has been placed by the counsel for the respondent would not be applicable in the circumstances of the present case. For the following reasons:-
1. The judgment dated 21.07.1992, which was sought to be recalled was a judgment, rendered after notice to the predecessor of respondents.
2. When the revenue entries were being sought to be altered under Section 34 of Land Revenue Act, it was on the basis of judgment dated 21.07.1992 of declaration of right of petitioner in which the respondents were noticed.
3. In both the proceedings the respondent had appeared, contested the proceedings and recorded their statement, as apparent from the findings recorded therein in the judgments.
4. On basis of judgment of declaration of right of petitioner dated 21.07.1992, it was enforced in the revenue records, by altering revenue entries only in 2001, in which respondents yet again had participated and got knowledge of judgment at least in 2001 as passed by Consolidation Officer on 21.07.1992.
5. The respondent filed a highly belated application after 22 years from judgment dated 21.07.1992 sought to be recalled, and at least ‐ 15 ‐ after 12 years of the mutation order dated 09.04.2001. Hence was bared by limitation.
6. In view of the Full Bench Judgment of Shiv Raje (Supra), no power of review or recall is vested with Consolidation Authorities/Courts, created under the Act of 1953 of the judgment which is passed on merit. Because power vested with the courts; of review or recall is a creation by statute, which is not there.
7. When Balveer Singh died in 19.02.2001, it was thereafter only that all steps were taken by his heir respondents herein that too after 12 of his death.
8. By the time the recall was filed on 25.08.2014, the village stood denotified under Section 52(1) of the Act, by notification dated 14.01.2015, consequently the bar flowing from Section 49 of the Consolidation Act, will come into play at the time when recall was filed on 25.08.2014.
19. In that view of the matter, the impugned order of revision dated 17.03.2017 is not tenable and the same is set aside. The writ petition allowed. However there would be no order as to cost.
(Sharad Kumar Sharma, J.) 02.03.2020 Arti