Allahabad High Court
Dahari Lal & Others vs D.D.C. & Others on 7 July, 2010
1
RESERVED
CIVIL MISC. WRIT PETITION NO.36868 OF 2004
Dahari Lal and others.......................................Petitioners.
Versus
Dy. Director of Consolidation and others.....Respondents.
Hon'ble Mrs. Poonam Srivastav, J.
Heard Sri R.C. Singh Advocate appearing for petitioners and Sri Sankatha Rai Advocate on behalf of contesting respondents.
The order dated 1.7.2004 passed by respondent no.1, order dated 13.11.1997 passed by respondent no.2 and order dated 30.7.1976 passed by Assistant Consolidation Officer, are impugned in the instant writ petition.
Claim of petitioners is that they are in cultivatory possession till date and continued to be as such since ever after completion of consolidation proceedings in the village.
Dispute relates to plot nos.1026/1 and 1026/2 situated on the road side. Petitioners' claim is that plots in question are of high commercial value. Petitioners and contesting respondents belong to different family and caste. The respondents started gathering building materials on the disputed plots, which was objected by petitioners and it is at that stage, it came to the knowledge of petitioners that respondents have got their name recorded on the basis of certain orders passed when consolidation proceedings had started way back in the year 1976.
Petitioner no.1 Dahari Lal is an uneducated and rustic villager who lived in the village and looked after agriculture. Petitioner no.2 Harihar Lal and petitioner no.3 Tileshar Lal are in service out of the State of U.P. They were working in West Bengal, therefore, proceedings at the instance of contesting respondents were carried out without any notice and behind their back.
2It is submitted on behalf of petitioners that when respondents wanted to make certain construction on the disputed plots, petitioners started making inquiry. After inspection of record, it transpired that respondent no.3 taking advantage of the fact that Harihar Lal and Tileshar Lal were residing in West Bengal and Dahari Lal being a man of feeble intelligence got interpolation in CH Form 2A in connivance with consolidation authorities. After the aforesaid forged entries in respect of plot nos. 1026/1 and 1026/2, a forged and fictitious compromise allegedly signed by petitioners and members of consolidation committee was produced before Assistant Consolidation Officer. Signature of Harihar Lal and Tileshar Lal and left thumb impression of Dahari Lal were endorsed on the said compromise, which according to petitioners are fictitious. On the basis of this alleged compromise, Assistant Consolidation Officer passed an order on 10.7.1976 in case no.6180 allowing objection of respondents under Section 9A (2) of Consolidation of Holdings Act (hereinafter referred to as the Act).
Most of area of the disputed plots was set apart from consolidation scheme and only a part of it was included in the consolidation, which is situated on the road side and is in a close vicinity of market area thereby having high commercial value.
Sri R.C. Singh Advocate has emphasized that all these proceedings were carried out behind back of petitioners. They had no information or notice whatsoever. On inspection of file, it revealed that entries of CH Form 2A was also in different handwriting and ink as well. These entries were on the basis of the forged compromise.
Petitioners preferred an appeal under Section 11 (1) of the Act, but it was evidently quite belated. Reasons for preferring the appeal beyond limitation was sufficiently explained and the entire facts were brought to the notice of the court. However, appeal 3 was dismissed by Settlement Officer Consolidation vide order dated 13.11.1997 on the ground that village stood denotified and in view of Section 52 of the Act, appeal was not maintainable after lapse of such an inordinate delay. Revision preferred against the said order stands dismissed, which is also under challenge.
Petitioners' counsel has laid stress on a number of decisions of this Court; Ram Bahadur Vs. Dy. Director of Consolidation and others AIR 1973 Allahabad page 414 (DB), Jiwa Ram and another Vs. Dy Director of Consolidation and others AIR 1973 Allahabad page 416 (DB), Shyam Narain Rai and others Vs. Dy. Director of Consolidation Ballia and others 1981 RD page 307, Nathani Singh Vs. Assistant Director of Consolidation and others, Ghazipur 1990 RD 258 and Bali Ram and others Vs. Board of Revenue U.P. Allahabad and others 1993 (1) CRC page 268.
The aforesaid decisions are cited by petitioners' counsel in support of contention that it is well established principle of law that fraud vitiates everything and if fraud is established, other procedural formalities are not required to be followed to undo injustice and do complete justice between the parties. Where an order is obtained by playing fraud, embargo of limitation does not come in the way.
Next argument of Sri R.C. Singh is that petitioners and respondent no.3 have no nexus and they belong to different family and different caste. There was no co-tenancy in existence at any point of time. In the circumstances, the alleged compromise filed before Assistant Consolidation Officer and consequent order dated 30.7.1976 passed by A.C.O. on the basis of the said compromise will amount to co-opting respondent nos. 3 and 4 as co-tenant, which is not permissible under U.P. Z.A. & L.R. Act. The alleged compromise itself was unlawful and could not be acted upon and is not enforceable in law. Thus, the said agreement will not confer any right on respondent nos. 3 and 4.
4This Court, in the case of Budh Lal and another Vs. Dy. Director of Consolidation and others 1982 AWC page 447 (DB), held that co-option under U.P. Z.A. & L.R. Act is not permissible.
In reply, Sri Sankatha Rai Advocate appearing on behalf of contesting respondents has disputed each and every arguments of Sri R.C. Singh and laid emphasis that since denotification of village Baghauch Ghat was made on 6.3.1982, question regarding right and title could not be reopened after lapse of 15 years. On perusal of the impugned orders, it transpires that record of case no.6180 decided by Assistant Consolidation Officer on 30.7.1976 was also weeded out on 8.5.1986, therefore, there was no occasion to examine the said compromise. Highly belated appeal no. 1294/2305/2250 was rightly dismissed by Settlement Officer Consolidation and order now stands confirmed.
It is also emphasized that petitioner no.3 Tileshar Lal alone filed an application before Settlement Officer Consolidation on 29.8.1992 for recalling the order dated 27.8.1992. A copy of which was served on respondent no.3 Subhash Chandra. Two other petitioners failed to appear in court. However, application filed on behalf of petitioner no.3 Tileshar Lal also stands dismissed.
Sri Sankantha Rai Advocate, has emphasized on a decision of this Court; Raj Kishore Vs. Dy. Director of Consolidation, Ballia and others 2002 (93) R.D. Page 307. Submission is that this Court had held that Assistant Consolidation Officer has jurisdiction to pass an order regarding co-tenancy on the basis of conciliation, therefore, order of Assistant Consolidation Officer could not be said to be without jurisdiction. Consequently, it was held that delay condoned merely on the ground that order of Assistant Consolidation Officer was without jurisdiction, was not sustainable in law.
After hearing counsels for respective parties at length, 5 going through written submissions and various decisions, I proceed to examine primarily question of jurisdiction of Assistant Consolidation Officer and consequent dismissal of appeal because village stood denotified. No doubt, this Court has ruled in the case of Raj Kishore (supra) that when co-tenancy is held by Assistant Consolidation Officer to be valid on the basis of compromise then it will not vitiate his order but in the instant case, the so-called 'Conciliation' itself appears to be shrouded with doubt. Firstly because two petitioners reside out of village in West Bengal, there was a cutting in CH Form 2A. Claim of petitioners is that it is in different writing and ink, which required a thorough scrutiny by the A.C.O. at the initial stage itself, specially from the persons who were parties to the compromise. Interestingly and surprisingly, the entire record has been weeded out within a span of ten years, therefore, compromise itself could not be examined by authorities below. Objection raised at the instance of petitioners was summarily rejected because village was denotified. It is a case where specific and express objection has been raised by all the three petitioners who are alleged to be signatory of compromise. They have disputed their signatures and claimed that there was no compromise whatsoever. Since respondents are benefiting by the said compromise, a heavy burden lies on their shoulders. It is not a case where an order of co-tenancy has been passed on an admitted conciliation, therefore, in my view decision of Raj Kishore (supra) does not help the contesting respondents.
There is yet another glaring circumstance that entire record was weeded out and there was not even a copy of the said compromise, which is brought on record. Photostat copy of compromise could have been brought on record to substantiate claim by contesting respondents. Learned counsel appearing on behalf of contesting respondents was specifically asked to 6 produce a copy of the said compromise before this Court as well. Several dates were fixed and case was adjourned for this very purpose but no compromise is forthcoming. Unless appellate court was satisfied after examining the entire record and come to a conclusive finding that compromise which was benefiting respondents alone and petitioners were being deprived of their property on the face of it, a summary rejection by the S.O.C. and the order of D.D.C. cannot be allowed to stand. The document was liable to be extensively scrutinized. Since the fact of compromise was disputed, the respondents' burden was to substantiate that compromise was got entered into without any misrepresentation and coercion. Unless and until authorities were satisfied that compromise was genuine, appeal on behalf of petitioners could not have been dismissed by S.O.C. summarily as it has been done in the instant case. No doubt, appeal was highly belated but there are several decisions including division Bench decisions cited above, which gives right to the authority under Section 52(2) of the Act to examine grievance of respective parties even after village is denotified specially when the objection under Section 9 of the Act was allowed ex parte.
Division Bench decisions of this Court in the cases of Ram Bahadur and Jiwa Ram and another (supra) are cited before me by petitioners' counsel wherein it is clearly held that in certain circumstances, restoration application or application challenging an ex parte order will be governed by Section 52 (2) of the Act, therefore, Settlement Officer Consolidation and Dy. Director of Consolidation were liable to hear objection raised on behalf of petitioners, at least examine question on merits instead of cursorily rejecting objection without judicially examining the entire matter.
Sub-section 2 of Section 52 of the Act was added by U.P. Act 8 of 1963 which is an exception to Sub-section 1. Section 52 7 of the Act does not take away vested right of appeal which is continuation of proceedings even after denotification and appeal or revision is maintainable if delay is sufficiently explained.
In the case of Fateh Singh Vs. Dy. Director of Consolidation, Mathura and others 2004 (96) RD page 559, this Court held that provision of Section 5 of Limitation Act to consolidation proceedings is made applicable by virtue of Section 53-B which reads as under:
"53-B. Limitation.- The provisions of Section 5 of the Limitation Act, 1963 shall apply to the applications, appeals, revisions and other proceedings under this Act or the rules made thereunder."
It is, therefore, incumbent on the consolidation authorities that in the event application for condonation of delay is moved and the delay is sufficiently explained then it will have an effect of obliterating different status between an appeal filed within time or filed after lapse of period of limitation. Settlement Officer Consolidation has not even tried to look into grounds for condonation of delay but dismissed the appeal as not maintainable since appeal was filed after village stood denotified.
Similar view was accepted in the case of Tara Chand and another Vs. Dy. Director of Consolidation Ballia and others 2004 (96) R.D. page 193, that appeal can be made maintainable in the event delay is sufficiently explained. Obviously, Settlement Officer Consolidation has completely overlooked explanation given in the application for condonation of delay. He has failed to examine the question of limitation and the reason/ explanation for delay.
In the case of Bechan Ali Vs. Dy. Director of Consolidation/A.D.M. Siddharthnagar and others 2001 (92) R.D. page 317, it was held that an appeal or revision can very well be 8 filed even after denotification against the order which was passed prior to the date of denotification in spite of fact that limitation of filing of an appeal or revision has already expired.
Dy. Director of Consolidation has also confirmed order of Settlement Officer Consolidation casually without even looking into the fact that contesting respondents moved an application for expunging the name of petitioners from record on the basis of a compromise and certain entries in the revenue record which had cutting, overwriting and also different ink was used. The entire proceedings on the basis of it are apparently fraudulent. No notice was given to petitioners and names of petitioners were expunged on the basis of the said compromise. Revisional court should have also looked into the matter, which it failed to do so which led in miscarriage of justice. Dy. Director of Consolidation has a supervisory jurisdiction under Section 48 of the Act, he can call for examining record of any case decided or proceedings taken by any of the subordinate authorities for the purpose of satisfying regularity of proceedings, correctness, legality or propriety of any order. In my opinion, Settlement Officer Consolidation as well as Dy. Director of Consolidation erred in law holding that appeal and revision are not maintainable.
Authorities below should have insisted for a copy of the compromise and looked into the findings of the Assistant Consolidation Officer to satisfy itself regarding genuineness of the compromise.
In the circumstances, I am of the opinion that since jurisdiction under Article 226 of the Constitution of India has been invoked, which is an equity jurisdiction, and that allegation of fraud and forgery at the instance of contesting respondents is not without substance, especially circumstances that authorities as well as respondents ensured that entire record is hurriedly weeded out for obvious reasons. It is also difficult to accept that the 9 respondents did not possess a copy of the compromise which is the very basis of their claim. I am of the considered view that matter should be sent back to Settlement Officer Consolidation to examine the question on merits. I have also noticed that counsel appearing on behalf of contesting respondents expressed his inability to produce even a photostat copy of compromise during course of argument and he has tried to take shelter behind excuse that original record was weeded out, cannot be brushed aside lightly.
The authorities should examine witnesses and elucidate circumstances which led to the alleged compromise. No person will give away his property without any compensation or return. Since the compromise is not available and there is an express denial by the petitioners that they ever entered into a compromise, the S.O.C. shall thrash out the matter afresh and decide question on merits.
In view of what has been stated above, I am of the considered view that Settlement Officer Consolidation erred in law and acted illegally and order dated 13.11.1997 passed by him is hereby quashed. Dy. Director of Consolidation has also ignored the entire facts and circumstances and passed an order dated 1.7.2004 mechanically in revision only because village stood denotified. The order dated 1.7.2004 passed by D.D.C. and 30.7.1976 passed by Assistant Consolidation Officer are also quashed. The instant writ petition is allowed.
Matter is remanded to Settlement Officer Consolidation Deoria for a fresh decision after giving an opportunity of hearing to both parties to lead evidence.
Till matter is finally adjudicated upon, petitioners' possession will not be disturbed.
Dt. 7.7.2010 rkg