Dalel Singh And Others vs Zulfiqar on 31 October, 2017

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Uttarakhand High Court

Dalel Singh And Others vs Zulfiqar on 31 October, 2017

The learned counsel for the petitioners has challenged the order dated 28.08.2017, passed by the Deputy Director Consolidation in Revision No. 172 of 2014-15, Dalel Singh and others Vs. Zulfiqar as well as the order passed by the Consolidation Officer dated 16.07.2013.

By virtue of the impugned order, the Deputy Director Consolidation has passed an order to the following effect :-

"vr% mijksDr foospuk ds vk/kkj ij fuxjkuhdrkZ dh fuxjkuh fnukad 11&12&2013 cyghu vkSj vk/kkjghu gksus ds dkj.k fujLr dh tkrh gSA i{kdkj voj U;k;ky; pdcUnh vf/kdkjh] :Mdh r`rh; ds le{k fnukad 08&09&2017 dks is"k gksosaA vkns"k dh izekf.kr izfr lfgr vihyh; U;k;ky; ds vfHkys[k okil Hksts tk,A ckn vko";d dk;Zokgh dh fuxjkuh i=koyh nkf[ky dh tk;A"

Holding thereof that the revision preferred by the petitioners against the order of the Consolidation Officer, whereby, the Consolidation Officer has directed that issue No. 9, as settled by it, would be decided at a later stage at the time of final adjudication, the said order has been held out by the revisional court as to be an interlocutory order 2 because the propriety of issue No. 9 has been left open to be decided and, hence, the Revisional Court has treated the same to be an interlocutory order, as no decision has been rendered by the Consolidation Officer, it was rather delivered to be decided with all the other issues.

In the proceedings initiated by way of an application under Section 11-A, with which this case is concerned, preferred by the respondent, wherein, he has sought himself to be recorded and declared owner based on the premise that he is the purchaser of the land by virtue of the sale deed executed in 1985 in his favour by the late father of the present petitioners.

The contention of the learned counsel for the petitioners is that after the village was being brought under consolidation, it has crossed over the stage of Section 9, whereby, a notification was issued on 16th September, 1992, and no objection was preferred by the respondent, on issuance of notification under Section 9 within the time stipulated therein. Thereafter, the notification under Section 20 was issued on 25th October, 1994, yet again, no objection was preferred by the respondent and, hence, his application preferred under Section 12 for getting himself to be recorded based on the sale deed of 1985, would be barred by Section 11-A of the Act.

On exchange of pleadings, the learned Consolidation Officer framed the following issue No. 9:-

"As to whether, the proceedings under Section 12 are barred by Section 11-A or not."

To scrutinize the said issue, reference of Section 11-A is imminent as unavoidable. Section 11-A of the Consolidation of Holdings Act reads as under :-

"[11-A. Bar on Objection. - No question in respect of -

(i) claims to land;

(ii) partition of joint holdings; and

(iii) valuation of plots, trees, wells and other improvements, where the question is sought to be raised by a tenure-holder of the plot or the owner of the tree, well or other improvements recorded in the annual register under Section 10, relating to the consolidation area, [which has been raised under section 9 or which might or ought to have been raised under that section] but has not been so raised, shall be raised, or heard at any subsequent stage of the consolidation proceedings.]"

On its scrutiny, Section 11-A of the Act which creates a bar in entertainment of the proceedings pertains to the bar created as against the proceedings pertaining to the claim of a land, partition of the holding or the valuation of the trees and other matter relating to the Consolidation Officer which has or could have been raised under Section 9 or which ought to have been raised under that Section. Meaning thereby, on a precise reading of Section 11-A, the bar which has been created is in relation to the reliefs which have been referred in Section 11-A. Section 12 happens to be altogether a distinct provision irrespective of the provision contained under Section 9 and Section 20. Section 12 relates to the matters pertaining to the changes or the transactions affecting the rights or interest to be recorded in the revised records. Here, the revision of the record which has been sought by the respondent by invoking Section 12 was based on the sale deed executed in their favour by the 4 predecessors of the present petitioners in 1985 and, hence, as a matter of fact, the entitlement or the right of the respondent to be recorded by virtue of sale deed is not questioned. The only issue which has been agitated is as to whether his application under Section 12 could be tenable because of the bar created under Section 11-A, due to failure to file objection. Section 12 of the Act reads as under :-

"[12. Decision of matters relating to changes and transactions affecting rights or interests recorded in revised records. -

(1) All matters relating to changes and transfers affecting any of the rights or interests recorded in the revised records published under sub-section (1) of Section 10 for which a cause of action had not arisen when proceedings under Sections 7 to 9 were started or were in progress, may be raised before the Assistant Consolidation Officer as and when they arise, but not later than the date of notification under Section 52 or under sub-section (1) of Section 6.

(2) The provisions of Sections 7 to 11 shall mutatis mutandis, apply to the hearing and decision of any matter raised under sub-section (1) as if it were a matter raised under the aforesaid sections.]"

This Court is of a considered view that since the applicability of Section 11-A has been confined to the nature of the proceedings which are referred in it, the bar of Section 11-A would not be applicable under Section 12 of the Act. Though, this finding is tentative in nature only by looking to the scope provided under Section 11-A of the Act. It will not have any affect the decision on the application itself which is to be decided on its own merit.

The learned counsel for the petitioners has placed reliance on various judgments, rendered by the Allahabad 5 High Court. Some of them, are being considered in the present judgment.

At the first instance, he places reliance on the case of Kaushalendra Pratap Singh and others Vs. Government of State of U.P. and others reported in [2007 (103) RD 133]. In the said judgment, the ratio which has been propounded is that Section 9 and Section 12 are the provisions which operate in two different stages and for two independent purposes as it has already been observed above in the present judgment also. Further, the said judgment also propounds that since the proceedings under Section 12 are confined to recording the name on the basis of the interest which has been devolved, it will not override the effect of the provision contained under Section 9. Thus, the said judgment would not be applicable in the instant case, so far it relates to the bar being created by Section 11-A to the proceedings under Section 12. Para 4 of the judgment of Kaushalendra Pratap Singh (Supra) reads as under :-

"4. It is clear from the language of Section 12 that it is only the changes and transfers affecting rights or interests recorded in the revised records (prepared in C.H. 11), which are the subject matter of an application under Section 12 of the Act. Section 12 of the Act does not contemplate any objection against the basic year entries (the revised current khatauni) prepared under Section 8. It is clear that while the objections under Section 9 are it against the basic year entry, the objections filed under Section 12 of the Act relate to the revised records that are prepared under Section 10 of the Act. That being so, any order passed under Section 12 cannot override an order passed under Section 9-A against the transferor of the applicant under Section 12. No doubt finality is conferred upon orders passed under Section 12 of the Act but such a finality would obviously relate to the scope of the dispute that can be decided under the provisions of Section 12 of the Act. That objections 6 challenging the basic year entry under Section 9-A of the Act is an objection, which cannot be raised at the stage of Section 12 is clear from the provisions of Section 11-A, which creates a bar to such an objection being raised at a subsequent stage. Therefore, the two provisions operate at two different stages. In the present case the petitioners have filed objections challenging the entry of Surendra Singh, Narendra Singh and Brijesh Singh in the basic year (transferor of respondent No. 8) and if the objections are decided in favour of the petitioners the order would override any order passed under Section 12 of the Act. Sri Rama Nand Pandey, learned Counsel for the respondent No. 8 also fairly concedes that this is the position. Even the Consolidation Officer in his order dated 9.3.2005 has observed that any order passed in the case under Section 9-A of the Act will prevail over the mutation order. The order passed by the Deputy Director Consolidation appears to be correct. No ground for interference in writ petition has been made out. The writ petition is disposed of finally."

He further places reliance in the judgment of Foreshore Cooperative Housing Society Limited Vs. Parveen D. Desai and others reported in [2015 (128) RD 227], wherein, the Hon'ble Apex Court in its para 32 has held as under :-

"32. Order XIV Rule 2 of the Code of Civil Procedure, confers power upon the Court to pronounce judgment on all the issues. But there is an exception to that general Rule i.e., where issues both of law and fact arise in the same suit and the Court is of the opinion that the case or any part thereof may be disposed of on the issue of law, it may try that issue first if that issue relates to the jurisdiction of the Court or a bar to the suit created by any law."

There is no doubt on this preposition as laid down by the Hon'ble Apex Court. But, since in the instant case by the order passed by the Consolidation Officer, the finding on issue No. 9 is yet to be recorded, the only restriction which 7 has been imposed by the impugned order is that the finding on issue No. 9 has been kept in abeyance to be decided alongwith the other issues as it entails the import of both fact and law. Hence, the judgment, on which, the reliance has been placed by the learned counsel for the petitioners since being in variance to the controversy involved in the instant writ petition, the same would not apply in the instant case.

Another judgment on which, he places reliance is in the case of Smt. Kiran Devi Vs. Deputy Director of Consolidation and others reported in [2008 (104) RD 512]. Yet again, I am in absolute disagreement with the argument extended by the learned counsel for the petitioners, as if, the said judgment has propounded a strict ratio that the issue pertaining to Section 11-A has to be decided as a preliminary issue. Rather to the contrary, on a precise reading of the judgment, it only deals with the situation where it records the finding to the effect that the provisions of Section 11-A of the Act are akin to the principle of res judicata, it is not laying down any proposition or creating a mandate that Section 11-A has to be decided as a preliminary issue.

Identical view has been expressed by the Allahabad High Court in the case of Lalji and Etc. Vs. D.D.C. and others reported in [2011 (8) ADJ 243], wherein, it has been held out that the principle of res judicata would apply to the provision of Section 11-A, which is not the issue at present involved in the instant case. Hence, the same would not apply Lastly, learned counsel for the petitioners has placed reliance in the case of Gafoora and another etc.etc. Vs. Dy.

Director of Consolidation reported in AIR 1975 SC 1716. In the said judgment, he places reliance on para 3 of the judgment which reads as under :-

"That being the position, there was no material whatsoever before the Settlement Officer (Consolidation) for exercising his jurisdiction to condone the delay in lodging objection under Section 9(2) of the Act Section 11A bars all objections in respect of claim to land, partition of joint holdings and valuation of plots etc. relating to the consolidation area which have been raised under Section 9 or which might or ought to have been raised under that section but have not been so raised. These questions under Section 11A cannot be raised or heard at any subsequent stage of the consolidation proceedings. That being the position there is no error of law in the order of Deputy Director (Consolidation) nor is there any excess of jurisdiction committed by him in disposing of the matter as he did in exercise of his revisional power under Section 48."

On a simplicitor reading of the said judgment, it only imposes a restriction that by virtue of implication of Section 11-A, whatsoever rights a person claims in relation to a subject matter for which an objection under Section 9 or under Section 21 has not been raised and which should have been raised otherwise, would be barred to be raised at the subsequent stage during the consolidation. Yet again, this judgment does not contemplate that the issue of 11-A has to be decided as a preliminary issue.

Looking to the surrounding circumstances of the case, the adjudication of the applicability of Section 11-A vis-à-vis the application of respondent under Section 12 would be a mixed question of fact and law and not a purely question of 9 law. Further, since its implication would always depend upon the variating facts of each case, could be decided with other issues. It will not have any affect on the entire proceedings.

Apart from what has been observed above, on perusal of the order impugned in the writ petition, since it does not causes any prejudice to the petitioners, as their rights pertaining to all their rival contentions with regard to the applicability of Section 11-A, has been left reserved by the learned Consolidation Officer to be adjudicated at final stage as directed by the impugned order dated 16th July, 2013, issue No. 9 is yet to be adjudicated and, as such, no prejudice is caused to the petitioners. As such, this Court feels that the writ petition lacks merit and is liable to be dismissed.

At this stage, the learned counsel for the petitioners prays for that the proceedings before the Consolidation Officer initiated by the respondent under Section 12 may be expedited. Accordingly, the Consolidation Officer is requested to decide the application under Section 12 filed by the respondent within a period of six months from today.

Subject to the above liberty, the writ petition lacks merits and is dismissed.

No order as to costs.

(Sharad Kumar Sharma, J.) 31.10.2017 Shiv

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Uttarakhand High Court