Uttarakhand High Court
Mubarik And Ors. vs D.D.C. And Ors. on 27 July, 2017
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition (M/S) No. 560 of 2006
Mubarik & Ors. .............Petitioners
Versus
D.D.C. & Ors. .......... Respondents
Present: Mr. Rajendra Singh, Advocate for the petitioners.
Mr. Tarun Lakhera, Brief Holder for the State.
Hon'ble Sharad Kumar Sharma, J. (Oral)
The list has been revised. Mr. Sanjeev Singh who has filed his authority on behalf of the respondent no. 3 has not appeared, when the case was being argued. Thus, Court has no option except to hear Mr. Rajendra Singh, learned counsel for the petitioners.
2. Heard Mr. Rajendra Singh, Advocate for the petitioners.
3. The dispute in the writ petition is in relation to the property of village Sikkarpur Phargana, Manglaur, Tehsil Roorkee as described in para 3 to the writ petition bearing Khata No. 159, Gata No. 306 measuring 12 bigha 5 biswa pukhta and Gata No. 348 measuring 21 bigha 15 biswha pukhta total 33 bigha 20 biswas pukhta.
4. The contention of the learned counsel for the petitioner is that an objection by way of Case No. 748 has 2 been preferred by one Hashim (deceased) before the Consolidation Officer under Section 9(A)(2) of the Consolidation of Holdings Act, in which the present writ petitioners were the respondents.
5. As per the contention of the learned counsel for the petitioners, it was that on account of the involvements of certain respectful persons of the community the parties to the dispute unanimously settled their disputes by a compromise executed between them on 11.02.2002, which was duly identified and verified by the parties and their respective advocates. Accordingly the Consolidation Officer on 18.02.2002 accepted the compromise holding it to be the duly verified and the objection preferred by the Hasim was decided in terms of the compromise.
6. Being aggrieved against the order, one of the signatories, Mahboob (respondent no. 3) in the present writ petition preferred an appeal on 31.07.2003, under Section 11(2) of the U.P. Consolidation of Holdings Act before the Settlement Officer Consolidation, contending thereof that the compromise which was entered on 11.02.2002 was not a valid compromise for the reason being that his thumb impression so appearing in the alleged compromise paper, is not his signature (thumb impression)
7. At the time, when Mr. Mahboob preferred the appeal, the Hasim who had initially filed the objection had 3 already expired and thus in the memorandum of appeal Hasim was represented by his widow, Smt. Sahajahan.
8. This appeal was numbered as 1180/11(1) of 2003, and the same was pending consideration. In the meantime, Mahboob simultaneously filed a restoration seeking recall of the order and the Consolidation Officer passed the order fixing 18.02.2002 for passing of formal order. In pursuance to it the Consolidation Officer decided the objective contained in terms of compromise that the orders dated 18.02.2002 annexure 2 to the writ petition. Against these two orders an appeal was preferred whereby they have questioned the validity of the order dated 18.02.2002 formally accepting the compromise application submitted on 11.02.2002.
9. An appeal was preferred by respondent no. 3 on the ground that the compromise as settled on 11.02.2002 was a fraudulent compromise alleging therein that it was not having his thumb impression nor he has signed the stamp and the same was done by playing fraud upon him. He further contended that since other signatories who were relatives to one another, it creates a doubt about the compromise.
10. Thus appeal as preferred on 31.07.2003 remained pending before the Settlement Officer, Consolidation. It is the argument of the learned counsel for the petitioners that 4 during the pendency of the appeal, which was yet to be adjudicated on merits, the respondent no. 3 had simultaneously filed a restoration application seeking a restoration of the order dated 18.02.2002. His contention before this Court is that once he has chosen to prefer an appeal against the order dated 18.02.2002, his restoration application seeking to recall the order dated 18.02.2002 was not tenable and it ought not to have been preferred the same and should have waited for an adjudication of the appeal on its merits.
11. This restoration application was taken up by the Consolidation Officer and by the Order dated 18.05.2004, he allowed the restoration application and the order, accepting the compromise, passed by the Consolidation Officer passed in case No. 748 dated 18.02.2002 was set aside and the case was restored to its original number.
12. This order according to the learned counsel for the petitioners as passed by the Consolidation Officer was bad for the reason that once the appeal has been preferred by respondent no. 3, he could not have simultaneously filed a restoration application, reason being that under the Consolidation Act, as initial order of the Consolidation Officer dated 18.02.2002 was an order which was duly based on the compromise, duly verified by the counsel, could not be recalled by the Consolidation Officer and that too in an event where an appeal against the order was already pending 5 consideration. Yet there is another aspect that by allowing the recall application the proceedings before the Consolidation Officer has revived, rendering the appeal as infructuous.
13. Being aggrieved against the order dated 18.05.2004, an appeal was preferred by the petitioner no. 1 only. The petitioner no. 1 in the appeal has submitted that the compromise which is the basis of the order dated 18.02.2002 was a valid compromise as the order dated 18.02.2002 as was based on the compromise duly executed between the parties and no restoration was maintainable as the order passed on merits and which was admitted by the parties. He further submitted that the assertions made by the respondent no. 3 pertaining to the validity of the compromise was an afterthought because he himself has placed thumb impression which was verified and after verification by the counsel, it was no more open to him to contend that the compromise was not validly executed.
14. Another contention which was agitated by the learned counsel for the petitioner no. 1 is that in his appeal, the restoration application on which order dated 18.05.2004 was passed could have been entertained because respondent no. 3 being against the order dated 18.02.2002 could not have simultaneously availed two remedies by filing an appeal which was pending at the time of when the order dated 18.05.2004 was passed and thus when the restoration 6 application itself was not executed the order dated 18.05.2004 passed consequently, is illegal and bad in the eyes of law.
15. Appeal as preferred by petitioner No. 1 on 16.05.2004 came up for consideration before the appellate court on 17.11.2004. Surprisingly, the appellate court while considering the application allowing the restoration application and he has gone absolutely tangent by setting aside the order dated 18.05.2004. He has simultaneously remanded the matter to Consolidation Officer for deciding the objection a fresh. Rather as a matter of fact though the appeal was dismissed the revival of the proceedings was bad in the eyes of law, because according to the learned counsel for the petitioners the rights inter-se between the parties as arising out from the compromise dated 11.02.2002 ought to have been decided in the appeal which is statutorily filed under Section 11(1) of the Act.
16. The respondent no. 3 being aggrieved against the order dated 17.11.2004 preferred a revision. No revision against the order dated 17.11.2004 was maintainable on his behest as the appeal which has been decided remanding the matter to the Consolidation Officer, he would not at all be aggrieved by the said order and he could not have file an appeal, owning to the fact that the compromise dated 11.02.2002 was valid inter-se between the parties.
717. The revision thus preferred by the respondent no. 3 has been allowed by the impugned order. Consequently order dated 17.11.2004 remitting the matter to the Consolidation Officer to decide afresh has been decided. Be that as it may. The order in sequel dated 17.11.2004 and 23.03.2006 were based upon the orders passed on restoration application filed by respondent no. 3, the application for restoration of respondent no. 3 itself was not maintainable in the eyes of law and hence all consequential orders passed on the same would be bad for the reason that the two writ petitions
i) Order dated 18.02.2002 was a consent order passed on the compromise
ii) At the time when the restoration was filed, the appeal of respondent no. 3 was already pending against order dated 18.02.2002
iii) Since the order dated 18.02.2002 was on a compromise would be an order treated to be on merits his restoration thus itself was not maintainable.
18. In view of the Full Bench Judgment of Allahabad as reported in 1997 ALR (31) page 680. The Full Bench judgment of Allahabad High Court has held that since the Consolidation Courts having been created under the Act, which does not confer a power of review, and since the review being a statutory power no review would be maintainable against an order passed by Consolidation Authorities. In the instant case since the application 8 apparently seems to be an application for recall but as a matter of fact, it was an intention to seek a review of an order which was otherwise passed on merits. Even otherwise also since the respondent have already invoked the Appellate Forum against the order of consolidation officer, they could not have simultaneously filed a recall application before the Consolidation Officer.
19. In that view of the matter, the writ petition succeeds and is allowed. The impugned order dated 23.03.2006 passed by the Revisional Court in Revision No. 543 of 2004-05 is quashed and the order dated 18.05.2004 passed by the Consolidation Authority in the case No. 3678 "Hasim Vs. Mubarik under Section 9A(2) are set aside.
20. No order as to cost.
(Sharad Kumar Sharma, J.) 27.07.2017 Mahinder/