Uttarakhand High Court
Kalu Ram vs Deputy Director Of Consoidation And ... on 26 July, 2017
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition (M/S) No. 1357 of 2006
Kalu Ram .............Petitioner
Versus
Deputy Director of Consolidation & Ors. .......... Respondents
Present: Mr. M.S. Tyagi, Advocate for the petitioner.
Mr. Pankaj Purohit, Deputy Advocate General for the State.
Hon'ble Sharad Kumar Sharma, J. (Oral)
The petitioner, who is an applicant to the Restoration Application before Consolidation Courts, which he has filed before the Assistant Settlement Officer, Consolidation, seeking recall of the order dated 19.03.1988 as well as the order dated 08.12.1993. In the application, he has contended that the proceedings which have been decided by the Consolidation Courts of Muzaffarnagar as they were prior to the bifurcation of the District Haridwar made in 1989, were as a matter of fact according to the petitioner was without impleading him as a party in those proceedings. Since in pursuance to the order passed by the Settlement Officer, Consolidation on 08.12.1993 and the Talika annexed thereto his rights are being affected and to show that he has placed on the talika where he contends that his original holding in gata no. 260 M is being taken away.
(A) The Assistant Settlement Officer, Consolidation while passing the order dated 08.12.1993 has observed that the claim raised by Shiv Kumar were exclusions of gata no. 260 as there exists construction and is not being utilized for agricultural activity which was fortified by the reports 2 submitted by the Assistant Settlement Officer, Consolidation dated 12.01.1987. Based on the said report gata no. 260 was excluded from consolidation proceedings and CH-18 was issued later. According to the Shiv Kumar (respondent no. 3) without hearing him, the said gata no. 260 has been allotted and assigning the valuation as it would find placed in CH-5. The effect of assigning valuation to the gata is that it gets included in the consolidation proceedings for the purpose of allotment. Thus he prayed that the gata no. 260 may be excluded from the consolidation proceedings. The Settlement Officer, Consolidation, after calling upon the record from the subordinate courts observed that despite of best efforts made, record could not be retrieved and thus, the records of paper no. 16 under Section 5Ga and its decision dated 31.03.1987 was summoned, the Chakbandi Karta went to the spot and held inception and gave his report on 09.11.1993 in accordance with the entries made in column No. 24 of CH-2 Ka. It records that on the spot there exists a pukka makan and thus the Settlement Officer, Consolidation vide its order dated 08.12.1993 excluded the gata no. 260/0-2320 M out of the consolidation proceedings.
3. Learned counsel for the petitioner as pressed upon his restoration application, primarily based upon to the fact that he was not made party to the proceedings before the trial court, which has decided the matter on 08.12.1993 affecting his valuable rights. But unfortunate part is that the petitioner has not 3 been able to establish that he had been a party in the proceedings before the said court or not by placing any document on record.
4. Apart from it, though his valuable rights may have been affected by the order of Settlement Officer, Consolidation but the observation which has come forward is that the gata no. 260 M ousted from consolidation proceedings because CH 18 was issued and the objection filed by the respondent was to bring it within a consolidation proceedings and assigning it valuation.
5. The restoration application came up for consideration before the Settlement Officer, Consolidation on 25.05.2005 and the same has been rejected by the impugned order. The reason for rejection as assigned by the Settlement Officer, Consolidation was that since the order dated 08.12.1993 was an order which was passed on merits and it was within the knowledge of the petitioner, hence it would be deemed that he ought to have filed restoration application, if at all he was aggrieved by the order within stipulated time frame. Filing of restoration application after 11 years was accepted to be highly belated and thus the Court rejected the Section 5 application holding that no plausible grounds has been extended by the petitioner in support of his application.
(B) The Settlement Officer, Consolidation on considering the written arguments came to the conclusion that the appeal No. 1271 of 251 preferred Section 11(1) of the Consolidation of Holdings Act before the Settlement Officer, Consolidation, Muzaffarnagar has already been 4 made effective as would be apparent from the documents submitted by respondent No. 3 on 07.....2002 in the case No. 17/2002-04. The Settlement Officer, Consolidation observed when perused the restoration application that no such evidence has been produced by the petitioner as to why the application has been filed after 11 years and thus rejected the same.
6. This order was being put to challenge before the Deputy Director, Consolidation under Section 48. Deputy Director, Consolidation too had dismissed the restoration application and thereby affirm the order rejecting his revision application by the Settlement Officer, Consolidation.
(C) The Revisional Court, too, on considering the entire records as brought by the petitioner before the revision court and also considering the fact that there was a case instituted before the Collector being Case No. 17 of 2002 "Shiv Kumar Vs. Kalu Ram and Case No. 287/99 "Shiv Kumar Vs. Kalu Ram" filed before the Civil Judge, District Haridwar which is pending. Hence any alteration which if it is made on the basis of restoration application, which otherwise is not contemplated under the consolidation proceedings because the restoration application cannot be adopted as recourse to affect the review against the order which has been decided on merits. The Revisional court has rightly dismissed the application.
57. This Court could have interfered provided that the petitioner could have substantiated by bringing on record the order dated 08.09.1988 i.e. the principal order passed by the Consolidation Court, Muzaffarnagar. But in absence of there being any supporting documents filed by the petitioner, this Court is constrained to accept the findings recorded by the court below pertaining to his failure to establish the delay which has been caused in filing of the restoration application.
8. Even the Revisional Court in its finding recorded that the filing of restoration application on 14.12.2004 which has been rejected by the impugned order of Settlement Officer, Consolidation is highly belated and thus the revision two was dismissed.
9. I find no anomaly in the impugned orders on account of the fact that the petitioner has not been able to substantiate before this Court by providing any document on record that he was a party to the proceedings before the court below and the reason for delay has not been explained sufficiently.
10. Hence, this writ petition is dismissed. Interim order, if any, stands vacated.
(Sharad Kumar Sharma, J.) 26.07.2017 Mahinder/