Allahabad High Court
Umesh Chandra And Ors. vs Deputy Director Of Consolidation And ... on 22 May, 2003
Equivalent citations: 2003(4)AWC2714, 2004 ALL. L. J. 1537, 2004 A I H C 2868, (2003) 95 REVDEC 119, (2003) 4 ALL WC 2714, 2003 ALL CJ 3 1650
Author: Ashok Bhushan
Bench: Ashok Bhushan
JUDGMENT Ashok Bhushan, J.
1. Heard Sri Narendra Mohan, learned counsel appearing for the petitioners and Sri Faujdar Rai, learned counsel appearing for the respondent Nos. 3 to 5. Counter and rejoinder-affidavits have been exchanged and as prayed by counsel for both the parties the writ petition is being finally disposed of.
2. By means of the this writ petition, the petitioners have prayed for quashing the order dated 1.4.2003 passed by the Deputy Director of Consolidation, Mirzapur and the order dated 11.12.1995 passed by the Consolidation Officer, Ramal Patti, Mirzapur.
3. Brief facts of this case are :
"An objection under Section 9A (2) of the U. P. Consolidation of Holdings Act, 1953 (hereinafter to be referred as "the Act") was filed by the petitioner Nos. 1 and 2, petitioner Nos. 6 to 9 and petitioner Nos. 11 and 12 claiming that they are co-tenure holders with regard to land in dispute. In the objection Roop Chandra Varma, Ramesh Chandra Varma, Sharad Chandra Varma and Prakash Chandra Varma were impleaded as defendants and it was claimed that they had only 1/3rd share. A compromise was filed by both the parties and the Consolidation Officer on the basis of the aforesaid compromise passed an order on 15.5.1987. By order dated 15.5.1987 the names of the parties as co-tenure holders were recorded in Khata No. 946 as per compromise. The compromise was made part of the order. The aforesaid objection was filed in the year 1986 before the Consolidation Officer and while passing the order the Consolidation Officer condoned the delay in filing the objection. Another objection under Section 9A (2) of the said Act was filed by the New Kashmir Oriental Transport Company Pvt. Ltd. against Roop Chandra Varma and Lakshmi Chandra claiming recording of their names on the basis of sale deed from the recorded tenure-holder. In the basic year records the names of Roop Chandra Varma and Lakshmi Chandra were recorded over the land in dispute. On the objection filed by the New Kashmir Oriental Transport Company Pvt. Ltd. case under Section 9A (2) of the said Act was registered in the Court of the Consolidation Officer, Ram Bagh, Mirzapur, being Case No. 3975 of 1981. The case of objectors in case No. 3975 of 1981 was that the recorded tenure holders Lakshmi Chandra and Roop Chandra Varma executed two registered sale deeds dated 9.6.1974 and 31.3.1975 transferring the land in dispute in favour of New Kashmir Oriental Transport Company Pvt, Ltd. During the pendency of the objections filed by New Kashmir Oriental Transport Company Pvt. Ltd., an objection before the Consolidation Officer, Ramai Patti, Mirzapur, was filed by the petitioners as mentioned above claiming co-tenancy right in Khata No. 146 which was decided on compromise on 15.5.1987. After the order of 15.5.1987 the petitioners also filed an application for impleadment in Case No. 3975 of 1981 which application was also allowed on 21.3.1990. Petitioners claimed for impleadment in the aforesaid case on the basis of the order passed by the Consolidation Officer on 15.5.1987. An application was filed by the respondent No. 3 Smt. Raj Kumari Ghai, Satish Chandra Ghal and Anil Ghai in the year 1995 in Case No. 1156 of 1987 praying for recall of the order dated 15.5.1987. It was claimed by the respondents in the application that Lakshmi Chandra and Roop Chandra were owners of the land in dispute who sold the said land by two registered sale deeds dated 9.6.1974 and 31.3.1975 in favour of New Kashmir Oriental Transport Company Pvt. Ltd. It claimed that the said New Kashmir Oriental Transport Company Pvt. Ltd. transferred the land in dispute in favour of the respondents by registered sale deed dated 9.1.1989. It was also stated that the Case No. 3975 of 1981 was registered under Section 9 of the said Act before the Consolidation Officer, Ram Bagh was going on during which the petitioners filed collusive objection which was decided in terms of compromise giving co-tenancy right to the petitioners. It was claimed that the applicants came to know about the order on 25.6.1995 when inspection was made of the file of office of Consolidation Officer, Ram Bagh and thereafter the application was filed. The Consolidation Officer after hearing both the parties allowed the application on payment of cost and set aside the order dated 15.5.1987 vide his order dated 11.12.1995. Revision was filed by the petitioners against the said order dated 11.12.1995, before the Deputy Director of Consolidation which has been dismissed on 1.4.2002, This writ petition has been filed against the aforesaid order dated 11.12,1995, passed by the Consolidation Officer, Ramai Patti and the order dated 1.4.2003, passed by the Deputy Director of Consolidation."
4. The Case No. 3975 of 1981 (subsequently numbered as 399 of 1998-99) was decided by the Consolidation Officer vide order dated 24.7.2000. The objection of New Kashmir Oriental Transport Company Pvt. Ltd. was rejected maintaining basic year entry with regard to Khata No. 146. Khata No. 146 was partitioned with Lakshmi Chandra 1/2 share and Roop Chandra 1/2 share. Against the order dated 24.7.2000 an appeal was filed by Satish Chandra Ghai and Smt. Raj Kumari Ghai and Anil Ghai, the contesting respondents and the Appeal No. 3404 of 2002 was allowed by the Settlement Officer of Consolidation on 1 1.12.2002 directing the name of Lakshmi Chandra and Roop Chandra be deleted from the Khata No. 146 and the name of New Kashmir Oriental Transport Company Pvt. Ltd. be also deleted and the names of Satish Chandra Ghai, Smt. Raj Kumari Ghai and Anil Ghai be recorded as vendor. Against the aforesaid order of the Settlement Officer of Consolidation dated 11.12.2002 an application was filed by Umesh Chandra petitioner No. 1 and some other petitioners praying for recall of the order. The Settlement Officer of Consolidation has passed an order on 24.12.2002 by which he stayed the operation of the order dated 11.12.2002 and fixed 22.1.2003 as the next date.
5. Counsel for the petitioners challenging the order of Consolidation Officer and the Deputy Director of Consolidation has contended that the respondent Nos. 3, 4 and 5 had no right to file an application for recall of the order dated 15.5.1987 since they are claiming their right on the basis of the sale deed dated 9.1.1989 executed by New Kashmir Oriental Transport Company Pvt. Ltd. in their favour. It is contended that the respondent Nos. 3 and 4 who are claiming right on the basis of the sale deed dated 9.1.1989 cannot pray for recall of the order dated 15.5.1987. It was further contended that Satish Chandra Ghai, the husband of respondent No. 3 St. Raj Kumari Ghai was well aware of the order dated 15.5.1987. Since he was doing pairvi on behalf of New Kashmir Oriental Transport Company Pvt. Ltd. in case under Section 9A (2) of the said Act which was going on in the Court of Consolidation Officer, Ram Bagh. He further contended that the petitioners were got impleaded in the case pending before the Consolidation Officer on 21.3.1990 which was in the knowledge of Satish Chandra Ghai. It is further contended that neither the right of New Kashmir Oriental Transport Company Pvt. Ltd. has been accepted nor the right of contesting respondents on the basis of sale deed dated 9.1.1989 has been accepted, hence respondents have no right to file any application. Sri Narendra Mohan further contended that the mutation application filed by the contesting respondents on the basis of the sale deed dated 9.1.1989 was rejected by the Tahsildar vide his order dated 22.1.1989 against which an appeal was filed before the Sub-Divisional Officer, Mlrzapur, which too was rejected on 28.1.2000.
6. Sri Faujdar Rai, learned counsel appearing for the respondents, refuting the submission of the counsel for the petitioners, contended that the Consolidation Officer has rightly recalled the order dated 15.5.1987. It was further contended that New Kashmir Oriental Transport Company Pvt. Ltd. has already filed objection under Section 9A (2) before the Consolidation Officer Ram Bagh which is pending since 1981 hence they were necessary party in the objection filed by the petitioners claiming co-tenancy right before the Consolidation Officer, Ramai Patti. Sri Rai contended that the order of the Consolidation Officer dated 15.5.1987 passed on the basis of compromise was an ex parte order affecting the right and interest of New Kashmir Oriental Transport Company Pvt. Ltd. hence without disclosing the fact of pendency of objection before the Consolidation Officer, Ram Bagh, another objection was filed before the Consolidation Officer. Ramai Patti in which order dated 15.5.1987 was passed on the basis of compromise. Sri Rai further contended that the Settlement Officer of Consolidation has allowed the appeal filed by the contesting respondents against the order dated 24.7.2000 passed by the Consolidation Officer hence the contesting respondents has right over the land in dispute. He further contended that the order dated 15.5.1987 has been quashed and the matter has been remanded to the Consolidation Officer where the petitioners will have an opportunity to have their say and none of the rights of the petitioners can be said to have been affected by the said order.
7. I have considered the submissions of counsel for the parties and perused the record.
8. From the facts and material which have been brought on the record, it is clear that there were two proceedings before the Consolidation Officer under Section 9A (2) of the Act. In Khata in dispute in basic year, the names of Lakshmi Chandra and Roop Chandra were recorded. Objection was filed in the year 1981 by the New Kashmir Oriental Transport Company Pvt. Ltd. claiming recording of their names on the Khata in dispute on the basis of two sale deeds dated 9.6.1974 and 31.3.1975. The recorded tenure holders contested the said case claiming that the aforesaid documents cannot be said to be registered sale deeds and those documents were executed with condition. On the basis of the said objection, case was registered before the Consolidation Officer, Ram Bagh, being Case No. 3975 of 1981. In 1986 another objection was filed by the petitioners except Roop Chandra and Lakshmi Chandra claiming cotenancy right claiming that the land originally belong to common ancestor Beni Madhav and every branch have 1/5th share. The said objection under Section 9A (2) of the said Act filed in the year 1986 was decided on the basis of compromise. An order was passed by the Consolidation Officer, on 15.5.1987, It is relevant to note that an objection under Section 9A (2) was filed by the New Kashmir Oriental Transport Company Pvt. Ltd. which was pending consideration in which they claimed on the basis of sale deed from the recorded tenure-holders. Looking into the nature of both the objections, it is clear that in one objection, there was dispute between the recorded tenure holders and the persons claiming sale from recorded tenure-holders and other objection was regarding the dispute between the petitioners and recorded tenure-holders claiming co-tenancy right on the basis that the land in dispute belong to common ancestors and every branch has share. It would have been appropriate that both the objection were decided together giving opportunity to every contesting party. The interest of New Kashmir Oriental Transport Company Pvt. Ltd. is adverse to the claim of the petitioners who filed objection in the year 1986. In the objection which was filed by the petitioners in the year 1986, no reference was given to the pendency of the objection filed by the New Kashmir Oriental Transport Company Pvt, Ltd. and the recorded tenure-holders entered into compromise with other members of the family recognising the right of each branch. The contesting respondents claimed to have purchased the property from New Kashmir Oriental Transport Company Pvt. Ltd. on 10.1.1989. New Kashmir Oriental Transport Company Pvt. Ltd. having executed the sale deed, the contesting respondents claimed to be stepped into shoes of New Kashmir Oriental Transport Company Pvt. Ltd. and the contesting respondent have right to prosecute the claim of New Kashmir Oriental Transport Company Pvt. Ltd. It is true that the application for recall of the order dated 15.5.1987 was filed with delay but affidavit was filed by the respondents in support of the said application giving reasons for filing the application with delay. The submissions of the counsel for the petitioners is that the respondents have no right to file an application for recall of the order dated 15.5.1987 claiming right by sale deed dated 9.1.1989. From the material brought on record, it is apparent that New Kashmir Oriental Transport Company Pvt. Ltd. was neither made party in the objection filed by the petitioners under Section 9A (2) of the said Act nor they had any notice before passing the order dated 15.5.1987. It is true that after the order dated 15.5.1987, the petitioners were got impleaded in case pending before the Consolidation Officer, Ram Bagh, on 21.3.1990. The New Kashmir Oriental Transport Company Pvt. Ltd. having executed th,e sale deed in favour of respondents on 9.1.1989, the contesting respondents stepped into shoes of New Kashmir Oriental Transport Company Pvt. Ltd. and since the objection file by the New Kashmir Oriental Transport Company Pvt. Ltd. under Section 9A (2) of the said Act being earlier in point of time was pending, the respondents have right to prosecute their claim on the basis of the sale deed dated 9.1.1989. Thus, the respondents did not lack the locus to file an application on the basis of sale deed dated 9.1.1989 for recall of the order dated 15.5.1987 and their application cannot be thrown away on the ground that their sale deed being subsequent to passing of the order, they cannot move an application for recall of an order. If their vendor New Kashmir Oriental Transport Company Pvt. Ltd. had right to challenge the order dated 15.5.1987, they also can avail the said right. The New Kashmir Oriental Transport Company Pvt. Ltd. had claimed right in the property of Khata No. 146 by an earlier objection under Section 9A (2) of the said Act they could have very well objected to the order of the Consolidation Officer partitioning and giving right to certain other persons as co-tenure holders since they had purchased the land of Khata by Lakshmi Chandra and Roop Chandra who were the only recorded tenure-holders. Thus, the submission of the counsel for the petitioners that the respondents have no right to file an application to recall, cannot be accepted. The submission of counsel for the petitioners is that Satish Chandra Ghai who took the sale deed dated 9.1.1989 was also doing pairvi in the case under Section 9A (2) filed by New Kashmir Oriental Transport Company Pvt. Ltd. before the Consolidation Officer, Ram Bagh and was also aware of the order dated 15.5.1987. It is true that the application for impleadment was filed by the petitioners in case pending before the Consolidation Officer Ram Bagh. which was also allowed on 21.3.1990 but in the affidavit filed by Satish Chandra Ghal in support of the application, detailed facts have been given. Satish Chandra Ghal was one of the pairokars on behalf of New Kashmir Oriental Transport Company Pvt. Ltd. in case under Section 9A (2) of the said Act filed before the Consolidation Officer, Ram Bagh. The fact that Satish Chandra Ghal was pairokar in a case under Section 9A (2) before Consolidation Officer, Ram Bagh cannot lead to the conclusion that he was aware of the order dated 15.5.1987 and its legal implication. It has specifically been stated in the affidavit in paragraph 3 that when the order dated 15.5.1987 was shown to the counsel, advice was given for filing an application. In view of the facts which have come on the record including the fact that the order dated 15.5.1987 was ex parte to the New Kashmir Oriental Transport Company Pvt. Ltd. the application for restoration was rightly entertained by the Consolidation Officer and only because Satish Chandra Ghai was pairokar, it cannot be said that an application cannot be moved by the respondents in the present case for recall of the order dated 15.5.1987.
9. The next submission of counsel for the petitioners is with regard to order of Tahsildar rejecting the mutation application filed by the respondents on the basis of the sale deed dated 9.1.1989. The order passed in mutation proceedings are only summary in nature and they do not have effect on the right of aggrieved parly to agitate the matter in regular proceedings. The consolidation proceedings are regular proceedings for adjudication of rights and title of the tenure holders regarding the land under consolidation. The fact that the mutation application filed by the respondents was rejected by the Tahsildar under Section 34 of the U. P. Land Revenue Act was no impediment in the respondents to agitate their right in regular proceedings. The rejection of mutation application was not an impediment in the respondents' filing application for recall of the order dated 15.5.1987. The counsel for the petitioners has contended that the respondents have not filed the sale deed dated 9.1.1989 in the mutation proceedings, hence he cannot claim any right on the basis of the sale deed. From the perusal of the order dated 11.12.1995 passed by the Consolidation Officer, it is clear that the Consolidation Officer has observed in the order that the respondents have taken the sale deed from New Kashmir Oriental Transport Company Pvt. Ltd. It does not appear that existence of sale deed in favour of the respondents was challenged before the Consolidation Officer. However, in view of the order of the Consolidation Officer dated 11.12.1995, the order passed on compromise had been set aside and the objection of the petitioners have been revived and it will be open to the petitioners to take all permissible pleas including that there is no sale deed in favour of the respondents dated 9.1.1989 as alleged and the Consolidation Officer will also consider the said plea while deciding the matter on merits.
10. The Deputy Director of Consolidation has also affirmed the findings recorded by the Consolidation Officer. The Deputy Director of Consolidation has held that the order dated 15.5.1987 as passed by the Consolidation Officer without hearing the affected parties, hence the same was rightly recalled by the Consolidation Officer. The Deputy Director of Consolidation has observed that the petitioners have right to raise all their plea for establishment of their rights.
11. The Consolidation Officer by the order dated 11.12.1995, has set aside the order dated 15.5.1987 which was passed on the basis of compromise reviving the objection filed by the petitioners under Section 9A (2) of the U. P. Consolidation of Holdings Act for co-tenancy right before the Consolidation Officer. It is, however, necessary to observe that the objection of the petitioners filed under Section 9A (2) of the said Act before the Consolidation Officer, Ramai Patti, claiming co-tenancy right is a separate objection and is to be decided independently by the Consolidation Officer without being affected by the earlier dispute between the tenure holders, Lakshmi Chandra and Roop Chandra on one side and New Kashmir Oriental Transport Company Pvt. Ltd. and its vendor on the other. The dispute of co-tenancy right which is raised by the petitioners in the objection filed before the Consolidation Officer, Ramai Patti has to be decided independently on the basis of the materials brought before the Consolidation Officer. The dispute between the recorded tenure-holders and New Kashmir Oriental Transport Company Pvt. Ltd. is not subject matter of the present writ petition and is under adjudication before the Settlement Officer of Consolidation arising -out of the objections filed under Section 9A (2) of the said Act being Case No. 3975 of 1981. However, for deciding the claim of the petitioners of co-tenancy right in the same Khata No. 146, it is necessary to observe that the said dispute has to be decided by the Consolidation Officer irrespective of the decision in the proceedings consequent to objection under Section 9A (2) of the said Act in Case No. 3975 of 1981.
12. In view of foregoing discussions, the prayer of the petitioners for quashing the order dated 11.12.1995 passed by the Consolidation Officer and the order dated 1.4.2003 passed by the Deputy Director of Consolidation is refused. However, since the objection was filed in the year 1986 and is pending consideration, the Consolidation Officer is directed to decide the said objection after giving opportunity to the parties expeditiously preferably within a period of six months from the date of production of a certified copy of this order in the light of the observations as made above.
13. The writ petition is disposed of accordingly.