Allahabad High Court
Bhawan & Ors. vs Adc on 12 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 762
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 68 Case :- WRIT - B No. - 14148 of 1986 Petitioner :- Bhawan & Ors. Respondent :- Adc Counsel for Petitioner :- Niraj Upadhyay,Ram Krishna Yadav Counsel for Respondent :- R.N. Sharma,Ajay Kumar Sharma,Atul Sharma,S.C. Hon'ble Saumitra Dayal Singh,J.
1. List revised. None is present on behalf of the private respondents. Order sheet reveals, on 31.01.2020, Sri Atul Sharma, learned counsel for respondent nos. 7 to 9, stated, he had no instructions in the matter.
2. Heard Sri Bhola Nath Yadav, Advocate, holding brief of Sri Ram Krishna Yadav, learned counsel for the petitioners and Sri A.C. Nishad, learned Standing Counsel for the State-respondents.
3. Present writ petition has been filed against the order dated 17.01.1985 passed by the Deputy Director of Consolidation, Agra, whereby the said authority rejected Revision No. 677/359 filed by the petitioners under Section 48 of U.P. Act No. 5 of 1954 (hereinafter referred to as the 'Act'). The Revising Authority thus affirmed the order dated 25.02.1980 passed by the Settlement Officer, Consolidation, Agra, by which petitioners' appeal (against orders dated 05.06.1979 rejecting the application to recall the order dated 05.04.1978, and the order dated 15.04.1978 passed by the Consolidation Officer, Agra, under Section 9-A(2) of the Act), had been rejected.
4. Bereft of all unnecessary details, the petitioners alongwith Het Singh, Hola and others claimed share in Khata No. 134, Village - Jarauli, Pargana - Fatehabad, District - Agra. Upon commencement of consolidation operation, undisputedly, the petitioners filed objection claiming 1/3rd share in the aforesaid khata against his 1/4th share indicated in CH 5/'parchi khatauni'. Similarly, Het Singh filed objection, claiming sole 'bhumidhari' rights in the said khata against his 1/16th share reflected in CH 5/'parchi khatauni'. Also, Hola filed objections, claiming 1/2nd share in the said khata against his 1/8th share reflected in CH 5/'parchi khatauni'.
5. Undisputedly, the first notice for hearing on those objections was fixed for 05.08.1975. On that date, the proceedings were adjourned in order to meet target date fixed in similar proceedings, in another village. Admittedly, the second notice came to be issued for the date 26.08.1976 and not earlier. The same was not served personally on the petitioners. However, the Consolidation Officer claimed, the notice was served on the petitioners through affixation. Neither the date of such service through affixation nor the certification of the official who may have served the notice by affixation has come on record.
6. In such facts, by his order dated 15.04.1978, the Consolidation Officer, Agra, rejected the objections filed by the petitioners without affording any reasoning. He also rejected the objections filed by Het Singh and Hola on merits. Undisputedly, those parties were served and heard on those objections.
7. Against the order dated 05.06.1979, the petitioners filed recall application, which came to be rejected. The only reason assigned in that order was the fact that against the order dated 05.06.1979, Het Singh had filed an appeal before the Settlement Officer, Consolidation, Agra, which had also been rejected. Since the higher (appeal authority) had adjudicated the matter on merits, therefore, the Consolidation Officer, Agra, declined to exercise his power to recall the order dated 15.04.1978.
8. Against the orders dated 15.04.1978 and 05.06.1979, the petitioners filed an appeal before Settlement Officer, Consolidation, Agra, that came to be rejected, by order dated 25.02.1980 on the reasoning that the petitioners could not prove their claim based on the compromise decree between the parties, dated 21.10.1948.
9. The further revision filed by the petitioners against the order dated 25.02.1980 had been rejected by the impugned order dated 17.01.1985. First, it has been reasoned, since the appeal filed by Het Singh against the order dated 15.04.1978 had already been dismissed, the Consolidation Officer could not have recalled the order dated 15.04.1978. Second, though no certificate was available of the official, who served the notice of hearing on the petitioner (through affixation), the same was a bona fide mistake which could not create any doubt as to due service of notice.
10. Assailing the aforesaid reasoning given in the impugned order, learned counsel for the petitioners would submit, dismissal of the appeal filed by Het Singh may give rise to finality to that order, only with respect to rights claimed by Het Singh. The petitioners who were not heard on their rights/their claim, could not be non-suited in view of the rejection of the appeal filed by Het Singh.
11. Second, it has been submitted that the defect noted in the service of notice through affixation was fatal to the proceedings inasmuch as unless the process server had first certified that the notice had been affixed at the place designated under the Rules, in accordance with law, no presumption of service may have arisen merely because two persons appear to have made an endorsement of such service being effected.
12. On the other hand, learned Standing Counsel would submit, as observed by the Appeal Authority, the rights of the parties have been correctly determined and no further adjudication was necessary. Therefore, no further hearing was required to be given by the Consolidation Officer, Agra as he had already examined the petitioners' claim, while passing the order dated 15.04.1978.
13. Having heard learned counsel for the parties and having perused the record, the submission advanced by learned counsel for the petitioners are well founded. In proceedings under Section 9-A of the Act, the claim made has to be treated on parity with suits that may have otherwise been filed by respective parties. Therefore, the fact that proceedings filed by Het Singh, petitioners and Hola had been taken up for consideration together, would only lead to inference that the three separate suits filed by those parties were being heard together.
14. Also, in the present case, the claim being made by Het Singh, petitioners and Hola were not in the nature of partition suits but they were competing title claims, based on different basis and evidence. Thus, Het Singh was claiming exclusive 'bhumidhari' rights in the entire holding, while the petitioners were claiming 1/3rd share on the basis of compromise decree. Therefore, rejection of the claim made by Het Singh and confirmation of that order in appeal would only give rise to finality of the order passed in the case of Het Singh, qua the rights claimed by him. That decision would not bind the petitioners to any extent as their rights and claim were never adjudicated. Consequently, the reasoning given by the Revising Authority and the Consolidation Officer, Agra that the petitioners' recall application was not maintainable, is completely erroneous.
15. Insofar as the second reasoning given by the revising authority is concerned, in the first place, for a valid order to arise, prior service of notice is mandatory. The notice served must disclose the date of hearing on objections. No exception can be made to that rule. Then, in absence of any direct service, strict compliance of rule governing substituted service, had to be made, before a presumption of service could arise. Under Rule 58(2) of the U.P. Consolidation of Holdings Rules, 1954 (hereinafter referred to as the 'Rules') though substituted service is permissible, however, strict and real compliance of the requirements of law must be made. Under Rule 25(c) of the Rules, in the first place, notice in Form CH 5 is required to be served on the tenure holders/persons interested. Under Rule 58 of the Rules, the record of service is required to be maintained in Form CH 31. Relevant to our purpose, Form CH 31 reads as below:
C.H. FORM 31 [See Rule 58] Record of service of documents on tenure-holders Village..............Pargana.............Tehsil.............District...................
Serial number of service Description of document to be served On whom to be served Date of service Signature or thumb-impression in token of personal service or manner of service Signature of serving officer with date Name and designation of serving officer Remarks 1 2 3 4 5 6 7 8
16. Thus, the Act and the Rules prescribe and prefer personal service and its receipt to establish service. The Rules also govern the manner in which evidence of that fact may arise. Form CH 31 requires not only the name of persons on whom notice may have been service, to be maintained but also the date of service as also signature/thumb impression of the noticee to be recorded alongwith signature and date of the serving officer as also his designation.
17. In absence of personal service having been effected, there is no reason to infer a different requirement with respect to substituted service to establish valid substituted service. Thus, in addition to the statement of the alleged witness, it would remain of utmost importance that the signature, name and designation of the serving officer alongwith his signature should have been found recorded in the service record before any presumption of deemed service could have been raised against the petitioners. That evidence is clearly lacking. It is fatal to the claim of valid service of notice.
18. Also, under the U.P. Revenue Court Manual, in case of service by affixation, an acknowledgment of summon being attached to the door of the house of the person summoned, is required to be taken from two respectable neighbours of that person if he resides in a town and from the Pradhan/Up-Pradhan and the Patwari or Choukidar, if the person summoned resides in a village. The certificates referred to by the revising authority have not been shown to have been obtained in compliance of the requirements of the U.P. Revenue Court Manual as well.
19. Inasmuch as, in the facts of the case, the Revising Authority has himself recorded that there is no certification of the serving officer, there was no basis for any presumption to have been raised thereafter (by Revising Authority), as to deemed service of the notice for the hearing for the date 26.08.1976. In absence of any other date having been fixed or communicated to the petitioners before the Consolidation Officer passed the order dated 15.04.1978, it remained a wholly ex parte order against the petitioners, in violation of fundamental requirement of rule of natural justice.
20. Since the proceedings were conducted and concluded wholly ex parte against the petitioners, from the very initiation, there never reached a stage when the petitioners could have led evidence to prove the existence of the compromise decree. Therefore, the inference drawn by the Settlement Officer, Consolidation that the petitioners did not lead any evidence, is equally erroneous.
21. Consequently, the orders dated 17.01.1985, 25.02.1980, 05.06.1979 are quashed and the order dated 15.04.1978 is set aside to the extent, the Consolidation Officer, Agra rejected the petitioners' objection. The matter is remitted to the Consolidation Officer, Agra to decide the petitioner's objection afresh in accordance with law, after hearing all parties. The aforesaid exercise may be concluded, as expeditiously as possible, without allowing for any undue or long adjournment to either party.
22. The present writ petition is thus allowed.
Order Date :- 12.2.2020 Abhilash