Allahabad High Court
Champa Devi And 2 Others vs State Of U P And 7 Others on 14 March, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 18 Case :- WRIT - B No. - 3061 of 2022 Petitioner :- Champa Devi And 2 Others Respondent :- State Of U P And 7 Others Counsel for Petitioner :- Babhru Vahan Singh Counsel for Respondent :- C.S.C.,Nikhil Kumar Hon'ble Chandra Kumar Rai,J.
Heard Mr. Babhru Vahan Singh, Counsel for the petitioners and Mr. Nikhil Kumar, Counsel for respondent No.5.
Brief facts of case are that petitioner's mother filed an objection under U.P.C.H. Act for recording her name in place of respondent No.5 on the basis of registered sale deed executed on 15.04.1997 in respect to plot No.1448 area 0.098 hectare. The Consolidation Officer vide order dated 24.02.2016 directed to record the name of the petitioners' mother in respect to the plot in dispute. Against the order dated 24.02.2016 passed by the Consolidation Officer, respondent No.4 filed restoration application on 03.06.2016 along with prayer for condonation of delay. Respondent Nos. 4 and 5 also filed an appeal against the order dated 24.02.2016 before the Settlement Officer of Consolidation, but the same was subsequently withdrawn by them. The Settlement Officer of Consolidation has dismissed the petitioners' appeal as not maintainable vide order dated 28.06.2016. On the recall application filed by contesting respondent, the Consolidation Officer stayed the operation of the order dated 24.02.2016 till the disposal of the restoration application. Petitioners' mother challenged the order of Consolidation Officer by filing revision under Section 48 of U.P.C.H. Act before the Deputy Director of Consolidation which has been dismissed holding the same as not maintainable. Hence this Writ petition.
This Court has passed following order on 17.11.2022:-
"Heard learned counsel for the petitioners and leaned Standing Counsel appearing on behalf of State-respondents.
Learned counsel for the petitioners has submitted that the revision filed by the petitioners was listed on 1.8.2022 alongwith other cases and on that day general date was fixed as 10.8.2022 and on 10.8.2022 again the case was fixed for 30.8.2022, but without any notice to the petitioners, the case was listed on 16.8.2022 and on that day the case was adjourned for 6.9.2022, but on 16.8.2022, the revision was dismissed by the respondent no.2 as not maintainable which clearly proves the malafide on the part of the respondent no.2 The Deputy Director of Consolidation, Azamgarh is directed to file his personal affidavit before this Court on the next date fixed explaining the reason how he has passed the order dated 16.8.2022 when the date of 6.9.2022 was fixed for disposal of the aforesaid application of the petitioner.
On failure to comply this order, Deputy Director of Consolidation, Azamgarh will appear in person before this Court on the next date fixed at 10 a.m. sharp.
Put up this case on 24.11.2022 as a fresh case."
On 12.12.2022 this Court has passed following interim order:
"Personal affidavit of Sri Jagdamba Prasad Singh, Deputy Director of Consolidation, Azamgarh, has been filed by learned Standing Counsel, which is taken on record.
The petitioner is permitted to implead the Consolidation Commissioner, U.P., Lucknow, as respondent no.6 and Sri Jagdamba Prasad Singh, Deputy Director of Consolidation, Azamgarh as respondent no.7 in the writ petition, within the course of the day.
Notice on behalf of respondent Nos. 1 to 3 has been accepted by learned Standing Counsel.
Issue notice to respondent Nos.4, 4/1 to 4/3 & 5.
Steps be taken within a week.
All the respondents may file their counter affidavits within four weeks. Rejoinder affidavit may be filed within two weeks thereafter.
From the perusal of the personal affidavit of Sri Jagdamba Prasad Singh, Deputy Director of Consolidation, Azamgarh, it is clear that he has not furnished any explanation how he has decided the case on preponed date as recorded by this Court in order dated 17.11.2022 produced hereinbelow:-
"Heard learned counsel for the petitioners and leaned Standing Counsel appearing on behalf of State-respondents.
Learned counsel for the petitioners has submitted that the revision filed by the petitioners was listed on 1.8.2022 alongwith other cases and on that day general date was fixed as 10.8.2022 and on 10.8.2022 again the case was fixed for 30.8.2022, but without any notice to the petitioners, the case was listed on 16.8.2022 and on that day the case was adjourned for 6.9.2022, but on 16.8.2022, the revision was dismissed by the respondent no.2 as not maintainable which clearly proves the malafide on the part of the respondent no.2 The Deputy Director of Consolidation, Azamgarh is directed to file his personal affidavit before this Court on the next date fixed explaining the reason how he has passed the order dated 16.8.2022 when the date of 6.9.2022 was fixed for disposal of the aforesaid application of the petitioner.
On failure to comply this order, Deputy Director of Consolidation, Azamgarh will appear in person before this Court on the next date fixed at 10 a.m. sharp.
Put up this case on 24.11.2022 as a fresh case."
The petitioner has brought on record the cause list of the court of respondent no.1, which is annexed as Annexure no.8 to the writ petition. It shows that the case of the petitioner was fixed for 6.9.2022 alongwith other cases on 16.8.2022, but the case was decided on 16.8.2022 itself by D.D.C., Azamgarh.
In the personal affidavit of D.D.C., Azamgarh, he has not disputed that the cause list filed alongwith writ petition is incorrect or does not belongs to his court.
The conduct of the public servant aforesaid amounts to misconduct in office, which has been defined as follows:-
"Any unlawful behaviour by a public officer in relation to the duties of his office, willful in character. Terms embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the fact of an affirmative duty to act. "
Consolidation Commissioner, U.P., Lucknow, respondent no.6 is directed to get disciplinary proceedings initiated against Sri Jagdamba Prasad Singh, Deputy Director of Consolidation, Azamgarh, by his disciplinary authority in accordance with the rules. The disciplinary authority shall appoint an inquiry officer, who shall conduct the inquiry against Sri Jagdamba Prasad Singh, Deputy Director of Consolidation, Azamgarh, regarding his misconduct in office and submit report to the disciplinary authority within three months. The disciplinary authority will then pass appropriate order thereon.
The aforesaid Consolidation Commissioner, respondent no.6, will file the reports of inquiry officer as well as decision taken thereon by the disciplinary authority before this Court alongwith his personal affidavit on or before the next date fixed. Respondent no.6 is also directed to ensure that the disciplinary proceedings are conducted against aforesaid Deputy Director of Consolidation strictly in accordance with rules. Procedural lapses in inquiry shall not be tolerated by this Court and adverse order shall be passed against inquiry officer and disciplinary authority in case it is found that deliberate procedural faults in inquiry have been done to help the delinquent Deputy Director of Consolidation.
Put up this case on 14.3.2022 as a fresh case.
Till the next date of listing, the effect and operation of impugned order dated 16.8.2022 passed by Deputy Director of Consolidation, Azamgarh and order dated 03.6.2016 passed by Consolidation Officer, Sathiyaon, District Azamgarh, shall remain stayed.
The Registrar (Compliance) of this court is directed to communicate this order to the Consolidation Commissioner, U.P., Lucknow, forthwith."
Learned Standing Counsel has filed a personal affidavit of Secretary Revenue Department/ Consolidation Commissioner along with application for extension with the prayer to grant three months' further time for compliance of the order dated 12.12.2022.
Contesting Respondent No.5 has filed his counter affidavit along with stay vacation application.
Counsel for the petitioner submitted that objection filed by the petitioner has been allowed by the Consolidation Officer against which contesting respondents have filed appeal as well as restoration application. He further submitted that restoration application was barred by time, as such prayer for condonation of delay was also made but without condoning the delay, Consolidation Officer has stayed the operation of the final order of the Consolidation Officer passed under U.P.C.H. Act. He further submitted that order passed by Consolidation officer was challenged in the appeal also but subsequently appeal has been withdrawn. He further submitted that order passed by the Consolidation Officer was challenged in revison on the ground that interim order grated by Consolidation Office without condoning the delay and without allowing the restoration application was illegal. He further submitted that during pendency of the revision revisionist has died and the substitution application has been filed before the revisional court and revisional Court without deciding the pending application has dismissed the revision as well as without affording proper opportunity of hearing to the petitioners. He further submitted that impugned order be set aside and the matter passed by the Consolidation Officer be maintained.
On the other hand Mr. Nikhil Kumar, Counsel for contesting respondent No.5 submitted that order passed by Consolidation Officer dated 24.02.2016 was not on merit. He further submitted that a cryptic order has been passed by Consolidation Officer for deciding the title objection even contesting respondents have not been afforded opportunity and the order has been passed. He further submitted that no issues were framed in the objection and the order has been passed in arbitrary manner for recording the name of the petitioners in place of respondent No.5. He further submitted that revision filed by petitioners was rightly dismissed.
I have considered the arguments advanced by the counsel for the parties and perused the record.
There is no dispute about the fact that objection filed by the petitioners' mother against the recorded tenure holder was allowed. There is also no dispute about the fact that restoration application along with delay condonation application filed by contesting respondents, order passed by Consolidation Officer was stayed and the restoration application as well as delay condonation application is pending before Consolidation Officer. There is also no dispute about the fact that revision filed by the petitioners has been dismissed by the revisional Court on the ground that the order passed by Consolidation Officer on restoration application is interlocutory in nature.
Since the restoration application along with prayer of condonation of delay filed by contesting respondents has not been allowed by the Consolidation officer as such grant of interim order without condoning delay in filing the restoration application as well as without allowing restoration application is illegal. The order passed by Consolidation officer on the restoration application cannot be sustained in he eye of law.
The revisional Court while considering the revision has failed to exercised his revisional jurisdiction and dismissed the revision on the ground that order passed by Consolidation Officer is interlocutory in nature. Revisional Court has also preponed the date and decided the revision without affording opportunity of hearing to the petitioners which is mandatory under Section 48 of U.P.C.H. Act before deciding the revison. In order to appreciate the controversy the perusal of Section 48 of U.P.C.H. Act is necessary which is as under:-
Section 48 of U.P.C.H. Act.
"Section 48. Revision and reference. - (1) The Director of Consolidation may call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings; or as to the correctness, legality or propriety of any order] [other than an interlocutory order] passed by such authority in the case or proceedings, may, after allowing the parties concerned an opportunity of being heard, make such order in the case or proceedings as he thinks fit.
(2) Powers under sub-section (1) may be exercised by the Director of Consolidation also on a reference under sub-section (3).
(3) Any authority subordinate to the Director of Consolidation may, after allowing the parties concerned an opportunity of being heard, refer the record of any case or proceedings to the Director of Consolidation for action under sub-section (1).
[Explanation. -] [(1)] For the purposes of this section, Settlement Officers, Consolidation, Consolidation Officers, Assistant Consolidation Officers, Consolidator and Consolidation Lekhpals shall be subordinate to the Director of Consolidation.
Explanation (2) - For the purposes of this section the expression 'interlocutory order' in relation to a case or proceeding, means such order deciding any matter arising in such case or proceeding or collateral thereto as does not have the effect to finally disposing of such case or proceeding.
[Explanation (3). - The power under this section to examine the correctness, legality or propriety of any order includes the power to examine any finding, whether of fact or law, recorded by any subordinate authority, and also includes the power to re-appreciate any oral or documentary evidence."
The perusal of Section 48 of U.P.C.H. Act fully demonstrate that reasonable opportunity of hearing to the parties is mandatory before deciding the revision under Sectin-48 of U.P.C.H. Act which is lacking in the instant matter.
Considering the entire facts and circumstances of the case the impugned order dated 16.08.2022 passed by respondent No.2/ Deputy Director of Consolidation and order dated 03.06.2016 passed by respondent No.3/ Consolidation Officer are liable to be set aside and same are hereby set aside. The writ petition is allowed in part and matter is remitted back before Consolidation Officer, respondent No.3 to decide the restoration application dated 30.06.2016 afresh after passing the necessary orders on Section 5 of Limitation Act within a period of two months from the date of production of certified copy of this order.
So far as disciplinary proceeding initiated against Sri Jagdamba Prasad Singh,Deputy Director of Consolidation Azamgarh is concerned, the same cannot be continued in view of law laid down by Division Bench of this Court in Special Appeal No.4 of 2023 (Somnath Mishra Vs. Shri Ram Singh and 5 others dated 13.01.2023) accordingly pending disciplinary proceeding against Sri Jagdamba Prasad Singh, Deputy Director of Consolidation is ordered to be dropped. However, Deputy Director of Consolidation, Azamgarh is directed to decide all the disputes/revision under Section 48 of U.P.C.H. Act in accordance with the provisions contained under the U.P.C.H. Act, so that injustice may not cause to the litigant.
All the pending applications stand disposed of.
Order Date :- 14.3.2023 PS*