Allahabad High Court
Ashok Kumar Singh And 5 Others vs Deputy Director Of Consolidation And 5 ... on 23 August, 2022
Author: Dinesh Pathak
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 52 Case :- WRIT - B No. - 1910 of 2022 Petitioner :- Ashok Kumar Singh And 5 Others Respondent :- Deputy Director Of Consolidation And 5 Others Counsel for Petitioner :- Umesh Vats,Balwant Singh Counsel for Respondent :- C.S.C.,Mayank Singh Hon'ble Dinesh Pathak,J.
1. Heard learned counsel for the petitioner, learned counsel for the caveator (respondents No. 3 to 5), learned standing counsel representing respondents No. 1, 2 and 6 and perused the record.
2. In view of the peculiar facts and circumstances of the case and the order proposed to be passed hereinunder, this Court proceeds to decide the matter finally, with the consent of the learned counsel for the parties present, without calling for their respective affidavits.
3. Challenge in the instant writ petition is the order dated 29.6.2022 passed the Deputy Director of Consolidation, Basti/respondent No. 1 in revision No. 133 of 2019 (annexure No. 7 to the writ petition).
4. The grievance of the petitioners is that in a revision arising out of order fixing a date for hearing on the question of delay in filing restoration application dated 25.2.2019 against the order dated 22.1.1997, Deputy Director of Consolidation has illegally entered into the merits of the case and exceeded it's jurisdiction in relegating the parties before Consolidation Officer to adjudicate upon the right and title of the parties on merits.
5. Facts culled out from the averments made in the writ petition are that initially a proceeding under Section 9A (2) of the UPCH Act was decided, vide order dated 22.1.1997 passed by the Consolidation Officer, on the basis of compromise entered into between the parties. At a very belated stage on 25.2.2019, a recall application has been filed on behalf of the contesting respondents. In the said recall application, objection dated 9.9.2019 was filed by the present petitioners. The Consolidation Officer, vide order dated 11.12.2019, has fixed the date 16.12.2019 for hearing the matter on the point of delay condonation. Being aggrieved against the order dated 11.12.2019 passed by the Consolidation Officer, a revision petition has been preferred by the contesting respondents being revision No. 133, under Section 48 (1) of the UPCH Act. The Deputy Director of Consolidation has allowed the aforesaid revision and relegated the parties before the Consolidation Officer to decide the case on merits after framing issues on the basis of the pleadings made by the parties, which is under challenge before this Court.
6. Learned counsel for the petitioners submits that the Deputy Director of Consolidation has exceeded its jurisdiction in exercise of its power under Section 48 (1) of the UPCH Act while allowing the revision arising out of order fixing a date for hearing on the point of delay condonation in filing the restoration application. It is next submitted that the Deputy Director of Consolidation has illegally quashed the earlier order dated 22.1.1997, which amounts allowing the restoration application, that too, without giving any opportunity of hearing to the petitioners. It is further submitted that the Deputy Director for Consolidation has no jurisdiction to the restore the matter to the file without condonation of inordinate delay in filing the restoration application, whereas restoration application along with the question of delay condonation was sub-judice before Consolidation Officer. As such, the order passed by the Deputy Director of Consolidation is illegal, unwarranted under law and liable to be quashed.
7. Per contra, learned counsel for the contesting respondents has contended that the Deputy Director of Consolidation has given a categorical finding that the order dated 22.1.1997 was procured by playing fraud upon the party and the fraud vitiates everything. In this view of the matter, the Deputy Director of Consolidation has rightly allowed the revision and remitted the matter before the Consolidation Officer to decide it de novo after giving opportunity of hearing to the parties. It is next submitted that the Deputy Director of Consolidation has remitted the matter in positive exercise of jurisdiction, therefore, there is no illegality and perversity in the impugned order and the same is liable to upheld. Accordingly, the present writ petition deserves to be dismissed.
8. Having considered the rival submissions advanced by the counsel for the parties and perusal of record, it reveals that vide order dated 11.12.2019 passed by the Consolidation Officer, simply the date 16.12.2019 has been fixed for hearing the matter on the point of delay condonation in filing the restoration application dated 25.2.2019 against the order dated 22.1.1997. A perusal of order dated 11.12.2019 clearly reveals that the Consolidation Officer has not applied his mind with respect to the right and title of the parties over the property in question. Nothing has been discussed on merits of the restoration application regarding legality and validity of the order dated 22.1.1997 passed on the basis of the compromise. No finding has been returned by Consolidation Officer as to whether the alleged compromise was genuine or not. Prima facie, it appears that the Deputy Director of Consolidation has passed the order in an unnecessary zeal by making an observation that the order dated 22.1.1997 passed by the Consolidation Officer, on the basis of compromise, was obtained by playing fraud upon the party. While deciding the revision, the Deputy Director of Consolidation has exceeded its jurisdiction in quashing the order dated 11.12.2019 as well as order dated 22.1.1997, which amounts allowing the restoration application, that too, without condoning the inordinate delay in filing the restoration application and without affording opportunity of hearing to the petitioners. The Deputy Director of Consolidation has given ex-parte finding qua the alleged forgery committed for obtaining the order dated 22.1.1997 whereas nothing has been discussed by Consolidation Officer, in respect thereto, while passing the order dated 11.12.2019. The Deputy Director of Consolidation is not justified to enter into the merits of the right, title and interest of the parties over the property in question and examine the legality and validity of the order dated 22.1.1997 passed on the basis of compromise, in a revision arising out of order which was passed only for the hearing on the point of delay condonation. Nothing has been decided on the merits in the order dated 11.12.2019 which was required to be examined by the Deputy Director of Consolidation in deciding the revision filed on behalf of the contesting respondents.
9. Emphasizing the eventuality of alleged fraud in obtaining the order dated 22.1.1997, learned Deputy Director of Consolidation has cited the case of UP Junior Doctors Action Committee Vs. Dr. B. Sheetal Nandwani and others reported in AIR 1991 Supreme Court 909 (incorrectly mentioned as AIR 2015, All India Trainee Doctor Vs. Sheetal Nandwani in the impugned order dated 22.6.2022) with an observation that fraud vitiates everything, therefore, order dated 22.1.1997 obtained on the basis of alleged forged compromise is not sustainable in the eye of law. In my opinion, said observation with respect to the alleged fraud is not justifiable in the eye of law inasmuch as neither the proper opportunity of hearing had been afforded to the petitioner to defend the order dated 22.1.1997 nor proper scrutiny has been conducted as per law to hold the order dated 22.1997 as a result of fraud. Mere observation of fraud is not sufficient to nullify the previous judicial proceeding culminated vide order dated 22.1.1997. Even otherwise, facts and circumstances of UP Junior Doctors Action Committee (supra) is entire different than the facts and circumstances of the present case. The matter relating to right and title of the party always stands on a different footing than the normal fraud as discussed in the cited case, therefore, post order, opportunity of hearing is necessary to person adversely affected in case where an entry is expunged or corrected in the revenue record or previous judicial order is recalled on the ground of alleged fraud and order correcting the entry or recalling the previous judicial order is passed without affording opportunity of hearing to the person adversely affected. There is nothing in the judgment passed by the Deputy Director of Consolidation that effective opportunity of hearing was afforded to the petitioner to defend his case against the allegation of fraud as observed by the Deputy Director of Consolidation, which adversely affects the right and title of the petitioner.
10. In this conspectus as above, this Court is of the considered opinion that the Deputy Direction of Consolidation has exceed its jurisdiction so vested in it by law under Section 48 of the UPCH Act. He has illegally entered into the merits of the case, which is still to be examined by the court subordinate to him. Accordingly, the present writ petition succeeds and is allowed. The impugned order dated 29.6.2022 passed by the Deputy Director of Consolidation is hereby quashed. The matter relating to the restoration application and delay condonation before the Consolidation Officer is restored to the file and parties are relegated before him, who is hereby directed to proceed with the merits of the restoration application as well as the point of delay condonation simultaneously and, accordingly, order dated 11.12.2019 passed by the Consolidation Officer is modified/altered to that extent. It is further directed that the Consolidation Officer shall make endeavour to hear and decide the point of delay condonation as well as restoration application simultaneously on the same date within a period of four months from the date of production of a certified copy of this order.
11. Both the parties are hereby directed to appear before the court concerned on 13.9.2019. It is expected that it should be decided by a reasoned and speaking order, in accordance with law, after affording opportunity of hearing to the parties concerned without granting unnecessary adjournments to either of the parties.
Order Date :- 23.8.2022 vinay