Ganga Ram vs Consolidation Commissioner and Others

Ram Surat Ram (Maurya), J.—Heard Sri S.K. Sharma for the petitioner. The writ petition has been filed for quashing the order of Consolidation Commissioner, U.P. dated 15.4.2013, by which the application filed by the petitioner for taking action against the Consolidation Officer, has been rejected.

The dispute arose before the Consolidation Officer in respect of plot No. 222 (area 2.4659 hectares) of village Kanihar, pargana Jhunsi, district Allahabad. The objection filed by the petitioner u/s 9A(2) of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act) has been allowed by the Consolidation Officer, by order dated 4.12.2010. Chiraunji Lal (husband of respondent-6) filed an appeal (registered as Appeal No. 1509 of 2010) on 16.12.2010 from the aforesaid order, in which operation of the order dated 4.12.2010 has been stayed. Subsequently, Chiraunji Lal moved an application on 3.1.2011, before the Consolidation Officer, for recall of the order dated 4.12.2010, which has been allowed by the Consolidation Officer on 4.2.2011. Thereafter, Chiraunji Lal executed a sale-deed dated 11.2.2011 of the land in dispute.

The petitioner moved an application before the Consolidation Commissioner, U.P. dated 10.5.2011 (wrongly typed as 10.5.2010), making complaint against the Consolidation Officer and taking action against him, for entertaining the restoration application of Chiraunji Lal and allowing it by order dated 4.2.2011, ex parte without any notice to the petitioner and during pendency of the appeal against the order dated 4.12.2010, before Settlement Officer Consolidation, from where operation of the order has also been stayed. The petitioner filed an application with his affidavit that the date typed as 10.5.2010 was an typographical error and should be read as 10.5.2011. When no decision was taken on the application dated 10.5.2011, the petitioner filed a Writ B No. 65088 of 2012, in which, this Court by order dated 13.12.2012 directed the Consolidation Commissioner to decide the complaint made by the petitioner within a period of six months. In the order, it has been clarified that the Consolidation Commissioner is free to decide the maintainability of the complaint and pass an independent order.

In pursuance of the direction issued by this Court, the Consolidation Commissioner directed the Settlement Officer Consolidation, Allahabad to conduct a preliminary inquiry and submit report. The Settlement Officer Consolidation, Allahabad submitted his report dated 21.2.2013, in which it has been mentioned that the Consolidation Officer has passed the order in the judicial proceeding, as such, the petitioner has remedy against the order under the law and no relief can be granted to the petitioner in the administrative side on the complaint made by him. Thereafter, the matter was heard by Consolidation Commissioner, U.P., who by order dated 15.4.2013 dropped the proceeding, holding that the order can be challenged in judicial side and if gross illegality is found, then strictures can be passed against the officer concerned. However, there is no sufficient material before him to take any administrative action against the officer concerned. Hence this writ petition has been filed.

The Counsel for the petitioner submits that the Consolidation Officer has decided the case on merit accordingly, the recall application was not maintainable. He has no jurisdiction to recall the order as held by this Court in Ram Avtar Vs. Dy. Director of Consolidation, Pratapgarh and Another, . He submits that the conduct of the Consolidation Officer in entertaining the recall application during pendency of the appeal in which stay order was also granted and recalling the order without issuing any notice to the petitioner, was highly suspicious and proved his mala fide and biased action. Illegal course has been adopted by him for the reasons best known to him, which is not expected from an officer discharging judicial function. Accordingly, the mala fide and bias on the part of the Consolidation Officer was apparent and action was required to be taken against him. He submits that the conduct of respondent-6 in filing the appeal and obtaining the stay order from the Appellate Court and thereafter, filing the restoration application before the Consolidation Officer and getting the order recalled, was illegal and shows that his collusion with the Presiding Officer. He submits that immediately after the order dated 4.2.2011, the property in dispute was sold by the husband of respondent-6 and the petitioner has been thrown in unlimited litigation. The conduct of Consolidation Officer was arbitrary and biased on his part and was inexcusable and action was required to be taken against him.

I have considered the arguments of Counsel for the parties and examined the record. In the order dated 4.2.2011, the Consolidation Officer has noted that both the parties have appeared before him and argued the recall application. The arguments of the Counsel for the petitioner has also been noted in the order. The contention that the petitioner has no notice of the recall application, is not liable to be accepted. At present, there is no material before this Court to hold that the order dated 4.2.2011 has been passed without giving any opportunity of hearing to the petitioner.

Under the law, filing of the appeal does not bar the remedy of recall of the order, if it was ex parte. Therefore, the statement that the recall application was not maintainable or after filing the appeal and getting the interim order from the Appellate Court, recall of the order was not proper, is not liable to be accepted.

There is no material to prove that the Consolidation Officer was bribed or colluded with the husband of respondent-6. The order has been recalled on the application filed by Chiraunji Lal finding that no notice was issued to him before passing the order. u/s 49A of the Act, protection has been given to the consolidation authorities for the orders passed by them in good faith or intended to be done in exercise of the powers under the Act. In view of the protection available u/s 49A of the Act, it is not proper for this Court to pass any order, in the absence of any strong evidence, proving involvement of the Consolidation Officer in corruption. The writ petition has no merit and is dismissed.