Kapil Dev vs Dy. Director of Consolidation and Others

A.P. Singh, J.—Kapil Dev, Petitioner in this writ petition has sought to challenge by means of the present writ petition order of the Settlement Officer (Consolidation) dated 25.5.92 and the revisional order passed by Deputy Director of Consolidation, Faizabad on 30.11.95, u/s 48 of U.P. Consolidation of Holdings Act (hereinafter called the Act). Plot No. 1861 situate in village Jainapur, district Ambedkar Nagar (earlier Faizabad) is subject-matter of dispute between Petitioner and Respondent No. 3 in the present writ petition. It appears, the land was recorded in the basic year in the name of Balikaran, father of Babu Ram opposite party No. 3. Kapil Dev, Petitioner filed an objection claiming Sirdari rights on the basis of adverse possession over the land in. dispute. It is stated that order dated 27.2.78 was passed by the Consolidation Officer on the basis of compromise between Petitioner and Balikaran, wherein Petitioner was given Sirdari rights over the said land. Notwithstanding the order passed by Consolidation Officer, the land continued to be recorded in the name of Balikaran and a chak also appears to have been carved out in his name by Assistant Consolidation Officer regarding which no objection was filed by Petitioner. The Petitioner, however, states that he continued to be in possession of the land and his possession was never disturbed. This fact is, however, denied by Babu Ram, Respondent No. 3 asserting that Petitioner was never in possession. According to Babu Ram, Petitioner was never in possession and the revenue records too do not record his possession at any stage. Petitioner, however, filed an application for implementation of the order of the Consolidation Officer in the year 1990. It was at this stage according to Babu Ram, Respondent No. 3, he came to know of the order of Consolidation Officer for recording the name of Petitioner as Sirdar, he, therefore, filed appeal on 19.12.90 challenging the said order of the Consolidation Officer on the ground that the same was fictitious as no compromise had taken place between his father and Petitioner. The Settlement Officer (Consolidation) allowed the appeal and remanded the case back to the Consolidation Officer for decision on the objection of Kapil Dev, Petitioner, on merits inasmuch as he found that the compromise set up by the Petitioner in respect of the land in dispute was of doubtful character. Petitioner filed revision before the Deputy Director of Consolidation but without success, the Deputy Director of Consolidation endorsed the order of the Settlement Officer (Consolidation) and rejected the revision. Petitioner has, thus, approached this Court under Article 226 of the Constitution for challenging the orders passed by Settlement Officer (Consolidation) and Deputy Director of Consolidation. Shri S. K. Mehrotra learned Counsel for the Petitioner will contend that the consolidation courts could not entertain appeal or revision after close of consolidation operations in the village by publication of notification u/s 52 (1) of the Act. Section 52 (1) of the Act reads as follows:

Close of consolidation operations.--(1) As soon as may be after fresh maps and records have been prepared (under Sub-section (1) of Section 27) the State Government shall issue notification in the official gazette, that the consolidation operation have been closed in the unit and village or villages or forming part of the unit shall then cease to be under consolidation operations:

Provided that the issue of the notification under this section shall not affect the powers of the State Government to fix, distribute and recover the cost of operations under this Act.

According to the learned Counsel for the parties, notification u/s 52 of the Act was issued sometimes in the year 1988 on 27.2.88 whereby consolidation operations in village Jainapur of district Ambedkar Nagar (earlier Fatzabad) was closed. The result of the closure is that the consolidation courts cease to have jurisdiction to entertain any fresh matter whether it be an application for implementation of the earlier orders or appeal or revision for challenging the orders passed much before the close of consolidation operations. Strength in this context can be gathered from judgment of this Court in the case of Nankai v. Dy. Director of Consolidation, Pratapgarh and Ors. 1995 (I) 13 LCD 1. In this case, it has been held that with the close of consolidation operations consolidation courts will have no jurisdiction to entertain any fresh matter. Obviously, in the present case, neither Petitioner''s application for implementation of the order of Consolidation Officer dated 27.2.78 was pending at the time when the consolidation operations in the village were closed by publication of notification u/s 52 of the Act nor any appeal against the Consolidation Officer''s order by opposite party No. 3 was pending. The matter in respect of the land in dispute stood finally concluded by the order of Consolidation Officer dated 27.2.78 whereafter no step either by the Petitioner for the implementation of that order or by Respondent No. 3 for challenging that order was taken and the matter was left as it was by both the parties. What then was the consequence of inaction on the part of both the parties in this regard is not the bone of contention between the parties before me. The point, however, for consideration is as to whether the consolidation courts having ceased to possess jurisdiction to entertain appeal or revision or application under Rule 109A of the Rules could still entertain such matters on the ground that parties were not aware of the actual state of affairs so as to move the requisite application before the close of consolidation operations. In the present case, neither Settlement Officer (Consolidation) nor Deputy Director of Consolidation recorded a finding that the order of the Consolidation Officer was procured fraudulently. They have only entertained their doubts about genuineness of the compromise said to have been filed by the father of Respondents before the Consolidation Officer.

In my opinion, the courts below the Settlement Officer (Consolidation) and the Deputy Director of Consolidation possessed no power after publication of notification u/s 52 (1) of the Act to entertain appeal and revision so as to set aside an order of Consolidation Officer passed much before closure of consolidation operations only for the reason that in their opinion, the compromise order was passed in doubtful circumstances. They have not recorded finding that the order of Consolidation Officer dated 27.2.78 was result of fraud played by Petitioners. In these circumstances, both of them acted illegally by setting aside Consolidation Officer''s order.

I, therefore, see no reason to uphold the orders of the Settlement Officer (Consolidation) and Deputy Director of Consolidation on merits too. In any case, I do not want to enter into the merits of the case set up in the appeal by the Respondent for the reason that the orders of the consolidation authorities as observed above being pulpably without jurisdiction inasmuch as they possessed no power to entertain the appeal or the revision after close of consolidation operations in the village their orders must be quashed.

Shri A. S. Chaudhary, learned Counsel for opposite party No. 3 however, raised plea questioning the jurisdiction of the Consolidation Officer to entertain application filed by Petitioner under Rule 109A for implementation of the order of Consolidation Officer after close of consolidation operations after the publication of notification u/s 52 (1) of the Act. Shri S. K. Mehrotra, learned Counsel for the Petitioner who had moved that application before the Consolidation Officer too agrees that the application is not maintainable as the Consolidation Officer has no power left with him now to implement the Consolidation Officer''s order dated 27.2.78 after closure of consolidation operations in the village; he, therefore, undertook on behalf of Petitioner that the Petitioner will withdraw his application and shall seek appropriate remedy in appropriate forum. On the undertaking of Shri Mehrotra, learned Counsel for the Petitioner that Petitioner will withdraw his application from the Court of Consolidation Officer with the liberty to file it in appropriate forum, no order in that regard is required to be passed specially so when proceedings pending on Petitioner''s application before the Consolidation Officer is not under challenge in this writ petition.

As a result of the foregoing discussions, the writ petition succeeds and is accordingly allowed. Order dated 30.11.94 (Annexure 8 to the writ petition) passed by Deputy Director of Consolidation, opposite party No. 1 and order dated 25.5.92 (Annexure 6 to the writ petition) passed by the Settlement Officer (Consolidation) are quashed. There shall be no order as to costs.