Pradyuman & Others vs Yashveer Singh & Others

Lok Pal Singh, J

Petitioners have invoked the extra-ordinary jurisdiction of this Court under Article 226/227 of The Constitution of India seeking a writ of certiorari quashing the orders dated 29.11.2007, 12.11.2008 and 31.05.2011 (contained as annexure nos.6, 7 and 9, respectively).

Factual background of the case is that the father of petitioner no.3 namely Ghaseeta filed objections under Section 9-A of U.P. Consolidation of Holdings Act. The Assistant Consolidation Officer, by order dated 07.09.1992, partitioned Khata No.57 on the basis of shares of the parties. Subsequently, father of the petitioners filed appeal before the Settlement Officer Consolidation, who on the basis of compromise, decided the appeal vide order dated 01.11.1993. The opposite parties filed restoration application for recall of order dated 01.11.1993 on the ground that the compromise was obtained by playing fraud. Petitioners' father filed objections to the said restoration application. The Settlement Officer Consolidation vide his order dated 23.2.1998 allowed the restoration application, whereagainst petitioners' father filed a revision. Deputy Director of Consolidation, vide order dated 20.08.1998, dismissed the revision. Further aggrieved, father of petitioner no.3 approached the Allahabad High Court and filed a civil misc. writ petition no.29114 of 1998. Hon'ble Allahabad High Court, by its judgment dated 10.09.1998, dismissed the appeal with the observation that the Settlement Officer Consolidation shall decide the appeal expeditiously. Thereafter, the Settlement Officer Consolidation, vide order dated 17.03.2001, decided the appeal and set-aside the order dated 07.09.1992 and remanded the case to the Consolidation Officer, Roorkee to decide the matter after giving full opportunity of hearing to the parties. After remand, the Consolidation Officer, by its judgment and order dated 16.10.2001, decided the case and it was directed that the gata no.42 of khata Khatauni no.57 shall be divided as khasra no.42/2 area 2.9043 hectare (orchard) in the share of Balbir Singh and Hirderam S/o Chajju and khasra no.42/1 area 1.000, 42/3 area 0.4150, 42/4 area 0.5200, 42/5 area 0.0100 and 42/6 area 0.0100, total area 2.8430 hectare, shall be recorded, as earlier, in the shares of Ghaseeta Singh. Subsequently, father of petitioner no.3 filed an application before the Consolidation Officer, Roorkee, under Rule 109 stating that the record be corrected according to the order dated 16.10.2001. On the application so moved, a reference was made by Assistant Consolidation Officer which was registered as reference suit no.73 Ghaseeta and others vs. State. Consolidation Officer observed that the reference no.231 u/s 48(3) dated 12.7.1995 has been prepared as per order dated 01.11.1993 and in pursuance to said reference, record has been prepared, and accordingly, dismissed the application filed by the petitioners, vide order dated 29.11.2007. Feeling aggrieved, petitioners filed appeal. Settlement Officer Consolidation, vide its order dated 12.11.2008, dismissed the appeal. Thereafter, the petitioners preferred revision before Deputy Director of Consolidation, which also got dismissed vide order dated 31.5.2011.

I have heard learned counsel for the parties and have also perused the record of Consolidation Case No.220 of 2001.

A perusal of the record would reveal that the order which was passed by the Settlement Officer Consolidation dated 01.11.1993 on the basis of compromise was subsequently recalled. Thereafter, the matter was remanded and it was decided afresh by the Consolidation Officer by judgment and order dated 16.10.2001, whereby it was directed that the gata no.42 of khata Khatauni no.57 will be partitioned as khasra no.42/2 area 2.9043 hectare (orchard) in the share of Balbir Singh and Hirderam S/o Chajju, and khasra no.42/1 area 1.000, 42/3 area 0.4150, 42/4 area 0.5200, 42/5 area 0.0100 and 42/6 area 0.0100, total area 2.8430 hectare, shall be recorded in the name of Ghaseeta Singh like earlier. This Order dated 16.10.2001 passed by Consolidation Officer was not challenged by any party before any court of law and has attained finality. Application filed by the petitioners has been dismissed on the ground that the record has been prepared pursuant to reference dated 12.7.1995, which was prepared in accordance with order dated 1.11.1993, whereas the order dated 01.11.1993 had already been set aside in restoration application. In the opinion of the Court, reference ought to have been prepared according to order dated 16.10.2001, but it has not been done. In such view of the matter, impugned orders are liable to be set-aside and the matter should be remanded to the Consolidation Officer to make reference afresh in accordance with order dated 16.10.2001.

Accordingly, impugned orders dated 29.11.2007, 12.11.2008 and 31.5.2011 are quashed and hereby set-aside. Matter is remanded back to the Consolidation Officer to make a reference in accordance with order dated 16.10.2001 and thereafter to pass appropriate orders, after providing reasonable opportunity of hearing to the parties concerned. Consolidation Officer shall ascertain the new numbers of khasra nos.42/1, 42/3, 42/4, 42/5 and 42/6 of gata no.42 of khata Khatauni no.57 and shall correct the record accordingly.

With the aforesaid observation and direction, writ petition stands disposed of accordingly. No order as to costs.

Lower court record be sent back.