Raj Ballabh vs Deputy Director of Consolidation

@DELETEUPPERDATA

Anjani Kumar Mishra, J.—Heard Sri H.N.B. Sinha, learned Counsel for the petitioner and Sri M.K. Tiwari, who appears for the contesting respondent. This petition arises out of an objection under section 12 of the U.P. Consolidation of Holdings Act (in short, the C.H. Act) and is directed against the order dated 23.12.2009 passed by the Deputy Director of Consolidation, Allahabad (in short, the DDC) in Revision No. 1671/1343, Sri Bhagwan Singh v. Raj Ballabh and others.

Facts of the case, briefly stated, are that a registered sale-deed was executed on 27.7.1981 by Ramanand in favour of six persons. The sale-deed was a composite sale-deed. An objection was filed seeking mutation on the basis of the said sale-deed. The Consolidation Officer by his order dated 14.10.1981 passed an order on the basis of a compromise, whereby the names of the parties were recorded over respective portions as per the compromise itself.

It appears that subsequently in proceedings under section 42-A, an order was passed by the Consolidation Officer on 18.5.1982 allotting specific portions of the land purchased by the vendors. It appears that on the basis of these orders, proceedings under section 41 of the U.P. Land Revenue Act for correction of boundaries was filed by Sri Bhagwan Singh, respondent No. 3, in the writ petition. It is by means of these proceedings, the petitioner alleges, that he acquired knowledge of the orders passed by the Consolidation Officer in the objection under section 12.

Aggrieved thereby, the petitioner filed an appeal against the compromise order along with an application for condonation of delay. This appeal was filed in the year 2006. The Settlement Officer, (in short, the S.O.C.), by his order dated 5.10.2007, condoned the delay in filing the appeal and remanded the matter to the Consolidation Officer for passing fresh orders after hearing the parties. This order of remand was challenged by means of a revision by respondent No. 3, Sri Bhagwan Singh.

The DDC by his order dated 23.12.2009 allowed the revision, set aside the order of remand and affirmed the order dated 14.10.1981 passed by the Consolidation Officer on the objection under section 12, as also the order dated 18.5.1982 passed under section 42-A of the Act. Hence, this writ petition.

Sri H.N.B. Sinha, learned Counsel for the petitioner has submitted that the petitioner had never preferred an objection under section 12 seeking mutation. No compromise was entered into by the petitioner and, therefore, the order passed by the Consolidation Officer was fraudulently procured by the contesting respondent. He submits that the claim of the parties was to be determined on the basis of the sale-deed in their favour. The order passed on the basis of the alleged compromise is not strictly in accordance with the sale-deed but is at variance thereto. He further submits that, in any case, this order could not have been implemented through proceedings on an application under section 42-A of the Act, which provision is meant for correcting clerical errors in the orders passed by the Consolidation authorities. The compromise order could have been implemented only through a reference under section 48(3) of the Act. He has submitted that the scope of the revision filed by the contesting respondent was limited to the question of legality or otherwise of the order of remand, and in such circumstances, it was not open for the Deputy Director of Consolidation who have set aside the remand order and affirmed the orders passed on the basis of the alleged compromise. He has lastly submitted that a suit under section 229(B) of the U.P. Zamindari Abolition and Land Reforms Act was filed on wrong advice.

In support of his contention, he has relied upon the following judgments:--

Sobhnath v. Deputy Director of Consolidation and others 1989 RD 45.

Lalman Vs. Deputy Director of Consolidation and Others, .

Maluyi and Another Vs. Deputy Director of Consolidation and Others, .

Fateh Singh Vs. Deputy Director of Consolidation and Others, .

Shivabachan and others v. Deputy Director of Consolidation, Ballia and others 2010(109) RD 95 (HC).

In the case of Sobhnath (supra), it has been held that an application under section 42-A of the C.H. Act relates to correction of clerical mistakes. In this case, an application under section 42-A was filed by an individual pleading the case of the Gaon Sabha. It was held that such an application at the instance of a private individual was not maintainable and, in case the Gaon Sabha was aggrieved, it was for the Gaon Sabha to take proceedings in the matter.

In the case of Lalman (supra), it has been held that a reference can be made at the instance of any person including a person, who has not filed an objection under section 20. This judgment, therefore deals with the scope of section 48(3) of the Act.

In the case of Smt. Maluyi (supra), this Court has considered the relative scope of sections 42-A and section 48 and its sub-sections. It has been held that the powers under section 42-A of the Act are meant for correction of arithmetical and clerical mistakes only. It has also been held that the Deputy Director of Consolidation while dealing with proceedings under section 48(3) shall proceed in accordance with the provisions of section 48(1). This means that to pass an order under section 48(3), the DDC is required to 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 legality and regularity of the proceedings after allowing the parties concerned an opportunity of being heard. He can thereafter pass any order but only after hearing the parties concerned or, at least, after affording them opportunity of hearing. It has further been held that the Deputy Director of Consolidation has to record reasons after consideration of material and relevant factors and failure to do so would occasion failure of justice.

In the case of Fateh Singh (supra), it has been held that an appeal filed under a wrong provision of law does not affect its maintainability. It has also examined the scope of the word ''person aggrieved'' and has held that an appeal or revision filed after notification under section 52 of the C.H. Act along with an application under section 5 of the Limitation Act can be entertained and, if the application for condoning the delay is allowed, the difference in status between an appeal filed within time or filed after the expiry of limitation would be obliterated and the appeal would be taken as a pending case on the date of notification under section 52(1) although in actual fact, it may have been filed after the notification.

In the case of Shivabachan (supra), it has been laid down that section 42-A deals only with correction of arithmetical or clerical errors in orders or entries.

Sri M.P. Tiwari, learned Counsel for the respondent, on the other hand, submitted that the registered sale-deed was a composite and joint sale-deed in favour of six persons. The Court below has recorded a finding that all persons had signed the compromise. Meaning thereby, all six purchasers were party to the compromise. He has further submitted that all the persons who were the purchasers and signatories to the compromise have not been impleaded in the writ petition. He has also submitted that since the petitioners had preferred a suit under section 229(B) in the year 1999, they were aware of the compromise and the order passed thereon. In such circumstance, it was not open for them to file the appeal in the year 2006 while claiming in the delay condonation application that they were earlier not aware of the compromise order. He has submitted that on admitted facts, there is no explanation for the delay from 1999 to the year 2006 in filing the appeal and, in such circumstances, the delay should not have been condoned and, therefore, the order passed by the Deputy Director of Consolidation is a correct and legal order, which requires no interference.

I have considered the submissions made by learned Counsel for the parties and have perused the record.

Insofar as the first submission of the learned Counsel for the petitioner, that the compromise was illegal as the compromise order was at variance with the sale-deed, it would be suffice to record that it is always open to the parties to enter into a compromise on such terms and conditions that are acceptable to all. This is what appears to have been done in this case, and till such time it is held that the compromise is not genuine, the same has to be accepted, even if it is at variance with the rights of the parties as per the sale-deed in their favour. Merely because the parties had purchased some share and by compromise they agreed to different shares, the same will not invalidate a legal and validly entered compromise and the order passed on the basis of the said compromise cannot be said to be illegal.

It is clear from the pleadings and the submissions made by the Counsel for the petitioner that his only grievance against the compromise and the compromise order is that it is not strictly in accordance with the sale-deed in favour of the parties.

In my considered opinion, this plea cannot be accepted till such time it is established on record that the compromise itself was invalid or had not been entered into between the parties.

Insofar as the second submission of the learned Counsel for the petitioner is concerned that the compromise order could not have been implemented by means of an application under section 42-A, it would be relevant to record that such submission has force. The compromise order could only have been implemented through a reference under section 48(3) and section 42-A could be invoked for correcting clerical or arithmetical errors. But having said this, it would be further relevant to record that the order under section 42-A, though illegal, does not appear to have been given effect to on the spot and this is what had necessitated filing of an application under section 41 of the U.P. Land Revenue Act for correction of boundaries.

It is admitted to the petitioner that he came to know of the compromise order only through these proceedings. However, in this connection, it would be further relevant to state that the order passed in proceedings under section 42-A has not been specifically challenged in the writ petition. It however, appears from a perusal of the memo of appeal that this order was challenged in the appeal filed by the petitioner and, therefore, by implication this order can be said to be under challenge in the writ petition but such challenge fails to achieve any purpose and no effective relief can be granted to the petitioner, till such time the order dated 14.10.1981 passed on the basis of the compromise is set aside.

There is yet another aspect of the matter. The petitioner has not impleaded all the persons, who are alleged to be party to the compromise and, in the absence of all signatories to the compromise the writ petition itself is defective and the compromise order cannot be set aside.

When this discrepancy was pointed out, learned Counsel for the petitioner has admitted that all persons were parties in the appeal but they have not been impleaded in the writ petition.

A perusal of the memo of appeal indicates that the appeal was filed by Rajbalabh son of Ishwar Dayal, Jawahar Lal son of Lakhpati, Ram Chandra Singh son of Simirikh Singh, Ram Jokhan Singh, Meghnath Singh Tej Narayan Singh sons of late Ram Jaroor Singh and Hridyanand Singh son of Jagannath Singh. The persons arrayed as opposite parties in the appeal were Ramanand son of Ram Janam and Sri Bhagwan Singh son of Basant Singh. The writ petition has been filed by Raj Ballabh alone and only Sri Bhagwan Singh son of Basant Singh has been arrayed as the sole contesting respondent. All the aforementioned persons were impleaded as parties in the revision filed by the contesting respondent. Apart from them, the Gaon Sabha was also impleaded as a party. Thus it is clear that all the persons who were parties in the Court below are not on record of this writ petition.

Therefore, the orders impugned cannot be set aside in the absence of necessary parties, who were on record in the proceedings in the Court below.

I, accordingly, hold that the writ petition is defective in the absence of necessary parties and, therefore, no relief can be granted to the petitioner. The writ petition is, accordingly, dismissed.