Shiv Prasad vs Dy.Director of Consolidation,Azamgarh and Another

Binod Kumar Roy, J.—Invoking Article 226 of the Constitution of India through this writ petition, the petitioner prays to quash the revisional order dated 30th July, 1974 passed by the Deputy Director of Consolidation, Azamgarh (respondent No. 1) in Revision Case No. 1001 under Section 48 of the U.P.

Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act) as contained in AnnexureC by grant of a writ of certiorari.

The dispute . between the petitioner and respondent No. 2 Ramanand, centres around right, title, interest and possession of Plot No. 1306 of'' village Madhanapar, district Azamgarh, The respondent No. 2 Rama Nand filed a case under Section 240 of Zamindari Abolition Act which was decided ex pane in his favour. The ex pane order was set aside and due to commencement of consolidation proceedings under the Act the said case abated. The petitioner asserts that the name of the respondent No. 2, however, was entered hi the revenue papers on the strength of the aforementioned expane order. It further appears that the respondent No: 2 had claimed bhumidhari rights in the said land pursuant to exchange said to have been made in the year 1951 from one Yasin. Against the aforementioned entry, the petitioner filed an objection under Section 9 of the Act praying that his name be recorded as Sirdar claiming Adhivasi right. The respondent No. 2 appeared and contested the claim on various grounds. It further appears that the parties also adduced evidence in support of their respective cases which in view of the nature of the order which I propose to pass need not be stated at length. Suffice is to state that the claim of respondent No. 2 that the objection of the petitioner is timebarred was rejected by the Consolidation Officer vide his order dated 16671 as contained in Annexure1. The Consolidation Officer, however accepted the claim of respondent No. 2 on merits, the petitioner went up in appeal. His appeal was allowed by the Assistant Settlement Officer, Consolidation, Azamgarh vide the order as contained in Annexure8. The respondent No. 2 went up in revision invoking the jurisdiction of Deputy Director of Consolidation under Section 48 of the Act. His revision was allowed vide AnnexureC which, as already stated, is under challenge.

Mr Sripat Narain, learned counsel appearing on behalf of the petitioner, submitted as follows: (i) the revisional authority ,has misconstrued and misconceived the scope of Section 48 of the Act while passing the impugned order as interpreted by the Supreme court in Ram Dular v. Deputy Director of Consolidation, 1994 RD 290 (SC), (ii) there being no plea before the consolidation officer of forgery in the entry the case of respondent No. 2 should have been considered by the revisional authority in that context as it is a settled law that fraud has to be pleaded and prayed which was absolutely lacking in the instant case. He also referred in this regard to the statement made in Paragraph 7 of the writ petition to which no counter affidavit has been filed by the respondent No, 2, who has also not entered appearance despite notice.

In the absence of any counter affidavit of the respondent No. 2 I am inclined to accept the submissions made by the learned counsel for the petitioner and held that the matter requires remittance for fresh disposal.

In the result, this writ petition is allowed, the impugned order, as contained in AnnexureC, is quashed, and Revision No. 1001 is remitted back to the respondent No. 1 for fresh disposal in the light of the observations made as above.

Since the respondent No. 2 has not appeared to contest, I make, no order as to costs.

Let a writ of certiorari issue.