Swami Nath vs Deputy Director of Consolidation and others

S.K. Singh, J.—Heard Sri Tripathi Advocate in support of this petition and Sri M.D. Singh, learned Senior Advocate who appears for the respondents.

Challenge in this petition is the order of Deputy Director of Consolidation and that of the Settlement Officer Consolidation by which matter was remanded back for fresh decision by the Consolidation Officer.

As there is no dispute about certain facts on brief narration the writ petition can be conveniently decided.

In the basic year record, name of respondent side was recorded over the land in dispute. Petitioner filed time barred objection claiming rights on the ground so stated in the objection. Both sides adduced their evidence. Consolidation Officer decided claim and directed expunction of the name of respondent which was recorded in the basic year and thus petitioner was directed to be entered. Respondent filed appeal in which appellate authority having agreed to the submission of the appellant remanded the matter back to the Consolidation Officer for, fresh decision. Revision filed by the petitioner was dismissed and thus to challenge both orders this writ petition.

Submission of the learned Counsel for the petitioner is that order of remand is wholly unjustified and that was not at all required on the facts of case Submission Is that Consolidation Officer gave a correct judgment after assessment of evidence, but the appellate authority in a cryptic manner illegally allowed the appeal and Kevisional Court also without considering the arguments and without applying its mind in detail to the controversy in issue, dismissed the revision and thus both orders are to be set aside.

In response to the aforesaid, Sri M.D. Singh, learned Senior Advocate submits that order of the Consolidation Officer was totally wrong as decree of the Civil Court was not properly examined and at the same time Iqbnl Dawa filed by the petitioner side in the revenue litigation by which there was a clear admission of possession was also not correctly interpreted by the Consolidation Officer, and therefore, appellate authority rightly remanded the matter back to the Consolidation Officer and the Deputy Director of Consolidation has confirmed the same then that is not to be interfered. Submission is that by the order of remand both sides are to get justice, and therefore, writ petition needs dismissal.

In view of the aforesaid, this Court is to decide the claim of the parties.

There is no dispute about the fact that before the Consolidation Officer both sides lead their evidences. There is also no dispute that there is no complaint from either of the sides about lack of opportunity of adducing evidence or lack of opportunity of argument before the Consolidation Officer. Judgment of the Settlement Officer Consolidation did not permit adducing of fresh evidence thus it is clear that remand has been made only for rewriting the judgment by the Consolidation Officer. It has been repeatedly said by this Court as well by the Apex Court that power of remand is to be resorted in exceptional cases as that takes precious time of the Court besides that causes harassment to both sides. If there is procedural error, inherent lacunae, lack of opportunity of evidence or some other ground of like nature only then remand is to be resorted otherwise final decision is to be given by the concerned Court on the basis of evidence which ever is available on record. Approach of the Court should be that the finality is to reach from stage to stage us everybody is aware nhout the fact that there is long delay in disposal of the cases. If Consolidation Officer took a view against the respondent side in a given set of fact and in the light of the evidence whatever was available on record if the appellate authority was to disagree with the same then it was always open for the appellate authority to take a different view. Appellate Authority is fully empowered to assess the evidence and to draw its own conclusion. Remand is not to be for rewriting judgment

Thus on the facts, this Court is satisfied that by approving the order of remand no useful purpose is to be served rather this Court feels that if the appellate authority is permitted to decide the appeal on merits, in accordance with law, after giving opportunity to both sides then that will be in the ends of justice and one stage ahead will be there. On revival of appeal it is always open for the appellate authority and after judgment of the appellate authority for the Revisional Court to interpret/examine all the documents and to draw their own independent conclusion which may be permissible in law.

Thus to conclude the order of remand is just to be simply modified and instead of approving the order of remand as directed by the appellate authority he is to be permitted to decide the appeal himself on merits, in accordance with Jaw.

For the reasons given above, this petition succeeds and is allowed. The impugned judgment passed by the appellate authority and Deputy Director of Consolidation are hereby quashed. Appellate authority is directed to revive the appeal to its original number and decide the same in accordance with law after giving adequate opportunity to all concerned preferably within a period of four months from the date of receipt of certified copy of this order from either of the sides.

On the facts and keeping in mind the long drawn litigation between the parties and pendency of the writ petition since quite long, this Court directs that till disposal of the appeal both sides will maintain strict status quo in respect to nature and possession over the land in dispute subject to their recourse to the further exercise which may be permissible in law.