Vishwanath vs Deputy Director of Consolidation, Gorakhpur and others

Prakash Krishna, J.—The present writ petition arises out of proceedings under U.P. Consolidation of Holdings Act, and is directed against the orders dated 28th of September, 1998 and 23rd of October, 2001 passed by the Settlement Officer Consolidation and Deputy Director of ConY solidation, respectively. The dispute lies in a narrow compass. After the finalization of title dispute under section 9 of the U.P. Consolidation of Holdings Act, proceedings under section 19 of the Act were initiated by the Assistant Consolidation Officer. He prepared a provisional scheme on CH Form23. As required by law an objection to the provisional scheme could have been filed within 15 days of the receipt of the notice. No objection thereto was filed by any of the parties to the writ petition. A belated objection, without explaining the delay was filed by Sant lal, the respondent No. 5 herein, in the said objection, it was stated that the plot No. 1 is adjacent to PWD road which has commercial value. The said plot should have been declared out of consolidation operation. He claimed that some land be allotted in the said plot No. 1 to him, in the interest of justice. The Consolidation Officer by the order dated 13.1.1997 made certain adjustment in the light of the objections preferred by the respondent No. 5 and passed the appropriate order. The said order was challenged by the respondent No. 5 alone by way of appeal filed under section 21 (2) of the Act. The said appeal was belated and the condonation of delay in its filing was sought for. The Settlement Officer Consolidation by the order dated 29th of September, 1998 ordered that the plot No. 1 area 0.042 hectare be kept out of consolidation operation and the Talika be corrected accordingly. The said order has been confirmed in revision by the impugned order passed by the Deputy Director of Consolidation.

The contention of the learned Counsel for the petitioner has manifold. He submits that the Settlement Officer Consolidation was not justified to hear and decide the appeal exparte without issuing any notice to the petitioner. No notice was issued by the Settlement Officer Consolidation before deciding the appeal. Even otherwise also, the appeal was barred by time but no order condoning the delay was passed. The Deputy Director of Consolidation has decided the revision without applying his mind to the controversy involved. The other submission is that the valuation of the plots having been finalized, at the stage of allotment of plots, the authority has no jurisdiction to exclude a plot from the consolidation operation. The said stage having been over, as the valuation etc., were fixed, the authorities were not justified in passing the impugned orders.

The learned Counsel for the respondents supports the impugned order and submits that the writ petition is concluded by findings of fact.

Considered the respective submissions of the learned Counsel for the parties and perused the record.

So far as the question as to whether any opportunity of hearing was afforded by issuing notice to the petitioner by the Settlement Officer Consolidation is concerned, it may be noted that necessary averments in this regard have been made in para 11 of the writ petition. It has been stated therein that in the appeal before the Settlement Officer Consolidation, neither notices/summons were issued or served upon the petitioner, nor he ever refused to accept any notice or summon in the appeal. The petitioner had no knowledge of filing of the appeal and was not aware about the date of argument and the date of pronouncement of judgment in the appeal. The reply of the said paragraph has been given in para 11 of the counter affidavit of Shri Sant lal, the respondent No. 5. Only this much in reply has been stated that "the Settlement Officer Consolidation had passed the order, after considering the correct facts and valuation of the said plot and also giving the notices as well as opportunity of hearing to the petitioner which is legal". A bare perusal of the order of the Settlement Officer Consolidation would show that no opportunity of hearing by issuing notice to the petitioner was given. The tenor of the order of the Settlement Officer Consolidation supports the contention raised by the learned Counsel for the petitioner in this regard. It is based on the inspection of the record and on the submission of the appellant therein namely Sant lal. There is no indication in the said order that any notice was issued to the petitioner and he was present or heard.

The second aspect of the matter is that a belated appeal was filed and it appears that no order condoning the delay in filing appeal was passed. In para 12 of the writ petition it has been stated that the Settlement Officer Consolidation has allowed the appeal and has not cared to decide the question of delay in filing the appeal. The said paragraph has been replied in para 12 of the counter affidavit. There is no averment in para 12 of the counter affidavit that the delay in filing of the appeal was condoned. It follows that no express order condoning the delay in filing the appeal was passed. This being so the appellate authority obviously committed mistake in entertaining and deciding the appeal, on merits. It may be noted that the case of the petitioner is that condonation of delay in filing the appeal was sought for on untenable grounds. The Consolidation Officer decided the objection filed by the petitioner after hearing him on 13.1.1997 and therefore, the allegation in the application for condonation of delay that the respondent No. 5 had no knowledge of passing of the order dated 13.1.1997, is wrong and untrue according to the petitioner. However, it is not necessary for this Court to dwell upon the matter any further.

Besides the above, on merit also, the two impugned orders cannot be sustained. It has been held by this Court in Beni Madho Dubey v. Dy. Director of Consolidation that after the stage of sections 8 and 9 are over, section 11A of the Act creates a ban in respect of claims to land, partition of joint holdings and valuation of plots, trees, wells etc. relating to the consolidation area. This being so, the question of valuation of plot No. 1 was obviously beyond the jurisdiction of the Settlement Officer Consolidation in appeal arising out of allotment proceedings. In other words, the Settlement Officer Consolidation while hearing appeal with regard to the allotment of plots, cannot order that a particular plot shall be out of consolidation operation. By means of the objection filed by the respondent No. 5, he only prayed that some land be allotted to him in plot No. 1. The necessary adjustment was made by the Consolidation Officer by the order dated 13.1.1997. The appeal was preferred under section 21 (2) of the U.P. C.H. Act.

Jagdeo v. Deputy Director of Consolidation,2 is an authority for the proposition that a tenure holder who has failed to raise objections regarding valuation of plots, cannot be permitted to raise objection at the stage of proceedings under section 20. Nor he can raise a claim that particular plots be treated as grove so as to exclude them from consolidation scheme. More or less, similar view has been taken in Radhey lal v. D.D.C. and others.3 It has been held that if a plot has to be kept out of consolidation scheme, the condition precedent is to file an objection at the stage of section 9; otherwise section 11A would be operative and will bar any such objection at the subsequent stage of litigation. Section 20 deals with objections with regard to the allotment of Chaks. The same view has been reiterated in Hausila Prasad v. D.D.C. and others.

The judicial pronouncements as noticed above, support the contention of the petitioner that the authorities below were not justified in excluding the plot No. 1 from the consolidation operation and thus, the impugned orders of Settlement Officer Consolidation and the Deputy Director of Consolidation are liable to be quashed being not in conformity with law as laid down in the above cases. No material was placed before this Court by the learned Counsel for the respondents to take a different view of the matter.

In view of the above discussion, the writ petition succeeds and is allowed. The impugned orders dated 28.9.1998 and 23.10.2001 passed by the respondent No. 2 and 1 are, hereby quashed. No order as to costs.