Allowed

Mithilesh and Others v. Deputy Director of Consolidation and Others

Allahabad HC10 Apr 2018WRIB/68828/2009

Case brief

AI extract

What is this about?

High Court allowed a writ petition challenging a revision order. The court quashed an administrative order that remanded a land consolidation appeal, holding it violated natural justice as prior notice was established. It also rejected the view that a second sale deed needed scrutiny when the first one conferred exclusive title.

What did the court decide?

Revision order dated 8.10.2009 set aside; matter remanded to Deputy Director of Consolidation, Deoria for fresh decision after hearing parties within four months.

Mithilesh and Others Vs Deputy Director of… — Landlord and Tenant | Allahabad HC (2018)

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Court No. - 11

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Case :- WRIT - B No. - 68828 of 2009

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Petitioner :- Mithilesh And Others Respondent :- Deputy Director Of Consolidation And Others Counsel for Petitioner :- R.S. Misra,Arun Kumar Counsel for Respondent :- C.S.C.,Jitan Tiwari

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Hon'ble Salil Kumar Rai,J.

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Heard Shri Arun Kumar, counsel for the petitioners and Shri Loknath Shukla, Advocate holding brief of Shri Jitan Tiwari, counsel for respondent Nos. 2 and 3 as well as learned Standing Counsel representing respondent No. 1.

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During the consolidation proceedings held in the village under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act, 1953'), Chak No. 86 was allotted to one Pheku and Gopal sons of Dhajju Tiwari. Subsequently, Pheku died, and therefore, his name was deleted from the records and Gopal was recorded as sole tenure holder of the aforesaid Chak vide order dated 25.12.1975 passed by the Assistant Consolidation Officer in Case No. 270. An order dated 17.10.1977 was passed by the Settlement Officer of Consolidation permitting Gopal to transfer the said Chak. Three applications were filed under Section 12 of the Act, 1953 praying that the names of the applicants be recorded in the revenue records in place of Gopal. The first application was filed by respondent Nos. 2 and 3 on 1.11.1977 inter alia claiming that Gopal had executed a sale-deed dated 19.10.1977 transferring the disputed property in their favour, and therefore, it was prayed that the applicants be recorded as tenure holder of the disputed property in place of Gopal. On the aforesaid application, Case No. 3 was registered in the Court of Consolidation Officer. The second application was filed by the petitioners on 8.11.2017 alleging that Gopal had executed a sale-deed dated 18.10.1977 transferring the disputed property in their favour and therefore, it was prayed that the applicants be recorded as tenure holder of the disputed

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property in place of Gopal. On the aforesaid application of the petitioners, Case No. 47 was registered in the Court of Consolidation Officer. The third application was filed by Jitendra Nath Tiwari alleging that before his death Gopal had executed a Will dated 19.10.1977 bequeathing the disputed property to the applicant. On the aforesaid application, Case No. 48 was registered in the Court of Consolidation Officer. It has come on record that Gopal died on 21.11.1977, and therefore in Case No. 48 it was prayed that the name of the applicant be recorded in place of Gopal by virtue of the Will dated 19.10.1977. The concerned Consolidation Officer vide his order dated 18.12.1995 allowed Case No. 3 and directed that the name of Gopal be deleted from revenue records and names of respondent Nos. 2 and 3 be recorded in the same as Bhumidhar on the basis of sale-deed dated 19.10.1977. Against the order dated 18.12.1995 passed by the Consolidation Officer, the petitioners filed an Appeal before the Settlement Officer of Consolidation (hereinafter referred to as, 'S.O.C.'), which was registered as Appeal No. 896/1135. The aforesaid appeal was initially dismissed in default vide order dated 19.8.1998. A restoration application dated 23.9.1998 was filed by the petitioners praying that the order dated 19.8.1998 be recalled and appeal be restored to its original number and be heard and decided on merits. The S.O.C. vide his order dated 11.10.2002 allowed the restoration application and recalled his order dared 19.8.1998 restoring the appeal to its original number. Subsequently, vide judgement and order dated 16.9.2003, the S.O.C. allowed Appeal No. 896/1135 instituted by the petitioners and directed that the names of respondent Nos. 2 and 3 be deleted from the revenue records relating to the disputed plot and the names of the petitioners be recorded in the same as Bhumidhar on the basis of sale-deed dated 18.10.1977. The order dated 16.9.2003 was modified by the S.O.C. vide his order dated 22.11.2003 wherein the S.O.C. directed that the name of

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Gopal and other persons be deleted from the revenue records relating to the disputed plot and in their place the names of petitioners be recorded on the basis of sale-deed dated 18.10.1977.

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From a reading of the judgement dated 16.9.2003, it is evident that respondent Nos. 2 and 3 were not heard in the Appeal. Against the order dated 16.9.2003, as modified vide order dated 22.11.2003 respondent Nos. 2 and 3 filed a Revision under Section 48 of the Act, 1953, which was registered as Revision No. 246/255. The respondent No. 1 vide his order dated 8.10.2009 has allowed the said revision and has remanded back the matter to the S.O.C. to pass fresh order after giving an opportunity of hearing to the respondent Nos. 2 and 3. The order dated 8.10.2009 has been challenged in the present writ petition.

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A perusal of the order dated 16.9.2003 passed by the S.O.C. shows that after considering the evidence on record the S.O.C. has recorded its opinion that, in view of the saledeed dated 18.10.1977 the sale-deed dated 19.10.1977 was void because Gopal could not have transferred the same property to respondent Nos. 2 and 3. A reading of the judgement dated 16.9.2003 passed by the S.O.C. also shows that notices were issued to respondent Nos. 2 and 3 regarding the restoration application dated 23.9.1998 and the said notices were also published. The aforesaid fact is also evident from a reading of judgement dated 8.10.2009 passed by respondent No. 1. Thus, the respondent Nos. 2 and 3 had sufficient knowledge of the proceedings in Appeal No. 896/1135 decided by the S.O.C. However, the Revisional Court i.e. respondent No. 1 has set aside the judgement and order dated 16.9.2003 and 22.11.2003 passed by the S.O.C. on the ground that, after the order dated 11.10.2002 was passed by the S.O.C. restoring the said appeal to its original number summons should have been issued to respondent Nos. 2 and 3 regarding the hearing of Appeal No. 896/1135 and notice should have

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been published. The other reason given by respondent No. 1, in his order dated 8.10.2009, for setting aside the order dated 16.9.2003 passed by the S.O.C. is that the S.O.C. had erred in not considering the genuineness and validity of sale-deed dated 19.10.1977 and should have considered the genuineness and validity of both the sale-deeds i.e. sale-deeds dated 18.10.1977 and 19.10.1977.

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5. I have considered the matter.

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An enquiry issued by the office of the S.O.C. stating that notice regarding hearing of Appeal No. 896/1135 on merits was sufficiently publicized before the order dated 16.9.2003 was passed, has been annexed as Annexure No. 14 to the writ petition. The contents of the aforesaid documents have not been denied by respondent Nos. 2 and 3 in their counter affidavits. In view of the aforesaid information given by the office of the S.O.C. in the documents annexed as Annexure No. 14 to the writ petition, the recital in the order dated 8.10.2009 passed by respondent No. 1 that the hearing of Appeal No. 896/1135 was not sufficiently publicized in the news paper and no notices were issued to respondent Nos. 2 and 3 regarding the hearing of the aforesaid appeal cannot be accepted. It would be evident from order dated 8.10.2009 passed by respondent No. 1 himself, that respondent Nos. 2 and 3 had been sufficiently informed, through publication and notices, about the restoration application dated 23.9.1998 and restoration proceedings pending before the S.O.C. In view of the aforesaid, the respondent Nos. 2 and 3 had sufficient knowledge about the proceedings in Appeal No. 895/1135 and the opinion of respondent No. 1 recorded in his order dated 8.10.2009 that respondent Nos. 2 and 3 were not informed about the proceedings in Appeal No. 895/1135, and therefore, the judgement dated 16.9.2003 passed by the S.O.C. was in violation of principles of natural justice, cannot be accepted. Further, the dispute between the petitioners and respondent Nos. 2 and 3 is

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regarding the Chak which was recorded in the name of Gopal. In case Gopal had executed a sale-deed dated 18.10.1977 in favour of the petitioners, he lost his title over the said Chak, and therefore, could not have executed a subsequent sale-deed regarding the same Chak in favour of respondent Nos. 2 and 3. There is no requirement to consider the genuineness and validity of the sale-deed dated 19.10.1977 in case the execution of sale-deed dated 18.10.1977 was proved. Thus, the S.O.C. had rightly not considered the genuineness and validity of the sale-deed dated 19.10.1977 as he had recorded his findings accepting the execution of sale-deed dated 18.10.1977. The opinion of respondent No. 1 as recorded in his order dated 8.10.2009 that the S.O.C. was liable to consider the genuineness and validity of both the sale-deeds allegedly executed by Gopal is erroneous.

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For the reasons given above, the judgement and order dated 8.10.2009 passed by respondent No. 1 i.e. Deputy Director of Consolidation, Deoria is contrary to law.

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The writ petition is allowed. The order dated 8.10.2009 passed by respondent No. 1 i.e. Deputy Director of Consolidation, Deoria is hereby set aside.

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The matter is remanded back to respondent No. 1 i.e. Deputy Director of Consolidation, Deoria to consider Revision No. 246/255 on merits after giving an opportunity of hearing to the concerned parties within four months from the date a certified copy of this order is produced before him.

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Order Date :- 10.4.2018 Anurag/-

Mithilesh and Others v. Deputy Director of Consolidation and Others

Case brief

What is this about?

What did the court decide?

Mithilesh and Others v. Deputy Director of Consolidation and Others

Case brief

What is this about?

What did the court decide?

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