Nirmala Devi Vs Deputy Director of Consolidation and 5 Others

Court No. - 65

Case :- WRIT - B No. - 1495 of 2020

Petitioner :- Nirmala Devi Respondent :- Deputy Director Of Consolidation And 5 Others Counsel for Petitioner :- Ajay Kumar Srivastava Counsel for Respondent :- C.S.C.,Narendra Kumar

¶4

Hon'ble Saumitra Dayal Singh,J.

¶5

Heard Sri Ajay Kumar Srivastava, learned counsel for the petitioner and Sri D.P. Singh, Advocate holding brief of Sri Narendra Kumar, learned counsel for respondent no.4.

¶6

Submission of learned counsel for the petitioner is that the proceedings under Section 9 A (2) of the U.P. Consolidation of Holdings Act, 1953 (U.P. Act No.5 of 1954) had been decided on 30.06.1996 based on a compromise reached between the parties. Thereafter, a restoration application was filed by respondent no.4 that came to be dismissed in default on 28.05.1997. A further restoration application filed thereafter by the same respondent, came to be allowed on 27.06.1997. With respect to the order dated 27.06.1997, the petitioner filed a recall application which was dismissed on 29.09.1998.

¶7

Against the last two orders only the petitioners filed an appeal before the Settlement Officer Consolidation. In absence of any appeal against the order dated 30.06.1996 and 28.05.1997, the Settlement Officer Consolidation committed an error in setting aside those orders. Such orders were not under challenge in appeal. Same mistake has been affirmed in revision, by the Deputy Director of Consolidation.

¶8

On the other hand, Sri D.P. Singh, learned counsel appearing on behalf of respondent no.4 would submit that orders dated 28.05.1997, 27.06.1997 and 29.09.1998 must be treated as orders that were nullity since those orders came to be passed by the Consolidation Officer in ignorance of earlier order dated 06.02.1997 passed on the restoration application filed by the respondent no.4. By that order, the original order dated 30.06.1996 (based on the compromise), had already been recalled and the matter made pending on merits. In face of that order and in absence of challenge raised thereto by the petitioner, it never became open to the Consolidation Officer to pass any further orders on 28.05.1997 dismissing or allowing the restoration application filed by the said respondent and consequently, it also never became open to that authority to pass any order on the further recall application filed by the petitioner to recall such null and void orders.

¶9

If the aforesaid orders are a nullity, by way of its' effect, the title proceedings instituted under Section 9 A (2) of the U.P. Consolidation of Holdings Act, 1953 (U.P. Act No.5 of 1954) would become pending and no prejudice may be caused to any party as all defence and pleas on merits, would remain open to be raised

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in those proceedings.

¶11

Having heard learned counsel for the parties and having perused the record, the two disputed orders dated 06.02.1997, 06.05.1997 appear to have been passed in the restoration matter filed by the private respondent no.4. and in that regard the Settlement Officer Consolidation has recorded a finding to the effect that the second order was a nullity. It is strange to note that such plea was never raised earlier yet, it is equally true that the petitioner does not dispute the existence of the order dated 06.02.1997 passed on the restoration application filed by the private respondent no.4. In fact, in absence of any challenge thereto, till date, the same has long attained finality.

¶12

Consequently, since the existence and finality of the order dated 06.02.1997 stands established beyond doubt, the reasoning given by the Settlement Officer Consolidation cannot be faulted. In such undisputed facts, I am not inclined to exercise discretionary jurisdiction under Article 226 of the Constitution of India on a mere technical ground since otherwise the impugned order is wholly just and proper and it does not result in any real prejudice to any of the parties. In the proceedings now pending, it would remain open to the petitioner to set up the compromise claimed and equally it would remain open to the respondents to doubt the same. The Consolidation Officer may record his own conclusions based on the evidence and material on record, without being prejudiced either by any observation made in the orders impugned in this writ petition or in this order.

¶13

While no interference is warranted in the present writ petition, keeping in mind the proceedings under Section 9 A (2) of the U.P. Consolidation of Holdings Act, 1953 (U.P. Act No.5 of 1954) remained pending the said proceeding may be concluded by the respondent no.4, as expeditiously as possible preferably within a period of six months from the date of production of certified copy of this order, without allowing any undue or long adjournment to either party. The Consolidation Officer may record his own conclusions based on the evidence and material on record, without being prejudiced either by any observation made in the orders impugned in this writ petition or in this order.

¶14

In view of the aforesaid observations, the writ petition is disposed of.

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Order Date :- 17.12.2020 Atul

Nirmala Devi v. Deputy Director of Consolidation and 5 Others

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Nirmala Devi v. Deputy Director of Consolidation and 5 Others

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