Allowed

Purvanchal Uchchatar Madhyamik Vidyalaya v. the Deputy Director of Consolidation and 6 Others

Allahabad HC25 Mar 2021WRIB/447/2020

Case brief

AI extract

What is this about?

This court set aside an appellate order and a revision order passed without opportunity of hearing violating natural justice, remitting the appeal to the Settlement Officer Consolidation to be decided on merits within six months while staying the implementation of the challenged order.

What did the court decide?

The order dated 10.10.2018 and 05.02.2020 are set aside; the appeal is remitted to the Settlement Officer Consolidation to decide on merits within six months, staying the order dated 24.09.2015.

Purvanchal Uchchatar Madhyamik Vidyalaya Vs the Deputy… — Land Acquisition | Allahabad HC (2021)

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Court No. - 6

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Case :- WRIT - B No. - 447 of 2020 Petitioner :- Purvanchal Uchchatar Madhyamik Vidyalaya Respondent :- The Deputy Director Of Consolidation And 6 Others Counsel for Petitioner :- Suresh Chandra Tripathi Counsel for Respondent :- C.S.C.,Atul Sharma

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With

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Case :- WRIT - B No. - 777 of 2020 Petitioner :- Purvanchal Uchchatar Madhyamik Vidyalaya Kurathu Respondent :- The Deputy Director Of Consolidation And 6 Others Counsel for Petitioner :- Suresh Chandra Tripathi,Arvind Kumar Singh Counsel for Respondent :- C.S.C.

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Hon'ble Ajay Bhanot,J.

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Heard Sri Suresh Chandra Tripathi, learned counsel assisted by Sri Arvind Kumar Singh, learned counsel for the petitioner, Sri Dharam Pal Singh, learned Senior Counsel assisted by Sri Atul Sharma, learned counsel for the respondent nos. 4 and 5 and learned Standing Counsel for the State respondents.

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The facts lie in narrow compass. The decision has been eased by the fairness of the counsels of respective parties. Both the petitions are being decided by a common order.

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By consent of parties the writ petition is being finally decided.

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The petitioners have firstly challenged the order dated 25.03.2017 which is a communication sent by the Settlement Officer Consolidation (Administration) to the Settlement Officer Consolidation (Judicial), asserting that the records of certain cases including the case at hand were transferred and the records of said cases were transmitted from Settlement Officer Consolidation (Administration) to Settlement Officer Consolidation (Judicial) under a pure misconception of law. The Settlement Officer Consolidation is not vested by any authority in law to transfer a case to the court of another Settlement Officer Consolidation. On this footing the error made by the

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earlier order transferring the cases is sought to be cured and the records which were earlier sent to the Settlement Officer Consolidation (Judicial) were recalled to the Settlement Officer Consolidation (Administration).

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The power to transfer cases from one consolidation court to another is vested by virtue of Rule 65 of the U.P. Consolidation of Holdings Rules, 1954. The Rule being relevant to the controversy is being extracted hereunder for ease of reference:-

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"65. (1) The Settlement Officer, Consolidation, may withdraw any case from the file of any Consolidation Officer or Assistant Consolidation Officer subordinate to him and may refer the same for disposal to any other Consolidation Officer or Assistant Consolidation Officer competent to deal therewith.

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[(1A) The Officer before whom appeals, revisions or references under the provisions of the Act or these rules are instituted may transfer any case instituted or pending before him to any other officer empowered to hear and decide such case, or recall case pending before any other officer from the file of that officer to his, own file. The District Deputy Director of Consolidation of a district where Joint/Deputy/Assistant Director of Consolidation is posted may call for record of any revision or case pending before such officer for disposal and may transfer it to such officer if he is unable to decide it for some reason.]

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(2) The Director of Consolidation may withdraw any case from the file of any Settlement Officer, Consolidation, and refer the same to any other Settlement Officer Consolidation for disposal.

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(3) to (5) [* * *]."

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The Rule vests in the Settlement Officer Consolidation power only to transfer cases from the court of one Consolidation Officer to any other Consolidation Officer or Assistant Consolidation Officer or to other equivalent court.

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A perusal of Rule 65 demonstrates in ample measure that one

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Settlement Officer Consolidation cannot transfer the appeal to another Settlement Officer Consolidation. The power lies elsewhere.

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In such view of the matter the earlier order passed by the Settlement Officer Consolidation (Administration) on 12.01.2016 transferring the case to Settlement Officer Consolidation (Judicial) was on the foot of a misconception of law. The consequent physical act of transmission of the records carried no legal consequences. The Settlement Officer Consolidation (Administration) lawfully cured the aforesaid error. The communication dated 25.03.2017 is not liable to be interfered with. No jurisdictional defect exists in the decision of the Settlement Officer Consolidation (Administration) to hear the appeal on merits.

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It is argued by Sri Suresh Chandra Tripathi, learned counsel assisted by Sri Arvind Kumar Singh, counsel for the petitioners that before hearing of the appeals no notice was issued by the appellate court to the petitioners. A specific plea in this regard has been taken in the writ petition. It is submitted that the authority was under an obligation of law to issue fresh notice in the appeal since the matter has been repeatedly transferred from one court to another. The petitioner did not have knowledge of the aforesaid appeal and consequently could not present his case before the appellate court. The order passed by the appellate court dated 10.10.2018 is exparte to the petitioner.

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Attention was called to the finding in the order dated 10.10.2018 that despite notice the petitioner was absent despite being informed about the appeal. However, this recital has been categorically refuted in the writ petition. No reply from the respondents by way of counter affidavit has been forthcoming. The said pleadings in the writ petition have not been traversed.

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The counsels for the respondents at this stage do not oppose the said submissions to ensure a speedy conclusion to the controversy on merits. Learned Standing Counsel as well as Sri Dharam Pal Singh, learned Senior Counsel assisted by Sri Atul Sharma, learned counsel for the respondents does not press the issue in regard to the procedural irregularities committed by the appellate court while passing the order dated 10.10.2018.

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The said pleadings in the writ petition as seen earlier have not been traversed. This Court finds that the procedure adopted by the appellate court while passing the order dated 10.10.2018 was in violation of the principles of natural justice. The order dated 10.10.2018 was passed without opportunity of hearing to the petitioner. The absence of the petitioner when the matter was heard was due to bonafide reasons and no fault of the petitioner. On this footing alone the order dated 10.10.2018 is arbitrary, illegal and vitiated. The order dated 10.10.2018 is liable to be set aside and is set aside.

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The order dated 10.10.2018 was taken in revision before the Deputy Director of Consolidation. The Deputy Director of Consolidation while deciding the revision by order dated 05.02.2020 did not redeem the illegalities committed by the appellate court. The prejudice caused to the petitioner on account of denial of opportunity of hearing by the appellate court was beyond recall. This fact was not factored into the decision by the Deputy Director of Consolidation.

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Sri Dharam Pal Singh, learned Senior Counsel assisted by Sri Atul Sharma, learned counsel for the respondent nos. 4 and 5, however submit that the order passed by the Consolidation Officer dated 24.0-9.2015 was without opportunity of hearing to the petitioner. The finding in this regard made by the appellate court has not been disputed in the writ petition. They

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call attention to the order of the Consolidation Officer dated 24.09.2015 to cement their arguments. It is submitted that in case the order of the Consolidation Officer is implemented irreparable loss would accrue to the petitioners, since the petitioners have a share in the property and no site inspection was made.

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In the wake of the preceding narrative the order dated 05.02.2020 passed by the Deputy Director of Consolidation is arbitrary and illegal. The order dated 05.02.2020 is liable to be set aside and is set aside.

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These facts could not be disputed by Sri Suresh Chandra Tripathi, learned counsel assisted by Sri Arvind Kumar Singh learned counsel for the petitioner.

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Counsels for both parties agree that interest of justice will be subserved in case the Settlement Officer Consolidation is directed to decide the appeal within a stipulated period of time.

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The matter is remitted to the Settlement Officer Consolidation. The Settlement Officer Consolidation is directed to decide the appeal in accordance with law within a period of six months from the date of production of a certified copy of this order. All parties are directed to cooperate in the proceedings before the Settlement Officer Consolidation. The Settlement Officer Consolidation if necessary, shall proceed with the hearing on a day to day basis ensuring that the above stipulated period of six months is strictly adhered to.

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The writ petition is allowed to the extent above.

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Till the decision of the appeal, the order passed by the Consolidation Officer dated 24.09.2015 shall not be implemented.

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The Settlement Officer Consolidation shall decide the appeal on merits independently and in accordance with law without being influenced any any observations made in this order, including the fact that grant of interim protection till the decision in the appeal.

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The above time line of six months shall stand automatically extended by the period during which the courts do not function due to the Covid-19 pandemic.

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The petitioners have not pressed to challenge the orders dated 22.11.2017 and 25.10.2019.

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Order Date :- 25.3.2021 Pravin

Purvanchal Uchchatar Madhyamik Vidyalaya v. the Deputy Director of Consolidation and 6 Others

Case brief

What is this about?

What did the court decide?

Purvanchal Uchchatar Madhyamik Vidyalaya v. the Deputy Director of Consolidation and 6 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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