Disposed

Nazibunnisha and 2 Others v. Deputy Director of Consolidation and 2 Others

Allahabad HC2 Sept 2024WRIB/2635/2024

Case brief

AI extract

What is this about?

Consolidation dispute over Chak No. 141 in Siddharth Nagar between heirs; revisional court had set aside prior orders and remanded to Consolidation Officer. By consent, writ petition disposed with modification transferring the matter for decision by Settlement Officer Consolidation on a fixed schedule.

What the court decided

AI extract

Nazibunnisha and 2 Others vs Deputy Director of… — Land Acquisition | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:153284

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Court No. - 49

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Case :- WRIT - B No. - 2635 of 2024

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Petitioner :- Nazibunnisha And 2 Others Respondent :- Deputy Director Of Consolidation And 2 Others Counsel for Petitioner :- Jaya Pathak,Pardeep Narayan Pandey,Ramanand Pandey Counsel for Respondent :- Tripathi B.G. Bhai

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Hon'ble Vikas Budhwar,J.

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Supplementary affidavit filed today is taken on record.

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Heard Shri Pardeep Narayan Pandey, learned counsel for the writ petitioners who are three in number and Shri Dinesh Kumar Verma, learned Standing Counsel for respondent no. 1. Notice on behalf of respondent nos. 2 and 3 has been accepted by Shri B.G. Bhai Tripathi.

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The counsel for the rival parties have made a joint statement that they do not propose to file any further affidavits thus with the consent of the parties, writ petitions are being decided at the fresh stage.

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The case of the writ petitioner is that there happens to be a demise Chak No. 141 situated in village Amauna, Tappa Kot, Pargana Bansi Paschim, Tehsil - Itwa, District Siddharth Nagar in para 6 of the writ petition, a pedigree has been reproduced and so far as, the present controversy is concerned, the same emanates from the fact that one Gholar had four sons and so far as, one of the sons being Hukum since deceased, he had three sons being Sabir, Kashim and Mohfil so far as the Mohfil is concerned, he expired and he was legally wedded with one Rabiya. It is not disputed between the parties that Rabiya who was the wife of the

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deceased-Mohfil again remarried with Abid Ali son of Jainullah and from their wedlock, three children were born being Sazida, Sazibunnisha and Nazibunnisha. Ms. Nazibunnisha is petitioner No. 1 in the present writ petition. As per the writ petitioner, post death of Mohfil, the name of Rabiya came to be recorded in the revenue records and continued even post consolidation proceedings. As notification under Section 4 of the U.P.C.H. Act came to be published on 4.11.1982 and section 9 on 31.09.1993 and thereafter Rabiya died on 16.07.1988. It is also the case of the writ petitioner that the contesting respondents including Sabir and Kashim who happened to be the brothers of the husband of the writ petitioner No.1, Mohfil did not question the same. Thereafter proceedings purported to be under Section 12 of U.P.C.H. Act stood initiated being Kashim v. Rabiya, being Case No. 42/45 of 2007 and 2008 in which an order came to be passed in favour of the writ petitioner on 04.12.2008 against which, the contesting respondents filed a restoration application which came to be rejected by the Consolidation Officer, Itwa, Siddharth Nagar on 03.11.2017, questioning the same, an appeal came to be filed by the contesting respondents purported to be under section 11 of the U.P.C.H. Act, 1953 before the Settlement Officer Siddharth Nagar on 05.02.2018 which came to be rejected on 30.05.2023 being Appeal No.1438 of 2021 and challenging the same, a revision came to be filed which was registered as Revision No. 0108 of 2023 (Habbul Hasan v. Nazibunnisha) purported to be under Section 48 of the U.P.C.H. Act, 1953 which came to be allowed while setting aside the order dated 30.05.2023, 04.12.2008 and 03.11.2017 remitting the matter back to the Consolidation Officer.

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Questioning the said order, the writ petitioners have preferred the present writ petition.

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Learned counsel for the writ petitioners has sought to argue that the order passed by the Revisional Court impugned in the present writ petition cannot be sustained for a single moment. Elaborating the said submission, it has been sought to be argued that the materials which were not the part and parcel of the dispute and which could not have been taken into consideration being foreign to the lis has been adverted to namely, factum of the death of the Rabiya, wife of Mohfil and also questioning the death certificate also and, in particular, the devolution of rights in this regard. He submits that once there happened to be sufficient pleadings on record and also the fact that issues were also framed by Consolidation Officer and there was no dispute regarding the same then merely because in some other village, there happened to be a contest inter se between the parties and the private respondents stood successful would not be a ground germane to be injected in the present proceedings, particularly, when the land in question is different and what is to be seen in the pleadings and the admissions made by the parties. He, thus, submits that the order be set aside.

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Countering the submission of learned counsel for the writ petitioner, Shri B.G. Bhai Tripathi, who appears for Respondent Nos. 2 and 3 has argued that first of all, an original order came to be passed by the Consolidation Officer behind the back, as according to him, the Presiding Officer before whom the proceedings were pending, the private respondents were appearing, however, without there being knowledge, the proceedings stood transferred and thereafter an exparte order came to be passed and when the same came to the knowledge of the contesting respondents, they filed restoration application which has been rejected without adverting to the core and the fundamental issues and the appeal also stood rejected thereafter revision was preferred

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which came to be allowed while remanding the matter back to the Consolidation Officer leaving it open for the parties to raise factual and legal issues and also for leading their evidence in this regard. He submits that already there happens to be hotly contested, proceedings being initiated between the petitioner and the contesting respondents with respect of a different set of land wherein the factum of the devolution of rights upon the petitioners and the rights which stood accrued to the deceased stood eliminated and extinguished. According to him, this is a perfect case wherein remand ought to have been made. He further disputes the framing of the issues by the original authority in this regard. According to him, no prejudice would be caused.

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Learned Standing Counsel who appears for the State official respondents has adopted the submission of Shri B.G. Bhai Tripathi.

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I have heard the learned counsel for the parties and perused the record.

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The basic question which originates in the present proceedings is regarding the validity of the revisional order passed under Section 48 of U.P.C.H. Act, 1953. On one hand, the learned counsel for the contesting respondents has contended that the orders would not be in any manner whatsoever cause any prejudice to the writ petitioner as the matter has been remitted back, however, on the other hand, the learned counsel for the writ petitioners dispute the same.

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At this stage, a consciousness has been arrived between Shri Pradeep Narayan Pandey, learned counsel for the writ petitioners and Shri B.G. Bhai Tripathi. who appears for the respondent Nos.

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2 and 3 that the matter be remitted back to the Settlement Officer Consolidation, Siddharth Nagar who shall decide the question leaving it open to the parties to lead their evidence and substantiate their stand while filing them.

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At this stage, learned counsel for the parties further submits that since the matter is very old and thus time be fixed by the authorities so that the parties may adduce their evidence and make their submissions and the same be given a logical end.

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To such submission, learned Standing Counsel has no objection, according to him, the settlement officer is empowered to act in accordance with law while deciding the dispute in question.

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Considering the submissions of the rival parties as well as stand taken by them, the writ petition is being decided without seeking any response in the following manner:

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(a). The order dated 23.02.2024 passed in Revision No.484 of 2024 in Case No. 0108 of 2023, Habbul Hasan and other v. Nazibunnisha, purported to be under Section 48 (1) of the U.P.C.H. Act, 1953 passed by the Deputy Director of Consolidation, Basti, District Siddharth Nnagar is modified to the extent that now in place of the matter being remitted back to the Consolidation Officer, Siddharth Nagar, the same shall be decided by the Settlement Officer Consolidation, Siddharth Nagar.

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(b). The parties shall appear before the authorities on 01.10.2024 before the Settlement Officer Consolidation, Siddharth Nagar.) Thereafter in the third week of October, 2024, a date shall be fixed for exchange of the pleadings and for leading the evidence.

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(c). A date shall be fixed in the week commencing 11.11.2024 for

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the purposes of hearing.

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(d). Order shall be passed by the 13.11.2024.

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(e). No unnecessary adjournment shall be granted to any of the parties and in case, in any eventuality, any adjourenment is granted in extreme circumstances then the same should not be for a period of more than three days at a stretch.

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Since the writ petitioners and the contesting respondents are representing through their counsels, thus, it would be deemed that the parties have knowledge about the order.

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Needless to point out that the writ petition has been decided without seeking any response from the respondents. Thus, passing of this order may not be construed to an expression that this Court has gone into the merits of the case.

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With the aforesaid observation, the writ petition is disposed off.

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Order Date :- 20.9.2024

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A. Prajapati

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Digitally signed by :- ASHUTOSH KUMAR PRAJAPATI High Court of Judicature at Allahabad

Nazibunnisha and 2 Others v. Deputy Director of Consolidation and 2 Others

Case brief

What is this about?

What the court decided

Nazibunnisha and 2 Others v. Deputy Director of Consolidation and 2 Others

Case brief

What is this about?

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