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ALLAHABAD HIGH COURT
Ram Surat Ram (Maurya), J.
Jai Shree - Appellant
Versus
Consolidation Officer and Ors. - Respondent
Writ-B No. 9514 of 2015
Decided On : 17-03-2015
Mandamus - U.P. Consolidation of Holdings Act, 1953 - Section 52(2), Rule 109-A - The court discussed the application of Section 52(2) of the U.P. Consolidation of Holdings Act, 1953 and Rule 109-A in the context of orders passed by competent authorities in pending cases. The court emphasized that orders required to be given effect to under Section 52(2) are of a final nature and highlighted the significance of substantive orders in favor of the parties involved.
Fact of the Case:
The petitioner's appeal against an order allowing the objection of respondent-3 and directing the recording of his name as co-tenant was dismissed in default. Subsequent proceedings and orders related to the objection and mutation of land led to the filing of a writ petition.
Finding of the Court:
The court found that the orders required to be given effect to under Section 52(2) of the Act were of a final nature and emphasized the significance of substantive orders in favor of the parties involved. It dismissed the writ petition, highlighting that the petitioner's right of restitution would not arise until the order of Consolidation Officer dated 15.12.1998 was set aside.
Issues: The issues involved the application of Section 52(2) of the U.P. Consolidation of Holdings Act, 1953, and the significance of substantive orders in pending cases.
Ratio Decidendi: The court emphasized that orders required to be given effect to under Section 52(2) are of a final nature and highlighted the significance of substantive orders in favor of the parties involved. It also highlighted that the petitioner's right of restitution would not arise until the order of Consolidation Officer dated 15.12.1998 was set aside.
Final Decision: The writ petition was dismissed by the court.
Ram Surat Ram (Maurya), J.
1. Heard Sri S.C. Tripathi, for the petitioner. The writ petition has been filed for following relieves
"(i) To issue a writ of mandamus, order or direction in the nature of mandamus, commanding the respondent consolidation officer not to proceed any further in Case No. 50/69, Indrajeet v. Sarkar, in the impugned proceedings under Rule 109-A as the proceedings as a whole are not maintainable in the eyes of law.
(ii) To issue a writ of mandamus, order or direction in the nature of mandamus, commanding the consolidation officer to treat the order dated 7.11.2014 as well as 26.12.2014 ineffective and in operative in law treating the same as if kept in abeyance during continuance of the respondents proceedings in Appeal No. 1211/1389 under section 11(1) of U.P.C.H. Act.
(iii) To issue a writ of mandamus, order or direction in the nature of mandamus, commanding the respondent consolidation officer to implement the order dated 26.12.2014 in the khatauni so that the earlier order dated 7.11.2014 be treated as a dead order.
(iv) To issue any further writ order or direction to which the petitioner be found entitled in law."
2. Khata 18 of village Kamsin, tahsil Machhalishahar, district Jaunpur was recorded in the name of the petitioner, in basic consolidation year. Indrajeet (respondent-3) filed an objection (registered as Case Nos. 270 to 274) under section 9-A of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act), claiming co-tenancy of 1/2 share along with the petitioner. Consolidation Officer, by order dated 15.12.1998, allowed the objection of respondent-3 and directed for recording his name as co-tenant of 1/2 share. The petitioner filed an appeal (registered as Appeal No. 2178) under section 11(1) of the Act, from the aforesaid order, which was dismissed in default by order dated 19.5.2011. The petitioner filed an application for recall of the order dated 19.5.2011 and restoration of the appeal, which is pending.
3. Respondent-3 filed an application (registered as Case No. 50/69) under Rule 109-A of the Rules, for giving effect to the order of Consolidation Officer, dated 15.12.1998. The Consolidation Officer vide his order dated 7.11.2014 allowed the application of respondent-3 and issued parwana dated 7.11.2014 to Tahsildar for recording the name of Indrajeet, as co-tenant, over new plots recorded in the name of the petitioner. On its basis, mutation was incorporated in the revenue record by tahsil authority on 16.12.2014.
4. In the meantime, the petitioner filed an application for recall of the order of Consolidation Officer dated 7.11.2014, which is allowed by order dated 26.12.2014. Hence this writ petition has been filed.
5. The Counsel for the petitioner submitted that the appeal of the petitioner was dismissed in default on 19.5.2011 and recall/restoration application, filed by the petitioner on 24.5.2011, was pending. In the meantime, parwana amaldaram was issued by Ahalmad of Settlement Officer Consolidation, on 9.6.2011, without order of competent authority and without notice to the petitioner. On which, ex-parte order was passed on 7.11.2014. The order dated 7.11.2014 was recalled by Consolidation Officer by order dated 26.12.2014 but in the meantime amaldaramad has been made by tahsil authorities on 16.12.2014. The order of Consolidation Officer dated 7.11.2014 has been recalled as amaldaramad made on its basis is liable to be nullified. Settlement Officer Consolidation is illegally delaying disposal of the recall/restoration application of the petitioner, filed in the appeal, although it was within time and the order of dismissal of the appeal in default, is liable to be recalled. Due to inaction of respondents-1 and 2, grave injustice is being caused to the petitioner. He relied upon the judgment of this Court in Uma Shankar v. DDC and others, 1982 RD 172 in which it has been held that on reversal of the judgment, the law raises an obligation on the party who re
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