Vishwanath vs Deputy Director of Consolidation

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(All) 2499

IN THE HIGH COURT OF ALLAHABAD
CHANDRA KUMAR RAI, J.
Vishwanath and 6 ors. - Petitioners
Versus
Deputy Director of Consolidation and 7 ors. - Respondents
WRIT - B NO. - 1077 OF 2023.
Decided On : 31-03-2023

Advocates appeared:
For the Petitioner: Manoj Kumar Singh.
For the Respondent: C.S.C., Rajesh Kumar Yadav.

Headnote:(A) U.P. Consolidation of Holding Act - Section 12 - Remand of matter - Consolidation Officer allowed the application under Section 12, but later an appellate court set aside the orders without remanding the case for a fresh consideration on merits, which was inappropriate. (Paras 10, 11)

(B) Legal Principles - Proper procedure must be followed in deciding applications under consolidation law; failure to frame issues and allow evidence can lead to wrongful dismissal of claims. (Paras 10, 11)

Facts of the case:
The petitioners filed an application for recording their names based on succession after the death of the tenure holder. Their application was initially allowed by the Consolidation Officer but later set aside by the appellate court due to a recall application filed after 15 years by the contesting respondents who claimed to be heirs. (Para 3)

Findings of Court:
The appellate court's dismissal of the petitioners' claims without remanding the matter for proper evidence and issues being framed was unjust. The matter was remanded back to the Consolidation Officer for a fresh look. (Paras 10, 11)

Issues: Whether the appellate court's order improperly dismissed the petitioners' claims without a proper trial or remand, and the appropriateness of the procedure followed in the case. (Para 10)

Ratio Decidendi: The court held that the procedure as per U.P.C.H. Act and Rules must be adhered to, indicating that a proper trial should have been conducted with issues framed and evidence recorded before dismissing the petitioners' applications. (Paras 10, 11)

Result: Writ petition allowed in part; remanded back to Consolidation Officer for fresh consideration.

Table of Content
1. death and succession of the deceased tenure holder. (Para 3)
2. claiming rights under u.p.c.h. act. (Para 4)
3. allegations of fraud by petitioners. (Para 5)
4. record of proceedings and hearings. (Para 6 , 7)
5. importance of procedural rules in u.p.c.h. act. (Para 8)
6. consideration of prior case on consolidation procedure. (Para 9)
7. remand to consolidation officer for proper hearing. (Para 10)
8. decision allowing partial relief in the writ. (Para 11)
9. final order in the writ petition. (Para 12)

JUDGMENT

Chandra Kumar Rai, J.

Heard Mr. Manoj Kumar Singh, Counsel for the petitioners, learned Standing Counsel for State-respondents and Mr. Rejesh Kumar Yadav, Counsel for the contesting respondent Nos.3 to 7.

2. With the consent of the counsel for the parties, the writ petition is being heard and disposed of finally without calling counter affidavit.

3. The brief facts of the case are that Khata No.355, plot No.410/48/3 M, area 150 air, plot No.410/49 M area 113 air, Khata No.347, Plot No.496 area 194 air situated in Mauza Pisor, Pargana-Shivpur, Tehsil and District-Varanasi was recorded in the name of Beere, who died on 14.09.1994. The application/objection under Section 12 of U.P.C.H. Act was filed by the petitioner No.1 along with father of petitioner Nos.2 to 7 for recording their names over the disputed plot on the basis of succession. Consolidation Officer vide order dated 07.10.1995 allowed the application/objection filed by the petitioners under Section 12 of U.P.C.H. Act and ordered to be recorded the name of the petitioner No.1 along with father of petitioner Nos.2 to 7 over the disputed plot. Against the order dated 07.10.1995 contesting respondents filed recall application after 15 years along with application under Section 5 of LIMITATION ACT . Against the recall application as well as application under Section 5 of LIMITATION ACT , objection was filed by the petitioners. The Consolidation Officer vide order dated 19.10.2015 rejected the application on the ground of the limitation. Against the order dated 19.10.1995 and 07.10.1995 passed by the Consolidation Officer, appeal filed under Section 11 (1) of the U.P.C.H.Act was filed by contesting respondents and the appellate Court/Settlement officer of Consolidation vide order dated 14.06.2021 allowed the appeal and set aside the orders of Consolidation Officer dated 07.10.1995 and 28.10.2015 and dismissed the petitioners' objection under Section 12 of U.P.C.H. Act. The petitioners challenged the order of appellate court in revision, which was dismissed vide order dated 27.02.2023. hence this writ petition.

4. Counsel for the petitioners submitted that the application/objection under Section 12 of U.P.C.H. Act along with application under Section 5 of Limitation for recording the name in place of deceased tenure holder by the Consolidation Officer has been allowed in the year 1995, against which restoration application was filed after 15 years by the contesting respondents, which was dismissed by the Consolidation Officer. He further submitted that an appeal was filed against the order of Consolidation Officer which was allowed setting aside the orders passed by the Consolidation Officer. He further submitted that in place of remanding the matter to decide the application/objection afresh on merit appellate court himself rejected the petitioners' objection which is not in accordance with law. He further submitted that appellate Court utmost set aside the order passed without notice to other side but he cannot allow the appeal rather he should remand the matter to Consolidation Officer for deciding of the application/objection filed under Section 12 of U.P.C.H. Act in accordance with law. He further submitted that against the appellate order, revision filed by the petitioners has also been dismissed arbitrarily. He further submitted that impugned order be set aside and matter be sent back before Consolidation Officer for fresh consideration of th