RAJ KISHORE Vs. DEPUTY DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) Heard Sri Sankatha Rai, counsel for the petitioner and Sri Satyendra Kumar Singh and Manish Kumar Nigam appearing for the contesting respondents. Counter and rejoinder-affidavits have been exchanged and both the parties had prayed that the writ petition be finally decided. Both the parties have been heard at length.

(2.) This writ petition has been filed challenging the order dated 30.10.1998 passed by the Deputy Director of Consolidation, Ballia and the order dated 29.12.1995 and 22.11.1997 passed by the Settlement Officer of Consolidation and the Assistant Settlement Officer of Consolidation. Ballia. The writ petition arises out of the proceedings under Section 9A of U. P, Consolidation of Holdings Act, 1953.

(3.) The facts of the case as emerge from the pleadings of the parties are : The consolidation proceedings started in village Sanwara and Rattopur. Pargana Kopacheet Garvi. District Ballia. In basic year, plots in dispute were recorded in the names of Parmanand, Dharmdeo and Ramdhari, sons of Sukhai. The pedigree of the family as given in paragraph 3 of the writ petition is not disputed. Sukhai had three brothers, one of which was Akaloo. Petitioner and respondent No. 4 both were sons of Ramdhari. Petitioner was adopted by Akaloo. An objection under Section 9 (2) of U. P. Consolidation of Holdings Act was filed by the petitioner claiming co-tenancy right over the land in dispute of both the villages claiming that land in dispute is ancestral property and he has share in the Khata. The Assistant Consolidation Officer decided the dispute raised by the petitioner on the basis of consolidation. The order was passed by the Assistant Consolidation Officer on 2.2.1973/20.2.1973 accepting the claim of the petitioner with regard to village Sanwara. With regard to village Rattopur orders, were passed by the Assistant Consolidation Officer on 16.7.1973 and 7.8.1973. On the basis of the orders passed by the Assistant Consolidation Officer, consolidator recorded the name of the petitioner over Khata in dispute and chak was carved out in the name of the petitioner separately and in the name of Ramdhari, the natural father of the petitioner separately. C.H. Forms 41 and 45 were prepared in favour of the petitioner. Village Rattopur was de-notified under Section 52 of the U. P. Consolidation of Holdings Act on 7.7.1977 and village Sanwara was de-notified under Section 52 of the U. P. Consolidation of Holdings Act on 27.9.1980. Ramdhari the natural father of the petitioner, and respondent No. 4 died on 7.1.1984. The respondent No. 4 filed belated appeal challenging the orders passed by the . Assistant Consolidation Officer. Against the order dated 2.2.1973/20.2.1973 of the Assistant Consolidation Officer with regard to village Sanwara, an appeal was filed on 24.2.1984 and with regard to village Rattopur, appeals were filed on 5.5.1934 and 16.5.1984. Benefit of Section 5 of the Limitation Act was claimed by the respondent No, 4. The respondent No. 4 claimed in his appeal that the petitioner has no share in the land in dispute, He claimed that his share is half and other half share belongs to Shiv Nath and Shiv Muni, sons of Parmanand. He further stated that before Assistant Consolidation Officer, his father did not sign and the Assistant Consolidation Officer has no Jurisdiction to pass order. He had stated that after the death of his father, he came to know that by the aforesaid order of the Assistant Consolidation Officer, the share of the respondent No. 4 has been reduced. Objection was filed by the petitioner before the Settlement Officer of Consolidation. Petitioner filed objection in the time barred appeal that the question of delay should be first heard. The Settlement Officer of Consolidation passed order on 17.11.1994 that the parties may raise argument with regard to question of delay. Prior to that, the Settlement Officer of Consolidation has earlier allowed the appeal on 8.5.1989 ex pane to the petitioner and on the restoration application being filed by the petitioner, the said ex parte order was set aside vide order dated 29.10.1994. The Settlement Officer of Consolidation passed an order on 29.12.1995 condoning the delay in filing the appeal and further set aside the orders of Assistant Consolidation Officer on the ground that the said orders were without jurisdiction. The Settlement Officer of Consolidation after setting aside the order of the Assistant Consolidation Officer remanded the matter before the Consolidation Officer. Petitioner filed an application for recall of the order of the Settlement Officer of Consolidation on the ground that the Settlement Officer of Consolidation has heard the parties only on the question of delay but the Settlement Officer of Consolidation has decided the appeal on merit. It was claimed by the petitioner that they had no opportunity to have their say on the merits of the case ; hence the order of the Settlement Officer of Consolidation be recalled. The said application was rejected by the Assistant Settlement Officer of Consolidation on 22.11.1997. Two revisions were filed by the petitioner before the Deputy Director of Consolidation. Revision No. 1452 was filed against the order of the Settlement Officer of Consolidation dated 29,12.1995 and the Revision No. 1753 was filed against the order dated 22.11.1997. The Deputy Director of Consolidation dismissed both the revisions vide his order dated 30.10.1998. The Deputy Director of Consolidation took the view that the order dated 29.12.1995 passed by the Settlement Officer of Consolidation is only an interlocutory order against which revision is not maintainable. With regard to order dated 22.11.1997, it was held by the Deputy Director of Consolidation that the earlier order of the Settlement Officer of Consolidation was passed after hearing the parties and there being no power of review, the revision is liable to be dismissed. The petitioner has come up in this Court challenging the order of the Deputy Director of Consolidation dated 30.10.1998 and the orders dated 29.12.1995 and 22.11.1997 passed by the Settlement Officer of Consolidation and Assistant Settlement Officer of Consolidation respectively.