BINDHYACHAL Vs. RAM KISHUN RAI

JUDGEMENT

(1.) THIS petition under Article 226 of the Constitution is directed against the order dated 28th March 1979 passed by the Deputy Director of Consolidation and order dated 19th September 1978 passed by the Settlement Officer (Consolidation) in proceedings under Section 12 of the U. P. Consolidation of Holdings Act, hereinafter referred to as the Act.

(2.) BRIEFLY stated the facts of the case are as follows : One Sheo Prasad, son of Rampat Rai, was allotted chak no. 202 in respect of his holding during consolidation operations and other chak no. 301 was allotted to Ram Kishun and Ram Prasad. Ram Kishun and Ram Prasad are also sons of Ram Pat Rai. The petitioner Bindhyachal filed two separate objections under Section 12 of the Act before the Assistant Consolidation Officer on 26th June 1976 asserting that the aforesaid chak holders, who were real brothers of the petitioners, bad died issueless and as such the land in dispute had devolved upon him and he is in possession over it. He thus prayed his name be recorded on the aforesaid land after expunging the names of the deceased tenure holders. The Assistant Consolidation Officer vide order dated 6th January 1977 allowed the objections filed by the petitioner and directed that his name be recorded after expunging the names of Sheo Prasad from chak no. 202 and Ram Kishun and Ram Prasad from chak no. 301. Opposite party no. 1 Ram Kishun Rai filed an appeal against the aforesaid order dated 6th January 1977 asserting that he is alive and his other two brothers, namely, Ram Prasad and Sheo Prasad, were also alive. He further asserted that the petitioner has wrongly got his name mutated on the land in dispute by falsely alleging that they are dead. A prayer for condonation of delay was also made by the appellant seeking condonation of delay in filing the appeal. The petitioner contested the appeal asserting that his said brothers have already died and Ram Kishun, who has filed the appeal, is an imposter and he has got no right to file the appeal. The Settlement Officer (Consolidation) summoned the record of both the aforesaid cases nos. 2723 and 1508 and on its perusal found that no mutation proclamation was issued in those cases by the Assistant Consolidation Officer before passing the mutation order in favour of the petitioner and those orders passed in those proceedings stand vitiated in law. He also recorded his doubt about the statements which were recorded in the case by the Assistant Consolidation Officer as he found that there was a difference in the ink in recording the statements of the witnesses. Thus condoning the delay in filing the appeal he allowed it and alter setting aside the order dated 6th January 1977 passed by the Assistant Consolidation Officer, remanded the case to the Consolidation Officer for deciding it on merits and the parties were directed to appear before him on 26th September 1978. Aggrieved by the said order the petitioner filed a revision, which too was dismissed on the aforesaid grounds. The Deputy Director of Consolidation thus, directed both the aforesaid cases nos. 2723 and 1508 pertaining to land of cbaks nos. 202 and 301 to be decided on merits by the Consolidation Officer and the order dated 6lh January 1977 passed by the Assistant Consolidation Officer was set aside being not in accordance with law.

(3.) APART from this infirmity regarding non issuance of the mutation proclamation, I further find that the Assistant Consolidation Officer acted illegally and without jurisdiction in passing the mutation order instead of remitting the record to the Consolidation Officer. Under Section 9-A (1) of the Act the Assistant Consolidation Officer can pass orders on the basis of conciliation between the parties appearing before him and where no conciliation had been arrived at, he gets no jurisdiction to pass the order directing expunction of the name of the recorded tenure holder, but to refer it with his report to the Consolidation Officer.