MOHD YOUSUF Vs. DIRECTOR CONSOLIDATION

JUDGEMENT

(1.) THIS is a writ petition under Article 226 of the Constitution of India read with Sec. 103 of the Constitution of Jammu and Kashmir made by the petitioners for issuance of a writ of certiorari for quashing the order dated 25 -7 -1964 (hereinafter called the impugned order) and all subsequent orders passed and proceedings taken in consequence of the said order and also for a writ of mandamus directing the respondents 1 and 2 to implement the original order dated 13 -3 -1962 of the Assistant Consolidation Officer Ganderbal.

(2.) IT is averred in the petition that the respondents 3 to 6 are brothers of the petitioners. Their father late Mohd. Sultan had married three wives. Respondents 3 to 5 are from one wife, the petitioners and respondent No. 6 from another wife and the third wife borne no issue. The parents of the petitioners died during their minority. After the death of their father the petitioners, after some time, learnt that the landed property situated in Wutalar, Tehsil Ganderbal belonging to their father had been by some mistake mutated in the names of respondents 3 to 6 only. As soon as the petitioners came to know about it they appeared before the Assistant Consolidation Officer Ganderbal when consolidation scheme was enforced in Tehsil Ganderbal. They did so with the support and concurrence of respondents 3 to 6. The Assistant Consolidation Officer passed consent order dated 13th of March 1962 according to which the petitioner No. 2 was given land measuring 5 kanals and the petitioner No. 1 equal share with respondents No. 3 to 4 in the estate left by the father of the petitioners (vide annexure A). Following the passing of the consent order mutation No. 185 was attested. After the passing of the said order some disputes and differences arose between the petitioner No. 1 and respondent No. 6 and consequently the petitioner had to shift his residence to the house of the petitioner No. 2 his sister. An application was made before the Tehsildar Ganderbal where the respondents Nos. 3 to 6 denied the common parentage with the petitioners. But this contention was ruled out by the Tehsildar. The respondents thereafter filed a revision petition before the Director of Consolidation Jammu and Kashmir against the order of Assistant Consolidation Officer on I3th of March 1962 on flimsy grounds. The Director of Consolidation took the trouble of proceeding on spot in order to ascertain the truth or otherwise of the averments of the respondents 3 to 6 and on being convinced that the allegations of respondents Nos. 3 to 6 were false and frivolous dismissed the revision petition and upheld the order of the Assistant Consolidation Officer. Thus there was a concurrent finding of fact in respect of the consent order dated 13 -3 -1962. Following the dismissal of the revision petition, respondents Nos. 3 to 5 filed a review petition before the Director of Consolidation which was decided by Mr. Nizam -ul -Rehman, the new Director of Consolidation, who succeeded Shri Gani Sham who had dismissed the revision petition. The review petition was allowed by Mr. Nizam -ul -Rehman who passed the impugned order (vide Annexure D). The petitioners have averred that the impugned order is wholly illegal and without jurisdiction on the following grounds: - (a) That no review is provided under the Consolidation of Holdings Act V of 1962 or the Rules made thereunder. Therefore the order of Shri Nizam -ul -Rehman has no vires. (b) That even if a review was provided even then the Director of Consolidation who does not hold a higher position than the Commissioner could not review the order passed by the predecessor of the Director with out the previous sanction of the next higher authority inasmuch as the provisions of Land Revenue Act have been made applicable to all the proceedings including appeals and applications under the Consolidation of Holdings Act. (c) That the main reason assigned by the Director of Consolidation Jammu and Kashmir (vide annexure D) for reviewing the order of his predecessor is wholly illegal and has got no basis. The said order has got no legal existence and is without jurisdiction. So are the other orders passed in consequence thereof and subsequently by the Settlement Officer Consolidation Sumbal dated 19 -2 -1966, and orders of the Director of Consolidation dated 15 -10 -1966, 21 -5 -1968 and 17 -10 -1968. The only order that has got the legal existence and force is the order of Shri Ganisham the then Director of Consolidation dated 24 12 -1963. The petitioners therefore pray for issuance of a writ of certiorari for quashing the order dated 25 -7 -1964 and all subsequent orders and proceedings passed and initiated in consequence thereof by the Settlement Officer Consolidation and Director of Consolidation and also for a writ in the nature of mandamus to the respondents Nos. 1 and 2 directing them to implement the order of the Assistant Consolidation Officer Ganderhal dated 13 -3 -1962.

(3.) THE application is supported by an affidavit. The respondents Nos. 1 and 2 have filed their objections through the Deputy Advocate General. In their objections they have denied that the petitioners are the issues of Mohd. Sultan the deceased, therefore the landed property has been rightly mutated in the names of the respondents Nos. 3 to 6. The petitioners have failed to establish before the Consolidation authorities the contents of paras 5 to 7 of the Writ Petition. Regarding para No. 8 it has been admitted to the extent that the petitioners had put in an application before the Assistant Consolidation Officer Ganderbal alleging that they had been omitted to be recorded as heirs of Late Mohd. Sultan. The said application was disposed of by the Assistant Consolidation Officer on the basis of the alleged compromise between the interested parties which was later on set aside by the Director of Consolidation by his order dated 25 7 -1964. The order passed by the Assistant Consolidation Officer dated 13 -3 -1962 was not based on any lawful agreement between the interested parties and therefore the said order could not confer any right upon the petitioners and the provisions of sub -section (b) of section 60 of the Consolidation of Holdings Act were not attracted to such a case. The other contentions raised regarding the illegality of the order passed in review by the Director of Consolidation have not been admitted. It has been submitted that these contentions are devoid of force as the Director of Consolidation was within his powers to review the orders passed by his predecessor and as the order passed in revision by Mr. Ganisham suffers from patent errors of law and fact the same was rightly reviewed and set aside. The order dated 25 -7 -1964 did not suffer from any illegality and defect of jurisdiction. Not only this the petitioners themselves have acquiesced in the operation of the order dated 25 -7 -1904 and as such they are precluded from challenging its validity now. In consequence of the aforesaid order the Settlement Officer Consolidation made a thorough enquiry in the matter wherein the petitioners actively participated till its conclusion. The petitioners after being unsuccessful in establishing their claim before the Settlement Officer Consolidation preferred a revision petition to the Director of Consolidation who directed a further enquiry and report from the Settlement Officer Consolidation by his order dated 15 -10 -1966 who reheard the parties and submitted his report on 11 -9 -1967. The report was considered by the respondent No. 1 who after hearing the parties rejected the revision filed by the petitioners on 21 -5 -1968. The petitioners then filed a review petition which too was rejected on 17 -10 -1968. The petitioners are guilty of undue delay and latches and in view of the aforesaid reasons the petition merits dismissal.