K. N. Misra, J. - (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. Learned counsel for the petitioner contended that opposite parties nos. 5 and 6 have erred in holding that the proceedings before the Assistant Consolidation Officer stood vitiated on account of non issuance of proclamation regarding which there is no provision under the UP CH Act & Rules framed thereunder. He thus contended that the impugned orders cannot be sustained as the view taken by opposite parties nos. 5 and 6 is erroneous. I am unable to agree with this contention. A Division Bench of this Court in Ugra Sen v. Dy. Director of Consolidation, 1970 RD 445, has laid down that J "No doubt Sections 7 to 11 do not specifically lay down that a proclamation shall be issued and published, but it is implicit in the provisions contained in subsection (1) and (2) of Section 9 that a notice of mutation application should be published by issuing a suitable proclamation as is done by the ordinary revenue courts dealing with a similar application. Since the Deputy Director has found as a matter of fact that the proclamation issued in the instant case was not in accordance with law, he was within his right in exercise of his revisional powers to bold that it was a material irregularity." In this view of the matter I do not find any error in the impugned orders passed by opposite parties nos. 5 and 6. The petitioner had claimed mutation of his name over the aforesaid chak land in dispute by asserting that his brothers Sheo Prasad, Ram Kishun and Ram Prasad have died and the land had devolved upon him. The Assistant Consolidation Officer without issuing mutation proclamation proceeded............to pass mutation order in favour of the petitioner by expunging the names of the aforesaid persons from the land in dispute.
(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. Learned counsel for the petitioner contended that since the recorded tenure-holders had already died and as such there was no occasion for any conciliation between the parties in respect of the land in dispute because no one had appeared to claim succession in respect of the land in dispute nor any one had appeared to contend that the recorded tenure-holders are alive and that succession has not opened. I do not find any substance in this argument.;