Ashok Bhushan, J. - (1.) HEARD Sri R. C. Singh, the learned counsel for the petitioners and Sri A. B. Singh, learned counsel appearing for the contesting respondents.
(2.) COUNTER and rejoinder -affidavits have been exchanged, with the consent of the parties, the writ petition is being finally decided. Brief facts giving rise to the writ petition are : dispute between the parties arose under Section 9 of U. P. Consolidation of Holdings Act, 1953. In basic year records with regard to khata in dispute name of both the parties were recorded. Objections were filed by the respondents claiming that they are sole tenure holder and petitioners have no share in the khata. The Consolidation Officer and Settlement Officer of Consolidation decided the case in favour of contesting respondents against which a revision being Revision No. 1345/1233 was filed by the petitioners under Section 48 of U. P. Consolidation of Holdings Act. The revision filed by the petitioners was allowed by the order of Deputy Director of Consolidation dated 16th April, 1977 against which a writ petition being Writ Petition No. 580 of 1977 was filed by the contesting respondents. The writ petition was dismissed after considering the arguments of both the parties on merits by this Court vide its judgment dated 8th March, 1978. A special leave petition was filed in the Apex Court against the judgment of High Court which too was dismissed on 16th July, 1979. Proceedings for giving effect to the order of Deputy Director of Consolidation dated 17th April, 1977 was initiated by the petitioners on which report was submitted by Consolidation Officer. The reference proceedings could not be finalised due to pendency of Writ Petition No. 580 of 1977. After dismissal of the writ petition as well as special leave petition before the Apex Court, the Deputy Director of Consolidation passed order dated 14th September, 1979 approving the reference for giving effect to the order of Deputy Director of Consolidation dated 16th April, 1977. In the reference proceedings, the contesting respondents objected the reference. The objection of the contesting respondents against the proposed reference were considered and some of the objections were accepted. The Deputy Director of Consolidation by the order dated 14th September, 1979 approved the reference for giving effect to the order of Deputy Director of Consolidation dated 16th April, 1977. The order of the Deputy Director of Consolidation passed under Section 48 (3) of U. P. Consolidation of Holdings Act dated 14th September. 1979 was incorporated in the revenue records including C.H. Form 45. The petitioners also, it appears, had moved an application on 5.9.1980 for reference under Rule 109 of U. P. Consolidation of Holdings Rules, 1954. In proceedings under Rule 109A of U. P. Consolidation of Holdings Rules, 1954 a report was submitted that since the Deputy Director of Consolidation has already passed an order under Section 48 (3) of U. P. Consolidation of Holdings Act approving the reference on 14th September, 1979 which has already been incorporated in C.H. Form 45, hence it is not necessary to proceed under Rule 109A. The Assistant Consolidation Officer submitted a report on 9th September, 1980 stating that no proceedings under Rule 109 is required. It appears that at this stage an application was filed on 5th December, 1981 by Kanta, father of respondent No. 4, to the Collector stating that without taking proceedings under Rule 109A, the entries in records have been expunged by Lekhpal, hence action be taken against the said Lekhpal. The Collector on the said application directed the Sub -Divisional Officer to take appropriate steps. The Sub -Divisional Officer passed an order on 17th February, 1984 on the said application of Kanta that Lekhpal committed error in amending the entries without drawing proceedings under Rule 109A of U. P. Consolidation of Holdings Rules, 1954. The Sub -Divisional Officer held that after notification under Section 52(2) of U. P. Consolidation of Holdings Act, proceedings under Rule 109 were required to be undertaken and thus the entries made by Lekhpal are not in accordance with Rules and are being set aside and earlier position in the records is restored. The Sub -Divisional Officer further observed that in case the petitioners want their names to be recorded in the revenue records they may initiate proceeding under Rule 109A. Against the order dated 17th February, 1984 reference was made by the petitioner under Section 218 of U. P. Land Revenue Act before the Commissioner, Gorakhpur Division, Gorakhpur. The petitioner in the aforesaid reference has pleaded before the Commissioner that entries in the revenue records were corrected in view of the order of Deputy Director of Consolidation dated 14th September, 1979. The Commissioner noted the order dated 14th September, 1979 of the Deputy Director of Consolidation. The Commissioner also noted the judgments of the High Court and the Apex Court relied by the petitioner accepting his claim and Commissioner observed that it appears that on the basis of the judgment of High Court and Apex Court, as mentioned above, the Sub -Divisional Officer observed that proceedings under Rule 109A, may be taken by the petitioners. The Commissioner ultimately took the view that the reference is not maintainable since the order of Sub -Divisional Officer was only an administrative order. A revision was filed by the petitioner before the Board of Revenue. The Board of Revenue also took the view that the order of Sub -Divisional Officer was administrative order against which revision does not lie. The writ petition was, thus, dismissed on 30th April, 1996. The petitioner has filed this writ petition challenging the order of Sub -Divisional Officer dated 17th February, 1984 and that of Commissioner and Board of Revenue.
(3.) THE learned counsel for the petitioners contended that the order passed by Sub -Divisional Officer dated 17th February, 1984 was illegal and amount to setting at naught the judgment given in favour of the petitioners by the High Court and the Apex Court as mentioned above. The contention of counsel for the petitioners is that entries in the record were made in pursuance of the final judgment of Deputy Director of Consolidation dated 16th April, 1977 which was upheld by the High Court and Apex Court. The counsel contended that for giving effect to the order dated 16th April, 1977 proceedings under Section 48 (3) of U. P. Consolidation of Holdings Act was undertaken in which after considering the objections of the respondents order was passed by the Deputy Director of Consolidation on 14th September, 1979 and the entries were made in the record in pursuance of the order of Deputy Director of Consolidation on 14th September, 1979. The counsel for the petitioners also stated that proceedings under Rule 109A were also initiated by the petitioners but the said proceedings were dropped by the consolidation authorities themselves with the observation that since the entries have already been incorporated in the record in pursuance of the order of Deputy Director of Consolidation dated 14th September, 1979, proceedings under Rule 109A will not be required to be undertaken. The learned counsel for the petitioners has further contended that the Deputy Director of Consolidation has ample power to get the orders implemented and since the entries were being corrected in view of the order of Deputy Director of Consolidation himself under Section 48 (3) of U. P. Consolidation of Holdings Act dated 14th September, 1979, there was no illegality in the correction of entries and the Sub -Divisional Officer committed error in setting aside these entries in the record.;