S. N. Srivastava, J. - (1.) -Present petition has been filed assailing the impugned order dated 27.11.2003 by which the revision of the petitioners was dismissed.
(2.) THE dispute in the instant petition revolves round plot No. 1628 admeasuring 5 biswa, 19 dhurs situated in village Phulli, post Zamania, Tahsil Zamania, district Ghazipur. It transpires from the record that pursuant to a compromise, the matter culminated in passing order dated 5.12.1975 by which the Consolidation Officer directed to expunge the names of Raj Narain and in his place, to mutate the names of Annpurna Devi, Kamla and Anand Mohan. By means of order dated 28.7.1984, the Deputy Director of Consolidation levied in implementation the aforestated order in exercise of power under Section 48 (3) of the U. P. Consolidation of Holdings Act, 1953. Phoenix like, the matter re-emerged from the ashes in 1997 i.e., after a lapse of 13 years on an application moved by the petitioners thereby seeking setting aside the order dated 28.7.1984 passed by the Deputy Director of Consolidation. Acting on this application, the Settlement Officer Consolidation made an order dated 24.11.1997 purporting to be under Section 11C of the U. P. Consolidation of Holdings Act. It is intimated in the said order itself that tenure holders were not heard. THEn followed the application for recall made on behalf of the recorded tenure holders thereby they sought recall of the ex parte order passed by the Settlement Officer Consolidation and by means of the order dated 2.1.1998, order dated 24.11.1997 was recalled. THE order embodies the observation that in case any one of the parties feels aggrieved by the orders he may avail of the alternative remedy by filing appeal/ revision or restoration application in accordance with law. THE petitioners chose to prefer a revision which culminated in being dismissed by means of the impugned order dated 27.11.2003. It is in the above backdrop that the present petition has been instituted assailing the impugned order. The learned counsel for the petitioners tried to assail the impugned order on the premise that since order dated 28.7.1984 had been passed in exercise of power under Section 48 (3) of the U. P. Consolidation of Holdings Act after the notification under Section 52 (1) had been publicized, the Deputy Director Consolidation erred in law in dismissing the revision and upheld the order dated 2.1.1998. In order to enforce his aforestated contentions, the learned counsel relied upon a decision in Hari Ram v. Dy Director of Consolidation, 1989 RJ 29. I have traversed upon the materials on record. It would appear from a perusal of the materials on record that the order dated 5.12.1975 was passed by the Consolidation Officer in proceeding under Section 9A of the U. P. Consolidation of Holdings Act which was levied in implementation by means of order dated 28.7.1984, passed by the Deputy Director of Consolidation in exercise of power under Section 48 (3) of the Act. In between the period, it would further appear, the order dated 5.12.1975 was not taken in challenge anywhere either in appeal or revision and it thus, attained finality. The order dated 28.7.1984 which the Deputy Director of Consolidation made in implementation of the order dated 5.12.1975, was in effect an order made during pendency of proceeding before the consolidation authorities and by this reckoning, even publication of Notification 52 (1) of the Act would not be fraught with a consequence to render the order dated 28.7.1984 nugatory. The decision cited by the learned counsel for the petitioners cannot be imported for application to the facts of the present case inasmuch as it is intended for application in a situation where if a denotification has already taken place under Section 52 of the Act, the Deputy Director of Consolidation would have no jurisdiction to exercise power under Section 48 (3) of the Act. By this reckoning, the impugned order passed by the Deputy Director of Consolidation does not suffer from any infirmity.
(3.) THE next limb of the submissions made across the bar by the learned counsel for the petitioners is that the Settlement Officer of Consolidation was fully competent to make order dated 24.11.1997, on petitioner's application in exercise of power under Section 11C of the U.P.C.H. Act and subsequently, the Settlement Officer of Consolidation erred in law in recalling said order which was wrongly countenanced in revision by the Deputy Director Consolidation. In connection with this proposition, I would first scan the provisions of Section 11C for its substantiality in relation to the order dated 24.11.1997 : "In the course of hearing of an objection under Section 9A or an appeal under Section 11, or in proceedings under Section 48, the Consolidation Officer, the Settlement Officer Consolidation or the Director of Consolidation, as the case may be, may direct that any land which vests in the State Government or the Gaon Sabha or any other local body or authority may be recorded in its name, even though no objection, appeal or revision has been filed by such Government, Gaon Sabha, local body or authority." It is manifestly clear that provisions of Section 11C of the U. P. Consolidation of Holdings Act are intended for exercise of power by the consolidation authorities only during pendency of objection under Section 9, appeal under Section 11 or proceedings under Section 48 of the U. P. Consolidation of Holdings Act and not in a situation as prevailing in the instant case. Concededly, neither any objection, nor appeal or revision was pending before the Settlement Officer of Consolidation so as to warrant exercise of power under Section 11C of the U. P. Consolidation of Holdings Act. Thus, the contention advanced across the bar by the learned counsel for the petitioners is held to be not tenable and sustainable. In addition to the above, it is quite noticeable from a bare perusal of the order dated 24.11.1997, that it was an ex parte order sans opportunity of being heard to a person in whose favour an order passed by Consolidation Officer in proceeding under Section 9A (2) of the U.P.C.H. Act having been passed as far back as in the year 1975 was already existing. As stated supra, the order dated 24.11.1997 having not been taken in challenge in between the period, had already attained finality. Besides, it does not appear that it was a case of forged entry without any order but on all counts, a valid order pursuant to a compromise had come to be passed by the Consolidation Officer in proceeding under Section 9A of the U. P. Consolidation of Holdings Act. In the circumstances, a person in whose favour, entry in the revenue had been made was entitled to be heard and to have his say in the matter before any order interfering with the mutation comes to be made. In the instant case, the order dated 24.11.1997 itself intimates that notices were not issued before setting aside orders passed in favour of contesting opposite parties and it was an order made sans the principles of natural justice. In the circumstances, the said order which was an ex parte order without issuing notice to the person concerned and not being even otherwise, founded on any valid ground, was rightly recalled and revision preferred by the petitioners was rightly dismissed.;