Anjani Kumar Mishra, J. - (1.) CASE called out in the revised list. I have heard Sri S.C. Tripathi, learned Counsel for the petitioner and learned Standing Counsel for the State -respondents.
(2.) IN view of the office report dated 2.8.2014, the service of notice upon respondent 1 -A and 6 is held to be sufficient. Since none has appeared for the contesting respondents despite notice, I have heard Sri S.C. Tripathi, learned Counsel for the petitioner and learned Standing Counsel for the State -respondents, as already noted hereinabove and I am proceeding to decide the case finally.
(3.) WHEN this matter came up for admission on 25.4.2013, a detailed order was passed, which is quoted below: - - "According to Sri S.C. Tripathi, learned Counsel for the petitioner, the petitioner had made an Application No. 596 of 2013 (Smt. Shyama Devi v. Dhanraji and others) under Rule 65 of the U.P. Consolidation of Holdings Rules (hereinafter referred to as 'the Rules') to transfer the Case No. 110/163 (Smt. Shyama Devi v. Laxmi Kant & others) from the Court of Consolidation Officer, Sadar, Jaunpur to a Competent Officer of another district other than Jaunpur. The said application was made by the petitioner before the Joint Director Consolidation, U.P. Lucknow in pursuance of an order dated 8.8.2012 passed in Writ Petition No. 38138 of 2012 (Smt. Shyama Devi v. Consolidation Officer and others). Learned Counsel states that the Writ Court repelled the submission of Counsel for the petitioner made on the basis of Rule 65 of the Rules to the effect that there is no mention under the said Rule regarding transfer of the case from one Consolidation Officer of a particular district to another Consolidation Officer of another district within the consolidation area. The Writ Court was of the view that once the Director of Consolidation has power to transfer the cases from the Courts higher in hierarchy, he will also have the power to transfer the cases of the Courts lower in hierarchy. Sri Tripathi has referred to the order dated 8.8.2012 passed by the Writ Court and states that when the writ petition was dismissed liberty was given to the petitioner to file an application before the Director of Consolidation, U.P. for transferring the case and in case such an application is made, it be considered in accordance with law. Learned Counsel for the petitioner states that said application made by the petitioner has been dismissed by the Joint Director, Consolidation, U.P. Lucknow by holding that the transfer application seeking transfer of the case from the Court of Consolidation Officer of one district to the Court of Consolidation Officer of another district within the consolidation area is not maintainable under Rule 65 of the Rules. According to Sri Tripathi, the said view of the Joint Director Consolidation, U.P. Lucknow is clearly illegal for the reason that although Rule 65 of the Rules deals with the power of transfer of the Settlement Officer, Consolidation to transfer the case from one Consolidation Officer to another within the consolidation area but it does not deal with the power of Director of Consolidation to transfer the cases from one Consolidation Officer to another Consolidation Officer. According to him, the Writ Court had clearly provided that when the Director of Consolidation can transfer the case pending before the Settlement Officer, Consolidation to another Settlement Officer, Consolidation he would have jurisdiction to transfer the cases pending before the Court of Consolidation Officer also. Sri Tripathi has referred under section 41 of the U.P. Consolidation of Holdings Act, 1953 to state that the provisions of Chapter IX and X of the U.P. Land Revenue Act, 1901 would apply. He places reliance of Chapter IX of the U.P. Land Revenue Act, 1901 and refers to section 191 which provides that the Board or a Commissioner may transfer any case or proceeding arising under the provisions of this Act from any subordinate Revenue Court or Revenue Officer to any other Court or officer competent to deal therewith. According to Sri Tripathi, when the provisions of Chapter DC of the U.P. Land Revenue Act are made applicable under the U.P. Consolidation of Holdings Act and under Rule 65 of the Rules, there is no express power given to the Director Consolidation regarding transfer of cases pending before the Consolidation Officer to another Consolidation Officer then the provisions of Chapter IX and section 191 of the U.P. Land Revenue Act would come into play. Hence mention of the word Commissioner in section 191 of the U.P. Land Revenue Act would be the Consolidation Commissioner since these proceedings are under the U.P. Consolidation of Holdings Act. He states that by virtue of section 191 of the U.P. Land Revenue Act the Consolidation Commissioner will have jurisdiction to transfer any case or proceedings pending before any Subordinate Court or Officer to any other Court or Officer Competent to deal with it. As such according to Sri Tripathi, the impugned order dated 25.2.2013 passed by the Joint Director, Consolidation, U.P. is illegal and is liable to be set aside since he has failed to exercise jurisdiction vested in him. Prima facie the submission of Sri Tripathi, learned Counsel for the petitioner appears to have substance. In view of the aforesaid circumstances until further orders of this Court, the effect and operation of the impugned order dated 25.2.2013 passed in Transfer Application No. 596 of 2013 (Smt. Shyama Devi v. Dhanraji and others) by the Joint Director Consolidation, U.P. Lucknow shall remain stayed." In view of the order aforesaid and further in view of the fact that the contesting respondents have failed to appear and to dispute the submissions made by learned Counsel for the petitioner as contained in the order dated 25.4.2013, the writ petition is accordingly allowed, the impugned order dated 25.2.2013 is quashed and the matter is remanded back to the respondent No. 7, the Joint Director of Consolidation, Uttar Pradesh, Lucknow to pass fresh orders on the transfer application filed by the petitioner keeping in mind the observations made by this Court in the order dated 25.4.2013, quoted above.;