ABDUL QAYYUM Vs. DY. DIR. OF CONSOLIDATION, U.P. LUCKNOW, CAMP AT AZAMGARH & OTHERS
LAWS(ALL)-1965-12-39
HIGH COURT OF ALLAHABAD
Decided on December 14,1965

ABDUL QAYYUM Appellant
VERSUS
Dy. Dir. Of Consolidation, U.P. Lucknow, Camp At Azamgarh And Others Respondents

JUDGEMENT

R.S.Pathak, J. - (1.)The Assistant Consolidation Officer prepared a Statement of Proposals under Sec. 19 of the U.P. Consolidation of Holdings Act and it disclosed chak No. 52-A consisting of certain plots. The chak was recorded in the names of four tenure-holders, Ali Hasan, Abdul Sattar, Siddiq and Nabi Ahmad. An objection was filed by the petitioner Abdul Qayyum under Sec. 20(2) to the effect that Ali Hasan and Abdul Sattar were dead and he was their legal representative, and that Siddiq and Nabi had not been heard of for over twenty years and should, therefore, be presumed to have died, and he prayed that the names of the four persons should be expunged and his name alone should be entered. The objection found favour with the Consolidation Officer who passed an order accordingly. One Rasool Ahmad preferred an appeal against the order of the Consolidation Officer, contending that he was also a legal representative of Ali Hasan and Abdul Sattar and that his name should also be entered in the records. The Settlement Officer (Consolidation) allowed the appeal and taking the view that it was necessary for the Consolidation Officer to have issued a proclamation "on the presumed death of Ali Hasan and Abdul Sattar" and so complied with the provisions of rule 65(5), set aside the order of the Consolidation Officer and remanded the case to him "for making inquiries in accordance with law". It is apparent that the Settlement Officer misconceived the facts of the case before him because there was no dispute that Ali Hasan and Abdul Sattar were dead. Against the order of the Settlement Officer, the petitioner applied in revision under Sec. 48. The Deputy Director of Consolidation by his order of July 18, 1962 dismissed the revision application. He upheld the contention of the petitioner that while disposing of an application under Sec. 20 it was not necessary to issue any proclamation but observed that the nature of the allegations contained in the objection indicated that it was a case of mutation and that, therefore, it was proper that proclamation should be issued. He also examined the evidence and came to the finding that "there was no evidence whatsoever to hold that the 3 persons mentioned above had died and that the applicant alone was the legal heir." lie found no harm in the case being reconsidered and, therefore, declined to interfere. The petitioner challenges the order of the Settlement Officer and of the Deputy Director of Consolidation by this petition for certiorari.
(2.)Sri A.N. Varma, on behalf of the petitioner, has contended that the objection filed by the petitioner before the Consolidation Officer was an objection under Sec. 20(2), and the provisions of rule 65 (5) did not apply at all, and consequently the view taken by the Settlement Officer was incorrect. There is no dispute that the objection filed by the petitioner was made under Sec. 20(2). To such an objection, it seems to me, the provisions of rule 65 (5) do not apply. Rule 65(5) applies the procedure laid down for the disposal of cases under Chapter III of the U.P. Land Revenue Act to the decision of a case under rule 65(3), and rule 65(3) refers to cases arising for consideration under Sec. 5(a) of the Act. Sec. 5(a) provides that upon the declaration under Sec. 4 the duty of preparing and maintaining the khasra and the Annual Register under Chapter III of the U.P. Land Revenue Act stands transferred to the Settlement Officer (Consolidation). It is plain that the procedure contemplated by rule 65(5) can be invoked only when proceedings are taken by reference to Sec. 5(a). No such procedure is contemplated in the disposal of an objection filed under Sec. 20(2). Now, it has been observed by a Bench of this Court in Smt. Amjadi Vs. Deputy Director of Consolidation, 1963 R.D. 62 that when a tenure-holder who was entered in a chak proposed by the Statement of Proposals under Sec. 19, died, proceeding for substitution of his legal representatives could be taken by an objection under Sec. 20. That being so it was open to the petitioner to file an objection under Sec. 20(2) pointing out that he was entitled to be substituted for Ali Hasan and Abdul Sattar and it was within the competence of the Consolidation Officer to consider that objection and upon its merits, uphold it. It was not necessary for the Consolidation Officer to take proceedings for issuing a proclamation by reference to rule 65(5). In that regard the order of the Settlement Officer is manifestly illegal. As regards the order of the Deputy Director, it is difficult to comprehend why, after his observation that a proceeding under Sec. 20 did not require the issue of a proclamation, he considered it appropriate that a proclamation should be issued. He has also exceeded his jurisdiction in entering into the merit and holding that the petitioner alone was not legal heir and that the tenure-holders originally recorded had not died. The jurisdiction exercised by him was that contained in Sec. 48 as it stood before its amendment in March 1963. He seems to have proceeded on the view that there was no harm if the order of the Settlement Officer directing compliance with the provisions of rule 65 (5) was allowed to stand. In view of the fact that rule 65(5) could not be invoked at all, the order of the Deputy Director must be held to be manifestly illegal also.
(3.)Sri Satyendra Nath Verma, appearing for the fourth respondent Rasool Ahmad, has contended that the impugned order should be allowed to stand because the Consolidation Officer would then be in a position to decide whether the fourth respondent was also the legal heir of the deceased persons. The fourth respondent preferred an appeal before the Settlement Officer, and it was for the Settlement Officer in that appeal to decide whether the fourth respondent was or was not the legal heir. The Settlement Officer on the contrary has not applied his mind to the question at all and instead has proceeded to hold that rule 65(5) applied. The Settlement Officer should have first considered whether it was possible for him to dispose of the claim of the fourth respondent and if after that consideration he had found it necessary to do so he could have remanded the case to the Consolidation Officer. When the Settlement Officer did not apply his mind at all to the merits of the fourth respondent's claim, it is only appropriate that he should be required to do so.
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