- (1.) S. N. Srivastava, J. Heard learned Counsel for the petitioner as well as learned Standing Counsel.
(2.) BY order dated 24-6-2003, Deputy Director Consolidation rescinded the proceeding under the Consolidation of Holdings Act and directed initiation of consolidation proceedings de novo after verification of Khatauni. Learned Counsel for the petitioner argued that thereafter, under the amended provisions of the U. P. Consolidation of Holding Act, the Consolidator passed an ex-parte order dated 1-7- 2005 leaning in favour of Manoj son of Brij Narain although he drew attention to the fact that the petitioner is a transferee from Brij Narain through sale-deeds dated 9-3-1983 and 19-3-1983 and further that the orders were passed by Asstt. Consolidation officer on 14-7-1998 in his favour. The learned Counsel further argued that since the order in question is an ex-parte order, the same could not be challenged and taking advantage of helplessness of the petitioner, the Opp. party is now making unstinting efforts to alienate the property to some other person. It is further argued that order passed under sub-clause (6) of the U. P. C. H. Act is subject to the provisions of Section 9 of the U. P. Consolidation of Holdings Act followed by submission that no publication of record under Section 9 of the U. P. C. H. Act has been made as yet after the orders passed by Deputy Director Consolidation. I have considered the arguments of learned Counsel for the petitioner as well as learned Standing Counsel. Under the amendment by way of U. P. Act No. 3 of 2002, Section 6-A was added in the U. P. Consolidation of Holdings Act which postulates that in case of undisputed succession, after notification under Section 4 (2) or 4 (a) of the U. P. Consolidation of Holdings Act and before start of proceeding under Section 8 of the Act, the consolidator may dispose of a case of undisputed mutation on the basis of succession or transfer. Section 6-A of the Act is quoted below. "6-A Special provision with respect to undisputed succession or transfer.- (1) After the publication of notification under sub-section (2) of Section 4 or Section 4-A and before start of the proceeding under Section 8, a case of undisputed succession shall be disposed of by the Consolidator, and a case of undisputed mutation on the basis of transfer shall be disposed of by the Assistant Consolidation Officer, in such manner and after making such inquiry as may be prescribed: Provided that no case shall be entertained, continued or disposed of under this section after start of the proceeding under Section 8. (2) An order made under sub-section (1) shall not be a bar to an objection under Section 9. " It has been postulated under Section 6 (2) that the order passed by consolidator could be challenged by objection in proceeding under Section 9 of the U. P. Consolidation of Holdings Act.
(3.) IT is further clear from the scheme of consolidation proceeding that after preparation of record under Sections 8 and 8-A, current khasra and current annual register shall be published under Section 9 (2) of the U. P. C. H. Act in the unit and only thereafter, any person could file objection within 21 days of publication of record in the unit. Section 9 (1) (b) of the Act being relevant is quoted below: "9 (1) Upon the preparation of the records and the statements mentioned in Sections 8 and 8-A, the Assistant Consolidation officer shall. . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b) publish in the unit the current khasra and the current annual register, the khasra chakbandi, the statement of principles prepared under Section 8-A and any other records that may be prescribed to show, inter alia, the particulars referred to in Clause (a ). " According to the pleading of the petitioner, the sale-deeds were already executed on 9-3-1983 and 19-3- 1983 respectively by Brij Narain, father of contesting Opp. party and his name was also recorded on 14- 7-1998 but as entire proceedings were cancelled by the Deputy Director Consolidation, the records could not be published under Section 9 (1) (b) of the Act thereafter. He further submitted that the petitioner was without any remedy in such circumstances. He next submitted that after transfer, it is transferee who is a tenure holder and this cannot be a case of undisputed succession and by any reckoning, Section 6-A (1) will be wholly inapplicable in the present case. Considering the scheme of Consolidation of Holdings Act, it will be clear that legislature has already provided a remedy to the petitioner in case any ex-parte order was passed by the consolidator in the purported exercise of powers under Section 6-A of the Act by way of filing an application for recall that order on the ground that he is an, affected person by this order and the consolidator is incompetent to pass any such order. The remedy is provided under Section 41 of the U. P. Consolidation of Holdings Act by which Chapters IX and X of the Land Revenue Act have been made applicable to the proceeding under the U. P. Consolidation of Holdings Act and by virtue of Section 201 of the U. P. Land Revenue Act, the petitioner has every right to move an application for recall of an ex-parte order if he is vitally interested and affected by any such order. It is settled in law that even a person who was not made a party to any proceeding and an order was passed by which he is affected, he may file application for recall of that order to protect his interest.;