Salil Kumar Rai, J. - (1.) Heard Shri P.N.Tripathi, counsel for the petitioner and Shri Ashok Kumar Pandey for respondent no.5 as well as Standing Counsel representing respondent nos. 1,2, 3 & 4.
(2.) The dispute in the present writ petition relates to Plot Nos.136, 197 and 192 (hereinafter referred to as disputed plots). Due to certain discrepancies in the total area of the disputed plots as entered in different records, the petitioner and respondent no.5 filed separate objections under section 9-A of the Act before the Consolidation Officer. It has come on record that the objections filed by both the parties were dismissed for non prosecution on 25.4.2008. However, it has been stated in the rejoinder affidavit that the objections filed by respondent no.5 was subsequently restored by the Consolidation Officer but the restoration application filed by the petitioner is still pending before the Consolidation Officer. It is pertinent to note that the objections filed by the petitioner and respondent no. 5 before the Consolidation Officer were dismissed for non prosecution and subsequently restored during the pendency of the writ petition and therefore, the said fact is not relevant for a decision of the present case on merits. However, during the pendency of objections under section 9-A of the Act, C.H.Form No.11 and C.H.Form No.23 were prepared recording an increased area of the disputed plots. It is evident that the entries in C.H.Form No. 11 and C.H.Form No.23 were recorded even though the objections of both the parties were pending before the Consolidation Officer. Consequently chak allotment process was initiated and it appears that Chak were allotted on the basis of the said entries and possession was being transferred by the consolidation authorities. Respondent no.5 filed an application before respondent no.1 praying that an enquiry may be held regarding entries in C.H.Form No.11 and C.H.Form No.23 as entries in the same were made without any orders having been passed under section 9-A(2) of the Act by the concerned Consolidation Officer and further prayed that no allotments may be made till the decision of the concerned Consolidation Officer on the objections filed by the petitioner and respondent no.5. On the aforesaid applications filed by respondent no.5, respondent no. 1 summoned a report from the Consolidation Officer. A report dated 30.11.1990 was submitted by respondent no.3 stating that irregularities had been committed in preparation of C.H.Form No.11 and C.H.Form No.23 and areas of disputed plots in the aforesaid documents have been increased without any corresponding order by the Consolidation Officer. It also transpires from the record that after the report dated 30.11.1990, an order dated 15.1.1991 was passed by Assistant Settlement Officer of Consolidation ostensibly making a reference under section 48(3) of the Act. The said order has been annexed as annexure-8 to the writ petition. The respondent no.1 vide his order dated 11.1.1996 allowed the said reference after hearing the concerned parties and directed that records relating to the disputed plots be appropriately corrected and the increased area shown in C.H.Form No.11 and C.H.Form No.23 be deleted from the said documents as the said entries were made without any corresponding order of the Consolidation Officer under section 9(A)(2) of the Act. The order dated 11.1.1996 has been challenged in the present writ petition.
(3.) It has been contended by the counsel for the petitioner that the order dated 11.1.1996 passed by respondent no. 1 was without jurisdiction in as much as there was no reference under section 48(3) of the Act by any subordinate consolidation authority and the order dated 15.1.1991 passed by the Assistant Settlement Officer of Consolidation was merely an order forwarding the report of the Consolidation Officer to respondent no.1. It has been contended by the counsel for the petitioner that respondent no.1 could not have exercised his powers under section 48(3) of the Act on an application filed by respondent no. 5 and was also not empowered to institute suo motu proceedings under section 48(3) of the Act. It has been further contended by the counsel for the petitioner that the impugned order dated 11.1.1996 is without jurisdiction in as much as respondent no.1 could not have decided the dispute regarding the area of the disputed plots when objections regarding the same were already pending before the Consolidation Officer. It has been argued that for the aforesaid reason, the order dated 11.1.1996 passed by respondent no. 1 is liable to be set aside.;