Salil Kumar Rai, J. - (1.) Heard Sri B.P. Yadav, counsel for the petitioner and Standing Counsel representing respondent nos. 1 and 2 as well as Sri Rakesh Prasad, Advocate representing respondent nos. 4 to 7.
(2.) In view of the office reports dated 14.3.2002 to 25.10.2006, service of notice of the writ petition on respondent no. 3 is deemed sufficient. However, no body has appeared on behalf of respondent no. 3 to oppose the writ petition.
(3.) It transpires from the records that during the consolidation operations, Plot No. 267 was allotted to one Banshi. Notification under Section 52(2) of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act 1953') was issued in 1982 (the aforesaid fact has been stated in paragraph no. 7 of the counter affidavit filed by respondent nos. 4 to 7). It has been alleged by the petitioner in the writ petition as well as in the courts below that Banshi had died in 1994. An application in the name of Banshi was filed before the concerned officer praying for correction of CH Form-45 issued under the Act, 1953 by implementing the alleged order dated 20.12.1986 passed in some Case No. 43 and consequently to increase the area of Plot No. 267 in CH Form-45 to 1-18-5 from 1-13-5 as reflected in CH Form-45. The concerned Consolidation Officer vide his order dated 5.7.1995 allowed the aforesaid application by directing that CH Form-45 in relation to Plot No. 267 be corrected and its area in the aforesaid document be shown as 1-18-5 and not 1-13-5 as previously recorded. Petitioner is the owner of Plot No. 266 which is adjacent to Plot No. 267. Against the order dated 5.7.1995 passed by the Consolidation Officer, the petitioner along with Gaon Sabha filed an appeal before the Settlement Officer of Consolidation, Allahabad. The memorandum of appeal has been annexed as Annexure No. 2 to the writ petition and the contents of the same have not been denied by respondent nos. 2 to 7 in their counter affidavit. A perusal of the memorandum of appeal annexed as Annexure no. 2 to the writ petition shows that in the aforesaid appeal, the concerned Gaon Sabha had joined the petitioner as appellant. A perusal of the memorandum of appeal also shows that it has ostensibly been filed under Section 11 of the Act, 1953. In his memorandum of appeal, the petitioner contended that the order dated 5.7.1995 passed by the Consolidation Officer was fraudulently obtained by respondent nos. 4 to 7 as Banshi had died by the date the application in his name was filed before the Consolidation Officer under Section 52(2) of the Act, 1953. It was further contended by the petitioner in his memorandum of appeal that no order dated 20.12.1986 was passed in any Case No. 43 and no records relevant to the aforesaid case and order are available in the relevant offices. In his memorandum of appeal, the petitioner had also contended that respondent nos. 4 to 7 have got the order dated 5.7.1995 passed by the concerned Consolidation Officer only to encroach on Plot No. 266 of which the petitioner is allegedly the owner in possession and the order dated 5.7.1995 adversely affects the position and boundaries of Plot No. 266 owned by the petitioner. Initially, the Settlement Officer of Consolidation vide his order dated 24.7.1995 stayed the order dated 5.7.1995 passed by the Consolidation Officer. Subsequently, vide his judgement and order dated 28.1.1997, the Settlement Officer of Consolidation allowed the appeal filed by the petitioner and set-aside the order dated 5.7.1995 passed by the Consolidation Officer. In his judgment and order dated 28.1.1997, the Settlement Officer of Consolidation recorded a finding that the alleged order dated 20.12.1986 was never passed in any case and no records relating to the alleged Case No. 43 were available in the concerned offices as was evident from the reports sent by the consolidation courts and the revenue courts. In his judgment and order dated 28.1.1997, the Settlement Officer of Consolidation has also recorded the fact that the order dated 5.7.1995 was passed by the Consolidation Officer merely relying on the photocopy of the alleged order dated 20.12.1986 which was submitted before him. In his aforesaid judgment, the Settlement Officer of Consolidation has further recorded his opinion that action under Section 52(2) of the Act, 1953 or under Section 42(A) of the Act, 1953 cannot be taken merely relying on a photocopy of the alleged orders. In his judgment dated 28.1.1997, the Settlement Officer of Consolidation also took note of the argument of the appellant/petitioner that the area of Plot No. 267 was 1-13-0 as would be evident from the noting on CH Form-23 relating to Plot No. 267. In view of the aforesaid facts as well as the fact that Banshi had died before the alleged application was filed in his name in the court of Consolidation Officer, the Settlement Officer of Consolidation quashed the order dated 5.7.1995 passed by the Consolidation Officer and also directed that an inquiry be held against the officers responsible for implementing the order dated 5.7.1995 despite the fact that the said order was stayed by the Settlement Officer of Consolidation vide his order dated 24.7.1995. Against the judgement and order dated 28.1.1997, respondent nos. 4 to 7 filed a revision before respondent no. 1 which was numbered as Revision No. 158/1772 and the said revision has been allowed by respondent no. 1 vide his order dated 22.12.2001 on the ground that the petitioner was not aggrieved by the order dated 5.7.1995 and therefore the appeal filed by him under Section 11 of the Act, 1953 against the order dated 5.7.1995 was not maintainable and also on the ground that the area of Plot No. 267 as reflected in the map was 1-18-5 and therefore there was no error in the impugned order dated 5.7.1995 passed by the Consolidation Officer. The order dated 22.12.2001 passed by the revisional court/respondent no. 1 has been challenged in the present writ petition.;