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Bux Singh Vs. Joint Director of Consolidation and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberWrit Petn. No. 195 of 1963
Judge
Reported inAIR1966All156
ActsTenancy Law; Uttar Pradesh Consolidation of Holdings Act, 1954 - Sections 9 and 9(3); Constitution of India - Article 226; Code of Civil Procedure (CPC) , 1908 - Order 19, Rule 1
AppellantBux Singh
RespondentJoint Director of Consolidation and ors.
Appellant AdvocateHargur Charan Srivastava, Adv.
Respondent AdvocateMohd. Husain, Adv. for Opposite Party No. 6
DispositionPetition dismissed
Excerpt:
.....- held, averments are true and correct. - - her non-appearance in the case would only result in the failure of conciliation. 6. thus the interests of justice as well as equity require that the matter be allowed to be contested on merits and the rights of opposite party no. 6, if any, be not allowed to lapse just because she is a widow in a weak and helpless condition and because she chose to place confidence in her husband's brother who was looking after her and her two minor daughters......proceedings. the khata in question was entered in the names of the petitioner saheb bux singh and opposite party no. 6, srimati bhagwant kunwar. srimati bhagwant kunwar is the widow of jagannath singh, own brother of saheb bux singh. saheb bux singh filed an objection under section 9 of the u. p. consolidation of holdings act on the 15th of april 1961, alleging that he was the sole tenure-holder of khata no. 268 and entry of the name of opposite party no. 6 along with him was, therefore, incorrect and should be expunged. opposite party no. 6 did not prefer any objection under section 9 of the act before the assistant consolidation officer. in spite of it the assistant consolidation officer treated the case as a disputed one and referred it to the consolidation officer under section 9.....
Judgment:
ORDER

N.U. Beg, J.

1. This writ petition arises out of a dispute regarding khata No. 268 of village Gujra, Pargana Khairabad, Tahsil and District Sitapur, during the consolidation proceedings. The Khata in question was entered in the names of the petitioner Saheb Bux Singh and opposite party No. 6, Srimati Bhagwant Kunwar. Srimati Bhagwant Kunwar is the widow of Jagannath Singh, own brother of Saheb Bux Singh. Saheb Bux Singh filed an objection under Section 9 of the U. P. Consolidation of Holdings Act on the 15th of April 1961, alleging that he was the sole tenure-holder of khata No. 268 and entry of the name of opposite party No. 6 along with him was, therefore, incorrect and should be expunged. Opposite party No. 6 did not prefer any objection under Section 9 of the Act before the Assistant Consolidation Officer. In spite of it the Assistant Consolidation Officer treated the case as a disputed one and referred it to the Consolidation Officer under Section 9 (3) of the Act. On 26-6-1961 the Consolidation Officer dismissed the objection of the petitioner in his absence but restored the same again on the 20th of July 1961. On the 31st of July 1961, the Consolidation Officer allowed the objection of the petitioner and ordered that the name of opposite party No. 6 be expunged. On the 10th or September 1962, opposite party No. 6 moved an application for setting aside the order, dated the 31st of July 1961, passed during her absence. On the 7th of October 1902, the said application was dismissed in the absence of both parties. On the 17th of October 1962, the said opposite party No. 6 again moved an application through her agent for the restoration of her previous application. This was opposed by the petitioner and the Consolidation Officer on 23-11-1962 dismissed the same. The order of the Consolidation Officer is Annexure 6. On appeal, however, the Settlement Officer by his order, dated 7-1-63 set aside the order of the Consolidation Officer, dated 23-11-62 and remanded the case to the Consolidation Officer for deciding the application for setting aside the ex parte order, dated 31-7-61. Copy of this order is Annexure 7. A second appeal filed against the said order before the District Deputy Director of Consolidation was also dismissed on the 7th of February 1963, vide Annexure 9. The revision against the said order under Section 48 of the Act was dismissed by the Director of Consolidation on the 23rd of March 1963, vide Annexure 11. Subsequently the Consolidation Officer made an order on the 3rd of April 1963 allowing the restoration application and setting aside the ex parte order, dated the 31st of July 1961. He further fixed the 7th of April 1963, for evidence of both the parties, vide Annexure 12. Thereafter the petitioner filed the present writ petition praying for the quashing of orders of the Settlement Officer, dated 7th of January 1963 (Annexure 7), of the Deputy Director, dated the 7th of February, 1963 (Annexure 9), of the Joint Director, dated the 23rd of March 1963 (Annexure 11) and of the Consolidation Officer, dated the 3rd of April 1963 (Annexure 12).

2. Learned counsel for the petitioner has argued that the view of law taken by the Director of Consolidation to the effect that the order passed by the Consolidation Officer, dated the 31st of July 1961, was without jurisdiction as there was no disputed case before the Assistant Consolidation Officer when Srimati Bhagwant Kunwar had not appeared before him to contest the application of Saheb Bux Singh is an incorrect one. A dispute had arisen as Saheb Bux Singh had filed an objection to the entry of the name of Srimati Bhagwant Kunwar in the revenue records. It is true that Srimati Bhagwant Kunwar had not appeared in response to the notice nor had she filed any objection. Her non-appearance in the case would not, however, prevent the case from being treated as a disputed one. Her non-appearance in the case would only result in the failure of conciliation. Section 9 of the Act divides disputed cases into two categories. The first consists of cases in which conciliation has been arrived at and the second of remaining disputed cases. Any dispute in respect of which conciliation has not been arrived at would be covered by the expression 'remaining disputed cases' with the result that the Assistant Consolidation Officer would be entitled to report it to the Consolidation Officer for disposal. There appears to be forcein this contention and, in the ordinary course, I would have allowed this writ petition.

Writ remedy by way of certiorari is, however, a discretionary remedy and where impugned orders are equitable and substantial Justice seems to have Been done to the parties as a result of such orders this Court would not be inclined to interfere in writ jurisdiction merely on the ground that such orders are wrong in law. In Parahu v. Deputy Director of Consolidation, U. P., 1964 All LJ 240, a Division Bench of this Court held that where in a revision the Deputy Director of Consolidation had acted in excess of jurisdiction vested in him under Section 48 of the U. P. Consolidation of Holdings Act, but his order was proper, equitable and a just order the High Court should not issue a writ for setting aside such an equitable order. Similarly in Begum A.H. Khan v. Regional Transport Authority, Meerut, 1963 All LJ 909, it was observed by a Bench of this Court that writ jurisdiction is only meant to be exercised in the interests of equity and justice, and, where the effect of allowing a writ petition would be to give unfair advantage to a party the writ petition should be thrown oat.

In the present case Srimati Bhagwant Kunwar has stated in paragraph 6 of her counter-affidavit that the notice issued under Section 9 were never served on her nor had she any knowledge of the said proceedings. In paragraph 20 of her counter-affidavit she has stated that the petitioner is the real younger brother of her husband who died leaving the deponent as a widow along with two minor daughters. In paragraph 21 she has stated that the deponent is a widow and has no knowledge and experience of Court work which was looked after by the petitioner in whom the deponent had full confidence. In paragraph 22 of her affidavit she stated that the petitioner taking advantage of the confidence reposed by her in him fraudulently kept her ignorant of the consolidation proceedings and got the deponent's name expunged from the papers. In paragraph 23 of her affidavit she states that it was on the 8th of September 1963, that she came to know of her name having been expunged from the papers and thereafter she tried to vindicate her rights and moved the application for setting aside the proceedings. In paragraph 24 of her counter-affidavit she stated that she had been kept in dark by the petitioner and the petitioner cannot be permitted to take advantage of his own fraud. All the above paragraphs are verified in her affidavit as true to her personal knowledge. No rejoinder affidavit has been filed by the petitioner challenging or controverting the facts mentioned therein. Under the circumstances the averments made by her in her counter-affidavit must be accepted as true and correct. According to the case set up by her she is a pardahnashin widow and her interests were looked after by the petitioner who was her husband's brother. In this situation the interests of both equity and justice demand that she should be given an opportunity of contesting the matter on merits when she is apprised of the objections made by the petitioner praying for the expunction of her name. The Consolidation Officer has afterapplying his mind and considering the matter on merits, on the 3rd of April 1968 already set aside his previous order and fixed the 7m of April 1963 for evidence of the parties to enable him to decide the case on merits. If, on merits, there is any substance in the case of the petitioner he would be entitled to agitate it in the presence of opposite party No. 6. Thus the interests of justice as well as equity require that the matter be allowed to be contested on merits and the rights of opposite party No. 6, if any, be not allowed to lapse just because she is a widow in a weak and helpless condition and because she chose to place confidence in her husband's brother who was looking after her and her two minor daughters. I am, therefore, of the opinion that this is not a fit case for interference in writ jurisdiction.

3. I would, therefore, dismiss this writ petition. In the circumstances of the case the parties are directed to bear their own costs.

4. The writ petition having been dismissedthe slay order previously passed in the casestands vacated.


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