# Hansnath v. Asstt. Director of Consolidation, Deoria and others

- **Citation:** (2005) 2 ILRA 613
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-07-19
- **Case number:** Civil Misc. Writ Petition No. 2738 of 1982
- **Bench:** Krishna Murari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hansnath-v-asstt-director-of-consolidation-deoria-and-others-40494
- **Pages:** 4

## Headnote

Rules, 1956, Rule 26 (2)-Oral evidencerecorded in the presence and supervision
of the Presiding officer-but not signedwhether such oral testimony in absence
of the signatures of Consolidation officer
is bad? Held-"No"-no such provision
prescribed
under
the
rule-except
recording the Oral evidence in presence
and
personal
direction
on
superintendence.

Held: Para 6

Thus
the
Consolidation
Officer
is
required to hear the parties, frame issue,
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
614
take
evidence
both
oral
and
documentary
before
proceeding
to
decide
the
objection.
There
is
no
obligation cast upon the Consolidation
Officer to put his signature on the
deposition of witnesses recorded before
him. From a reading of Rule-26 (2) it is
clear that only obligation cast upon the
Consolidation Officer is to take evidence
both oral and documentary tendered by
the parties which obviously means that
oral evidence shall be recorded in
presence
and
personal
direction
or
superintendence
of
Consolidation
Officer.

(B) Constitution of India, Article 226Writ
petition-maintainability-against
remand order-court normally does not
interfere-can not be treated as lack of
Power-remand order based on-erroneous
and
illegal
order-deserves
to
be
interfered-held-interference
in
the
interest of justice in must.

Held: Para 11

If the court normally does not interfere
in the remand order it does not mean
that there is any lack of power in the
court to interfere in such an order or the
petition challenging the remand order is
not maintainable. The court can interfere
if it finds the circumstances to be
extraordinary
or
the
interference
necessary in the interest of justice. In
the present case, the view taken by
Settlement Officer Consolidation and
Deputy
Director
of
Consolidation
is
illegal and as such the remand made on
the basis of an illegal and erroneous
view cannot be sustained and deserved
to be interfered and quashed by this
court.

## Text

2 All] Hansnath V. Asstt. Director of Consolidation, Deoria and others 613
so. As it reads, it cannot be held to have
any retrospective operation.

The appeal is dismissed.

No order as to costs."

6. Apex court has categorically held
that if the intention was to require the
assessee to pay the tax at normal rate even
for the period during which the grant-inaid, had not been cancelled that provision
should have expressly stated so, and as it
reads it can not be held to be any
retrospective operation.

7. In view of the aforesaid decision
of the Apex Court it is held that the grantin-aid to the petitioner can not be
cancelled with retrospective effect. It can
be cancelled with prospective effect and
no demand can be made for the earlier
period during which grant-in-aid has been
availed
prior
to
the
date
of
its
cancellation.

8. Perusal of the impugned order
shows that only one inspection by the
Deputy Commissioner Entertainment Tax
has been made basis for arriving to he
conclusion that the petitioner has violated
the
terms
and
conditions
of
the
agreement. It has been stated that on the
alleged discrepancies a sum of Rs.1,200/-
has been assessed and Rs.2,000/- has been
imposed
towards
penalty.
In
the
impugned order nature of the violation
has not been referred, in as much as it has
not been referred that the irregularity of
such nature which shows that the
petitioner was involved in evasion in past
also and in these circumstances, we are of
the opinion that on the basis of one
inspection, in which some irregularity has
been alleged the amount of grant-in-aid,
which has been availed can not be
demanded retrospectively.

9. For the aforesaid reasons demand
raised by the impugned order is not
sustainable and liable to be quashed.

10. In the result, writ petition is
allowed. Order dated 15.04.1997 is
quashed. There shall be no order as costs.

 Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.07.2005

BEFORE
THE HON'BLE KRISHNA MURARI, J.

Civil Misc. Writ Petition No. 2738 of 1982

Hansnath

...Petitioner
Versus
Asstt. Director of Consolidation, Deoria
and others

 ...Respondents

Counsel for the Petitioner:
Sri A.S. Rai

Counsel for the Respondents:
Sri H.S.N. Tripathi
S.C.

Under U.P. Consolidation of Holding
Rules, 1956, Rule 26 (2)-Oral evidencerecorded in the presence and supervision
of the Presiding officer-but not signedwhether such oral testimony in absence
of the signatures of Consolidation officer
is bad? Held-"No"-no such provision
prescribed
under
the
rule-except
recording the Oral evidence in presence
and
personal
direction
on
superintendence.

Held: Para 6

Thus
the
Consolidation
Officer
is
required to hear the parties, frame issue,
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
614
take
evidence
both
oral
and
documentary
before
proceeding
to
decide
the
objection.
There
is
no
obligation cast upon the Consolidation
Officer to put his signature on the
deposition of witnesses recorded before
him. From a reading of Rule-26 (2) it is
clear that only obligation cast upon the
Consolidation Officer is to take evidence
both oral and documentary tendered by
the parties which obviously means that
oral evidence shall be recorded in
presence
and
personal
direction
or
superintendence
of
Consolidation
Officer.

(B) Constitution of India, Article 226Writ
petition-maintainability-against
remand order-court normally does not
interfere-can not be treated as lack of
Power-remand order based on-erroneous
and
illegal
order-deserves
to
be
interfered-held-interference
in
the
interest of justice in must.

Held: Para 11

If the court normally does not interfere
in the remand order it does not mean
that there is any lack of power in the
court to interfere in such an order or the
petition challenging the remand order is
not maintainable. The court can interfere
if it finds the circumstances to be
extraordinary
or
the
interference
necessary in the interest of justice. In
the present case, the view taken by
Settlement Officer Consolidation and
Deputy
Director
of
Consolidation
is
illegal and as such the remand made on
the basis of an illegal and erroneous
view cannot be sustained and deserved
to be interfered and quashed by this
court.

(Delivered by Hon'ble Krishna Murari, J.)

1. The short question which arises
for
determination
is
whether
oral
statement of witness which is not signed
by Presiding Officer before whom it was
recorded, can be relied upon and read in
evidence.

2. The facts are that on death of
recorded tenure holder an objection under
Section 12 of U.P. Consolidation of
Holdings Act (for short the Act) was filed
by the petitioner claiming mutation of his
name on the basis of a will dated
21.9.1977. Respondent no. 3 contested the
claim of the petitioner denying the
execution of the will and claimed
mutation of her name over the property in
dispute claiming herself to be wife of the
deceased.

3. The Consolidation Officer vide
order dated 31.12.1980 allowed the claim
of the petitioner. Appeal filed by
respondent no. 3 was allowed by
settlement Officer consolidation on the
ground that oral evidence relied upon did
not bear the signature of the Presiding
Officer and remanded the case back. The
revision was also dismissed by Deputy
Director of Consolidation.

4. On an examination of the record
of
the
Consolidation
Officer,
the
Settlement Officer consolidation found
that statement of witnesses adduced on
behalf of the petitioner did not bear the
signature of Consolidation Officer. The
Settlement Officer Consolidation was of
the view that oral statement of witnesses
cannot be read in evidence unless the
same are signed by the presiding Officer.
He further found that signatures of the
Consolidation Officer on the order sheet
are also not legible. The Settlement
Officer Consolidation set aside the order
of Consolidation Officer and remanded
the case back to be decided afresh after
recording the statement of witnesses in his
presence.
The
Deputy
Director
of
2 All] Hansnath V. Asstt. Director of Consolidation, Deoria and others 615
Consolidation also took the same view
and dismissed the revision.

5. The proceedings before the
Consolidation Officer were under Section
12 of the Act. Sub Section 2 of Section 12
provides that provisions of Section 7 to 11
of the Act shall mutatis and mutandis
apply to the hearing and decision on any
matter raised under Sub Section 1 as if it
were a matter raised under the aforesaid
sections. Rule 26 of the Rules framed
under the Act provides that the procedure
to be followed while disposing of the case
under Section 9-A and 9-B and 9-C of the
Act. By virtue of Sub-Section 12 the
provision of Section 7 to 11 having been
mutatis
and
mutandis
applied,
the
procedure prescribed for disposal of
objection under Section 9-A, 9-B and 9-C
shall be applicable to the objection filed
under Section 12 of the Act. Relevant
rule-26 (2) reads as under:

"On the date fixed under Sub Rule 2
of Rule-25 A or any subsequent date fixed
for the purpose, the Consolidation Officer
shall hear the parties, frame issue on the
point of dispute, take evidence both oral
and
documentary
and
decide
the
objection."

6. Thus the Consolidation Officer is
required to hear the parties, frame issue,
take evidence both oral and documentary
before proceeding to decide the objection.
There is no obligation cast upon the
Consolidation Officer to put his signature
on the deposition of witnesses recorded
before him. From a reading of Rule-26 (2)
it is clear that only obligation cast upon
the Consolidation Officer is to take
evidence both oral and documentary
tendered by the parties which obviously
means that oral evidence shall be recorded
in presence and personal direction or
superintendence of Consolidation Officer.

7. In the present case there is no
averment that oral statement of witnesses
was not recorded in the presence of
Consolidation
Officer
or
under
his
direction and superintendence. The only
ground
on
which
the
order
of
Consolidation Officer has been set aside
and the case has been remanded back for
re-trial after recording afresh evidence is
that the deposition of witnesses recorded
by Consolidation Officer has not been
signed by him and as such no reliance can
be placed on the same.

8. Since the procedure prescribed for
deciding the objection does not cast any
obligation upon the Consolidation Officer
to put his signature on the oral testimony
of the witnesses, the absence of his
signature will not the oral testimony of
the witnesses, the absence of his signature
will not vitiate the proceedings.

9. Even under the provision of order
18 rule 4 and 5 of the Code of Civil
Procedure which provides for recording
of evidence, there is no obligation cast
upon the Presiding Officer to put his
signature on the statement of witnesses
recorded in the Court in his presence and
under
his
personal
direction
and
superintendence.

10. From aforesaid discussion, it is
clear
that
Settlement
Officer
Consolidation and Deputy Director of
Consolidation both committed illegality in
setting
aside
the
judgment
of
the
Consolidation
Officer
and
wrongly
remanded the matter back for retrial after
recording the evidence afresh.
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
616

11. In the end a feeble attempt was
made
by
learned
counsel
for
the
respondent by raising an argument that
writ petition against remand order is not
maintainable. The argument has been
advanced only to be rejected. It can not be
said that as a rule writ petition against
remand
order
is
not
maintainable.
Generally, the court refuses to interfere or
issue a writ of certiorari against a remand
order for there is no final adjudication. If
the court normally does not interfere in
the remand order it does not mean that
there is any lack of power in the court to
interfere in such an order or the petition
challenging the remand order is not
maintainable. The court can interfere if it
finds
the
circumstances
to
be
extraordinary
or
the
interference
necessary in the interest of justice. In the
present case, the view taken by Settlement
Officer
Consolidation
and
Deputy
Director of Consolidation is illegal and as
such the remand made on the basis of an
illegal and erroneous view cannot be
sustained and deserved to be interfered
and quashed by this court.

12. In the result the writ petition
succeeds and is allowed. The impugned
orders dated 12.2.1982, 5.9.1981 passed
by Deputy Director of Consolidation and
Settlement
Officer
Consolidation
respectively, are hereby quashed. The
matter is remanded back to the Settlement
Officer Consolidation for decision afresh
on merits in accordance with law after
notice and opportunity of hearing to all
concerned. Since the matter is very old
and has remained pending for long,
Settlement
Officer
Consolidation
is
further directed to hear and decide the
appeal within a period of six months from
the date of production of certified copy of
this order before him. However, in the
facts and circumstances of the case there
shall be no order as to costs.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.07.2005

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Writ Petition No. 24548 of 1994

Bhagwati Prasad & another ...Petitioners
Versus
The Board of Revenue U.P. at Allahabad
and others

 ...Respondents

Counsel for the Petitioner:
Sri Prakash Chandra

Counsel for the Respondents:
Sri J.P. Singh
Sri V.K. Singh
S.C.

U.P. Panchayat Raj Act-Section 28 (c)-
allotment of land-petitioner are the sons
and grand sons of the officer bearers of
either Nyay Punchayat or the Gaon
Sabha-the
village
Pradhan
and
up
Pradhan are the custodian of the entire
property of Gaon Panchayat-the office
bears of Gaon Punchayat by misusing
their office-allotted the land to their
family members-no material produced
regarding
the
plea
of
agricultural
labourer-cancellation held-justified.

Held: Para 6

Admittedly, Mahavir is grandson of Ghasi
Ram Pradhan. Petitioner No. 1 Bhagwati
Prasad is son of Sarpanch of Nyay
Panchyat. Petitioner No. 2 Moti Ram is
son of Up Pradhan. The allotment of land
could
not
be
made
in
favour
of
petitioners. The intention of legislature is
that if land vests in Gaon Sabha/Gaon
Panchayat, Pradhan and Up-Pradhan and