# Jai Ram v. D.D.C. and others

- **Citation:** (2012) 1 ILRA 124
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-01-05
- **Case number:** Civil Misc. Writ Petition No. 74746 of 2011
- **Bench:** Amreshwar Pratap Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jai-ram-v-d-d-c-and-others-42136
- **Pages:** 3

## Headnote

U.P. Consolidation of holding Act-Section
48-D.D.C. While entertaining revisionwithout
considering
plausible
explanation
about
36
years
unreasonable
delay-and
remanding
matter before S.O.C.-ignoring the aspect
that record of C.O. already weeded outorder of remand-held-unsustainable.

Held: Para 7

Having heard learned counsel for the
parties, the first issue is in relation to the
delay of 36 years being explained by
respondent No.2. The Deputy Director of
Consolidation, in my opinion, could not
have proceeded to remit the matter
before
the
Settlement
Officer
Consolidation to decide the case on
merits without recording a clear finding
as to what was the justification for
condoning the delay of 36 years. This
was not a routine matter and the issue of
delay could not have been dealt with
casually treating it to be irrelevant on a
prima facie inference of a theory of
alleged
fraud.
Fraud
has
to
be
established on record, and without any
firm finding on cogent material or
ignoring
relevant
material
like
the
Goswara on record, the Deputy Director
ought not to have passed an order of
remand. An enquiry could have been
made about the proceedings before the
Assistant
Consolidation
Officer.
This
having
not
been
done,
the
order
impugned falls within the disrepute of
surmises
and
conjectures.
In
the
absence of any such finding having been
recorded by the Deputy Director of
Consolidation,
the
order
of
remand
cannot be passed in order to fill up the
gaps and the lacuna in the explanation,
which according to the petitioner, was
very
much
evident
in
the
delay
condonation application preferred before
the Settlement Officer Consolidation.

## Text

124 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

35. The writ petition is disposed of
accordingly.

36. Parties shall bear their own costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.01.2012

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI,J.

Civil Misc. Writ Petition No. 74746 of 2011

Jai Ram

 ...Petitioner
Versus
D.D.C. and others
 ...Respondents

Counsel for the Petitioner:
Sri M.D. Misra

Counsel for the Respondents:
C.S.C.
Sri A.P. Tewari
Sri S.S. Tripathi

U.P. Consolidation of holding Act-Section
48-D.D.C. While entertaining revisionwithout
considering
plausible
explanation
about
36
years
unreasonable
delay-and
remanding
matter before S.O.C.-ignoring the aspect
that record of C.O. already weeded outorder of remand-held-unsustainable.

Held: Para 7

Having heard learned counsel for the
parties, the first issue is in relation to the
delay of 36 years being explained by
respondent No.2. The Deputy Director of
Consolidation, in my opinion, could not
have proceeded to remit the matter
before
the
Settlement
Officer
Consolidation to decide the case on
merits without recording a clear finding
as to what was the justification for
condoning the delay of 36 years. This
was not a routine matter and the issue of
delay could not have been dealt with
casually treating it to be irrelevant on a
prima facie inference of a theory of
alleged
fraud.
Fraud
has
to
be
established on record, and without any
firm finding on cogent material or
ignoring
relevant
material
like
the
Goswara on record, the Deputy Director
ought not to have passed an order of
remand. An enquiry could have been
made about the proceedings before the
Assistant
Consolidation
Officer.
This
having
not
been
done,
the
order
impugned falls within the disrepute of
surmises
and
conjectures.
In
the
absence of any such finding having been
recorded by the Deputy Director of
Consolidation,
the
order
of
remand
cannot be passed in order to fill up the
gaps and the lacuna in the explanation,
which according to the petitioner, was
very
much
evident
in
the
delay
condonation application preferred before
the Settlement Officer Consolidation.

(Delivered by Hon'ble A.P. Sahi,J. )

1. Heard Sri M.D. Misra, learned
counsel for the petitioner, Sri A.P. Tewari
for respondent No.2 and the learned
Standing Counsel for respondent No.1.

2. Learned counsel for respondents
submit that since the issues involved are
purely legal, therefore, they do not
propose to file any counter-affidavit at
this stage and the matter be disposed of
finally on the basis of the documents
already on record with the consent of the
parties. Accordingly, the matter is being
disposed of finally at this stage.

3. A supplementary-affidavit has
been filed bringing on record certain
averments including the pedigree by
which the parties are governed. Kamta,
son of Govind, was the recorded tenure
holder. The petitioner - Jairam is the
1 All] Jai Ram V. D.D.C. and others
125
grand son of Ram Patti, sister of Govind.
The claim of Jairam is to the effect that
the said property came to be settled
between the petitioner and Late Kamta
during consolidation operations under an
order of the Assistant Consolidation
Officer dated 20.11.1969. The village was
de-notified under Section 52 sometimes in
the year 1976, after the death of Kamta in
1975. The name of the petitioner
continued to be recorded thereafter and
the
petitioner
claims
continuous
cultivatory possession over the land in
dispute since then.

4. After 36 years, a time-barred
appeal came to be filed by the respondent
- Radhey Shyam and another appeal came
to be filed by one of the sons of Kamta,
Jawahar.
These
two
appeals
were
dismissed by the Settlement Officer
Consolidation
vide
order
dated
25.11.2005.
One
of
the
appellants
Jawahar did not prefer any revision
against the said order. It is only the
respondent No.2 - Radhey Shyam, who
preferred a revision, which has been
allowed on 15.11.2011 giving rise to the
present petition.

5. Sri M.D. Misra submits that there
is no valid explanation for the delay of 36
years and the Deputy Director of
Consolidation, without adverting himself
to
the
aforesaid
issue
in
correct
perspective and condoning the delay in
filing of the appeal, has proceeded to
remand the matter to the Settlement
Officer Consolidation after recording
findings on the merits of the claim of
Respondent No.2. He submits that this
two fold approach of the Deputy Director
of Consolidation is erroneous and ignores
all relevant issues relating to the existence
of the order of the Assistant Consolidation
Officer dated 20.11.1979. He submits that
the file relating to the order of the
Assistant Consolidation Officer did exist
for which reliance is being placed on the
extract of a Goswara, copy whereof is
Annexure-1 to the writ petition, which
indicates that the said file has been
weeded out in the year 1977. Sri Misra
submits that no appropriate finding has
been recorded by the Deputy Director of
Consolidation before passing the remand
order and further the Deputy Director of
Consolidation has entered into the merits
of the order of the Assistant Consolidation
Officer by making comments in order to
create an impression by drawing an
inference of fraud without there being any
evidence to that effect. He, therefore,
submits that on both the counts, the order
of Deputy Director of Consolidation is
erroneous.

6. Sri Tewari, on the other hand,
submits that as a matter of fact the order
of the Assistant Consolidation Officer if
at all in existence is an order without
jurisdiction and is an outcome of a fake
proceeding. For this, the Deputy Director
of Consolidation has recorded findings
indicating that the order of the Assistant
Consolidation
Officer
suffers
from
procedural defects as well and the
endorsement does not bear the date or the
appropriate verification in relation to the
said order. He, therefore, contends that
Deputy Director of Consolidation was
justified in remanding the matter to the
Settlement Officer Consolidation for
decision afresh.

7. Having heard learned counsel for
the parties, the first issue is in relation to
the delay of 36 years being explained by
respondent No.2. The Deputy Director of
Consolidation, in my opinion, could not
126 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
have proceeded to remit the matter before
the Settlement Officer Consolidation to
decide the case on merits without
recording a clear finding as to what was
the justification for condoning the delay
of 36 years. This was not a routine matter
and the issue of delay could not have been
dealt with casually treating it to be
irrelevant on a prima facie inference of a
theory of alleged fraud. Fraud has to be
established on record, and without any
firm finding on cogent material or
ignoring
relevant
material
like
the
Goswara on record, the Deputy Director
ought not to have passed an order of
remand. An enquiry could have been
made about the proceedings before the
Assistant Consolidation Officer. This
having not been done, the order impugned
falls within the disrepute of surmises and
conjectures. In the absence of any such
finding having been recorded by the
Deputy Director of Consolidation, the
order of remand cannot be passed in order
to fill up the gaps and the lacuna in the
explanation, which according to the
petitioner, was very much evident in the
delay condonation application preferred
before
the
Settlement
Officer
Consolidation.

8. Secondly, even on merits the
manner in which the finding has been
recorded by the Deputy Director of
Consolidation, there remains hardly any
scope
for
the
Settlement
Officer
Consolidation to comment otherwise and
in my view the said order of remand,
therefore, suffers from gross infirmities.
Accordingly, the order dated 15.11.2011
is unsustainable.

9. The writ petition is, therefore,
allowed and the order dated 15.11.2011 is
hereby quashed. The matter is remitted to
the
District
Deputy
Director
of
Consolidation/ Collector, Gorakhpur, to
himself decide the matter in the light of
the observations made herein above as
expeditiously
as
possible
preferably
within a period of 3 months from the date
of production of a certified copy of this
order before him.
---------