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Bachcha Lal v. Dy. Director Of Consolidation, Ballia & Others - WRIT - B No. 68829 of 2006 [2006] RD-AH 21268 (18 December 2006)


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Court No. 40

Civil Misc. Writ Petition No. 68829 of   2006

Bachcha Lal vs. Deputy Director of Consolidation,

Ballia & others

Hon'ble Krishna Murari, J.

Heard Sri Rahul Sahai, learned counsel for the petitioner and Sri Abhishek Kumar, learned counsel for the respondents.

Facts relevant for the purposes of the case are as under :

Reference forwarded by Consolidation Officer was accepted by Deputy Director of Consolidation vide order dated 6.11.1974. Petitioner moved an application under Rule 109 of the Rules framed under the Act for implementation of the said order which was allowed by the Consolidation Officer vide order dated 2.5.1990 which was challenged by the contesting respondents by filing an appeal. Settlement Officer Consolidation  found that according to the report submitted by record keeper, original records pertaining to reference proceedings were not available and the order dated 2.5.1990 was passed by the Consolidation Officer on the basis of photocopy of the order dated 22.11.1974 produced by the petitioner,  allowed the appeal and remanded the case back to the Consolidation Officer to decide it afresh after notice and opportunity of hearing to the parties. Petitioner moved an application to recall the same on the ground that it was passed ex-parte. Settlement Officer Consolidation vide order dated 14.8.2003 dismissed the recall application. Aggrieved, petitioner went up in revision. Revisional court vide impugned order dated 26.8.2006 has dismissed the revision.

It has been urged by learned counsel for the petitioner that revisional court erred in law in holding that revision is not maintainable being directed against an interlocutory order. It has further been urged that since earlier order dated 22.11.1974 was passed without their being any objection from the respondents as such the present proceedings under Rule 109 which are only for implementation of the same could not have been objected by the respondents.

In reply, learned counsel for the respondents has tried to justify the impugned order.

I have considered the argument advanced by learned counsel for the parties and perused the records.

In view of the finding recorded by the Settlement Officer Consolidation that original record of the reference proceedings of 1974 are not available and the Consolidation Officer has passed the order dated 2.5.1990 only on the basis of the photocopy of the order, I find no illegality in the order passed by the Settlement Officer Consolidation allowing the appeal and remanding the case back to the Consolidation Officer to decide it afresh after hearing all the parties. It is no doubt correct that proceedings under rule 109 were initiated by the petitioner for implementation of the order dated 22.11.1974 passed by Deputy Director of Consolidation. But for that the petitioner has to bring on record either the order itself or has to prove by cogent evidence that such order was passed. He cannot get the order implemented by merely producing a photocopy of the said order. Even though the order was passed in 1974 but the petitioner is seeking implementation of the same after 32 years. Thus unless he is able to establish by cogent evidence that any such order was passed it cannot be implemented on a mere photocopy. Settlement Officer Consolidation committed no illegality in allowing the appeal filed by the contesting respondents and remanding the case back for fresh decision after hearing the parties. Revision filed against the said order has rightly been dismissed. In effect, challenge in this petition is to an order of remand. No prejudice can be said to have been caused to the petitioner inasmuch as still he has opportunity to prove his case before the Consolidation Officer.

In view of the above discussions, there is no scope to interfere with the impugned order.

The petition accordingly, fails and is dismissed in limine.




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