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Misri Lal & Another v/s Deputy Director of Consolidation & Others

    Consolidation Case No. 105 of 2014

    Decided On, 19 February 2014

    At, High Court Of Judicature At Allahabad Lucknow Bench

    By, THE HONOURABLE MR. JUSTICE ANJANI KUMAR MISHRA

    For the Appellants: Avadhesh Kumar, Vinod Kumar Sirvastava, Advocates. For the Respondents: D.K. Rai, Advocate.



Judgment Text

Anjani Kumar Mishra, J.

1. This writ petition under Article 226 of the Constitution of India has been filed with the following prayers:

PRAYER

Under the above-said facts and circumstances, it is respectfully prayed that after summoning the file of order dated 22.11.1991, passed by the Deputy Director of Consolidation, Sitapur, in Revision No. 115/118/82; Manohar v. Sukru, u/s 48 of the U.P.C.H. Act or any file of any order of Settlement Officer Consolidation, Sitap

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ur or Consolidation Officer, Sitapur, a writ, order or direction in the nature of Certiorari may be issued quashing the order dated 22.11.1991, passed by the Deputy Director of Consolidation, Sitapur, if any, in Revision No. 115/118/82; Manohar v. Sukru, u/s 48 U.P.C.H. Act or any order of the Settlement Officer Consolidation, Sitapur, passed against the petitioners in any sort of proceedings and the petitioners may be afforded an opportunity in the proceedings.

Further, a writ, order or direction in the nature of mandamus may be issued directing the consolidation authorities as well as revenue authorities concerned to make an enquiry and take appropriate action as deem fit and proper.

Any other suitable writ, order or direction which this Hon'ble Court may deem just and proper in the circumstances of the case be also passed in favour of the petitioners.

It is the case of the petitioner that by the order dated 24.8.2009 in proceedings under Rule 109 of the U.P. Consolidation of Holdings Rules (for short, the C.H. Rules) an order dated 22.11.1991, alleged to have been passed in Revision No. 115/118/82 has been given effect to. The case of the petitioner is that the order dated 22.11.1991 is a farzi order inasmuch as no such proceedings took place and the order has been manufactured. It is also admitted to the petitioner that he has preferred an appeal against the order dated 24.8.2009 passed in proceedings under Rule 109 of the C.H. Rules.

2. Learned Counsel for the petitioners has submitted that a report has been obtained from the record-room, which indicates that the file pertaining to the case (Revision No. 115/118/82) has been weeded out. He further submits that since the order dated 24.8.2009 in proceedings under Rule 109 has been passed by the Dy. Director of Consolidation (for short, the D.D.C.), hence this writ petition is the only remedy available to him, as the order passed by the D.D.C. dated 22.11.1991 cannot be set aside in the appeal that has been preferred by him, which is directed against the order passed in proceedings under Rule 109 of the U.P.C.H. Rules. Lastly, he submits that entry was incorporated in the revenue record after a period of 18 years from the date of the alleged order dated 22.11.1991. This, he says, is patently illegal and contrary to law as laid down by the judgment in Grantham v. District Magistrate, Jumper, District Jumper and another. 2009 (108) RD 189 He has further submitted that the complaints have been made to the Consolidation Commissioner as well as the District Magistrate/District Director of Consolidation, Sitapur, but no action has been taken.

3. In view of the submissions made by the learned Counsel for the petitioners, as also the material on record, it is admitted that there is a report from the record-room saying that the file pertaining to the case, which has been decided by the order dated 22.11.1991, has been weeded out. In view of this admitted position, the first relief claimed by the petitioners cannot be granted.

4. In so far as the contention of the learned Counsel for the petitioners that the pending appeal, which arises out of proceedings under Rule 109 cannot be set aside, the order dated 22.11.1991 said to have been passed by the D.D.C. is concerned, suffice it to state that the contention is wholly misconceived. If, as alleged by the learned Counsel for the petitioner, the order dated 22.11.1991 is farzi, and no such case was ever instituted, it is always open for the appellate authority to set aside the entries made in the revenue record, after recording a finding that the order sought to have been implemented is not in existence. There is no occasion to quash an order, which is a forged one, or has been obtained by fraud or is a non-existent order. It can be ignored after recording an appropriate finding. The question of quashing the order arises only if a valid order is in existence.

5. As regards the last submission of the learned Counsel for the petitioners that complaints have been made to various authorities and no action has been taken thereon, it is always open to the petitioners to pursue his complaints. Insofar as this Court is concerned, it lacks jurisdiction to entertain a writ petition arising out of a miscellaneous application.

6. Moreover, the petitioner is already availing a statutory alternative remedy. In view of the aforesaid, the writ petition lacks merits. It is wholly misconceived and is, therefore, dismissed.
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