WPMS/1371/2008 of Sahazad Alam And Others Vs Sunder Lal And Others

IN THE COURT OF UTTARAKHANDAT NAINITAL

Writ Petition No. 1371 of 2008 (M/S)

Sahazad Alam & others ……. …...Petitioners

Versus

Sunder Lal & others …..…..Respondents

Present: Mr. Sanjay Kumar, Advocate, holding brief of Mr. Tapan Singh, Advocate for the petitioners. Mr. Rajendra Singh Azad, Advocate for respondent Nos. 2 to 4.

Hon’ble Sharad Kumar Sharma, J. (Oral)

In the writ petition in question, the proceedings which are under consideration are emanating from an application which has been moved by respondent no.1 invoking the provisions contained under Section 21 (1) of the Consolidation of Holdings Act, 1953. The objection thus filed by the respondent no.1 traveled up to the Court of Settlement Officer of Consolidation and the appeal which was preferred by respondent no.1 on 30.07.1998 was too dismissed. Against this order the respondent no.1 preferred Revision No. 24 of 2001-2002 under Section 48 of the Act. In the revision thus preferred by respondent no.1, the revisional courts vide its order dated 17.04.2002 had passed the following order:-

“ mijksDr foospuk ds vk/kkj ij fuxjkuhdrZk lqUnjyky pdnkj la0 360 dh izLrqr fuxjkuh Lohdkj dh tkrh gS voj U;k;ky; cUnkscLr vf/kdkjh pdcUnh dk iz’uxr vkns’k fnuakfdr

30-07-98 fujLr fd;k tkrk gS rFkk okn cUnkscLr vf/kdkjh pd0 gfj}kj LFkku :M+dh dks bl funsZ’k ds lkFk izR;kofrZr fd;k tkrk gS fd og mHk; i{kksa dh mifLFkfr esa LFky fufj{k.k djds -rFkk lquokbZ dk leqfpr volj nsdkj okn dk fuLrkj.k xq.knks"k ds vk/kkj djsaA mHk; i{k voj U;k;ky; esa fnuakd 29-04-2002 dks mifLFkr gksosaA

i=koyh ckn vko’;d dk;Zokgh nkf[ky nQrj dh tkosaA”

2. On scrutiny of this order dated 17.04.2002 it was an order of remand directing the Settlement Officer of Consolidation to comply with the provisions contained under Section 21 sub section (3) of the Act by holding spot inspection and thereafter to decide the matter afresh after hearing all the parties on the merits of their respective claim. After the order of remand dated 17.04.2002, the proceedings before the Settlement Officer of Consolidation revived back by way of Appeal No. 628 and the same has been decided by the order dated 30.10.2004 on the scrutiny of the order and the findings recorded therein. As matter of fact, the Settlement Officer of Consolidation yet again committed the same error and oblivions of the direction or paying any credence to the order of Deputy Director of Consolidation dated 17.04.2002 yet again decided the appeal without complying with the provisions contained under Section 21 sub section (3). Meaning thereby had remanded the

matter for the purpose of the order dated 17.04.2002 for which it holding spot inspection after giving an opportunity to the parties who are likely to be affected by the reshuffling of the plots under Section 21 (1) was not complied with. Hence, the respondent no.1 preferred revision, being Revision No. 477 of 2004-05, Sunder Lal vs. Shahzad Alam and others.

3. The revision has been allowed by the impugned order dated 30.04.2008. The revisional court has yet again passed an order of remand, whereby yet again revisional court almost has reiterated the directions issued in the earlier order of remand dated 17.04.2002 to decide the matter afresh, after holding spot inspection and hearing of the parties who are affected. It is this order which has been impugned in the writ petition, and since the order of remand does not have an affect of adjudicating right in relation to the subject matter of dispute in the proceedings it takes the shape of an interlocutory order as it has been held out in the judgment reported in AIR 1981 SC page 707, in the case of Kshitish Chandra Bose vs. Commissioner of Ranchi, hence being an interlocutory order since there is not an adjudication of right, it would not be amenable to writ jurisdiction under Article 227 of Constitution of India.4. In that view of the matter, while dismissing the writ petition since arising out of an order of remand, I direct to Settlement Officer of Consolidation to strictly comply with the directions given in the order of remand by holding spot inspection as contemplated under Section 21 (3) and then only decide the matter after hearing all the concerned parties who are likely to be affected.

5. Subject to the above observations, the writ petition stands dismissed.

6. No order as to costs.

Nahid

(Sharad Kumar Sharma, J.) 13.12.2017