Ran Vijai Singh, J@mdashHeard Sri Madhur Prakash, learned counsel for the petitioners and Sri Shesh Kumar, learned counsel for the respondents. At the very outset Sri Mathur Prakash, learned counsel for the petitioners submitted that he may be permitted to delete the respondent No. 4 from the array of parties. He is permitted to do so during the course of the day.
2. This writ petition has been filed for issuing a writ of certiorari quashing the order dated 28.10.1991 passed by the Joint Director of Consolidation (hereinafter referred to as the ''JDC'') in Reference No. 1177/330 (State v. Shiv Ram) made by the Consolidation Officer (hereinafter referred to as CO.).
3. While assailing the impugned order learned counsel for the petitioners contends that the reference was made by the Consolidation Officer pursuant to the order dated 2.1.1990 passed by the JDC on 5.7.1991. In his submission the notification under Section 52 of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act) was published in the Gazette on 4.8.1979, therefore, the entire proceeding of reference is without jurisdiction. In support of his submission, learned counsel for the petitioner has placed reliance upon the judgments of this Court in
4. The facts giving rise to the present writ petition are that the DDC vide order dated 2.1.1990 taking note of the order of the CO. dated 19.1.1969 in Case No. 7011 (State v. Shiv Raj) has required the JDC under sub-section (3) of Section 48 of the Act to make a reference. Pursuant thereto learned JDC has returned the same with certain direction before the CO. to send a fresh reference after spot inspection and hearing both sides. Thereafter the CO. has made reference as per direction of the learned JDC on 5.7.1991 and the learned JDC has approved the reference vide order dated 28.10.1991.
5. While challenging the same the only argument raised by the learned counsel for the petitioners is that the reference made by the CO. as well as the order passed thereon by JDC was without jurisdiction and it amounts to nullity. In support of his submission he has placed reliance upon the judgment of this Court in Raja Ram (supra) where the reference was made under sub-section (3) of Section 48 of the Act by the CO on 12th November, 1973 and the DDC vide order dated 29th October, 1974 had directed for making reference after hearing the parties considering the proceeding of partition. This matter was made subject-matter of Writ Petition No. 2534 of 1975 before this Court on the ground that notification under Section 52(1) was published seven years prior to the date of reference, therefore the reference was without jurisdiction. This Court after hearing the counsel for the parties had observed as under:
"In accordance with Rule 109-A read with Section 52(2) of the U.P. Consolidation of Holdings act the contesting opposite parties could not approach the consolidation authorities for getting requisite entry as no case was pending on the date of denotification under Section 52(1) of the U.P. Consolidation of Holdings Act. The proceeding giving rise to the present writ petition is wholly without jurisdiction and deserves to be quashed."
6. Reliance has also been placed upon the Division Bench decision of this Court in Hari Ram (supra) where a writ of prohibition was sought on the ground that reference was made after notification of Section 52 of the Act. The Division Bench of this Court has found that the reference was without jurisdiction as the consolidation authorities had no jurisdiction to exercise power under Section 48(3) of the Act after the notification under Section 52(1) of the Act.
7. Before the learned JDC two rulings were cited one, Lalsa Rai v. Lekhoo Chamar, 1983 (2) RD 86 and another, Ram Bali v. Assistant Director of Consolidation and another, 1991 RC 289. So far as the case of Lalsa Rai (supra) is concerned, that is distinguishable on that facts and that has no application and so far as the case of Ram Bali (supra) is concerned, there although the reference was made after notification under Section 52(1) of the Act but the Court found that the initial order of which shelter was taken was an outcome of a fraud. Therefore, His Lordships taking note of the settled principle of law that an order being out come of fraud was a nullity as fraud vitiates even very solemn proceedings treating the matter to be pending has held that the JDC has got very vide power under Section 48 of the Act to entertain the lis and decide the same even after denotification under Section 52 of the Act.
8. Here in this case, it is not the case of the respondent that the reference was made or the JDC has exercised the power taking note of the fact that the earlier order passed by the consolidation authorities prior to denotification under Section 52 (1) of the Act was an outcome of fraud, therefore the decision in Ram Bali (supra) is also of no avail.
9. Learned counsel for the petitioners, in paragraph 17 of the writ petition, has stated that the village was denotified under Section 52 of the Act on 4.8.1979 and at that time no proceeding was pending. This fact has not been denied in the counter-affidavit, therefore, it is uncontroverted fact that the reference was made after notification of the village under Section 52 of the Act in the year 1979. Hence, the JDC has erred in requiring the CO. to make reference and after receipt of reference approving the same. In my considered opinion, the order dated 28.10.1991 passed by the JDC is completely without jurisdiction. Hence, the order dated 28.10.1991 is hereby quashed. The writ petition succeeds and is allowed.
