1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 19 of 2002 (M/S) 1. Karan Pal 2. Kishan Pal Both S/o Fool Singh 3. Manoj Singh S/o Deshpal All R/o village Kuwakhera Pargana Manglaur, Tehsil Laksar District Hardwar ………………. Petitioners Versus 1. Deputy Director Consolidation/Additional Collector Hardwar 2. Settlement Officer, Consolidation Hardwar at Roorkee, District Judge 3. Rafal 4. Netrapal 5. Jogendra 6. Tugal Singh All S/o Bharat Singh 7. Harchand 8. Har Mal Both S/o Jeevan 9. Harpal S/o Bhundu 10. Mange Ram 11. Mangu Both S/o Jeevan 12. Ghasita 13. Hirda 2 14. Baldhir All S/o Jagga 15. Mullad 16. Girwar Both S/o Mukha 17. Anand Pal 18. Ishwar Pal Both S/o Late Hukam Singh All R/o village Kuakhera Pargana Manglaur, Tehsil Laksar District Hardwar ………..Respondents Shri M.S.Tyagi, Advocate with Shri Siddhartha Singh, Advocate, present for the writ petitioners. Shri Sharad Sharma, Senior Advocate assisted by Shri J.S.Bisht, Advocate, present for the respondents no. 3,4 & 5 Shri A.K.Sharma, Advocate, present for the respondents no. 6, 17 and 18. Hon’ble Prafulla C. Pant, J. By means of this writ petition, moved under Article 226 of Constitution of India, the writ petitioners have sought quashing of the judgment and order dated 03.01.2002, passed by Deputy Director Consolidation/Additional Collector, Hardwar in Revision No. 33/2001- 02, Revision No. 35 of 2001-02, 36 of 2001-02 and 37 of 2001-02, whereby said court allowed the revisions and set aside the order dated 30- 3 01.1999, passed by Settlement Officer of Consolidation Roorkee, allowing the appeals of the petitioners after recalling his order dated 09.10.1997, in Appeal No. 576 and Appeal No. 591. (2) Brief facts of the case are that, petitioners and the respondent No.3 to 19 are descendants of one Bharat Singh regarding whom, it is pleaded that he was Bhumidhar of his Khata No. 1/10 and 2/16 within the limits of Village Rasoolpur Bakal and Kuakhera. After the consolidation proceedings started, petitioners moved an application before the Consolidation Officer for declaration of their rights which appears to have been allowed by said authority on 30.01.1989, but after the opposite party challenged the order before Settlement Officer of Consolidation the appeals were allowed, and matter was remanded vide his order dated 16.06.1994. The Consolidation Officer, Roorkee, reheard the matter and vide his order dated 01.05.1995 (copy annexure 2) dismissed the claim of the present petitioners. Aggrieved 4 by said order, the petitioners filed Appeal No. 576 and 591 in 1995-96 before the Settlement Officer of Consolidation. However, during the pendency of said appeals and the two appeals filed by the respondents, an application dated 09.10.1997, was moved before the appellate authority, wherein, appellants as well as the respondents prayed that the appellants do not want to press their appeals. Accordingly, the Settlement Officer of Consolidation, Roorkee, vide his order dated 09.10.1997, dismissed the appeals No. 576/1995-96 and 591 of 1995-96, as not pressed. However, on 11.02.1998, another application was moved on behalf of the petitioners before the appellate authority, seeking recall of order dated 09.10.1997, and to decide the appeals on merits, after hearing the parties. On said appeals, the Settlement Officer of Consolidation vide his order dated 30.01.1999 recalled the order dated 09.10.1997, and decided the appeals in favour of the present petitioners. Aggrieved by said order the respondents No. 3 to 18 appear to have filed revisions before the Deputy Director of 5 Consolidation, and vide impugned order dated 03.01.2002, said authority set aside the order dated 30.01.1999, passed by the Settlement Officer of Consolidation on the ground that said authority has no jurisdiction to review its own order. Hence this petition. (3) The only question to be decided in this writ petition is whether the Settlement Officer of Consolidation has power or not to review his own order, after it dismissed the appeals as not pressed. (4) Learned counsel for the petitioners drew attention of this court to the Principle of law laid down by Full Bench of Allahabad High Court in Smt. Shivraji and others vs. Deputy Director of Consolidation, Allahabad and others 1997 (88) RD page 562. It has been held by the Allahabad High Court in said case that unless there is a specific provision in the statute, Deputy Director of Consolidation or the Consolidation Authorities cannot exercise power to review their final orders. Attention of 6 this Court is also drawn to para-37 of said judgment in which it is observed by the Full Bench of the Allahabad High Court that in absence of any statutory provision contained in the Act, conferring power of review on Deputy Director of Consolidation, it can not recall an order passed by it on merits, purporting exercise of inherent power of recall of a wrong order. On behalf of the petitioners emphasis was given to the expression “ order passed on merits” . It is pleaded that since the order of the dismissing the appeals as not pressed was not an order on merits, as such, the Settlement Officer of Consolidation in its order dated 30.01.1999, committed no error of law in recalling such order. (5) Having considered submissions of learned counsel for the petitioners, and learned counsel for the respondents, and after going through the relevant authority, this court is of the view that it is settled principle of law that Consolidation Authority, in absence of statutory provision can not exercise power of recall or 7 review of its orders, passed on merits. Had it been a case of dismissal of appeals for non prosecution, or had the order passed been ex- parte, it could have been said that under relevant provision of law, application for recall of the order could be maintained, but in the present case, the order passed in the appeals No. 576 of 1995-96 and 591 of 1995-96 appears to have been passed in the presence of the parties, on their own application. This fact is not denied by the petitioners. That being so, the order dated 09.10.1997, passed by Settlement Officer of Consolidation was a consented order passed in the presence of the parties. Said order has no less value than the order passed on merits. (6) It is argued on behalf of the petitioners that an order obtained by fraud can always be sought to be recalled. In this connection, I have gone through the application dated 11.02.1998, moved on behalf of the petitioners before the appellate authority seeking recalling of order dated 09.10.1997. In said application the 8 ground pleaded is that the respondents had made certain assurance and promises to the petitioners, but they have not honoured the same and the appellants are deprived of their rights. Had there been some promise mentioned in the application dated 09.10.1997, whereby the appeals are sought to be dismissed as not pressed, it could have been said that the assurance or the term mentioned in the application/compromise was not complied with, but there is no such promise or term mentioned in the application. In the circumstances, in the application for recalling the appellants can not be said to have a right to take any ground or plea of their choice that a particular assurance or term was not honoured. Even in the application dated 11.02.1998, it is not mentioned what was the specific assurance which was given and not honoured. (7) In the above circumstances, this court is of the view that the revisional court ( Deputy Director of Consolidation) has rightly held that the appellate authority, in absence of power of 9 review its final order could not have recalled the order in the manner it is done. (8) For the reasons as discussed above, since the order passed in the presence of parties with their consent is no less than the order passed on merits, after hearing the parties, it can not be said that Consolidation Authority in absence of any statutory provision in this regard had power to review the same. Therefore, the writ petition is dismissed. No order as to costs. (Prafulla C. Pant, J.) Dt.28.11.2011 NP