IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition(M/S) No. 913 of 2003 1. Sanjog S/o Sri Parama 2. Pahalu S/o Late Shri Telu 3. Raju 4. Kirtu Both are minor's sons of Late Shri Telu Under the guardianship of Smt. Kasturi(mother) widow of Shri Telu 5. Ilam Chand S/o Shir Simru 6. Kala S/o Shri Simru 7. Ramesh S/o Shri Kewal 8. Manga S/o Shri Mehar Singh All R/o Village Jhabrera Khurd Pargana Bhagwanpur Tehsil Roorkee District Haridwar …..…Petitioners Versus 1. Deputy Director Consolidation/Additional Collector, District Haridwar 2. Assistant Settlement Officer Consolidation Roorkee, District Haridwar 3. Ram Kumar S/o Mandar Das R/o Village Jhabrera Tehsil Roorkee District Haridwar 4. Babu Rai S/o Mussaddi R/o Village Jhabrera Tehsil Roorkee District Haridwar ……….Respondents -2- Shri Rajendra Singh, Advocate, present for the writ petitioners. Shri Lok Pal Singh, Advocate present for respondent nos. 3 and 4. Hon'ble Prafulla C. Pant, J. Heard. 2. By means of this writ petition moved under article 226 of Constitution of India, the petitioners have sought quashing of the order dated 30.08.2003, passed by Dy. Director of Consolidation/ Additional Collector, Haridwar, in revision no. 475 of 2002-03 and order dated 03.06.2003 passed by Assistant Settlement Officer of Consolidation, Roorkee, in Appeal No. 946. By said order Assistant Settlement Officer of Consolidation, Roorkee, has set aside his own order dated 02.09.2002,dismissing the appeal. By the impugned order dated 30.08.2003, the revisional court , Dy. Director of Consolidation, Haridwar, has affirmed the subsequent order passed by the Assistant Settlement Officer of Consolidation. 3. Brief facts of the case are that, Village Jhabrera Khurd, Tehsil Roorkee, was under consolidation operations. The respondent no. 3 -3- and 4 were the original tenure holders of plot no. 25/1 and plot no. 25/2. The Consolidation Officer proposed same numbers in consolidation for the respondent no. 3 and 4 to which the objections were filed by the writ petitioners under section 20 of U.P. Consolidation of Holdings Act, 1953, praying that the writ petitioners/objectors be given chaks in 25/1 or in 25/2 in lieu of 25/3. On said objections, Consolidation Officer passed order dated 20.02.2002, allowing correction accordingly as prayed by the petitioners. Aggrieved by said order, respondent no. 3 filed an appeal under section 21 (2) of the aforesaid act, which was numbered as appeal no. 946 before Settlement Officer of Consolidation. The said appeal was disposed of vide order dated 02.09.2002 (copy Annexure-10 to the petition). In said order it is mentioned that the parties were heard. The appeal was dismissed by Assistant Settlement Officer of Consolidation holding that the appeal has no force. It appears that thereafter an application dated 16.09.2002 (copy Annexure-11 to the petition) was moved by respondent no.3 praying that the appeal be decided on merits and ex-parte order be set aside. On said application, Assistant -4- Settlement Officer of Consolidation passed order dated 03.06.2003 and after hearing the appeal set aside the order dated 02.09.2002. Aggrieved by order dated 03.06.2003 the writ petitioners filed revision under section 48 of U.P. Consolidation of Holdings Act, 1953 before Dy. Director of Consolidation/Additional Collector, Haridwar., and Said Authority dismissed the revision. Hence this writ petition. 4. Learned counsel for the writ petitioners have challenged the order dated 03.06.2003, passed by Assistant Settlement Officer of Consolidation, Roorkee, on the ground that he had no power to review or set aside his own order. It is further pleaded that the revisional court i.e. Dy. Director of Consolidation, Haridwar, has committed error of law in up holding the said order. 5. On the other hand, on behalf of the respondent nos. 3 and 4, it is directed that the impugned order suffers from no illegality. It is contended on their behalf that the order dated 03.06.2003, is order simply recalling the ex-parte -5- order dated 02.09.2002, and as such, rightly up- held by the revisional court. 6. It is settled principle of law that if the order passed by Settlement Officer of Consolidation, is an ex-parte order, the same can be recalled by such authority. However, as to the exercise of the review jurisdiction, said authority has no such power. In this connection, Full Bench of Allahabad High Court in Smt. Shivraji vs. Dy. Director of Consolidation 1997(88) Revenue Decision page 562, has held that the Consolidation Authorities, cannot review or recall their final orders in exercise of inherent powers. It has been further held in the aforesaid case, that the power of the review can be exercised only when the statute provides for such power. 7. In the present case the impugned order dated 03.06.2003, passed by Assistant Settlement Officer of Consolidation, Roorkee, passed in Appeal No. 946, is termed by the writ petitioner as order passed under review jurisdiction. On the other hand, according to the respondent no. 3 and 4, said order is nothing but recalling of an ex-parte -6- order. To examine as to the nature of order dated 03.06.2003, passed by Assistant Settlement Officer of Consolidation, this Court has gone through the necessary papers on record. The order dated 02.09.2002, (copy Annexure-10 to the writ petition) shows that this order is passed on the appeal of the respondent no.3 Ram Kumar. In said order it is nowhere mentioned that the appellant was absent. Rather it is mentioned by Assistant Settlement Officer of Consolidation, that he heard the parties present. He has discussed appeal on merits and found the appeal liable to be dismissed. Not only this, copy of order dated 16.08.2002, (copy Annexure A-12 to the writ petition) passed on order sheet shows that counsel and parties were heard. It further corroborates the fact that there is no mention of absence of the appellant on the date of hearing. Now it is relevant to mention here about the application moved by the respondent no. 3 Ram Kumar before Assistant Settlement Officer of Consolidation, on 16.09.2002 on which the appeal was restored by said authority. Said document is Annexure-11 to the writ petition. The application moved by respondent no. 3 is a two paragraph application for restoration of the -7- appeal. There is not a single word in the application that the appellant was absent on the date fixed. No doubt it is prayed that ex-parte order be set aside but it is not clear as to how respondent no. 3 in his application dated 16.09.2002 has termed the order dated 02.09.2002, as an ex-parte order. The order dated 03.06.2002, passed by Assistant Settlement Officer of Consolidation, shows that authority has mentioned that the writ petitioners (who were respondent before said authority) have taken the objection that the appeal was heard in the presence of the counsel for the parties and the order dated 02.09.2002 is not an ex-parte order. There is no finding whatsoever on objection of the writ petitioners, recorded by the Assistant Settlement Officer of Consolidation, who has set aside his own order dated 02.09.2002 and allowed the appeal. Without there being, any mention in order dated 03.06.2003, that the order dated 02.09.2002, was an ex-parte order,it can be safely said that the Assistant Settlement Officer of Consolidation, has reviewed his own order and set aside it on merits . In view of the principle laid down in Smt. Shivraji (Supra) the Assistant -8- Settlement Officer of Consolidation, had no power to set aside an order, particularly when he has not held that the order passed on 02.09.2002 was an ex-parte order. In the circumstances, this Court is of the view that Dy . Director of Consolidation (revisional court) has erred in law in up-holding the order dated 03.06.2003, passed by Assistant Settlement Officer of Consolidation. 8. For the reasons as discussed above, the writ petition is allowed. The impugned order dated 30.08.2003, passed by Dy. Director of Consolidation/Additional Collector, Haridwar, in revision no. 475/2002-03, and order dated 3.06.2003, passed by Assistant Settlement Officer of Consolidation, in appeal no. 946, are hereby quashed, leaving it open to respondent no. 3, seek the remedy available to him against the order dated 02.09.2002. (Prafulla C. Pant, J) Dt. 22.07.2010 Parul