Vishwanath Singh v. Deputy Director of Consolidation
1980-11-05
K.P.SINGH
body1980
DigiLaw.ai
JUDGMENT K. P. Singh, J. By means of this writ petition the petitioners have prayed for quashing the judgments of the consolidation authorities namely Annexures 5', 2' and 1' attached with the writ petition. The dispute between the parties to the writ petition is regarding shares. The Consolidation Officer decided the dispute through his judgment dated 22nd June, 1969 (Annexure T attached with the writ petition). Against the judgment of the Consolidation Officer several appeals were preferred which were decidedly the appellate authority through its judgment dated 15111969 (Annexure 2' attached with the writ petition). The appeals of the petitioners were partly allowed. Aggrieved by the judgment of the appellate authority the contesting parties preferred revision petitions which have been decided through the impugned judgment dated 16121970. The revision petitions filed by the petitioners were dismissed and the revision petition filed by the constesting opposite parties Sheo Murat and others was allowed (see Annexure 5' attached with the writ petition). It appears that the petitioners had preferred a review petition against the judgment dated 16121970 through Annexure'6' attached with the writ petition. The aforesaid review petition was dismissed through Annexure 7' attached with the writ petition on the ground that there is no provision of review under the U. P. C. H. Act. On the date of the dismissal of the review petition it appears that the petitioners filed a restoration application as is evident from Annexure 6' attached with the writ petition. The restoration application has been dismissed through the order dated 6121971 (see Annexure 9' attached with the writ petition). Thereafter the petitioners have approached this Court under Article 226 of the Constitution. The writ petition was presented on 1621972 and has been admitted on 30th March, 1972. The learned counsel for the petitioners has contended before me that the counsel of the petitioners was ill, hence the petitioners wanted that their cases might not be taken up for hearing on 15121970, and an application for adjournment was moved on 12121970., and that application was rejected on 15121970. Another application for adjournment was moved seeking one day adjournment to get another counsel ready with their cases but that prayer was also refused, and the cases were heard on that very day and the judgment delivered next day.
Another application for adjournment was moved seeking one day adjournment to get another counsel ready with their cases but that prayer was also refused, and the cases were heard on that very day and the judgment delivered next day. It has also been brought to my notice that the courts were closed on 15121970 due to death of a counsel in the district, yet the revisional Court did not accommodate the petitioners and heard their cases in an arbitrary fashion, hence the impugned judgment should be quashed. The learned counsel for the contesting opposite parties before me has vehemently opposed the contentions raised on behalf of the petitioners on the following grounds: Firstly, that there was an alternative remedy which the petitioners did not avail within limitation, hence there should not be any interference with the impugned judgment. Secondly, that the writ petition is a belated one and deserves to be dismissed. Thirdly, that since there is specific remedy under the provisions of U. P. C. H. Act for getting the impugned order set aside, hence no writ lies. In this connection it has been emphasised by the learned counsel for the contesting opposite parties that in view of the provisions of Section 41 of the U. P. C. H. Act read with Section 201 of the U. P. Land Revenue Act the petitioners should have filed a restoration application within 15 days of the dismissal of the revision petition on 16121970 and that sufficient cause should have been shown for absence of the petitioners on that day and also it should have been demonstrated that the petitioners had suffered injustice and as the aforesaid ingredients are lacking in the present case, hence the petitioners are not entitled to invoke the jurisdiction of this Court under Article 226 of the Constitution nor are they entitled to get the impugned order dated 16121970 quashed in the present writ petition. Fourthly, it has been contended that due to bar of Section 49 of the U. P. C. H. Act the petitioners' cannot claim adjudication of their rights in the disputed land which they could claim before the consolidation authorities.
Fourthly, it has been contended that due to bar of Section 49 of the U. P. C. H. Act the petitioners' cannot claim adjudication of their rights in the disputed land which they could claim before the consolidation authorities. I have considered the contentions raised on behalf of the parties and I have gone through the various Annexures attached with the writ petition and the contents of the writ petition as well as the contents of the counter affidavit and those of the rejoinder affidavit, This fact is evident that the petitioners had applied for adjournment of their cases due to illness of their one counsel named Sri Radhey Shyam. To me it appears that the revisional Court has not acted reasonably and properly in refusing the prayer of adjournment made on behalf of the petitioners in the circumstances of the present case, hence I have a strong feeling that the petitioners have not got a reasonable and adequate opportunity to press their claim before the revisional Court which is the last Court of facts under the provisions of the U. P. C. H. Act. When the impugned order dated 16121970 has been passed without affording proper opportunity to the petitioners it deserves to be quashed. As regards the first submission made on behalf of the contesting opposite parties it is noteworthy that the writ petition was admitted in the year 19.72. It would not be proper exercise of discretion by this Court to dismiss the writ petition on the ground of alternative remedy. Moreover, in the circumstances of the present case it is doubtful whether the petitioners have any alternative remedy in the present case the petitioners' pairokar was present on 15121970 when the cases were fixed to be heard and the counsel for the petitioners was ill, hence the petitioners were handicapped. In this view of the matter the provisions of Sections 200 and 201 of the U. P. Land Revenue Act shall not be attracted. Section 200 of the U. P. Land Revenue Act reads as below: "Whenever any party to such proceeding neglects to attend on the day specified in the summons or on any day to which the case may have been postponed, the Court may dismiss the case for default or may hear and determine it exparted.
Section 200 of the U. P. Land Revenue Act reads as below: "Whenever any party to such proceeding neglects to attend on the day specified in the summons or on any day to which the case may have been postponed, the Court may dismiss the case for default or may hear and determine it exparted. Section 201 of the U P. Land Revenue Act provides for reviving the case dismissed by default or heard ex pane under Section 200 of the U. P. Land Revenue Act on specified ground within 15 days. In my opinion when the petitioners' pairokar was present on the date fixed for hearing of the revision petitions and the petitioners' cases could not be argued due to illness of their counsel, it is difficult to hold that the petitioners had neglected to attend their cases on the date fixed. The provisions of Section 200 of the U. P. Land Revenue Act shall not be attracted to the facts and circumstances of such a case mentioned above. When the provisions of Section 200 of the U, P. Land Revenue Act are inapplicable, no question of applicability of the provisions of Section 201 of the U. P. Land Revenue Act arises. To my mind there is no statutory alternative remedy for recalling the impugned order dated 16121970 (Annexure 5' attached with the writ petition). The submissions of the learned counsel for the contesting opposite parties in this reagard is not acceptable to me. As regards the submission to the effect that the writ petition is a belated 'one' I think that the delay in the present case has occurred due to wrong advice of the counsel for the petitioners, The very fact that a review petition was filed on 18th January, 1971 and the same was rejected on 20th October, 1971 and the restoration application was moved on the same day i.e. 30th October, 1971 which stood rejected on 6121971 and the present writ petition was moved on 1621972 i. e. within 90 days from the date of the dismissal of the restoration application, I think that the delay in filing the writ petition in the present case deserves to be condoned.
An argument was advanced that the review petition itself was moved on 18th January, 1971 much beyond 15 days from the date of the dismissal of the revision petition filed by the petitioners, hence it is not a fit case where the delay should be condoned. Ordinarily period for filing a review or restoration application is 30 days from the date of the order and only under the provisions of the U.P. Land Revenue Act the period prescribed for restoration is 15 days. I have already indicated above that the provisions of Section 200 and 201 of the U. P. Land Revenue Act are not attracted to the facts and circumstances of the present case, hence I think that the delay in preferring the writ petition is only due to wrong remedies prosecuted by the petitioners before the subordinate authorities. In such a circumstance the delay in preferring the writ petition is hereby condoned and in the ends of justice the petitioners should get a reasonable opportunity to press their claims. As regards the third submission made by the learned counsel for the contesting opposite party it is sufficient to indicate that the specific remedy under the provision of Section 41 of the U. P. C. H. Act read with Section 201 of the U. P. Land Revenue Act does not exist. In this connection the learned counsel for the contesting opposite party has invited my attention to the ruling in N. P. Ponnuswami v. The Returning Officer, Namakkal Constituency Salem Dist. and others A.I.R. 1952 S.C. 64 and the ruling in Nanhoo Mal and others v. Hira Mal and others A.I.R. 1975 S.C. 2140 and it has been submitted that the impugned order cannot be challenged in writ jurisdiction of this Court as specific remedy for revising the case exists under the provisions of Section 41 of U. P. C. H. Act read with Section 201 of the Land Revenue Act. To my mind the rulings relied upon by the learned counsel for the contesting opposite party deal with different situations and they do not apply to the facts and circumstances involved in the present writ petition. Moreover, I have already indicated above that there is no statutory remedy dealing with the circumstances and facts involved in the present writ petition.
To my mind the rulings relied upon by the learned counsel for the contesting opposite party deal with different situations and they do not apply to the facts and circumstances involved in the present writ petition. Moreover, I have already indicated above that there is no statutory remedy dealing with the circumstances and facts involved in the present writ petition. In my opinion the submission of the learned counsel for the contesting opposite party is misconceived to the effect that this Court has no jurisdiction to exercise powers under Article 226 of the Constitution for quashing the impugned judgment dated 16121970 whereby the petitoners' revision petitions were dismissed due to nonavailability of the petitioners' counsel on the date fixed for hearing the revision petitions. Thus that the petitioners had two remedies open to themone by approaching this Court under Article 226 of the Constitution and the other by approaching the revisional Court pointing out to it that under inherent powers the petitioners should be reheard as they were handicapped due to illness of the counsel for the petitioners. In the present case the petitioners had approached the revisional Court by way of review petition and restoration application and unfortunately they have filed, hence the only remedy left open to the petitioners was to approach this Court under Article 226 of the Constitution. I do not agree with the submissions of the learned counsel for the contesting opposite party that this Court has no jurisdiction to quash the impugned judgment dated 16121970 whereby the petitoner's revision petitions have been dismissed. The submission of the learned counsel for the contesting opposite party regarding bar of Section 49 of the U. P. C. H. Act for exercise of powers of this Court under Article 226 of the Constitution against the impugned judgment dated 16121970 is to be rejected outright.
The submission of the learned counsel for the contesting opposite party regarding bar of Section 49 of the U. P. C. H. Act for exercise of powers of this Court under Article 226 of the Constitution against the impugned judgment dated 16121970 is to be rejected outright. Section 49 of the U. P. C. H. Act reads as below; "Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of rights of tenureholders in respect of land lying in an area, for which a notification has been issued under subsection (2) of Section 4, or adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could nor ought to have been taken under this Act, shall be done in accordance with the provisions of this Act and no Civil or Revenue Court shall entertain any suit or proceeding with respect to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under this Act." The bar of Section 49 of the U. P. C. H. Act has never been contemplated to stand in the way of this Court to exercise powers under Article 226 or' the Constitution. The proceedings giving rise to the present writ petition are under Section 9 of the U. P. C. H. Act. The determination of the tenureholder's rights under Section 9 of the U. P. C. H. Act by the consolidation authorities is subject to the superintendence of this Court under Articles 226 and 227 of the Constitution In my opinion the suggestion of the learned counsel for the contesting opposite party that Section 49 of the U. P. C. H. Act bars the jurisdiction of this Court to quash the impugned judgment dated 16121970 given by the revisional Court under Section 48 of the U. P. C. H. Act is wholly misconceived. During the course of arguments the learned counsel for the contesting opposite party has emphasised that the senior counsel of the petitioners namely B. Sarju Prasad was present when the revision petitions were taken up and the petitioners did not get their cases argued by him, hence no question of reasonable opportunity to the petitioners arises in the circumstances of the present case.
True B. Sarju Prasad was a senior counsel on behalf of the petitioners, but Sri Radhey Shyam was also a counsel for the petitioners and due to the illness of Sri Radhey Shyam the petitioners had moved an application for adjournment on 12121970. The adjournment application on behalf of the petitioners was dismissed on 15121970. Thereafter an application was moved for adjournment with a view to get another counsel ready with the case and that application was also rejected by the Presiding Officer. In such a circumstance, mere presence of the senior counsel in the revisional Court does not appear to me a reasonable opportunity to the petitioners for pressing their claim in the revision petitions, especially when the Courts were closed due to death of another counsel in the district and it does not appear that the senior counsel took any steps to help the petitioners in the circumstances of the present case by requesting the Presiding Officer to adjourn the case to meet the ends of justice I think that the petitioners have been handicapped in pressing their claims and the revisional Court has acted arbitrarily in not granting even one day time to the petitioners for getting another counsel ready with their cases. Brother R. M. Sahai, J. in Khuddi v. Deputy Director of Consolidation, Azamgarh and others 1978 R.D. 30 has observed as below ; "The mere presence or service of knowledge may not necessarily amount to allowing parties an opportunity of hearing. In this case the petitioner was no doubt present, but there is not much difference in a party having no intimation or a party having intimation, but having no opportunity to get assistance to explain his case either through a professional or himself. It is as much a denial of opportunity of being heard as having not been heard at law." To my mind in the persent case mere presence of a senior counsel of the petitioners in the Court room was not enough. The petitioners had moved an application for adjournment well in advance and the application was rejected on the date fixed for hearing and thereafter another application moved for adjournment to get another counsel ready with the cases was also rejected and the senior counsel present in the Court room could not help the petitioners in getting even one day adjournment.
The petitioners had moved an application for adjournment well in advance and the application was rejected on the date fixed for hearing and thereafter another application moved for adjournment to get another counsel ready with the cases was also rejected and the senior counsel present in the Court room could not help the petitioners in getting even one day adjournment. I think that the petitioners have been denied of an opportunity of being heard in the circumstances of the present case. In the result, the writ petition succeeds and the impugned judgment of the revisional Court dated 16121970 (Annexure'5' attached with the writ petition) is hereby quashed and the revisional Court is directed to restore the revision petitions filed by the petitioners to their original numbers and to decide them in accordance with law after giving reasonable opportunities to the parties for pressing their claims. It is unfortunate that the cases have lingered long, but in the ends of justice the petitioners should get one reasonable opportunity more to press their claims and it is expected of the revisional Court to decide the cases reasonably and expeditiously as sufficient time has elapsed since the initiation of the proceedings under Section 9 of the U. P. C.H. Act. Parties are directed to bear their own costs.