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1982 DIGILAW 437 (ALL)

Narsingh Rao v. Deputy Director of Consolidation, Deoria

1982-03-23

R.M.SAHAI

body1982
ORDER R.M. Sahai, J. - In this writ petition directed against the order of the Deputy Director Consolidation passed in exercise of power under section 48 of U. P. Consolidation of Holdings Act in proceedings arising out of allotment of chaks apart from the question of jurisdiction to entertain the revision without condoning delay in filing it the controversy centered round the scope of suo motu power and bar of S. IIA if the Act. 2. It is not disputed that opposite parties had filed revision, after about three years after the passing of the order along with an application under section 5 of the Indian Limitation Act. Condonation of delay was sought only because the revisionist did not know of the order earlier. In counter-affidavit filed in this Court lack of knowledge has been supplemented by saying that entire document of the consolidation officer pertaining to the village had been burnt in fire, therefore, all the chak-holders of the village could not know about the order of the appellate authority, passed on 6-3-1975. Although there is no specific denial and it may be assumed that there was fire in which files were burnt the Deputy Director Consolidation could not entertain the revision without condoning delay in filing the revision. By lapse of time the remedy becomes barred and it could revive only after the bar was removed by exercise of discretion u/s 5 of the Limitation Act. 3. Power to entertain revision against order passed by subordinate authorities has been conferred on Director of Consolidation by S. 48 of Consolidation of Holdings Act. Limitation to present such revision by an applicant has been provided by R. Ill, framed by State Government in exercise of power conferred on it by clause (r) of sub-s. (2) of S. 54 of the Act. Once period of thirty days, provided by this rule expired and no revision was presented against order of subordinate authority, the bar of limitation under S. 4 of the Limitation Act arose and the revision was liable to be dismissed unless the period to present the revision was extended and it was admitted after the prescribed period because the Director was satisfied that the applicant was prevented by sufficient cause in not presenting the revision within time. Without removal of bar or extension of time the revision could not be entertained and any order passed on merits is nullity and without jurisdiction. It is not a matter of inference or assumption as the order condoning delay has to be tested on the anvil of sufficient cause. Learned counsel for opposite party relied on Nanku v. Asstt. Director of Consolidation (1968 Rev Dec 39) and urged that if the petitioner did not raise any 'objection before the Deputy Director of [Consolidation then it could not be raised in writ petition and it should be deemed that delay has been condoned. Similar argument was raised in Parsidh Narain v. Deputy Director Consolidation, (1979 All L J 764). It was held by brother K. P. Singh, J. that in the absence of any consideration by Deputy Director whether revision was barred by time it could not be presumed that delay was condoned. 4. Question of limitation is question of jurisdiction. It can be raised before any Court or authority provided necessary facts for its adjudication are there. What could not be done under law could not be deemed to have been done by non-exercise of power. If due to operation of law of limitation the remedy of opposite party became barred then it could not be deemed to have been removed because the Director of Consolidation either in ignorance or by design instead of extending the period of filing revision chose to decide it on merits. Without exercise of discretion under S. 5 of Indian Limitation Act and hearing the person in whose favour right accrued the revision could not be entertained, therefore, any order passed on merits could not result in rendering the order valid and in accordance with law. 5. Reliance was then placed on Rama Kant v. D.D.C. ( AIR 1975 All 126 ) (FB) and it was urged that record of the case having been summoned, the Deputy Director of Consolidation was bound to examine it for satisfying himself about the legality or correctness of order passed by subordinate authorities. According to learned counsel once record was summoned the only jurisdiction left with revising authority was to decide it on merits. The Full Bench has divided examination of revision at two stages, one before and other after calling of record. At the first stage no one has a right to make any submission. According to learned counsel once record was summoned the only jurisdiction left with revising authority was to decide it on merits. The Full Bench has divided examination of revision at two stages, one before and other after calling of record. At the first stage no one has a right to make any submission. And once record has been summoned then the revising authority cannot dismiss it as defective. But all this applies in those cases where the Deputy Director exercises jurisdiction suo motu. It cannot be assumed in every case where records were sent for that the revising authority had taken decision to exercise suo motu powers, it the interpretation of the Full Bench decision is as suggested by learned counsel for opposite party then it shall render the applicability of Limitation Act to S. 48 of the Act nugatory. In fact summoning of record is ministerial function. The memo of revision is not examined at the stage of filing to find out if it was competent. Examination of record at the first stage in a revision filed by chak holder cannot be considered to be in exercise of suo motu powers. If revision is barred by time then delay does not stand automatically condoned by summoning of record without hearing the other side in whose favour valuable right vests by passage of time. 6. In the end the learned counsel urged that in allotment of chaks this Court should refrain from issuing any writ unless it was a case of gross injustice. The argument proceeds on mis-conception of the nature of these proceedings. It is true that they do not touch title of a tenure holder but the injury and harm caused by unjust allotment is so incalculable that it may result in depriving a tenure-holder of his bread and butter. When in sixties decisions after decisions were given by this Court refusing to interfere in allotment of chaks it became known to all and sundry that orders of consolidation authorities in such matters are final. The effect of this was not what this Court intended it to be. Orders were passed observing Sections 19 and 20 in letter only. Cases were reopened after long time. Glaring cases of inequity and injustice multiplied. Therefore, interference by this Court became frequent. The effect of this was not what this Court intended it to be. Orders were passed observing Sections 19 and 20 in letter only. Cases were reopened after long time. Glaring cases of inequity and injustice multiplied. Therefore, interference by this Court became frequent. Before considering whether justice has been done between parties it is essential to examine if the authority which decided the proceedings had jurisdiction to do so. If the order was passed in violation of principle of natural justice or without affording any opportunity to tenure-holder or in a petition which was not maintainable then the question of considering whether justice has been done between parties does not arise. That stage shall come only after an order has been passed in a competent revision. 7. An argument was raised by petitioner that plots in dispute being out of consolidation they could not be included at the stage of allotment of chaks. According to learned counsel valuation of these plots at this stage was barred under section 11A of the Act. The argument may be correct but it is not available to the petitioner as it does not appear to have been raised before consolidation authorities. 8. In the result this petition succeeds and is allowed. The order of the Deputy Director of Consolidation is quashed. He is directed to decide the revision afresh in accordance with law.