Nawab Singh v. Deputy Director of Consolidation — 1993 DIGILAW 290 (ALL)

JUDGMENT : S.R. SINGH, J. 1. Present petition is directed against judgment and order dated 10.6.1993 (Annexure 9) passed by the Deputy Director of Consolidation Aligarh thereby setting aside an earlier order dated 24.12.1981, An application for setting aside the said order dated 24.12.1981 was moved by Damodar son of Sowati and Suresh Chand son of Vidya Ram, (Claiming himself to be minor through his next friend Smt. Chandrawati) (mother) on 5.5.1986 on the ground that the order dated 24.12.1981 was passed ex-parte without notice to them. The Deputy Director of Consolidation held that no Notice was served upon Suresh Chand and accordingly set aside the order dated 24.12.1981. 2. I have heard Sri M.D. Misra learned Counsel appearing for the Petitioner and Sri G.N. Verma learned Counsel appearing for the Respondents. 3. It transpires from the record that three separated revisions, being revision Nos. 625, 644 and 643 were allowed by a common order dated 24-12-81 The said revisions arise not of proceeding u/s 5-A (2) of the Uttar Pradesh Consolidation of Holding Act in respect of land comprising basic Khatauni Khata No. 258, 259 and 260 ultimate in village Baramai Pergana Sikandra Rao district Aligarh. Suresh Chand who is held to have not been served with the notices in revisits aforesaid, was arrayed alongwith his brothers Om Prakash. Rajesh and Ramesh alongwith Damoder and many others. The order dated 24.12.1981 was passed after hearing the learned Counsel for the parties including Om Prakash, Rajesh and Ramesh, brothers of Suresh Chand. 4. The remedy for setting aside an ex-parte order is available to an aggrieved party u/s 281 of the Uttar Pradesh Land Revenue Act 1901 which has been made applicable to proceedings under the provisions of the Uttar Pradesh Consolidation of Holdings Act, 1953 by virtue of Section 41. 5. In order to appreciate the controversy in proper perspective, Section 201 of the Uttar Pradesh Land Revenue Act 1901 in so far as it is relevant is quoted below for ready reference. 201-No appeal from orders passed ex-parte or by default-No appear shall lie from an order passed order Section 200 ex-parte or by default. 5. In order to appreciate the controversy in proper perspective, Section 201 of the Uttar Pradesh Land Revenue Act 1901 in so far as it is relevant is quoted below for ready reference. 201-No appeal from orders passed ex-parte or by default-No appear shall lie from an order passed order Section 200 ex-parte or by default. Re-hearing on proof of good cause for non-appearance-But in all such cases, if the party against whom judgment has been given appears either in person or by agent (if a Plaintiff within fifteen days from the date of such order, and if a Defendant within fifteen days, after such order has been communicated to him, or after, any process for enforcing any process for enforcing the judgment has been executed or at any earlier period), and shows good cause for his non-appearance, and satisfies the officer making the order that there has been a failure of justice, such officer may, upon such terms as to costs or otherwise as he think proper, revolve the case and alter or rescind the order according to the justice of the case. Order not be altered without summons to adverse party-provided that no such order shall be reversed or altered without previously sustaining (sic) the party in whose favour judgment has been given to appear and be heard in support of It. The intendment of the Legislature in using the expression "and satisfied the officer making the order that there has been a failure of justice" in Section 201 of the Uttar Pradesh Land Revenue Act which enables re-hearing on proof of the good Cause for non-appearance is more than clear. The power of re-hearing conferred upon the consolidation authorities under the section read with Section 41 of the U. P Consolidation of Holdings Act, 1953 is not meant to be exercised mechanically. As conditions precedent to re-hearing under the said provisions of law, two findings have to be recorded (1) that the applicant shows good cause for his non-appearance and (2) that the officer making the order for re-hearing is satisfied that there has been a failure of justice. Exercise of poorer of re-hearing is dependent upon fulfillment of the aforesaid two conditions but for which the Consolidation Authorities shall hare no jurisdiction to rehear a matter earlier disposed of either ex-parte or by default. Exercise of poorer of re-hearing is dependent upon fulfillment of the aforesaid two conditions but for which the Consolidation Authorities shall hare no jurisdiction to rehear a matter earlier disposed of either ex-parte or by default. It is true, failure to comply the principles of natural Justice is itself an injustice and no further injustice need to be proved but where a party has effectively been heard through another party, whose interest is common and inseparable, the question has to be examined by the concerned authority as to whether the hearing through another party, was in the facts and circumstances of She case, an effective hearing so as to meet the requirement of principles of natural justice in so far as, aggrieved party is concerned. An order of rehearing by setting aside an earlier order passed on merits, though ex-parte, is fraught with dangers of conferring power of review upon the Consolidation authorities which decidedly, they do not possess and of violating the concept of rule of law" explained in Article 14 of the Constitution of India. Absence of arbitrariness in passing an order of any nature-whether judicial, quashi judicial, or administrative-is sine-qua-non for the validity of the order. These principles are bound to be defeated if the Consolidation Authorities are allowed to act mechanically i.e. without application of mind and without recording requisite findings on the two conditions precedent comprehended by Section 201 of the Act. 6. Sri G.N. Verma then placed reliance on a Division Bench decision in Satrujeet and Others vs. Deputy Director and Others, (1979) AWC 282 wherein it has been held as under: 6. It is well settled that the parties cannot waive or confer jurisdiction. In other words, the existence of jurisdiction does not depend upon consent of parties, though in some cases the exercise of that jurisdiction may. When affording an opportunity of being heard is a statutory condition precedent to the existence of jurisdiction it cannot be waived or ignored on the plea that no prejudice has been caused to the person who was not afforded an opportunity of being heard. The question of waiver or prejudice is neither material nor relevant to the legal position that the order which was without jurisdiction was, in law, void. 7. The question of waiver or prejudice is neither material nor relevant to the legal position that the order which was without jurisdiction was, in law, void. 7. In Sarvadaman Rai vs. Dalganjan Rai and Others, (1977) AWC 412, a learned Judge of this Court has held that a necessary party must be afforded an opportunity of hearing. It such party is not heard the revisional order is without jurisdiction. The learned Judge had referred to a series of decisions of this Court which has taken the same view. In this Court, the consistent view has been to that effect. The only discordant note was sounded by learned single judge in Syed Mohd Reysz vs. Dy. D.C. Mathura (supra). In that case a joint chak was allotted to three brothers. In the revision only one of the brothers was impleaded. It was held that there was nothing to suggest that there was a conflict of interest between the brothers and that the brother who was impleaded represented his other brothers also in the revision. In our opinion, this decision does not lay down the law correctly. When three brothers were parties to the proceedings of allotment of chaks right from the beginning it cannot be assumed that one represented the others. Evidently, there was no finding by the Dy. Director that one represented the other two brothers. This could not be assumed. Further the brothers who were not impleaded wear undoubtedly parties concerned within meaning of Section 48. They had to be afforded an opportunity of being heard. It is evident that Section 201 was not considered by the Division Bench in the above decision. That was case of allotment of Chaks and one of the joint Chak-holders Raja Ram was not even impleaded in the revision and he was not afforded any opportunity of hearing. In any case, the question of failure to afford opportunity may be examined by the Dy. Director of Consolidation in the light of Section 201 of the Uttar Pradesh Land Revenue Act. 7. The interest of all the brothers in the property was inseparable and the Dy. In any case, the question of failure to afford opportunity may be examined by the Dy. Director of Consolidation in the light of Section 201 of the Uttar Pradesh Land Revenue Act. 7. The interest of all the brothers in the property was inseparable and the Dy. Director of Consolidation has allowed the application which was highly belated without adverting to the question as to whether in the facts and circumstances of the case service of notices on the brothers of Suresh Chand could be held to be sufficient service upon Suresh Chand, nor did he advert to the question as to whether the brothers could in the facts and circumstances of the case, be deemed to have effectively represented the interest of Suresh Chand, The remedy by way of restoration available u/s 41 of the Consolidation of Holdings Act read with Section 291 of the Uttar Pradesh Land Revenue Act should not be treated as a remedy by way of review for which Consolidation Authorities have no jurisdiction. In the facts and circumstances of the case, the impugned order passed by the Deputy Director of Consolidation is vintners for non-consideration of the matter in a correct perspective. 8. Sri G.N. Verma, learned Counsel appearing for the Respondents placed reliance upon Kuber vs. Deputy Director of Consolidation Azamgarh, 1990 AWC 661 wherein. It has been held that the question of condonation of delay is discretionary matter and the High Court cannot investigate the question as to whether the discretion has been exercised on extraneous consideration. The authority relied upon by Sri G.N. Verma is not applicable to the facts of the present case for in that case, the Consolidation Officer applied his mind end after considering the merits of the application, condoned the delay in filing objection u/s 9-A (2) of the Uttar Pradesh Consolidation of Holding Act. The present is not a case of that type. The question involved in the present case is not as to whether this Court should or should not interfere with an order condoning delay. The present is not a case of that type. The question involved in the present case is not as to whether this Court should or should not interfere with an order condoning delay. The question involved here is as to whether the Deputy Director of Consolidation was justified in recalling an order passed on merit at the behalf of Suresh Chand without going into the question on to whether Suresh Chand could or could not be deemed to have been represented through his brothers and as to whether the ex-parte order had resulted in failure of justice. Sri G.N. Verma then placed reliance upon another decision of the learned Single Judge (K.N. Misra, J.) in Kishori vs. Dy. Director of Consolidation, 1983 AWC 585 wherein the High Court refund to Interfere with an order passed by the Deputy Director of Consolidation condoning the delay in filling the revision on the ground that it was a discretionary order and it could not be shown that the distraction was exercised in an ordinary manner. The said decision as also the decision in Sansar Patti vs. Dy. Director Consolidation Jaunpur, 1993 RD 17 and Smt Indrawati Din vs. Dy. Director of Consolidation, 1993 RD 21, have no application to the facts of the present case for reasons set out herein before. 9. Coming now to the question as to whether this Court should or should not exercise its extra-ordinary jurisdiction under Article 226 of the Constitution of India in a matter where an element of discretion, to a certain, degree, is involved in passing she order impugned it may be observed that a distinction has to be made between an order passed by statutory authorities dismissing a sense in defend without going into the merit of the case and an order either dismissing or allowing a cause on merits though passed ex-parte against the party coming to this Court. In the former category of cases this Court normally does not interfere with the discretionary order passed by any statutory authority but in the cases coming under the second category, the refusal by this Court to interfere may lead to injustice and perpetuate the abuse of the process of law. In the former category of cases this Court normally does not interfere with the discretionary order passed by any statutory authority but in the cases coming under the second category, the refusal by this Court to interfere may lead to injustice and perpetuate the abuse of the process of law. The two conditions precedent for rehearing on a cause comprehended by Section 201 are intended to discourage frivolous application at the behest of an unscrupulous litigant who have no merits in his case deliberately falls to appear and contest or prosecute the cause and allows an order to be passed ex-parte or by default and then applies for rehearing with a view to inflict harassment upon his adversary. In the process, the public time and money is undoubtedly spent. The conditions precedent for recall of an order as stipulated by Section 201 of the Uttar Pradesh Land Revenue Act are by way of a device to prevent the abuse of the process of law. In my opinion an order passed on merit, though ex-parte cannot be set aside except in accordance with law. Any ether view of the matter may affect not only the successful party to a cause but will have the tendency to defeat the public policy embodied in Section 201 of the Uttar Pradesh Land Revenue Act and as a protector of public policy it is the duty of the court to see that the process of law is not abused by a party to a cause. 10. Upon a conspectus of the facts and circumstances of the case, the Deputy Director of Consolidation in my opinion ought to have examined the question as to whether Suresh Chand could or could not be said to have been effectively represented through his brothers who were admittedly heard before passing the order dated 24.12.1981, more so when the restoration application was filed after a considerable lapse of time and much after the order dated 24.12.1981 was implemented vide order dated 31.1.1984 passed in different proceedings. 11. In the facts and circumstances of the case therefore the order dated 10.6.1992 is not sustainable in low. 12. In the result, the petition succeeds and is allowed. The impugned order dated 10.6.1992 is quashed. 11. In the facts and circumstances of the case therefore the order dated 10.6.1992 is not sustainable in low. 12. In the result, the petition succeeds and is allowed. The impugned order dated 10.6.1992 is quashed. The Deputy Director of Consolidation may examine the restoration application of Suresh Chand afresh in the light of the observations made in the body of this judgment and pass an order in accordance with law.