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1994 DIGILAW 233 (ALL)

Murtuza v. Deputy Director Of Consolidation

1994-03-04

S.R.MISRA

body1994
JUDGMENT S. R. Misra, J. 1. PETITIONERS, by means of the present writ petition, seek quashing of impugned order dated 21-8-85, 3-10-85 and 23-1-87. First two orders were passed by respondent no. 2 and the last by respondent no. 1. 2. THE petitioners have come with the case that they were recorded as bhumidhars over plot no. 747, khata no. 133, plot khasra no. 533, khata no. 133 situated in village Manki, Pargana Deoband, Tahsil Deoband, District Saharanpur. In proceedings u/section 9 of the U. P. Consolidation of Holdings Act (hereinafter referred to as 'the Act'), respondent nos. 3 and 4 filed Objection claiming themselves to be tenure holders in the aforesaid plots to the extent of l/3ld share. Their objection was rejected on the ground of being time barred. Thereafter, neither any appeal was filed by them nor they preferred any revision. Subsequently, as one objection of the petitioner was pending, the respondent nos. 3 and 4 filed another application for impleadment of respondent Nos. 5 to 9 on the ground that they were recorded in the basic year, as such, they were necessary parties. 3. THE Consolidation Officer allowed the impleadment application of respondent nos. 3 and 4 on 21st August, 1985. Aggrieved, the petitioner went in revision and the Deputy Director off Consolidation dismissed the same by his order dated 23-1-1987. Hence this petition. 4. LEARNED counsel for the petitioner urged that the view taken by the Deputy Director of Consolidation is patently erroneous and his observation to the effect that the revision is not maintainable on account of the fact that it arises out of impleadment order, which is in the nature of inter locutory order and in view of section 48 (2) of the Act, is absolutely illegal. He next urged that once the objection of the respondent nos. 3 and 4 was rejected as time barred and the said order remained unchallenged in appeal or revision, the right, title and interest of respondent nos 3 and 4 became final and it was a close chapter. Entertaining a second objection will amount to nullifying the earlier final order and thus, the count below has exercised its jurisdiction in permitting the respondent nos. 3 and 4 to contest the matter ignoring the fact that their earlier objection was rejected as time barred. Entertaining a second objection will amount to nullifying the earlier final order and thus, the count below has exercised its jurisdiction in permitting the respondent nos. 3 and 4 to contest the matter ignoring the fact that their earlier objection was rejected as time barred. He also contended that the principle of res-judicata in applicable in the present case and on account of dismissal of the first objection as time barred, it was not open for the respondent nos. 3 and 4 to avail the remedy, provided against such an order, by filing second application for impleadment. The order of the court below amounts to abuse of judicial process. He also contended that the respondent nos. 3 and 4 have not come with clean hand as they have clearly misguided the Consolidation Authorities by concealing the fact that their first objection was dismissed as time barred and instead of filing appeal or revision, they filed the second objection, which was not maintainable in law. The learned counsel for the petitioner strenuously urged that a thing which could not be done directly, a party is not entitled to do the same act indirectly, that is, having satisfied that after the dismissal of initial objection as time barred the only remedy available to the respondents was to file appeal or revision, which they did not file, they filed the second objection which was wholly ideal and could not be entertained On account of non filing of appeal or revision, the petitioners have now acquired a right and in view of settled law that any amendment, which may take away right which is already accrued to a party, cannot be entertained, the objection of the respondent nos. 3 and 4 is liable to be thrown away. Thus, the view of the Deputy Director of Consolidation that the order of the Consolidation Officer is of interlocutory in nature, is without substance and is liable to be quashed by this court. 5. LEARNED counsel for the respondents tried to justify the order of Consolidation Officer and the Deputy Director of Consolidation, on equitable aspect of the matter on the ground that when the respondent nos. 5. LEARNED counsel for the respondents tried to justify the order of Consolidation Officer and the Deputy Director of Consolidation, on equitable aspect of the matter on the ground that when the respondent nos. 3 and 4 were pleading before the Consolidation Officer that the petitioners have executed registered sale deed in respect of l/3rd share and their objections were rejected as time barred, and, in the meantime, when respondent nos 3 and 4 came to know that the sale deed has been executed by petitioners in favour of respondent nos. 3 and 4 who had already been entered in the revenue papers, it was only then that they filed objection which was rightly entertained and there is no error in the order of the Deputy Director of Consolidation in treating the order of Consolidation Officer as inter locutory order. Moreover, rights of the parties have not yet bean decided and as such, this court should refrain itself from interfering with the impugned orders. 6. HAVING heard learned counsel for the parties and gone through the record of the case, I am of the view that it is true that once an objection of respondent nos. 3 and 4 was rejected as time barred, no appeal and revision having been filed by them against such order, the same attained finality, but at the same time, as the case of the respondent nos. 3 and 4 is that the petitioners have executed a registered sale deed in favour of respondent nos. 3 and 4 to the extent of l/3rd share, and, instead of approaching the higher court, since the names of respondent nos. 5 to 9 were entered in the basic year, if an objection for impleadment was filed and they have been permitted to agitate their matter as the original objection of the petitioner is still pending, the order may not be said to be within four corners and the order and observation of the Deputy Director of Consolidation that the order of Consolidation Officer is in the nature of interlocutory order, and no revision lies against such order, may not be legally correct but in the exercise of equitable jurisdiction under Article 226 of Constitution, it is not necessary that every order, even if it is bad but does substantial justice, be interfered with. It is one of such orders. The claim of the respondent nos. It is one of such orders. The claim of the respondent nos. 3 and 4 is based on registered sale deed and if their rights on the basis of sale deed is not determined and decided in consolidation proceedings, the bar of section 49 at any other appropriate court will debar the respondent nos. 3 and 4 from getting the matter agitated. The petitioners who are said to have executed registered sale deed in favour of respondent nos. 3 and 4, which is subject to decision by Consolidation Authorities under section 9 of the Act, cannot plead that the respondent nos. 3 and 4 cannot agaitate the matter, otherwise, they will be deprived of their right without a decision. Therefore, the argument of the learned counsel for the petitioners that the respondents no. 3 and 4 have not come with clean hands may not be said to be a correct statement as the order of the Deputy Director of Consolidation only permits the respondent nos. 3 and 4 to participate in the proceedings and any interference against the order of the Deputy Director of Consolidation will deprive them to contest their case on merits. So, judging equities between the parties, if the writ petition is allowed, the respondent nos. 3 and 4 will not be able to contest the matter and if no interference is called for against the order of the Deputy Director of Consolidation, still the petitioners will have their say as to whether respondent nos. 3 and 4 are entitled to any relief claimed by them in proceeding u/section 9 of the Act. This court has been consistently taking the view that exercise of jurisdiction under Article 226 of the Constitution is essentially an equitable jurisdiction and even if order impugned may be legally bad, or suffers from vice of jurisdiction still if the court is of the view that substantial justice has been done, this court will always be reluctant to exercise its extra ordinary jurisdiction. This is one of such case. In the light of aforesaid discussion, the writ petition fails and is dismissed without any order as to costs. Petition dismissed.