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2006 DIGILAW 162 (HP)

Amar Nath v. State of H. P.

2006-05-30

V.K.GUPTA

body2006
JUDGMENT V.K. Gupta, C.J. 1. This petition can be disposed of on a very short question. The facts may be stated in brief. 2. An appeal under Section 30(4) of the Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 (hereinafter 1971 Act for short) was filed by respondent No. 2 Jagdish Chand against the petitioner Amar Nath as well as proforma respondent No. 3 Udho Ram before Shri V.C. Katoch (HAS), Additional Director, Consolidation Department, Himachal Pradesh against the order dated 27th August, 1984 passed by the Settlement Officer, Consolidation of Holdings, Hamirpur in case No. 166/81. The Settlement Officer; Consolidation of Holdings, Hamirpur had passed the aforesaid impugned order dated 27th August, 1984, himself exercising the appellate jurisdiction under Section 30(3) of 1971 Act against the order passed by the Consolidation Officer on 24th May, 1981. The aforesaid appeal before the Additional Director against the aforesaid order dated 27th August, 1984 passed by the Settlement Officer was instituted on 30th May, 1985, i.e. nine months after the passing of the aforesaid order by the Settlement Officer. The said appeal filed by respondent No. 2 Jagdish Chand was allowed by the Additional Director. Aggrieved, the petitioner herein Amar Nath filed a revision petition in terms of Section 54 of 1971 Act which was dismissed by Shri Sanjay Gupta, IAS, Director, Consolidation of Holdings, Himachal Pradesh vide his judgment dated 17th December, 2002 which is impugned in this petition. 3. In the course of the aforesaid judgment dated 17th December, 2002, the Director, Consolidation of Holdings, respondent No. 1 herein did take notice of one of the grounds of revision urged by the petitioner, viz the ground respecting limitation in the filing of the appeal by respondent No. 2 before the Additional Director (Consolidation). The following part of the impugned order dated 17th December, 2002 may be reproduced verbatim about the raising of the ground of limitation: Secondly the appeal was time barred... . 4. The following part of the impugned order dated 17th December, 2002 may be reproduced verbatim about the raising of the ground of limitation: Secondly the appeal was time barred... . 4. After noticing the aforesaid ground of revision concerning the limitation aspect with respect to the filing of the appeal before the Additional Director under Section 30(4) of 1971 Act, the Director in the course of the impugned order dated 17th December, 2002 dealt with this question in the following manner: Second objection of the applicant is regarding limitation and the same is also not tenable because when, the technicality and merit are tiffed (sic) against each other and substantial justice has to be done, priority is to be given to the merits. Section 30(4) of 1971 Act reads thus: (4) Any person aggrieved by the order of the Settlement Officer (Consolidation) under Sub-section (3) may within sixty days of that order appeal to the Director of Consolidation of Holdings. The order of the Director of Consolidation of Holdings on such appeal and subject only to such order, the order of the Settlement Officer (Consolidation) under Sub-section (3) or, if the order of the Consolidation Officer under Sub-section (2) was not appealed against, such order of the Consolidation Officer, shall be final and shall not be liable to be called in question in any Court. 5. A bare reading of Section 30(4) (supra) clearly reveals that appeal against the order of Settlement Officer (Consolidation) passed under Sub-section (3) of Section 30 has to be filed before the Director of Consolidation of Holdings and the period of limitation prescribed therefore is 60 days from the date of the passing of the impugned order by the Settlement Officer. Undoubtedly the appeal before the Additional Director filed by respondent No. 2 was time barred not by a few days or few weeks but by as much as more than seven months because the Settlement Officer had passed the impugned order on 27th August, 1984 and the appeal was filed before the Additional Director on 30th May, 1985. Since the appeal was patently time barred and by as much as more than seven months it surely was not maintainable. Since the appeal was patently time barred and by as much as more than seven months it surely was not maintainable. It is a common knowledge that time barred appeal is liable to be dismissed because once limitation for filing the appeal gets expired, a right stands vested in the respondent in raising the plea of limitation and asking the Appeal Court to dismiss the appeal as time barred. 6. If in a statute the Legislature has prescribed a period of limitation with respect to the filing of an appeal, it is expected that this statutory provision has to be respected and followed by every one, including the Appeal Court as well as the higher Court of revision. If, based on such prescription in the statute a time barred appeal has been entertained by an Appeal Court, it does not absolve the Appeal Court of his duty to dismiss the time barred appeal even at the stage of the final arguments of the case. So much for the Additional Director (Consolidation) who had entertained a time barred appeal and had also allowed the same vide his order passed on 29th December, 2001, he thus having failed in his statutory duty to take notice of the aforesaid limitation aspect. The Additional Director (Consolidation) (Shri V.C. Katoch, HAS) had, therefore, committed a patent error of law on the very face of the judgment passed by him on 29th December, 2001. 7. In so far as respondent No. 1 - Director, Consolidation of Holdings is concerned he went a step further than the Additional Director by innovating a proposition of law unheard of in any jurisprudential system wherein he evolved a wholly untenable legal hypothesis that even if an appeal is time barred, without the appellant having prayed for condonation of delay on the basis of sufficient cause and grounds, and after satisfying the Appeal Court of the sufficiency of the cause, such a time barred appeal should be allowed since substantial justice was required to be done because, according to the Director of Consolidation, "technicality and merit are tiffed (sic) against each other". 8. Limitation is not a mere technicality of law. 8. Limitation is not a mere technicality of law. It is a part of the substantive law because once limitation with respect to the filing of an appeal gets expired, a right stands accrued in favour of the opposite party in the appeal to claim that the remedy of the appellant of filing the appeal stood extinguished. Terming the limitation aspect as a mere technicality of law was an error on the part of the Director of Consolidation who betrayed his total ignorance of the basic legal prudence, apart from demonstrating his scant regard to the explicit and binding statutory provision enacted by none else than a competent Legislature under the Constitution of India. The Director of Consolidation, therefore, either because of total ignorance of law on his part, or by mis-applying specific and binding legal principles passed the aforesaid judgment dated 17th December, 2002 which has wholly vitiated the proceedings against the petitioner. The petitioner's objections regarding the limitation aspect with respect to the appeal filed before the Additional Director (decided by him on 29th December, 2.001) was erroneously dealt with by the Director. 9. For the foregoing reasons, the impugned judgment dated 17th December, 2002 passed by the Director, Consolidation of Holdings is set aside. Consequently, the judgment dated 29th December, 2001 passed by-Mr. V.C. Katoch (HAS), Additional Director, Consolidation Department in case No. 7/88 is also quashed and set aside. Case No. 7/88 is remanded to the Additional Director of Consolidation Department with directions to him to dispose it of afresh, on its merits and in accordance with law in the light of the aforesaid observations. 10. A copy of this judgment be sent to the Chief Secretary, Government of Himachal Pradesh for his information and necessary action, in the light of the observations made herein with respect to the aforesaid two officers. 11. The petition is disposed of. The parties are left to bear their own costs.