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2014 DIGILAW 2738 (ALL)

Ramesh Kumar v. Deputy Director of Consolidation

2014-09-05

RAM SURAT RAM (MAURYA)

body2014
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri Anil Kumar Pandey, for the petitioner. 2. The writ petition has been filed against the orders of Settlement Officer Consolidation dated 26.03.2014, rejecting the application of the petitioner for deciding delay condonation application first, before hearing arguments on merit in the appeal and Deputy Director of Consolidation dated 16.07.2014, dismissing the revision of the petitioner against the aforesaid order, arising out of proceeding under Section 12 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 3. Medi Lal (respondent-3) filed an appeal from the order of Consolidation Officer dated 26.11.1996, on 23.12.2001, along with prayer for condonation of delay along with affidavit. The petitioner filed an objection against prayer for delay condonation and moved an application on 26.03.2014, for deciding issue relating to delay condonation, before hearing arguments on merit in the appeal. Settlement Officer Consolidation, by order dated 26.03.2014, rejected the request of the petitioner and held that arguments in delay condonation and in the appeal on merit would be heard together. The petitioner filed a revision against the aforesaid order, which has been dismissed by Deputy Director of Consolidation. Hence this writ petition has been filed. 4. The counsel for the petitioner submitted that Section 11 of the Act provides 21 days limitation for filing the appeal against the order of Consolidation Officer. Although by virtue of Section 53B of the Act, Section 5 of Limitation Act, 1963 has been applied in the proceedings under the Act but so long as delay in filing the appeal is not condoned, a time barred appeal cannot be treated a valid appeal nor it can be heard on merit. Issue relating to limitation is an issue relating to jurisdiction of the Court. So long as delay is not condoned, Settlement Officer Consolidation has no jurisdiction to hear and decide the appeal on merit. Otherwise also, if delay is not condoned, there will no obligation on the respondent in the appeal to argue it on merit. Orders of respondents-1 and 2 are illegal and liable to be set aside. He placed reliance on the judgment of this Court in Bhagwat Vs. DDC and others, 1990 RD 162, Prabhu Vs. DDC and others, : 2013 (118) RD 48, Jais Lal Vs. DDC and others, 2014 (122) RD 118 and Smt. Munaki Devi and another Vs. Dy. Orders of respondents-1 and 2 are illegal and liable to be set aside. He placed reliance on the judgment of this Court in Bhagwat Vs. DDC and others, 1990 RD 162, Prabhu Vs. DDC and others, : 2013 (118) RD 48, Jais Lal Vs. DDC and others, 2014 (122) RD 118 and Smt. Munaki Devi and another Vs. Dy. Director of Consolidation and others, 1990, RD, 243, in which it has been held that delay condonation application should be decided first and in case delay is condoned, then arguments in appeal on merit be heard otherwise the appeal be dismissed as time barred. 5. I have considered the arguments of the counsel for the petitioner and examined the record. Section 11 of the Act, which provides the provision for appeal is quoted below: - Section 11 -Appeal.-(1) Any party to the proceedings under Section 9A aggrieved by an order of the Assistant Consolidation Officer or the Consolidation Officer under that Section may within 21 days of the date of the order, file an appeal before Settlement Officer Consolidation, who shall after affording opportunity of being heard to the parties concerned, give his decision thereon which, except as otherwise provided by or under this Act, shall be final and not be questioned in any Court of law. 6. By virtue Section 53B of the Act, provisions of Section 5 of the Limitation Act, 1963 has been applied to all the proceedings under the Act. Section 5 of the Limitation Act, 1963 is quoted below: - Section 5.-Extension of prescribed period in certain case.-Any appeal or application, other than the application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908) may be admitted after prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. 7. There is no provision like Order 41 Rule 3A Code of Civil Procedure, 1908, in the Act, which made mandatory for deciding delay condonation application, before passing any order in the appeal. A Full Bench of this Court in Bijai Narain Vs. State of U.P.,: AIR 1970 All 241 (FB) has held that the provision of Code of Civil Procedure has not been applied in the proceeding under the Act. A Full Bench of this Court in Bijai Narain Vs. State of U.P.,: AIR 1970 All 241 (FB) has held that the provision of Code of Civil Procedure has not been applied in the proceeding under the Act. Section 5 of the Limitation Act, 1963 requires for giving explanation of the cause, for not preferring the appeal or the application within period of limitation prescribed under the Act. U.P. Consolidation of Holdings Act, 1953 does not prescribed for filing a separate application for condonation of delay as required under Order 41 Rule 3A in Code of Civil Procedure, 1908. Explanation of delay can be given even in memorandum of the appeal and technical provisions of Code cannot be borrowed suo moto. In Bhagwat's case (supra) this Court found that consolidation is State imposed compulsory litigation on rustic villagers. Right of the parties are decided finally during consolidation for ever. On the one hand the Act provides shorter limitation for filing appeal etc. than the limitation as provided under Limitation Act, 1963, which shows the purpose is for speedy disposal of cases and finalization of consolidation but at the same time authorities were given power of condonation of delay in appropriate cases to prevent miscarriage of justice. 8. The appeal, application and revision under the Act are decided, adopting summary procedure. This Court in Ram Rati Vs. DDC and others, 1998 ALJ 1740 held that delay condonation application can be decided while deciding the objection on merit. In the absence of statutory provision, consolidation authorities used to decide delay condonation application in the appeal, application and revision under the Act, along with the appeal, application and revision. Giving opportunity of hearing to the parties is only requirement under Section 11 and 48 of the Act, for deciding the appeal and revision. In the absence of statutory provision, requiring to decide delay condonation application first, order of Settlement Officer Consolidation directing to hear delay condonation application and along with final arguments in appeal cannot be held to suffer from any illegality. 9. Supreme Court in Ramesh Chandra Sankla v. Vikram Cement, (2008) 14 SCC 58 , held that the Law Commission also considered the question and did not favour the tendency of deciding some issues as preliminary issues. Dealing with Rule 2 of Order 14 (before the amendment), the Commission stated: "This Rule has led to one difficulty. 9. Supreme Court in Ramesh Chandra Sankla v. Vikram Cement, (2008) 14 SCC 58 , held that the Law Commission also considered the question and did not favour the tendency of deciding some issues as preliminary issues. Dealing with Rule 2 of Order 14 (before the amendment), the Commission stated: "This Rule has led to one difficulty. Where a case can be disposed of on a preliminary point (issue) of law, often the courts do not inquire into the merits, with the result that when, on an appeal against the finding on the preliminary issue, the decision of the court on that issue is reversed, the case has to be remanded to the court of first instance for trial on the other issues. This causes delay. It is considered that this delay should be eliminated, by providing that a court must give judgment on all issues, excepting, of course, where the court finds that it has no jurisdiction or where the suit is barred by any law for the time being in force." Apart from the fact that the provisions of the Code do not stricto sensu apply to "industrial adjudication", even under the Code, after the Amendment Act, 1976, the normal rule is to decide all the issues together in a civil suit. In view of judgment of Supreme Court, view taken by this Court in Bhagwat Vs. DDC and others, 1990 RD 162, Prabhu Vs. DDC and others, 2013 (118) RD 48 and Jais Lal Vs. DDC and others, : 2014 (122) RD 118 , is not liable to be accepted. 10. In view of the aforesaid discussion, the writ petition has no merit and is dismissed.