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2014 DIGILAW 3347 (ALL)

Lakhpati v. Dy. Director of Consolidation

2014-11-11

ANJANI KUMAR MISHRA

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JUDGMENT Anjani Kumar Mishra, J. 1. Heard Sri Manish Kumar Nigam, learned Counsel for the petitioner and Sri S.K. Mishra, who has filed caveat on behalf of respondent No. 3, the sole contesting respondent in the writ petition. The writ petition is directed against the orders dated 15.4.2014 and 27.6.2014, passed by the Settlement Officer, Consolidation (for short, SOC) and the Dy. Director of Consolidation (for short, DDC), respectively. 2. The facts of the case, briefly stated, are that, admittedly, the land in dispute belonged to one Avtar. The petitioner claims on the basis of a Will executed in her favour by Avtar. It is the further case of the petitioner that an order was passed in her favour by the Assistant Consolidation Officer (for short, ACO) for mutating her name over the land in dispute on the basis of the aforesaid will on 14.4.1994. Although this order was passed, the same was not implemented in the revenue records. 3. On the contrary, on the death of Avtar, his heirs were mutated, as a result whereof the petitioner initiated proceedings under section 34 of the U.P. Land Revenue Act for recording her name over the plots in dispute on the basis of the order of the ACO passed in her favour. The Naib Tehsildar, by his order dated 15.10.1999 allowed the application under section 34 of the Land Revenue Act. 4. Against the said order of the Naib Tehsildar, respondent No. 3 preferred an appeal, which was allowed by the Assistant Record Officer on 12.6.2003. 5. The consequential revision filed by the petitioner was allowed by the Addl. District Magistrate (Finance and Revenue), vide order dated 9.3.2007. 6. Subsequent to the order dated 9.3.2007, respondent No. 3 preferred a time-barred appeal against the order dated 14.4.1994 before the SOC. This appeal was filed on 30.3.2007 along with an application for condonation of delay. The petitioner filed her objection to this application for condonation of delay. She also filed another application praying that the question of delay be decided first, as a preliminary issue. This application of the petitioner was dismissed by the SOC vide order dated 15.4.2014, who held that both the questions of limitation and merits of the appeal would be decided together. This order has been affirmed by respondent No. 1, who dismissed the revision filed by the petitioner on 27.6.2014. 7. This application of the petitioner was dismissed by the SOC vide order dated 15.4.2014, who held that both the questions of limitation and merits of the appeal would be decided together. This order has been affirmed by respondent No. 1, who dismissed the revision filed by the petitioner on 27.6.2014. 7. Learned Counsel for the petitioner has submitted that the appeal was filed after an inordinate delay of about 23 years. The contesting respondent was aware of the order, at least since 15.10.1999 when she filed the appeal against the order passed by the Naib Tehsildar in proceedings under section 34 of the Land Revenue Act. He has, lastly, submitted that till such time the delay in filing the appeal; is condoned, there is no appeal in the eyes of law and, therefore, the impugned orders are patently illegal and are liable to be set aside. Learned Counsel appearing for the caveator-respondent, on the other hand, has vehemently supported the impugned orders and has placed reliance on the judgment in Indrajeet Singh v. DDC and others, 2014 (123) RD 254 . 8. I have considered the aforesaid submissions made by the learned Counsel for the parties and have perused the record. 9. This Court in the case of Indrajeet Singh (supra), relying upon the decision of the Apex Court in the case of Ramesh Chandra Sankala v. Vikram Cement, (2008) 14 SCC 58 , has held that there is no bar on the consolidation authorities to decide preliminary objections along with an appeal or a revision. Paragraph 11 of the said judgement, passed by the learned Single Judge of this Court, is reproduced below: "The Supreme Court in Ramesh Chandra Sankla v. Vikram Cement, 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 XIV (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 decisions 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. This causes delay. It is considered that this delay should be eliminated, by providing that a Court must give judgement 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 the circumstance that procedure of Code of Civil Procedure has not been applied in the proceeding under the Act and in view of the latest pronouncement of Supreme Court in Ramesh Chandra Sankh's, Manubhai J. Patel's case cannot be followed." 10. The portion extracted above is a complete answer to the controversy raised in this writ petition., and in view of the same, the submissions made by the learned Counsel for the petitioners lack substance. The writ petition, therefore, is dismissed and the orders impugned are affirmed.