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2014 DIGILAW 3349 (ALL)

Vinod v. Dy. Director of Consolidation

2014-11-11

ANJANI KUMAR MISHRA

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JUDGMENT Anjani Kumar Mishra, J. 1. Heard Sri A.P. Tewari, learned Counsel for the petitioners and Sri Amit Kumar Singh, who has filed caveat on behalf of the contesting respondent Nos. 3 and 4, as also learned Standing Counsel for the State-respondents. This writ petition arises out of an objection under section 20(1) of the U.P. Consolidation of Holdings Act, which was decided on the basis of a compromise order passed on 31.7.1995. The parties to the writ petition are brothers. 2. Against the compromise order, two appeals were filed, which were dismissed on 12.11.2001. Two revisions were filed against the appellate order, one by Baleshwar and the other by Vachaspati, father of the contesting respondents. 3. The Deputy Director of Consolidation (for short, the DDC) dismissed both these revisions by his order dated 3.1.2005. 4. It is alleged that thereafter Vachaspati, father of the contesting respondents, filed an appeal against the compromise order dated 31.7.1995. Further, Vachaspati also preferred a restoration application before the Consolidation Officer on 19.4.2006 after withdrawing the appeal filed by him. The ground taken in the restoration application was that the compromise, which was the basis of order dated 31.7.1995, was a forged one. 5. The petitioners filed an objection to the restoration application raising questions of limitation and maintainability of the restoration application itself. They filed yet another objection praying that the question of the maintainability and the limitation be decided as preliminary issues. The Consolidation Officer declined to decide the question of limitation and maintainability of the restoration application as preliminary issues. This order has been affirmed by the Revisional Court vide order dated 28.7.2014. 6. The DDC has dismissed the revision on the ground that the Consolidation Officer had observed that all pending applications would be decided along with the restoration application and, as such, the order impugned before him was interlocutory in nature and, therefore, no revision lay against the same. It is these two orders which are impugned in the instant writ petition. 7. The question, therefore, which arises for consideration in the instant writ petition is as to whether or not the issues of the maintainability of the restoration application filed by the contesting respondents and the question of limitation therein are to be decided as preliminary issues. 8. It is these two orders which are impugned in the instant writ petition. 7. The question, therefore, which arises for consideration in the instant writ petition is as to whether or not the issues of the maintainability of the restoration application filed by the contesting respondents and the question of limitation therein are to be decided as preliminary issues. 8. Sri A.P. Tewari, learned Counsel for the petitioners, has submitted that the question of maintainability of the restoration application, and also regarding the delay condonation in filing the same necessarily was required to be decided first, and the Consolidation Officer, as also the DDC had committed a patent illegality in refusing to do so. In support of his contention, he has relied upon the judgments in 199 RD 309 and 2006 RD 100. 9. Learned Counsel appearing for the caveator-respondent, on the other hand, has vehemently supported the impugned orders and has placed reliance on the judgment reported in Indrajeet Singh v. DDC and others, 2014 (123) RD 254 . 10. I have considered the aforesaid submissions made by the learned Counsel for the parties and have perused the record. 11. 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 , reported in, 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 judgment, 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 Sankla's, Manubhai J. Patel's case cannot be followed." 12. The paragraph quoted 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 merit. The writ petition, therefore, is dismissed and the orders impugned are affirmed.