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2014 DIGILAW 3618 (ALL)

Ram Lakhan etc. v. D. D. C.

2014-12-04

ANJANI KUMAR MISHRA

body2014
JUDGMENT Anjani Kumar Mishra, J. 1. Heard Shri Manish Dev Singh, learned Counsel for the petitioner and Shri K.C. Kishan Srivastava, who has filed his appearance on behalf of respondent No. 6, and Shri Manoj Kumar Yadav, who has accepted notice on behalf of Gaon Sabha, respondent No. 5. This writ petition arises out of proceedings for allotment of chaks and has been filed seeking a direction restraining respondent No. 1, the Deputy Director of Consolidation, Jaunpur from deciding revision No. 6297 (Ram Lakhan v. Kirodhan). 2. An order dated 18.7.2013 passed by the Deputy Director of Consolidation, respondent No. 1 is also under challenge. By this order, the respondent No. 1 has allowed a restoration application filed by respondent No. 6 and has set aside an order dated 21.9.1999 on the ground that it was passed without hearing the respondent No. 6. 3. Briefly stated the relevant facts are that three revisions were filed before the Deputy Director of Consolidation. These revisions were directed against the order dated 28.4.1988 passed by the Settlement Officer, Consolidation in two appeals. The revision No. 6219 was filed by Ram Jeet, respondent No. 2, revision No. 6297 was filed by the petitioner, Ram Lakhan while revision No. 6306 was filed by one Shree. These three revisions were consolidated and were decided by a common judgment and order on 21.9.1999, whereby revision No. 6297 filed by the petitioner was allowed, revision No. 6219 filed by Ram Jeet was allowed partly and revision No. 6306 filed by Shree, was dismissed. 4. It appears that against the order dated 21.9.1999, Ramjeet preferred writ petition No. 42465 of 1999. This writ petition came to be dismissed by this Court vide order dated 31.5.2013. Subsequently the Deputy Director of Consolidation by his order dated 18.07.2013 allowed the restoration application filed by the respondent No. 6, Phirtu on 2.6.2001. As a consequence, the order dated 21.9.1999 was set aside and all the three revisions stood restored to their original number. 5. Learned Counsel for the petitioner has submitted that since the order dated 21.9.1999 had been affirmed by this Court by the judgment and order dated 31.5.2013 passed in writ petition No. 42465 of 1999, the revisional order dated 21.9.1999 stood merged with the order of the High Court and the same could not have been set aside by the Deputy Director of Consolidation. 6. 6. In support of this contention the learned Counsel for the petitioner has relied upon the authority reported in Dinesh K.K. v. R.K. Singh and another 2014 (124) RD 90 (SC), and most specially paragraphs 8, 9 and 10 of this judgment. 7. It is, therefore, the contention of the learned Counsel for the petitioner that the revisions which have been restored by order dated 18.7.2013 cannot be permitted to proceed. The second submission is that the finding recorded by the High Court in the judgment dated 31.5.2013 will operate as res-judicata and, therefore, also the revisions which have been revived cannot be proceeded with. The last submission is that in so far as respondent No. 6 Phirtu is concerned, he was not a party in the revision filed by the petitioner being revision No. 6297 and, therefore, the order dated 21.9.1999 in so far as it relates to this revision No. 6297 filed by the petitioner cannot be recalled at his instance. 8. In rebuttal, learned Counsel for the respondent No. 6 has submitted that the order passed by the Deputy Director of Consolidation will not merge with the order passed by the High Court in a revision. He submits that the writ petition is not continuation of the proceedings and, therefore, the orders passed by the consolidation authorities in proceedings under the U.P. Consolidation of Holdings Act will not merge that an order passed by the High Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India. 9. In support of his contention he has relied upon the Full Bench decision of this Court reported in Udai Bhan Singh @ Babban Singh and another v. Board of Revenue and others 1974 RD 107 . 10. Secondly, the learned Counsel for the respondents has submitted that the contention of the petitioner that Phirtu had no concern that the revision filed by the petitioner is without substance. All the three revisions were decided by a common order and two of the revisions were allowed and as a consequence thereof modifications have been made in the chaks of several parties and it is not possible to separate the order in so far as the revisions No. 6297, 6216 are concerned. All the three revisions were decided by a common order and two of the revisions were allowed and as a consequence thereof modifications have been made in the chaks of several parties and it is not possible to separate the order in so far as the revisions No. 6297, 6216 are concerned. He further submits that a perusal of the correction table appended to this order will show that the chak of Phirtu was also effected and this order was passed without hearing Phirtu and, therefore, the order has been rightly recalled. Moreover, since this order is a composite order, the submission made by the learned Counsel for the petitioner in this regard is without substance. 11. I have considered the rival submission made by the learned Counsel for the parties and have perused the record. 12. As regards the question of merger of the order dated 29.9.1999 with the judgment of the High Court passed in writ petition No. 42465 of 1999 dated 31.5.2013 is concerned, the submission of the learned Counsel for the petitioner lacks force and the contention of the learned Counsel for the respondent in this regard which is supported by the Full Bench decision of this Court has to be accepted. The relevant portion of the judgment is extracted below: "An order passed by the High Court under Article 226 of the Constitution, as held by the Supreme Court in State of Uttar Pradesh v. Dr. Vijay Anand Maharaj AIR 1963 SC 946 , and Ramesh v. Gendalal Motilal AIR 1966 SC 1445 , is one in exercise of its extra-ordinary original civil jurisdiction. When a writ petition is filed challenging a decision in a suit or proceeding declaring or adjudicating rights or interest in any land, this Court calls for the record of the suit or proceeding and if it is found to be without jurisdiction or if there is an error of law apparent on the face of the record, the judgment or order is quashed. This Court after quashing the order cannot substitute its own order or decree for the order or decree impugned but must send back to the Court or authority concerned for deciding the case in accordance with law declared by it. This Court after quashing the order cannot substitute its own order or decree for the order or decree impugned but must send back to the Court or authority concerned for deciding the case in accordance with law declared by it. The executable order with regard to the rights of the parties in dispute in such a case is not the order of this Court passed in the writ petition but the decision ultimately given by the Court or authority of which the order was in challenge. If, on the other hand, the petition for a writ is dismissed, again, it is the order of the Court or authority concerned which was impugned that decides the rights of the parties in dispute. It was held by the Supreme Court in AIR 1966 SC 1445 (supra) that: "A petition to the High Court invoking this jurisdiction is a proceeding quite independent of the original controversy. The controversy in the High Court, in proceedings arising under Article 226 ordinarily is whether a decision of or a proceeding before, a Court or Tribunal or authority, should be allowed to stand or should be quashed, for want of jurisdiction or on account of errors of law apparent on the face of the record." It is thus clear that a decision in a writ petition is not a decision about the merits of the rights of the parties in issue in the proceedings giving rise to it. It has further to be noted that a proceeding under Article 226 of the Constitution is not a continuation of the suit or proceeding giving rise to it and there exists a clear distinction between an appeal or revision and a writ petition directed against orders passed therein. It was held by the Supreme Court in Ahmedabad Manufacturing & Calico Printing Co. Ltd. v. Ramtahel Ramanand AIR 1972 SC 1598 , that: "Under Article 226 of the Constitution it may in this connection be pointed out that the High Court does not hear an appeal or a revision; that Court is moved to interfere after bringing before itself the record of a case decided by or pending before a Court, a Tribunal or an authority, within its jurisdiction. A decision in the exercise of this extraordinary jurisdiction which finally disposes of the proceedings is a final order, in an original proceeding. A decision in the exercise of this extraordinary jurisdiction which finally disposes of the proceedings is a final order, in an original proceeding. An appeal or a revision on the other hand is generally considered to be a continuation of the original suit or proceeding..............." If a writ petition is not a continuation of the original suit or proceeding unlike an appeal or revision the inference is not only reasonable but inevitable that orders passed in the original suit or proceeding or in an appeal or revision arising therefrom do not merge in the orders passed in such petition. Since a special appeal, directed against an order passed in a writ petition is merely a rehearing of the petition itself, it has all the above mentioned characteristics of a petition under Article 226 of the Constitution." 13. It is clear from a perusal of the correction table appended to the order dated 29.1.1999 that the chaks of the parties mentioned therein have been modified by this order. The correction table is a composite one and cannot be bifurcated as regards the different revisions which have been decided therein and for this reason the submission of the learned Counsel for the petitioner that Phirtu has no concern with Revision No. 6297 filed by the petitioner also cannot be accepted. 14. The submission of the learned Counsel for the petitioner that the findings recorded by the DDC in the order dated 21.9.1999 which has been affirmed by the High Court in the judgment dated 31.5.2013 would operate as res-judicata also cannot be accepted for the reason that this order dated 21.9.1999 has been held to be ex-parte as against the respondent No. 6 Phirtu. The High Court while deciding the writ petition did not consider the question as to whether the order impugned was a ex party order or not. An order which is ex parte can always be and must be recalled once it is established that it is ex parte and for this reason the submission of the learned Counsel for the petitioner cannot be accepted. 15. Accordingly and for the reasons given above, there is no justification for granting the relief claimed by the petitioner. The writ petition lacks merits and is accordingly dismissed.