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2014 DIGILAW 3816 (ALL)

Kailash v. D. D. C.

2014-12-22

ANJANI KUMAR MISHRA

body2014
JUDGMENT Anjani Kumar Mishra, J. 1. The instant Writ petition and the other writ petitions, namely, Writ Petition No. 55324 of 2011, Writ Petition No. 55329 of 2011, 55565 of 2011 and 55326 of 2011 are connected matters. They have been heard together and are being decided by a common judgment, which shall govern all the cases in this bunch. I have heard Sri Uday Karan Saxena, learned Counsel for the petitioners in all these writ petitions on 21.8.2014. He had completed his arguments. On a prayer made by Sri Ram Surat Saroj, learned Counsel for the respondents in the writ petitions, the matter was adjourned for 22.8.2014 to enable him to make his submissions. Even when the case was called out in the second reading of the additional cause list on 22.8.2014, the Counsel for the respondents failed to appear. Under the circumstances, judgment in all the cases were reserved. Subsequently on a mention made on behalf of the respondents the Counsel for the respondents was also heard. 2. The instant writ petition, namely, Writ Petition No. 57573 of 2011 is treated as the leading case. 3. This writ petition arises out of proceedings for allotment of Chaks and has been filed seeking a writ of certiorari for quashing the impugned orders dated 24.8.2011 and 15.12.2010, passed by the Deputy Director of Consolidation, Gautam Budh Nagar. 4. The predecessors in interest of the petitioners, filed an objection under section 22(1) of the U.P. Consolidation of Holdings Act, praying for a Chak over plot Nos. 173, 174, 176 and 342, which were their original holding and situated on the main road. A further prayer was made that plot Nos. 173 and 174 had been illegally reserved for a school and that this land also be included in his Chak. 5. This objection of the petitioners was decided with several other objections by the Consolidation Officer vide order dated 19.6.1982. Not satisfied by such order, the petitioners' predecessor in interest preferred an appeal. The appeal was allowed by the order dated 11.8.1982 granting relief to the petitioners. 6. The order of the Appellate Authority was challenged by means of a revision filed by respondent No. 4, Ramphal son of Khacheru. This revision, along with other connected revisions, was allowed by order dated 26.11.1982. Writ petitions were filed challenging the order of the revisional authority. 6. The order of the Appellate Authority was challenged by means of a revision filed by respondent No. 4, Ramphal son of Khacheru. This revision, along with other connected revisions, was allowed by order dated 26.11.1982. Writ petitions were filed challenging the order of the revisional authority. All these writ petitions were allowed by a common judgment and order dated 5.11.2004 and the matters were remanded back to the Deputy Director of Consolidation. The Deputy Director of Consolidation decided the revisions in pursuance of the order of remand by the order dated 19.11.2009. It is the case of the petitioners that this order dated 19.11.2009 was passed after hearing all concerned parties. 7. A recall application was filed by respondent No. 4 for recalling the order dated 19.11.2009 on the ground that since the Advocates were on strike, the revisions could not be properly argued by his counsel. The respondent No. 1 allowed the recall application by his order dated 15.12.2010 and thereafter by the order dated 24.8.2011 substantially affirmed the earlier order dated 26.11.1982 making slight modifications therein. Hence, this writ petition challenging the orders dated 24.8.2011 as also the order dated 15.12.2010, whereby the recall application filed by the respondent No. 4 was allowed. 8. Apart from assailing the impugned order dated 24.8.2011 on the merits of the rival claims, learned Counsel for the petitioners has submitted that the recall application was wrongly and illegally allowed by the Deputy Director of Consolidation by his order dated 15.12.2010. By this order, the order dated 19.11.2009 passed by the erstwhile Deputy Director of Consolidation dismissing the revisions of respondent No. 4 had been recalled. He submits that the order dated 19.11.2009 was not an ex-parte order. It was an order passed on the merits after hearing the parties. The recall application was filed by the respondent No. 4 alleging that since the advocates were on strike, his Counsel could not properly argue the revision. It has been submitted that there is evidence on record to show that the Counsel for the respondent No. 4 had signed the order sheet on the date the matter was heard and, therefore, the Deputy Director of Consolidation has reviewed an earlier order, which power he does not possess under the Act. 9. I have perused the order dated 15.12.2010. 9. I have perused the order dated 15.12.2010. It has been recorded therein that although it is true that the signatures of Counsel for both the parties are available on the order sheet, yet, since the Counsel for the applicant (respondent No. 4 in the writ petition) has submitted that due to a strike by the lawyers, complete submissions could not be made and since the applicant-revisionist himself could not appear on account of his illness and since the High Court and the Hon'ble Supreme Court have consistently held that the Consolidation Courts should adopt a liberal approach in matters of condonation of delay and, therefore, in the interest of justice, the delay was condoned and the restoration application allowed. 10. In view of the categorical finding recorded in the order itself and in view of the admitted position that arguments were advanced by the Counsel for respondent No. 4 and the judgment was announced thereafter, allowing the restoration application amounts to review of the order dated 19.11.2009. It is the settled legal position that the Deputy Director of Consolidation while exercising powers under section 48 of the U.P. Consolidation of Holdings Act does not possess the power to review his order as has been held by the Full Bench of this Court in Smt. Shivraji v. DDC 1997 RD 562 . It is, therefore, abundantly clear that by the order dated 15.12.2010, the Deputy Director of Consolidation has reviewed the earlier order, which had been passed on merits after hearing the Counsel for the parties and, therefore, the same cannot be sustained and is liable to be set aside. Since the Counsel was heard, it is immaterial that the respondent himself was not present on account of his illness. 11. Learned Counsel for the respondents has tried to justify the impugned orders. He has submitted that the recall application was rightly allowed as complete submissions could not be made on account of the lawyers strike. He has ultimately submitted that in case the impugned orders are set aside he would have no objection to the matter being remanded back for a fresh decision on merits after hearing the parties. 12. It is not in dispute that the order dated 19.11.2009 was passed after hearing the parties or their counsel. The case of the respondents in the restoration application was only that his Counsel could not make complete submissions. 12. It is not in dispute that the order dated 19.11.2009 was passed after hearing the parties or their counsel. The case of the respondents in the restoration application was only that his Counsel could not make complete submissions. There is nothing on record to indicate that any such plea was taken at the time of arguments. Admittedly, the Counsel of the contesting respondents had put his signature on the order sheet of the relevant date. He had not made any endorsement that in fact his arguments were not complete nor has anything been noted by the Presiding Officer that arguments had not been concluded nor any date was fixed for further hearing. 13. Under the circumstances, this Court is of the considered opinion that the order dated 19.11.2009 was passed after hearing the parties and the restoration application was wrongly allowed and the subsequent order on the merits amounts to review, which power the Deputy Director of Consolidation does not possess under the Act. 14. Even if it is accepted that the arguments of the Counsel for the respondents were not complete and yet final judgment was pronounced, this would at best amount to an illegality, which could have been corrected only by the Writ Court and the same, in my considered opinion, did not entitle the Deputy Director of Consolidation to reopen the proceedings and decide the same afresh especially as observed hereinabove, this Court is not convinced that complete arguments had not been advanced and, therefore, the impugned orders are patently illegal having been passed without jurisdiction. Absence of the litigant, cannot be a ground for recall of an order, if his Counsel was heard. 15. For the same reason, I do not see any justification for remanding the matter back for a fresh decision after hearing the parties and the contention of learned Counsel for the respondents in this regard is repelled. 16. Upon a consideration of the rival submissions and upon a perusal of the record, I am not convinced by the arguments advanced by learned Counsel for the respondents. The impugned order dated 15.12.2010 is patently illegal having been passed without jurisdiction. 17. Since, the order dated 15.12.2010 has been found to be patently illegal and wholly without jurisdiction, the order dated 24.8.2011 which has been passed consequent to the order dated 15.12.2010 also cannot be sustained. 18. The impugned order dated 15.12.2010 is patently illegal having been passed without jurisdiction. 17. Since, the order dated 15.12.2010 has been found to be patently illegal and wholly without jurisdiction, the order dated 24.8.2011 which has been passed consequent to the order dated 15.12.2010 also cannot be sustained. 18. Under the circumstances, I set aside the orders dated 15.12.2010 and 24.8.2011 as the earlier order dated 19.11.2009 was passed on merits after hearing the parties. 19. Accordingly, the writ petition is allowed and the orders dated 15.12.2010 and 24.8.2011 passed by the Deputy Director of Consolidation, Gautam Budh Nagar are quashed and the order dated 19.11.2009 is restored. There will however be no order as to costs. This order shall govern the connected writ petitions, namely, Writ Petition No. 55324 of 2011, Writ Petition No. 55329 of 2011, 55565 of 2011 and 55326 of 2011 also.