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2018 DIGILAW 105 (ALL)

RAM v. D. D. C. , BALLIA

2018-01-10

SALIL KUMAR RAI

body2018
JUDGMENT : SALIL KUMAR RAI, J. 1. Heard Shri Srijan Mehrotra, Advocate, holding brief of Shri Manish Nigam, counsel for the petitioner and Standing Counsel for respondent Nos. 1 and 2. 2. The present writ petition has been filed by the petitioner praying for a writ of certiorari quashing the orders dated 22.1.2001 passed by respondent No. 1-Deputy Director of Consolidation, Ballia (hereinafter referred to as, 'D.D.C.') and 2.6.2000 passed by respondent No. 2-Settlement Officer Consolidation, Ballia (hereinafter referred to as, 'S.O.C'). 3. The facts of the case are that Consolidation Officer, Chitbara, District-Ballia vide his order dated 31.1.2000 directed that the name of petitioner be recorded in place of one Paramjotia, who was Chakdar No. 90 and had died. The said order was passed in favour of petitioner on the basis of an alleged will dated 18.9.1999 executed by Paramjotia in favour of petitioner. The respondent No. 3 filed an appeal under Section 11(1) of Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act, 1953') in the Court of respondent No. 2 against the order dated 31.1.2000. The said appeal was registered as Appeal No. 6128. In the aforesaid appeal, respondent No. 3 also filed an application praying that till the disposal of appeal, the order dated 31.1.2000 passed by Consolidation Officer, Chitbara, Ballia may remain stayed. Appeal No. 6128 was delayed and time barred, and therefore, alongwith said appeal, respondent No. 3 also filed an application praying to condone the delay in filing the said appeal. Respondent No. 2 vide his order dated 2.6.2000 stayed the operation of order dated 31.1.2000 passed by Consolidation Officer, Chitbara, Ballia and also held that it would be appropriate to decide the delay condonation application along with the appeal itself. 4. It is noteworthy that by order dated 2.6.2000, respondent No. 2 had stayed the operation of the order dated 31.1.2000 only till 30.6.2000. Against the order dated 2.6.2000 passed by respondent No. 2, petitioner filed a Revision under Section 48 of the Act, 1953 in the Court of respondent No. 1, which was registered as Revision No. 1962. The said revision was dismissed by respondent No. 1 on the ground that Revision No. 1962 had become infructous as the same was against an interim order passed by respondent No. 2, which was effective only till 30.6.2000. The said revision was dismissed by respondent No. 1 on the ground that Revision No. 1962 had become infructous as the same was against an interim order passed by respondent No. 2, which was effective only till 30.6.2000. By his order dated 22.1.2001, respondent No. 1 also directed respondent No. 2 to decide Appeal No. 6128 on merits and at the same time consider and decide the issues relating to limitation/delay in filing the said appeal. 5. Counsel for the petitioner has argued that the order dated 2.6.2000 passed by respondent No. 2 staying the operation of order dated 31.1.2000 passed by Consolidation Officer, Chitbara, Ballia was without jurisdiction. He has further argued, that under the law, respondent No. 2 cannot proceed with the hearing of appeal on merits without first deciding the issue of limitation and delay in filing the appeal by respondent No. 3 and in view of the said proposition the order passed by respondent No. 1 directing respondent No. 2 to decide the appeal on merits and the issue of limitation/delay in filing the said appeal together would amount to conferring a jurisdiction which is not vested in respondent No. 2 and would also amount to directing the respondent No. 2 to follow a procedure contrary to law. Counsel for the petitioner has referred to Order 41 Rule 3A (2) and (3) of Civil Procedure Code, 1908 and has relied on the following judgements in support of his arguments:- (a) Bhagwat and Others Vs. D.D.C. and Others, (1990) RevDec 162, (b) Smt. Munaki Devi Vs. D.D.C.,1990 RevDec 243; and (c) Ram Kali Devi (Smt.) Vs. Manager, Punjab National Bank, Shamshabad and Others, (1997) 31 AllLR 222. 6. The legality of order dated 2.6.2000 passed by respondent No. 2 to the extent it stayed the operation of order dated 31.1.2000 passed by Consolidation Officer is not required to be considered in this writ petition as the said order was operative only till 30.6.2000 and is not in existence at present. 7. 6. The legality of order dated 2.6.2000 passed by respondent No. 2 to the extent it stayed the operation of order dated 31.1.2000 passed by Consolidation Officer is not required to be considered in this writ petition as the said order was operative only till 30.6.2000 and is not in existence at present. 7. The other contention of counsel for the petitioner is that respondent No. 2 cannot decide the appeal on merits and the issue of limitation/delay in filing the said appeal by the same order as the said procedure would be contrary to law in view of Order 41 Rule 3A of C.P.C., 1908, and therefore, order dated 22.1.2001 passed by respondent No. 1 directing the respondent No. 2 to decide Appeal No. 6128 on merits as well as on the issue of limitation together is illegal as the same amounts to directing respondent No. 2 to follow a procedure contrary to law. The question regarding applicability of Code of Civil Procedure, 1908 was considered in Indrajeet Singh Vs. Deputy Director of Consolidation, Gorakhpur and Others, (2014) 4 ADJ 349 , and this Court held that Civil Procedure Code, 1908 is not applicable to proceedings under the Act, 1953. Therefore, Order 41 Rule 3A of C.P.C., 1908 is not applicable to proceedings in any appeal filed before the S.O.C., in the present case respondent No. 2. The only restriction on the consolidation authorities is that they cannot decide any appeal or revision on merits without deciding the issue of limitation/delay in filing the said appeal or revision. There is no legal prohibition on the authorities to consider the question of limitation as well as merits together and decide both through a single order. The said question has already been decided by this Court in Laxmi Kant Vs. State of U.P. and others, (2003) 95 RevDec 374 and Abdul Karim Vs. Deputy Director Consolidation, Basti and Others, (2003) 94 RevDec 186. The relevant portion of judgement of Laxmi Kant is quoted hereinbelow:- ".......This court has considered the aforesaid Munaki Devi's cases in a recent judgement in Abdul Karim Vs. Deputy Director of Consolidation, Basti and others, and taken the view that no error was committed by appellate authority in considering the question of limitation as well as merits together. Following was laid down by this Court in paragraph-7 of the aforesaid judgment :- "7. Deputy Director of Consolidation, Basti and others, and taken the view that no error was committed by appellate authority in considering the question of limitation as well as merits together. Following was laid down by this Court in paragraph-7 of the aforesaid judgment :- "7. So far as the submission of learned counsel for the petitioner that the application under Section 5 of Limitation Act should have been decided by the appellate authority first before proceeding on merits and the appeal was not to be entertained as it was not accompanied by an application under section 5 of Limitation Act, also merits dismissal. A perusal of the memo of appeal which has been filed by the opposite party which has been brought on record as Annexure-5 to the writ petition clearly indicates that in the memo of appeal itself, explanation has been offered for filing appeal after Director of Education-notification and a specific prayer at several places besides in the prayer clause has been made that the appeal be allowed after giving benefit of Section 5 of Limitation Act and thus the submission that no separate application has been filed in this respect, being too technical on the facts, cannot be accepted. The other submission that the appellate authority was required to decide the question of delay condonation first, also cannot be accepted as the Deputy Director of Consolidation has clearly directed that the appellate authority will decide the question of limitation as well as merits together after hearing the parties. In the event, appellate authority finds that the appeal is barred by time and there is no proper explanation, then there may not be any question of adjudication on merits and, therefore, there appears to be no harm if the appellate authority is permitted to hear the arguments on both aspects together, i.e., the question of limitation as well as merits. The aforesaid exercise will save the time of the Court as well as of both parties. the appellate authority can only proceed on merits when the delay in filing appeal is condoned and thus in the event, the judgment of the appellate authority goes against the petitioner on both issues, i.e., on merits and the limitation, it will be open for him to challenge the same before the revisional authority on both counts. the appellate authority can only proceed on merits when the delay in filing appeal is condoned and thus in the event, the judgment of the appellate authority goes against the petitioner on both issues, i.e., on merits and the limitation, it will be open for him to challenge the same before the revisional authority on both counts. On the facts, this Court finds that in the event the authority is directed to decide only the question of limitation first then in view of the decision either way, it will lead to multiplicity of proceedings, i.e., taking the matter to the higher forum which may not be the in the ends of justice." 8. Another judgment of this Court which has taken the same view is Sajjan Kumar v. Deputy Director of Consolidation, Muzaffar Nagar and others. It was held by this Court on paragraph 4 of the said judgment :- "4. There is, however, no bar that the authority concerned cannot hear the arguments on the application filed for condonation of delay as well as on the merit of the case. In case the delay is not to be condoned the authority concerned may reject the application. If however, the authority concerned finds that the application for condonation is to be allowed, it can decide the case on merit." 8. A perusal of the judgment of this Court in Laxmi Kant shows that reliance placed by the petitioner on Smt. Munaki Devi and on Bhagwat is misplaced. In Bhagwat the question before the Court was whether an order passed by S.O.C. holding that the application under Section 5 of the Limitation Act filed alongwith the appeal and the appeal itself would be decided together on the same day, was an interlocutory order and whether revision against such order was maintainable. It was held in Bhagwat that such orders are not interim or temporary in nature and revision against such orders was maintainable. Other observations made by the Court in the said judgment have to be read in the context of the aforesaid ratio laid down by the Court. Similarly, reliance placed by counsel for the petitioner in Ram Kali is also misplaced. Other observations made by the Court in the said judgment have to be read in the context of the aforesaid ratio laid down by the Court. Similarly, reliance placed by counsel for the petitioner in Ram Kali is also misplaced. From the contents of the judgment as reported in the Law Report it appears that proceedings in Ram Kali were civil proceedings where proceedings were liable to be conducted according to the procedure prescribed in C.P.C. A perusal of the content of the report would show that the matter had come to the High Court in Appeal. 9. For the aforesaid reasons, I do not find any illegality in the order passed by respondent No. 1. The writ petition lacks merit and is accordingly dismissed. 10. Interim order granted earlier in favour of the petitioner stands vacated.