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2019 DIGILAW 1704 (ALL)

Satya Narain v. Deputy Director of Consolidation

2019-07-16

RAJIV JOSHI

body2019
JUDGMENT : Rajiv Joshi, J. 1. Present writ petition has been filed challenging the order dated 29.3.2019 passed by Deputy Director of Consolidation, Jaunpur in Revision No. 3135 of 2017-18, whereby the revision filed by the petitioner under Section 48 (1) of U.P. Consolidation & Holdings Act, 1953 (hereinafter referred to as an Act), was dismissed. 2. Brief facts involved in present writ petition are that in a proceeding under Section 9A (2) of the Act initiated by the petitioner, an order dated 8.3.2013 was passed by Consolidation Officer, Sadar, Jaunpur, whereby the objection filed by the petitioner was allowed. Against that order, respondent no. 4-Shankar and 3 others (respondent nos. 5 to 7) filed an appeal before the Settlement Officer of Consolidation, Jaunpur under Section 11 (1) of the Act, registered as Appeal No. 2202/2016-17, which was allowed vide order dated 18.5.2017. 3. Being aggrieved against the order dated 18.5.2017 passed by Settlement Officer of Consolidation, Jaunpur, the petitioner and his brothers filed a revision on 7.6.2017 under Section 48 (1) of the Act, registered as Revision No. 3135/2017-18. Subsequently, an application was filed by respondent no. 4 on 16.3.2019 on the ground that revision filed by the petitioner is incompetent as the certified copy of the order passed by Consolidation Officer has not been annexed or filed alongwith memo of revision and therefore, in view of Rule 111 of U.P.C.H. Rules, 1954 (hereinafter referred to as Rules), the memo of revision be rejected as incompetent and defective and barred by provisions of Rule 111 of the Rules. 4. After filing the said application, raising objection for noncompliance of Rule 111 of the Rules, the petitioner filed an application dated 19.3.2019 annexing the certified copy of the order passed by Consolidation Officer stating therein that the revision was filed challenging the order passed by the Settlement Officer of Consolidation and the certified copy of the said order was annexed alongwith the memo of revision. But since the order of the Consolidation Officer was not under challenge and therefore, the said order could not be annexed alongwith the memo of revision. It was further stated in the application that in order to avoid technicalities, the petitioner has filed the certified copy of the order, which may be taken on record and the revision be decided on merits. 5. It was further stated in the application that in order to avoid technicalities, the petitioner has filed the certified copy of the order, which may be taken on record and the revision be decided on merits. 5. The revisional court vide impugned order dated 29.3.2019 dismissed the revision at the admission stage on the ground that the petitioner has not explained the reasons for not filing the certified copy of the order passed by Consolidation Officer, which he obtained in the year 2013 and no sufficient cause for delay has been explained and therefore, the order was passed dismissing the revision. 6. The order passed by Deputy Director of Consolidation dated 29.3.2019 rejecting the revision filed by the petitioner is impugned in the present writ petition. 7. I have heard Sri Kailash Nath Singh, learned counsel for the petitioner, Sri S.C. Tripathi, learned counsel appearing on behalf of respondent no. 4 and perused the record. 8. Contention of learned counsel for the petitioner is that there is sufficient compliance of Rule 111 of the Rules as the memo of revision accompanied the order passed by Settlement Officer of Consolidation, which was impugned in the revision. According to the counsel, subsequently, the certified copy of the order passed by Consolidation Officer was also filed when the objection was raised by the respondent no. 4 for non-compliance of Rule 111 of the Rules and therefore, it cannot be said that there is no compliance of Rule 111 of the Rules and the revision could not have been dismissed on that ground. 9. It was further contended by learned counsel for the petitioner that the revision cannot be decided on mere technicalities and the view taken by the revisional authority is hypertechnical, which is totally unjust and uncalled for. 10. In support of his contention, he placed reliance upon the judgment rendered in the case of Hari Narain and Others vs. Deputy Director of Consolidation and Others, 1981 (2) RD 341, Ram Naresh vs. Deputy Director of Consolidation and Others, 2019 (142) RD 83 and in case of Ram Deo and Another vs. Deputy Director of Consolidation, Basti and Others, 2004 (97) RD 211. 11. On the other hand, learned counsel appearing on behalf of respondent no. 11. On the other hand, learned counsel appearing on behalf of respondent no. 4 submitted that there is no sufficient compliance of Rule 111 of the Rules and delay in filing the order of Consolidation Officer has not been explained by the petitioner and therefore, in absence of appropriate explanation, the impugned order has rightly been passed. He relied upon the judgment of Division Bench of this Court passed in case of Ram Nath and Others vs. Deputy Director of Consolidation, Gyanpur, Varanasi and Others, 1971 RD 51. 12. I have considered the rival submissions and perused the record. 13. The question for consideration in the present case is with regard to the compliance of Rule 111 of the Rules made under Section 54 of the Act, which reads as under: “111. Sections 48 and 54 - An application under Section 48 of the Act shall be presented by the applicant or his duly authorised agent to the Joint/Deputy/Assistant Director of Consolidation, nominated by the Director of Consolidation, Uttar Pradesh for the District or Settlement Officer (Consolidation) unit concerned or failing posting of any such Joint/ Deputy/Assistant Director of Consolidation in the district, to the District Deputy Director (Consolidation) within 30 days of the order against which the application is directed. It shall be accompanied by copy of the judgment or order in respect of which the application is preferred. Copies of judgment or order, if any, of other subordinate authorities in respect of dispute shall also be filed alongwith the application.” 14. An analysis of this Rule makes it clear that a revision filed under Section 48 of the Act is to be filed within 30 days of the order passed against which the revision is directed. The Rule further requires that memorandum of revision shall be accompanied by the copy of the judgment and the order in respect of which the revision preferred. This Rule further requires that copy of the judgment and order, if any, of the subordinate authority in respect of dispute shall also be filed alongwith the revision. 15. Therefore, the requirement of Rule insofar as the filing of the copy of judgment and order against which the revision is preferred is concerned, it is clear that such copy of the judgment and order must be accompanied with the memorandum of revision. 16. The word "accompany" used in this part of the Rule is significant. 15. Therefore, the requirement of Rule insofar as the filing of the copy of judgment and order against which the revision is preferred is concerned, it is clear that such copy of the judgment and order must be accompanied with the memorandum of revision. 16. The word "accompany" used in this part of the Rule is significant. So far as the other requirement for filing copy of the judgment and order of another subordinate authority is concerned, the Rule requires that such copy of the judgment and order has to be filed alongwith the application and the word "accompany" is significantly absent so far as this requirement is concerned. The Rule making authority by not using the word "accompany" in the latter part of the requirement, must be intended to mean the Rule is not requiring such copies of judgments and orders of the subordinate authorities necessarily to accompany the memorandum of revision. The Rule so read is on the fact of it salutary in nature. The intention of Rule making authority appears to be that though the judgment and order under revision alone is necessarily required to accompany the memorandum of revision, but the copies of other judgments and orders be also made available to the revisional authority at the time when the matter comes up for consideration before the authority. 17. In the present case, the order, which is under challenge in the revision is accompanied by memo of revision, but the certified copy of the order passed by Consolidation Officer, which was not challenged in the revision, was finally filed by the petitioner alongwith an application on 19.3.2019 stating therein that the same could not be filed earlier as the said order was not under challenge and in order to avoid the technicalities, certified copy of the said order of Consolidation Officer is being filed alongwith an application and the revision be decided on merits. The contents of the application dated 19.3.2019 filed by the petitioner, appended as annexure-5 to the writ petition, is quoted as under:- ^^U;k;ky; MhŒMhŒlhŒ tkSuiqjA fuŒ 'khryk cuke 'kadj xzke getkiqj ijxuk gosyh tkSuiqjA Jheku th] lfou; fuosnu gS fd ÁkFkhZ us cŒvŒpŒ }kjk ikfjr vkns'k ds fo:) fuxjkuh ÁLrqr fd;k gS rFkk cŒvŒpŒ ds vkns'k dh udy fuxjkuh ls lkFk layXu fd;k gS pŒvŒ }kjk ikfjr vkns'k ge fuxjkuhdrkZ ds i{k jgk mls pqukSrh ugha fn;k x;k gS bl otg ls nkf[ky ugha fd;k x;kA ;g fd nkSjku lquokbZ foi{khx.k us dgk fd fu;e 111 dk ikyu ugha fd;k x;k pŒvŒ ds vkns'k dh Áfrfyfi nkf[ky ugha gS bl fcUnq ij fuxjkuh fujLr dh tkosA bl fcUnq ij ekuuh; gkbZ dksVZ bykgkckn us dbZ O;oLFkkvksa esa 1968 vkjŒMhŒ 357] ckcwjke cuke Jherh] 1981 vkjŒMhŒ 341] gjh ukjk;u cuke MhŒMhŒlhŒ vkSj 2004 vkjŒMhŒ 211] jkenso cuke MhŒMhŒlhŒ rFkk 2009 vkjŒMhŒ 402] oDQ rkfd;ku cuke fnyhi flaag esa Li"V fd;kA pwafd eqdnesa esa rduhdh fcUnqvksa ls cpus gsrq rFkk U;k;fgr esa vuko';d foyEc ls cpus gsrq fuxjkuhdrkZ vkns'k dh udy ÁLrqr dj jgk gS ftls Lohdkj djds lquokbZ gsrq xzg.k fd;k tk;sA vr% ÁkFkZuk gS fd mijksDr O;oLFkkvksa ds lanHkZ esa fuxjkuh esa ÁkFkhZ }kjk ÁLrqr udy vkns'k pŒvŒ dks 'kkfey djrs gq;s fuxjkuh lquokbZ gsrq fd;k tk;sA ÁkFkhZ 'khryk ÁlknA** 18. Reasons for non filing the certified copy of the order of Consolidation Officer have sufficiently been explained in the application. In the case of Jagdeo Prasad vs. Assistant Director of Consolidation, U.P. Lucknow and Others, 1975 RD 277, the certified copy of the order of Consolidation Officer had been filed and was available before the Assistant Consolidation Officer on the date of hearing of the revision. The learned Single Judge of this Court held that the revision was not rendered incompetent merely because the copy of the order of the Consolidation Officer did not accompany the revision application when it was filed. It was held that justice required that the Assistant Director should have decided the dispute on merits. 19. In case of Ram Naresh (supra), it was held that Deputy Director of Consolidation should not dismiss the revision petitions on technicalities; rather he should tilt himself towards examining the record on merits and pass appropriate orders to secure the ends of justice. 19. In case of Ram Naresh (supra), it was held that Deputy Director of Consolidation should not dismiss the revision petitions on technicalities; rather he should tilt himself towards examining the record on merits and pass appropriate orders to secure the ends of justice. Relevant portion of the said judgment is quoted as under: “As has been laid down by this Court on several occasions, the Deputy Director of Consolidation should not dismiss the revision petitions on technicalities; rather he should tilt himself towards examining the record on merit and pass appropriate orders to secure the ends of justice. In fact the provisions of Section 48 (1) of the Act are couched in such a language which confers a power or jurisdiction on the Deputy Director of Consolidation and for exercise of such power an application need not necessarily be made. The jurisdiction vested in the Deputy Director of Consolidation is akin to revisional jurisdiction.” 20. Paragraph 5 of the judgment rendered in the case of Ram Deo (supra), which was relied by learned counsel for the petitioner, is quoted as under: “It is well settled that if entire record was before Deputy Director of Consolidation, a revision could not be dismissed as incompetent on the ground of non-filing of certified copy of the order of Consolidation Officer, being violative of Rule 111 of U.P. Consolidation of Holdings Rules as laid down by Full Bench in Ramakant Singh vs. Deputy Director of Consolidation.” 21. In case of Ram Nath (supra), it was held that non-filing of certified copy of the order of Consolidation Officer does not rather violate the Rule 111 of the Rules. On the other hand, learned counsel for the respondent relied upon the relevant portion judgment in the case of Ram Nath, which is quoted hereunder: “We find no manifest error of law in this order. Even if R. 111 is held directory, that will only mean that a person who wants to file a revision may comply with it substantially. The last part of this Rule requires that copies of judgments and order, if any, shall also be filed with the memorandum of Revision. If the Rule is directory, an applicant may file the copies subsequently, and the Director can, in a fit case, accept the same even if they had been filed at the proper time. The last part of this Rule requires that copies of judgments and order, if any, shall also be filed with the memorandum of Revision. If the Rule is directory, an applicant may file the copies subsequently, and the Director can, in a fit case, accept the same even if they had been filed at the proper time. But the fact that the Rule is directory does not confer an absolute right on a litigant to violate the Rule and file the copies whenever he wants. The directory nature of the Rule will only enable the Director to entertain a copy even if filed beyond time if he is satisfied that the case is a fit one for doing so. In that even, the Director will have to go into the merits of the explanation offered by the litigant for the delay in filing the copy; and if on facts, the Director is satisfied that the cause shown is not sufficient, he would be within his powers in refusing to entertain such a defective revision. In the present case, the Deputy Director of Consolidation applied his mind to the explanation offered by the petitioners and was not satisfied that the delay has been satisfactorily explained.” 22. From perusal of the aforesaid judgment passed by Division Bench of this Court, it is apparent that Rule 111 of the Rules is held to be directory and not mandatory. If the Rule is directory, application may be filed alongwith certified copies of the judgments subsequently and it will only enable the Director of Consolidation to entertain the copy even if the application is beyond time, if he is satisfied that the case is fit one for doing so. 23. In the present case, sufficient explanation had been given by the petitioner vide his application dated 19.3.2019, which is quoted above and in the said application, the reason for not filing the said copy earlier alongwith memo of revision has been explained satisfactorily. The word "accompany" as mentioned in the first part of Rule 111 of the Rules has been explained, meaning thereby the copy of order which is not challenged in revision can be filed subsequently alongwith the application. 24. The word "accompany" as mentioned in the first part of Rule 111 of the Rules has been explained, meaning thereby the copy of order which is not challenged in revision can be filed subsequently alongwith the application. 24. The Deputy Director of Consolidation has committed illegality while holding that the certified copy of the order of Consolidation Officer was issued in 2013 and there is no justification for not filing the same alongwith memo of revision. The Deputy Director of Consolidation is not at all justified while holding so when there is no requirement under Rule 111 of the Rules to accompany the order, which was not challenged in revision. The certified copy of the order of the Consolidation Officer having been filed subsequently alongwith an application furnishing explanation, I hold that sufficient explanation has been given by the petitioner for non filing that certified copy of the order earlier. Even otherwise, it is also well settled that the revision cannot be dismissed on the technicalities, rather the order should be passed on merits in order to deliver justice to the parties. 25. For the aforesaid reasons, present writ petition succeeds and is allowed. The impugned order dated 29.3.2019 passed by Deputy Director of Consolidation, Jaunpur in Revision No. 3135 of 201718 is hereby quashed. The Deputy Director of Consolidation, Jaunpur is directed to decide the revision afresh on merits in accordance with law expeditiously within maximum period of six months from the date of presentation of certified copy of this order, after affording opportunity of hearing to the parties. 26. No order as to costs.