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2020 DIGILAW 111 (UTT)

Urmila Mishra v. M/s. Pragati Papers Industries Lmt

2020-02-19

SHARAD KUMAR SHARMA

body2020
JUDGMENT Sharad Kumar Sharma, J. - The petitioners in the present writ petition have sought for the following reliefs:- "(i) Issue a writ, order or direction in the nature of certiorari for quashing the order dated 20.09.2019 passed by the Deputy Director of Consolidation/Additional Collector (Administration) Udham Singh Nagar in Revision No.52/14 of 2017-18. (ii) Issue a writ, order or direction in the nature of certiorari for quashing the order dated 04.07.2019 passed by the Deputy Director of Consolidation/Additional Collector (Administration) Udham Singh Nagar in Revision No.52/2014 of 2017-18. (iii) Issue a writ order or direction in the nature of mandamus directing the respondents not to interfere in peaceful possession of petitioners in the property in question." 2. The respondents herein being aggrieved against an order dated 04.12.2013, as rendered by the Settlement Officer Consolidation in Appeal No.49 of 2011-12 M/s Pragati Papers Industries. Ltd. vs. Swaminath Mishra and others; as well as; that rendered in Appeal No.51 of 2011-12 M/s Pragati Papers Industries. Ltd. vs. State of Uttarakhand and others and Appeal No.7 of 2011-12 M/s Pragati Papers Industries Ltd. vs. Rajaran and others, which was preferred by invoking the provisions contained under Sub Section (2) of Section 21 of the Consolidation of Holdings Act. 3. The respondents had filed a Revision before Deputy Director Consolidation being Revision No.52/2014 of 2017-18 (Old No.52/05 of 2013-14), M/s Pragati Papers Industries Ltd. vs. Rajaran and others, under Section 48 of the Act. 4. The time when the revision was preferred there were as many as 17 opposite parties who were arrayed as opposite parties in the revision. The opposite party no.1, who was described as Smt. Rajrani W/o Late Swami Nath, was pre-deceased at the time when the revision was preferred on 17.12.2013. 5. As a consequence thereto, the petitioners herein have filed an application on 10.11.2016, wherein they have contended that since the revision itself was filed as against the deceased person, who was in fact, was pre deceased thus the revision itself ought to be dismissed by invoking the provisions contained under Order 7 Rule 11 of the CPC. 6. The relief thus sought was as under:- 7. At the first stage it is clarified that in the proceedings as provided under the Consolidation of Holdings, the provisions of the CPC are not applicable. 6. The relief thus sought was as under:- 7. At the first stage it is clarified that in the proceedings as provided under the Consolidation of Holdings, the provisions of the CPC are not applicable. Apart from that on this application dated 10.11.2016 as preferred by the petitioners, on the said premise of impleadment of a deceased person, as the respondent no.1 in the revision. The respondent no.1 had filed an objection on 08.02.2017 praying to reject the application of the opposite parties to the revision, as raised by them by their application dated 10.11.2016, by invoking the provisions contained under Order 7 Rule 11 of C.P.C., which was not applicable over the proceedings under the Consolidation Act, and have also prayed for that they may be permitted to delete the name of deceased opposite party no.1 Smt. Rajrani from the array of parties and may be permitted to substitute her heirs. 8. The respondents also filed an application on 05.05.2016, to bring the heirs on record of deceased Smt. Rajrani on which the Deputy Director Consolidation had called for a report from Tehsildar, Jaspur, District Udham Singh Nagar vide his order dated 13.07.2016. 9. Hence, later respondent no.1, filed an application on 04.05.2018, contending that since the heirs of Late Smt. Rajrani are alredy on record of revision as opposite party number 2 to 6, no formal substitution is required as such, hence the respondent no.1 prayed in the application dated 04.05.2018, for a permission to delete the name of deceased opposite party no.1, this application of respondent no.1, to the writ petition was allowed by Deputy Director Consolidation vide its order dated 20.12.2018, and deceased opposite party no.1 was deleted from the array of parties to the revision. 10. Concealing the fact of order passed on 20.12.2018, the petitioners filed Writ Petition 645 of 2019 (M/S), Urmila Mishra and others vs. M/s Pragati Paper Industries and others. The writ petition was disposed off with following directions:- "Accordingly, with the consent of both the parties, this writ petition is disposed of with a direction to respondent no.3 Deputy Director of Consolidation/Additional Collector (Nazul), Udham Singh Nagar to first decide the pending applications after providing opportunity of hearing to the parties, and thereafter, the revision shall be decided on merit." 11. The said application dated 10.11.2016 and 04.05.2018 respondent no.1 was taken into consideration by the court of Deputy Director Consolidation and he has passed an order on 20.12.2018 on it. In the order dated 20.12.2018 (which has been annexed with the counter affidavit), the revisional court has observed that the revision under Section 48 of the Consolidation Holdings Act is not to be decided on the technicalities because of the fact that the pleading raised in the application on 10.11.2016 by the petitioners and application dated 04.05.2018 by respondent no.1 with regard to the effect of impleadment of a deceased person in the revision; may not create any impediment on the merit adjudication of the revision. Consequently the effect of the applications was taken into consideration and the court of Deputy Director Consolidation has passed an order on 20.12.2018 (Annexure (AI). The resultant effect of the order dated 20.12.2018, was that the revision itself was to be adjudicated on merits. Consequently based on the order dated 20.12.2018, the memorandum of revision was amended and before the deceased respondent no.1, an endorsement was made in pursuance to the order dated 20.12.2018 by mentioning therein her as to be a deceased person. 12. Later on during the pendency of the revision proceedings, a prayer was solicited by the petitioners herein that before the revision itself is adjudicated on merits, the determination is to be made on the application dated 10.11.2016 which was filed by them under Order 7 Rule 11 of C.P.C. The revisional court by the impugned order dated 04.07.2019, had passed an order to the effect that at that stage there was no necessity or occasion to consider the application dated 10.11.2016 filed by the petitioners with regard to the effect of impleadment of deceased respondent no.1 for the reason being that the said application as well as application of respondent no.1 dated 04.05.2018 was considered by the Deputy Director Consolidation and he has passed an order on 20.12.2018 and as a consequence and in compliance thereto, the name of the deceased respondent no.1 has already been deleted and the matter was directed to be heard on merit on 03.01.2019. 13. 13. The Deputy Director Consolidation in its order dated 04.07.2019 has held that since while deciding the application dated 10.11.2016 and 04.05.2018 by the order dated 20.12.2018 a specific finding has been recorded in paras 3, 5 and 6 of the said order with regard to the effect of the impleadment of the deceased person, it would amount to that the application dated 10.11.2016 and 04.05.2018 already stood adjudicated by the court by its order dated 20.12.2018, hence, until and unless the order dated 20.12.2018 was not put to challenge by the petitioners, it was no more open for the Court for reconsideration, of it before the Deputy Director Consolidation and consequently the Court by an order dated 04.07.2019 directed by the revision itself to be decided on its own merit. The said impugned order of 04.07.2019 directing to decide the revision on its own merit in the light of the order dated 20.12.2018 as passed on the application dated 10.11.2016 and 04.05.2018 was sought to be recalled by the petitioners by filing a recall application before the Deputy Director Consolidation, based on High Court's order dated 08.03.2019 who by an order dated 07.06.2019 had yet again observed that since an order on merit has already been passed on 20.12.2018 on the application dated 04.05.2018 no fresh consideration to the application dated 10.11.2016 is required and directed that the revision itself would be decided on its own merit as the name of deceased opposite party no.1 already stood deleted from the memo of Revision. 14. Thus argument extended by the counsel for the petitioners that since respondent no.1 was pre-deceased as such no proceedings on the revision would be tenable in the light of the provisions contained under Order 7 Rule 11 is not acceptable for the following reasons:- (i) The provision under Order 7 Rule 11 of Code of Civil Procedure will not be applicable over the proceedings contemplated under the Consolidation of Holdings Act. (ii) Even otherwise also the application filed on 10.11.2016 seeking a dismissal of the revision on the aforesaid ground of impleadment on a deceased person in the revision, already stood adjudicated by the Deputy Director Consolidation on 20.12.2018, on the application dated 04.05.2018 of respondent no.1, which was already incorporated. Thus no application as such dated 10.11.2016 was surviving to be decided and considered as its purpose stood restored by the order dated 20.12.2018. Thus no application as such dated 10.11.2016 was surviving to be decided and considered as its purpose stood restored by the order dated 20.12.2018. (iii) Not even that the order dated 20.12.2018 deciding the application dated 10.11.2016 and 04.05.2018 of the petitioners and respondent no.1 has attained finality because the same has not been challenged by the petitioners. (iv) Even in furtherance of an order dated 20.12.2018 the necessary amendment in the memorandum of revision has already been carried and the name of deceased opposite party no.1 has already been deleted from the memo of revision. (v) Revisional court has observed that since a lis in the proceedings under Consolidation of Holdings Act has to be decided on merit coupled with the fact that the effect of the impleadment of the deceased respondent no.1 has already been decided, the revisional court by the impugned orders under challenged has only directed that the revision itself be decided on its merit which is not prejudicing the rights of the petitioners in any manner whatsoever for the reason being that the other heirs of the deceased respondent no.1 were already on record of the memorandum of revision. 15. Hence in that view of the matter since the orders impugned only issued a direction for a merit adjudication of the revision, it does not call for any interference by this Court in the exercise of its powers under Article 227 of the Constitution of India. 16. Thus, the writ petition lacks merit and the same is accordingly dismissed.