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2023 DIGILAW 97 (ALL)

Faujdar Singh v. Addl. Commissioner Consolidation

2023-01-10

SAURABH LAVANIA

body2023
JUDGMENT Saurabh Lavania, J. Heard. 2. By means of present petition, the petitioner has challenged the order dated 27.12.2022 passed by the Additional Commissioner Consolidation, U.P. Lucknow in the proceedings initiated under Rule 65(2) of U.P. Consolidation of Holdings Rules, 1954 (in short "Rules of 1954"), which was registered as Transfer Application No. 11A/452 of 2022 (R. Review). 3. The order impugned has been assailed only one ground that the Additional Commissioner Consolidation U.P. Lucknow has passed the order dated 27.12.2022, who has no power to review its earlier order as there is no provision under the Statute namely U.P. Consolidation of Holdings Act under which, any authority can review its earlier final order. 4. It is stated that during pendency of the transfer application, registered as Transfer Application No. 11A/452 of 2022 (R. Review), under Rule 65(2) of the Rules of 1954, the private opposite party No.2-Surendra Bahardur Singh preferred a petition i.e. Matters Under Article 227 No. 3306 of 2022 for expediting the proceedings of Appeal No. 1394 of 2020 in relation to which the transfer application was preferred by the petitioner and this petition was finally disposed of vide order dated 06.09.2022 directing the respondent No.1, herein, to decide the appeal expeditiously say within a period of six months. 5. After the order of this Court dated 06.09.2022, the application for transfer was allowed vide order dated 13.09.2022 whereby the appeal was transferred from Settlement Officer Consolidation, Ayodhya to Settlement Officer Consolidation, Amethi. 6. It is stated that pendency of the transfer application was not disclosed by the private opposite party No.2-Surendra Bahadur Singh before this Court. Accordingly, the application for modification/clarification of order dated 06.09.2022 as also for application for impleadment were moved by the petitioner. Both the applications were rejected vide order dated 19.10.2022 and based upon the order of this Court 19.10.2022, the private opposite party No.2-Surendra Bahadur Singh preferred the application for recall of the order dated 13.09.2022. 7. It is also stated that the order dated 13.09.2022 was recalled and thereafter, the opposite parties after taking note of the contention of the learned counsel for the parties, passed the order dated 09.11.2022 and by this order, the appeal pending before the Settlement Officer Consolidation, Ayodhya was again transferred to Settlement Officer Consolidation, Amethi. 8. 7. It is also stated that the order dated 13.09.2022 was recalled and thereafter, the opposite parties after taking note of the contention of the learned counsel for the parties, passed the order dated 09.11.2022 and by this order, the appeal pending before the Settlement Officer Consolidation, Ayodhya was again transferred to Settlement Officer Consolidation, Amethi. 8. Thereafter, the review application was preferred by the private opposite party No.2-Surendra Bahadur Singh, which was allowed by the impugned order. In these circumstances particularly when there is no provision of review of final order, the order, under challenge, is liable to be interfered with by this Court. 9. Opposing the present petition for the main relief sought, Sri Arun Kumar Tiwari, learned counsel for the private opposite party No.2 has submitted that the order impugned dated 27.12.2022 is, in fact, based upon the order of this Court dated 06.09.2022 read with the order dated 19.10.2022 passed on the application i.e. Application for Modification/Clarification of order dated 06.09.2022 as also the Application for Impleadment preferred by the petitioner. As such, the same is not liable to be interfered with by this Court. 10. He further submitted that while passing the order dated 09.11.2022, for which an application for recall/review was preferred by private opposite party No.2-Surendra Bahadur Singh on 15.11.2022 before the respondent No.1, the relevant facts particularly the facts related to the orders of this Court dated 06.09.2022 and 19.10.2022 were not considered in its true spirit and as such, the application for recall/review was moved. In this regard, he has drawn the attention of this Court on the observations of the respondent No.1 made in the order dated 09.11.2022 and based upon the same, he submitted that in concluding paragraph of the order dated 09.11.2022 there is no indication based upon which it can be said that the orders of this Court were considered while coming to conclusion and transferring of the case from Settlement Officer Consolidation, Ayodhya to Settlement Officer Consolidation, Amethi. In addition, it is further submitted that the authority concerned can not modify or review or overlook the order of this Court, as per which, the Settlement Officer Consolidation, Ayodhya is under obligation to decide the pending appeal, in issue. In these circumstances of the case, the order is not liable to be interfered with by this Court. 11. In addition, it is further submitted that the authority concerned can not modify or review or overlook the order of this Court, as per which, the Settlement Officer Consolidation, Ayodhya is under obligation to decide the pending appeal, in issue. In these circumstances of the case, the order is not liable to be interfered with by this Court. 11. Considered the submissions advanced by the learned counsel for the parties and perused the record. 12. Undisputed facts of the present case are as under:- (i) On 06.09.2022, the petition filed by the private opposite party No.2-Surendra Bahadur Singh i.e. Matters Under Article 227 No. 3306 of 2022 was disposed of with following observations:- "Considering the facts and circumstances, this Court is of the opinion that no gainful purpose will be served in keeping the aforesaid petition pending rather ends of justice can be served by directing the respondent No.1 to consider and finally decide the pending proceedings of Appeal No.1394/2020 most expeditiously, affording full opportunity of hearing to the parties, but without granting any unnecessary adjournment to either of the parties preferably within a period of six months from the date an authenticated copy of this order is placed before the authority concerned. The petitioner shall also furnish an undertaking, as mentioned above, along with a copy of this order. In case, if the petitioner does not furnish the aforesaid undertaking, then the petitioner shall not be entitled to the benefit of this order. It is made clear that the Court has not examined the case of either of the parties on merits and the authority concerned shall be free to decide the matter strictly in accordance with law. With the aforesaid, the petition is disposed of." (ii) On 13.09.2022 the application for transfer preferred by the petitioner was allowed and the appeal in issue i.e. Appeal No. 1394 of 2020 pending, at relevant time, before the Settlement Officer Consolidation, Ayodhya was transferred to Settlement Officer Consolidation, Amethi. (iii) Civil Misc. Application No. 3 of 2022 (Application for Modification/Clarification of Order dated 06.09.2022) and Civil Misc. Application No. 4 of 2022 (Application for Impleadment) were preferred by the present petitioner in the petition i.e. Matters Under Article 227 No. 3306 of 2022 and both the applications were rejected vide order dated 19.10.2022. The order dated 19.10.2022 on reproduction reads as under:- "(Civil Misc. Application No. 4 of 2022 (Application for Impleadment) were preferred by the present petitioner in the petition i.e. Matters Under Article 227 No. 3306 of 2022 and both the applications were rejected vide order dated 19.10.2022. The order dated 19.10.2022 on reproduction reads as under:- "(Civil Misc. Application No.3 of 2022) The instant application has been moved by the petitioner seeking modification of the order dated 06.09.2022 passed by this Court. It has been submitted that the petition was filed seeking expeditious disposal of an appeal which was pending before the Settlement Officer of Consolidation, District Ayodhya, who was impleaded as respondent No.1. The petitioner submits that the order dated 06.09.2022 whereby a direction was issued to the respondent No.1 to decide the appeal expeditiously be modified to the extent that using the word 'respondent No.1', it should be mentioned as 'Settlement Officer of Consolidation, Amethi'. This Court finds that the appeal was pending before the Settlement Officer of Consolidation, District Ayodhya as mentioned in the petition. The said authority was impleaded as respondent No.1 which has been duly considered. Once a petition has been allowed, the alleged modification application seeking a direction referring to the same authority is not maintainable and is accordingly rejected. The Court also finds that an application for impleadment has also been moved bearing Civil Misc. Application No.4 of 2022. Since, the petition has already stands decided, the application for impleadment is also dismissed." (iv) After the above, the application for recall of order dated 13.09.2022 was preferred upon which the respondent No.1-Additional Commissioner Consolidation U.P. Lucknow passed the final order on the transfer application on 09.11.2022. (v) From the operative portion of the order dated 09.11.2022, it is crystal clear that the respondent No.1 has not taken note of the orders of this Court dated 06.09.2022 and 19.10.2022 while transferring the appeal in issue to Settlement Officer of Consolidation, Amethi, though, a reference has been made by the respondent No.1 in the order dated 09.11.2022. (vi) After the aforesaid, the application for recall/review was filed which was allowed by the impugned order dated 27.12.2022 and upon a perusal of the same it reflects while recalling/reviewing order dated 09.11.2022, the respondent No.1 (concerned authority) considering the order of Writ Court dated 06.09.2022 and based upon this order, the respondent No.1 cancelled its earlier order dated 09.11.2022. 13. 13. It is settled principle of law that the Subordinate Authority can not review/recall or overlook the order of the Higher Authority. However, in the instant case, as per the order(s) dated 06.09.2022 and 19.10.2022 passed by this Court, the respondent No.1 in the said petition, i.e. Settlement Officer Consolidation Officer, Ayodhya was/is under obligation to decide the Appeal No. 1394 of 2022 within a period of six months and ignoring the orders of this Court, the respondent No.1 passed the order dated 09.11.2022 and it appears that on pointing out of this aspect of the case, he cancelled the order dated 09.11.2022 and rectified its error vide impugned order dated 27.12.2022. 14. In the case of Sitaram Alias Baba v. Deputy Director of Consolidation, Varanasi And Others, reported in 1999 SCC Online All 1591; this Court has observed as under:- "6. It is settled law that even if an order passed by an authority is without jurisdiction but the said order appears to be just and equitable, the Court will not interfere with such order under Article 226 of the Constitution of India. The High Court under Article 226 of the Constitution issues writ where an authority acts without jurisdiction or in excess of it or in violation of the principles of natural justice or refuses to exercise jurisdiction vested in him or there is an error apparent on the face of the record but even if any of the grounds exist to quash the order still the High Court will not interfere with such order if the substantial justice has been done as held in Veerappa Pillai v. Raman and Raman Ltd., (1952) 1 SCC 334 : 1952 SCR 583 : AIR 1952 SC 192 wherein it was observed as under: (Para 20 of AIR) "Such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omissions error or excess has resulted in manifest injustice." [Emphasis supplied] 7. In A.M. Allison v. B.L. Sen, AIR 1957 SC 227 , an objection was raised that the Deputy Collector had no jurisdiction to determine the question, The Supreme Court refused to entertain this objection on the ground that the order was challenged in writ petition under Article 226 of the Constitution. It was observed: (Para 17) "Proceedings by way of certiorari are "not of course". (Vide Halsbury's 'Laws of England', Hailsham Edition, Vol. 9, paras 1480 and 1481, pp. 877-878). The High Court of Assam had the power to refuse the writs if it was satisfied that there was no failure of justice and in these appeals which are directed against the orders of the High Court in applications under Article 226, we could refuse to interfere unless we are satisfied that the justice of the case requires to. But we are not so satisfied. We are of opinion that, having regard to the merits which have been concurrently found in favour of the respondents both by the Deputy Commissioner, Sibsagar and the High Court, we should decline to interfere." 8. In Grahi Shanker Singh v. VIII Addl. District Judge, 1991 Rev Dec 10 : (1990 All LJ 1095) the Court declined to interfere with the order passed in revision by the District Judge repelling the contention that the revision against the order of the Sub-Divisional Officer was not maintainable, on the ground that if substantial justice has been done, the Court under Article 226 Is not bound to quash the order passed by any authority relying upon various decisions of the Supreme Court and the High Court. The observation in Bux Singh v. Joint Director of Consolidation, U.P., Lucknow, A.I.R. 1966 All. 156, was quoted "Where orders impugned are equitable and substantial justice seems to have been done to the parties, the High Court would not be inclined to interfere in its writ jurisdiction merely on the ground that such orders are wrong in law," 9. In Om Prakash v. U.P. Secondary Education Service Commission, Allenganj, Allahabad, (1990) 2 U.P. LJBEC 983, the Court observed as under: "It is well settled that a decision of an authority, even though without jurisdiction, may not be quashed in proceedings under Article 226 of the Constitution if by the decision the substantial justice is done between the parties." 10. In Om Prakash v. U.P. Secondary Education Service Commission, Allenganj, Allahabad, (1990) 2 U.P. LJBEC 983, the Court observed as under: "It is well settled that a decision of an authority, even though without jurisdiction, may not be quashed in proceedings under Article 226 of the Constitution if by the decision the substantial justice is done between the parties." 10. In the instant case, respondent No. I having found that though the inspection was alleged to have been done but the inspection memo being not on the record, he rightly directed for inspection again and thereafter to decide the case afresh after giving opportunity of hearing to the parties. I do not find that it is a fit case for interference under Article 226 of the Constitution of India. In view of the above I do not find that it is a fit case for interference under Article 226 of the Constitution of India. The writ petition is accordingly dismissed. The parties shall bear their own costs. 11.Petition dismissed." 15. Having considered the aforesaid including the judgments indicated above, this Court is of the view that the order dated 27.12.2022, which is in consonance with the order of this Court dated 06.09.2022, is not liable to be interfered with by this Court on the ground taken by the petitioner. Accordingly, the petition is dismissed. No order as to costs. 16. It is expected that the Appellate Authority shall make all endeavour to conclude the proceedings of the pending appeal in the light of the observations made by this Court in the order dated 06.09.2022 that too strictly in accordance with law.