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2024 DIGILAW 1375 (ALL)

Baccha Rai v. State of U. P.

2024-05-21

CHANDRA KUMAR RAI

body2024
JUDGMENT : CHANDRA KUMAR RAI, J. 1. Heard Sri Rishabh Kumar Pandey, learned counsel for the petitioner and Sri Hari Mohan Srivastava, learned Addl. C.S.C. for the state-respondents. 2. Brief facts of the case are that in proceeding under Section 9-A(2) of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as “U.P.C.H. Act”) orders dated 6.10.1972, 23.8.1973 & 24.8.1973 were passed by the Assistant Consolidation Officer in respect to plot situated in village-Mirzapur, Chaktulan & Chak Kalandar. Against the aforementioned orders passed by the Assistant Consolidation Officer in the proceeding under Section 9-A(2) of the U.P.C.H. Act, three appeals under Section 11(1) of the U.P.C.H. Act were filed by the petitioner along with prayer for condonation of delay of 30 years, which were registered as Appeal Nos. 505, 506 & 507. During pendency of the aforementioned title appeal, Writ B No. 1444/2023 was filed by respondent no. 7 before this Court against the order passed by the Deputy Director of Consolidation dated 9.1.2023, which was allowed vide order dated 1.5.2023, setting aside the revisional order dated 9.1.2023 and the appellate court was directed to decide the appeal in pursuance of the appellate order dated 22.2.2007, within a period of 3 months, after notice/opportunity to both the parties. In pursuance of the order of this Court dated 1.5.2023, appellate court heard the delay condonation matter in the aforementioned appeals under Section 11(1) of the U.P.C.H. Act and vide order dated 21.11.2023 granted benefit of Section 5 of the Limitation Act and fixed the appeal for arguments on merit. Against the order dated 21.11.2023, respondent No. 7 filed three revisions under Section 48 of the U.P.C.H. Act before the Deputy Director of Consolidation which were registered as Revision Nos.1053, 1054 & 1055. In the aforementioned revision, the prayer was made for summoning the lower court records. On behalf of the petitioner, an application was filed that unless the revision is found maintainable, the record of the proceeding of appellate court may not be summoned as this Court had directed for deciding the appeal within a period of three months. The Deputy Director of Consolidation vide order dated 21.3.2024 summoned the record of the appellate court and fixed 3.4.2024 for disposal of the revision, hence, this writ petition on behalf of the petitioner, challenging the order dated 21.3.2024. 3. The Deputy Director of Consolidation vide order dated 21.3.2024 summoned the record of the appellate court and fixed 3.4.2024 for disposal of the revision, hence, this writ petition on behalf of the petitioner, challenging the order dated 21.3.2024. 3. Counsel for the petitioner submitted that in title appeals filed by the petitioner along with prayer for condonation of delay, the appellate court has granted benefit of Section 5 of the Limitation Act in filing the appeal and fixed the appeal for disposal on merit, as such, the revision under Section 48 of the U.P.C.H. Act filed by respondent no. 7 is not maintainable. He further submitted that the revisional court has passed the impugned order, summoning the appellate court record after preponing the date fixed in the revision, as such, the impugned order is ex-party against the petitioner. He further submitted that unless the revision is found maintainable, the record of the proceeding of the appellate court should not be summoned, so that the proceeding of the appellate court may not be held up. He submitted that the appeal along with an application under Section 5 of the Limitation Act was filed in the year 2003 in which the delay in filing the appeal has been condoned in 2023, as such, the appeal should be decided expeditiously on merit. He further submitted that the petitioner has filed application before the revisional court, stating specifically that record of the appellate court may not be summoned unless the revision is found maintainable but the revisional court has not examined the issues in proper manner and passed the impugned order without hearing the question relating to maintainability of the revision under Section 48 of the U.P.C.H. Act. He further placed Annexure No. 14 of the writ petition which is a circular issued by the Consolidation Commissioner for entertaining the revision against the interlocutory orders, in order to demonstrate that the revisional court should examine the maintainability issue in proper manner before summoning the lower court records so that the proceeding may not be held up before the revisional court without any basis. He further placed the circular issued by the Registry of Hon’ble Apex Court in reference to the case of Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation wherein it has been held that if the court is summoning the record of the proceeding of the trial court/appellate court/revisional court and the matter is pending before the trial court/appellate court/revisional court then the court where the proceeding is pending, can retain the scanned/digitized copy of the proceeding and remit the original record to the court where the main proceedings are pending. He submitted that the revisional court should afford proper opportunity to the petitioner so that he may place the entire facts and circumstances before the revisional court. 4. On the other hand, learned Addl. C.S.C. submitted that under the impugned order, only the record of the proceeding has been summoned, as such, the writ petition is not maintainable. He further submitted that the petitioner himself has filed the appeal with an inordinate delay of 30 years against the order of the Assistant Consolidation Officer, as such, the petitioner is himself responsible for delaying the proceeding which has already been settled by the Assistant Consolidation Officer in the year 1972-73. He submitted that no interference is required against the impugned revisional order and the writ petition is liable to be dismissed. 5. I have considered the arguments advanced by learned counsel for the parties and perused the records. 6. There is no dispute about the fact that in title appeal filed with delay of 30 years, the delay in filing the appeal has been condoned by the appellate court and the appeal is pending for disposal on merit before the Settlement Officer of Consolidation. There is also no dispute about the fact that the revision under Section 48 of the U.P.C.H. Act filed by respondent no. 7 is pending before the Deputy Director of Consolidation and under the impugned order, the record of the appellate court has been summoned. 7. There is also no dispute about the fact that the revision under Section 48 of the U.P.C.H. Act filed by respondent no. 7 is pending before the Deputy Director of Consolidation and under the impugned order, the record of the appellate court has been summoned. 7. In order to appreciate the controversy involved in the matter, the perusal of Section 48 of the U.P.C.H. Act will be necessary, which is quoted hereunder: Section 48 - Revision and reference: (1) The Director of Consolidation may call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings; or as to the correctness, legality or propriety of any order [other than interlocutory order] passed by such authority in the case of proceedings and may, after allowing the parties concerned an opportunity of being heard, make such order in the case of proceedings as he thinks fit. (2) Powers under sub-section (1) may be exercised by the Director of Consolidation also on a reference under sub-section (3). (3) Any authority subordinate to the Director of Consolidation may, after allowing the parties concerned an opportunity of being heard, refer the record of any case or proceedings to the Director of Consolidation for action under sub-section (1). Explanation (1) - For the purposes of this section, Settlement Officers, Consolidation, Consolidation Officers, Assistant Consolidation Officers, Consolidator and Consolidation Lekhpals shall be subordinate to the Director of Consolidation. Explanation (2) - For the purposes of this section the expression ‘interlocutory order’ in relation to a case or proceedings, means such order deciding any matter arising in such case or proceeding or collateral thereto as does not have the effect of finally disposing of such case or proceeding. Explanation (3) - The power under this section to examine the correctness, legality or propriety of any order includes the power to examine any finding, whether of fact or law, recorded by any subordinate authority, and also includes the power to re-appreciate any oral or documentary evidence. 8. This Court in the case reported in Anil Kumar Vs. Deputy Director of Consolidation and Others, 2013 (121) RD 788 has held that the original record of the proceeding is necessary in order to decide the revision in accordance with law. Paragraph Nos. 8. This Court in the case reported in Anil Kumar Vs. Deputy Director of Consolidation and Others, 2013 (121) RD 788 has held that the original record of the proceeding is necessary in order to decide the revision in accordance with law. Paragraph Nos. 3 and 4 of the judgment rendered in Anil Kumar (Supra) will be relevant for perusal which is as under: “3. Under Section 48(1) of the Act provides that the Director of Consolidation may call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings; or as to the correctness, legality or propriety of any order as such for deciding the revision it is imperative for the Deputy Director of Consolidation to summon the record of the court below from whose order this revision was filed. The Supreme Court in Nicholas V. Menezes Vs. Joseph M. Menezes, (2009) 4 SCC 791 , has held that appeal and revision ought to have been decided after summoning the lower court record from whose order the appeal and revision has been filed. 4. In the circumstances the order dated 15.2.2012 and 23.5.2013 are illegal and are set aside. The Deputy Director of Consolidation may summon the record as early as possible and decide the revision without granting unnecessary adjournment to the parties, expeditiously, preferably within a period of three months from the date of production of a certified copy of this order before him. With the aforesaid direction the writ petition is disposed of.” 9. Considering the entire facts and circumstances as well as ratio of law laid down in Anil Kumar (Supra) there is no illegality in summoning the record of the appellate court. 10. No interference is required against the impugned revisional order dated 21.3.2024. 11. The writ petition is dismissed. 12. However, respondent no. 3/Deputy Director of Consolidation, Ballia is directed to decide the revision in accordance with law, after affording opportunity of hearing to both the parties expeditiously.