Allahabad High Court
Alam And 3 Ors. vs Deputy Director Of Consolidation ... on 15 November, 2019
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?A.F.R. Court No. - 25 Case :- CONSOLIDATION No. - 31286 of 2019 Petitioner :- Alam And 3 Ors. Respondent :- Deputy Director Of Consolidation Faizabad And Ors. Counsel for Petitioner :- Ankit Pande Counsel for Respondent :- C.S.C. Hon'ble Mrs. Sangeeta Chandra,J.
(1) Heard Shri R.S. Pande, learned Senior Advocate assisted by Shri Ankit Pande for the petitioners and Shri Upendra Singh, learned Standing Counsel appearing on behalf of the State-respondents.
(2) This petition has been filed challenging the order dated 01.11.2019 passed by the Dy. Director of Consolidation, Faizabad now Ayodhya for impleading the U.P. Express Way Industrial Development Authority, Lucknow, by exercising "Suo-moto" power in the Revision pending before him, against the order passed by the Settlement Officer Consolidation in respect of a dispute with regard to the co-tenancy right in Khata No.102 situated in Village Idilpur, Pargana-Khandasa, Tehsil Milkipur, District Ayodhya.
(3) It has been submitted by the learned counsel for the petitioners that on 18.02.1978, the Assistant Consolidation Officer passed an order giving co-tenancy rights to the opposite party nos.2 to 6, on the basis of an alleged compromise under Section 9 of the Act. The order dated 18.02.1978 was also recorded in the Khatauni of 1382 & 1384 Fasli. The petitioners filed a time barred Appeal on 01.04.2017 against the order dated 18.02.1978 before the Settlement Officer Consolidation under Section 11 of the Act with the claim that the land in question was obtained by his father through Patta granted by Gram Panchayat and it was non-Bhumidhari land with non-transferable right, being leased out by the Gram Panchayat to the father of the petitioners i.e. Nanhey.
(4) The Appeal filed by the petitioners was allowed by the Settlement Officer, Consolidation on 23.06.2017. Since the shares were not determined between the brothers of the petitioners, the petitioners filed a Revision before the Dy. Director of Consolidation, against the order dated 23.06.2017. The Dy. Director Consolidation allowed the Revision and determined 1/4th share of each of the petitioners by his order dated 19.07.2017.
(5) The opposite party nos. 2 to 6 moved a Recall/Restoration application for recalling of order dated 19.07.2017. The said Recall application was rejected on the ground that opposite party nos.2 to 6 had already filed another Revision No.673/1342/2019 before the opposite party no.1 which was pending for disposal.
(6) It has been submitted that the petitioners being apprehensive of the attitude of the current DDC filed an application for transfer of Revision from the Court of the opposite party no.1 before the District Magistrate, Ayodhya, on 30.10.2019 but before said application could be disposed of, the current DDC passed the order on 01.11.2019 directing them to implead Government of U.P. and U.P. Expressway Industrial Development Authority (for short UPEIDA).
(7) Shri R.S. Pande, has submitted that no power as has been exercised by the DDC could have been exercised Suo-moto as the Government of U.P. had no say in the dispute regarding co-tenancy rights. It was a purely private dispute between the petitioners and the opposite party nos.2 to 6.
(8) Learned counsel for the petitioners has placed reliance upon the judgment of the Hon'ble Supreme Court rendered in Vidur Impex and Traders Private Limited and Others Vs. Tosh Apartments Private Limited and Others reported in (2012) 8 SCC 384. (Paragraph nos.40 & 41) The said Paragraphs nos.40 and 41 of the judgment are being quoted hereinbelow:-
"40. In Bibi Zubaida Khatoon V. Nabi Hasan (2004) 1 SCC 191, this Court was called upon to consider the correctness of the High Court's order, which declined to interfere with the order passed by the trial Court dismissing the applications filed by the appellant for impleadment as party to the cross suits of which one was filed for redemption of mortgage and the other was filed for specific performance of the agreement for sale. While dismissing the appeal, this Court referred to the judgments in Sarvinder Singh v. Dalip Singh (Supra) and Dhurandhar Prasad Singh V. Jai Prakash University reported in (2001) 6 SCC 534 and observed that there is no absolute rule that the transferee pendente lite shall be allowed to join as party in all cases without leave of the Court and contest the pending suit.
41. Though there is apparent conflict in the observations made in some of the aforementioned judgments, the broad principles which should govern disposal of an application for impleadment are:
1. The Court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the Court is necessary for effective and complete adjudication of the issues involved in the suit.
2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the Court.
3. A proper party is a person whose presence would enable the Court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made.
4. If a person is not found to be a proper or necessary party, the Court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff.
5. In a suit for specific performance, the Court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation.
6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the Court or the application is unduly delayed then the Court will be fully justified in declining the prayer for impleadment."
(9) This Court has carefully perused the judgment rendered by a Division Bench of the Hon'ble Supreme Court with regard to the question it was considering on the facts as mentioned before it. The question before the Hon'ble Supreme Court was that the Suit property was leased by the Secretary of State for India to Sidh Nath Khanna and Sukh Nath Khanna sometime in the year 1930. After 12 years, the Governor General-in-Council sanctioned the grant of perpetual lease in favour of one of them, namely, Sidh Nath Khanna. In the family partition which took place in December, 1955, the Suit property fell to the share of Shri Devi Prasad Khanna, who was one of the heirs of Sidh Nath Khanna the name of the son of Devi Prasad Khanna was entered in the records of the Ministry of Works and Housing, Land and Development Office, and the lease was transferred in his name. He rented out the same to the Sudan Embassy on 12.09.1962. In October, 1977, the name of Mr. Pradeep Kumar Khanna (son of Devi Prasad Khanna, who died during the pendency of the litigation before the High Court and was represented by his legal representatives) was entered in the records of the Ministry of Works and Housing, Land and Development Office and the lease was transferred in his name in March 1980. Pradeep Kumar Khanna mortgaged the said property to Shri S.N. Tandon. After 5 years, he entered into a collaboration agreement with Shri Arun Kumar Bhatia for construction of a multi-storied building. He also executed an agreement for sale in favour of Arun Kumar Bhatia. Pradeep Kumar Khanna then took loan from Shri Avtar Singh and also created an equitable mortgage in his favour. On 13.09.1988 Pradeep Kumar Khanna executed an agreement for sale in favour of Tosh Apartments Private Limited for a consideration of Rs.2.5 crores. After some time, Arun Kumar Bhatia executed an assignment deed dated 13.12.1988 in favour of Pradeep Kumar Khanna. A Collaboration agreement was also entered into between Pradeep Kumar Khanna and Arun Kumar Bhatia.
(10) After three months, Pradeep Kumar Khanna again mortgaged the Suit property in favour of one other person. In 1992 respondent nos.2 and 4 entered into an agreement whereby the latter agreed to provide various services including the one that he will get the suit property vacated from the Sudan Embassy, and for that he will charge Rs.4 crores. The Sudan Embassy vacated the Suit property on 12.05.1982 and handed over possession to Pradeep Kumar Khanna, who is said to have handed over the same to respondent no.4. On coming to know about the proposed alienation of property, Tosh Apartments. The Respondent no.1 filed a suit in the Delhi High Court for specific performance of agreement for sale dated 13.09.1988 and for award of damages and an injunction.
(11) Although the respondent no.2 Pradeep Kumar Khanna and respondent no.4 also filed an application under Order 7 Rule 11 CPC for rejection of plaint on the ground that the same was barred by time, such application was rejected by the learned Single Judge of the High Court on 05.04.1994 who directed continuance of interim injunction.
(12) Thereafter on 19.02.1997, Pradeep Kumar Khanna executed six agreements for sale in favour of Vidur Impex and Traders Private Limited and Others, the appellants, for a total sale consideration of Rs.2.88 crores. In furtherance of thus agreement, six sale deeds were executed and registered on 30.05.1997.
(13) The appellants Vidur Impex in turn executed the agreement for sale dated 18.03.1997 in favour of Bhagwati Developers for a consideration of Rs.4.26 crores and received Rs.3.05 crores. The appellants Vidur Impex and Traders Private Limited and Others, thereafter filed an application for impleadment on the ground that they are subsequent purchasers and they are necessary and proper parties to be heard. They also filed an application for vacation of interim injunction.
(14) Several other developments have been noted by the Hon'ble Supreme Court in its judgment. The question that was being considered by the Supreme Court was framed in Paragraph 2 of the judgment as "whether M/s Vidur Impex and Traders Private Limited and five Other Companies who were said to purchase the suit property i.e. 21 New Delhi in violation of order of injunction passed by the learned Single Judge, Delhi High Court, are entitled to be impleaded as parties to suit no.4 to 5 in 1993 filed by Tosh Apartments Private Ltd. thereof."
(15) The Supreme Court made observations as aforesaid in Paragraph 41 of its judgment in the context in which the facts were being considered by it, with regard to a totally private dispute where no statutory/obligation was cast upon the Court to implead necessary and proper parties in the proceedings before it.
(16) However, learned Standing counsel Shri Upendra Singh has pointed out Section 11 C of the U.P. Consolidation of Holdings Act, 1953 which is being quoted hereinbelow:-
"11 C. In the course of hearing of an objection under Section 9-A or an appeal under Section 11, or in proceedings under Section 48, the Consolidation Officer, the Settlement Officer (Consolidation) or the Director of Consolidation, as the case may be, may direct that any land which vests in the State Government or the Gaon Sabha or any other local body or authority may be recorded in its name, even though no objection, appeal or revision has been filed by such Government, Gaon Sabha, body or authority."
(17) It has been submitted that the Statute itself cast a duty upon the consolidation authorities to protect the interest of the State Government or the Gaon Sabha, or any other local body or Authority, in case land is recorded in its name, even though no objection against Appeal or Revision has been filed by such Government Gaon Sabha, Body or Authority.
(18) It has been submitted by the learned counsel appearing for the State-respondents that from a perusal of the order impugned, which is a short order, directing impleadment of U.P. Government as a party to the Revision, it is apparent that the Dy. Director of Consolidation has recorded his satisfaction that the land in dispute Gata No.172 and 23 had been sold to the Government on 24.10.2016 and 29.10.2016 and land had vested in the State Government and the State Government has been recorded as its owner in the Revenue record on 03.12.2016 and 07.12.2016 respectively. By another sale agreement dated 21.01.2017 which has been recorded in the Revenue records on 06.03.2017, the Government had been recorded as tenure holder/owner of the property. However, the Appellant did not implead the State Government or U.P. as a party though it was filed in April, 2017, the SOC in his order dated 26.03.2017 did not notice this fact that even before the decision of the Appeal the land had been recorded in favour of the State Government as its owner. Since the State of U.P. was not made a party by the SOC in the Appeal nor was impleaded in the Revision and UPEIDA which was the beneficiary of such sale transaction was also not impleaded, the DDC rightly directed them to be impleaded and that they should be served notice and be heard before any order could be passed in the Revision.
(19) Learned Standing Counsel has pointed out that the land having vested in the State Government and thereafter being transferred to U.P.E.I.D.A. by the State Government, the DDC exercised his jurisdiction under Section 11 C of the Act to direct impleadment and no fault can be found in the order passed by the DDC, which is only an interlocutory order. This Court should not interfere in its extra ordinary jurisdiction under Article 226 in such an order.
(20) Shri R.S. Pande, in rejoinder has placed reliance upon a Full Bench decision rendered by this Court in Ramakant Singh Vs. Dy. Director of Consolidation, U.P. and Others, reported in AIR 1975 Allahabad 126, where this Court has observed that after the record has been called for by the Dy. Director of Consolidation under Section 48 he should examine the record to decide whether it was a fit case for exercise of the revisional jurisdiction Suo-motu. Such opinion shall have to be formed even where the application in Revision moved by a party is defective, having been made beyond the prescribed period of limitation, or all the necessary parties have not been impleaded. If the Dy. Director of Consolidation finds that the case requires further hearing, he shall give notice to all the necessary parties irrespective of whether they were, or were not impleaded, in the application and after giving them reasonable opportunity of hearing, pass such order as he thinks fit. Where the application in Revision is not defective and is maintainable, the exercise of revisional jurisdiction shall be at the instance of the parties and not Suo-moto.
(21) It has been submitted on the basis of such observations made by the Full Bench that it was not open for the DDC to exercise his Revisional Jurisdiction to direct impleadment of State Government and UPEIDA Suo-moto.
(22) This Court has carefully considered the judgment cited of the Full Bench of this Court. It finds that there are two instances mentioned by the Full Bench; one relates to exercise of power of revision Suo-moto, by calling records and examining the same; the other relates to application being made in Revision under Section 48 (1) by a party. When such application is moved, the Dy Director of Consolidation has power to see whether it is a defective application for Revision, it can see the defects with regard to the period of limitation and whether all necessary parties have not been impleaded.
(23) In this case, the application of Revision was moved by the opposite party nos.2 to 6, it was entertained and therefore, the Dy. Director of Consolidation was within his jurisdiction to consider whether such application was defective and whether all necessary parties had been impleaded in the said Revision or not?
(24) The judgment cited by the learned Senior Advocate, in fact, supports the order passed by the Dy. Director of Consolidation, rather than going against it.
(25) This Court finds that the Dy. Director of Consolidation has exercised the necessary jurisdiction as has been given to him under the statute. A duty has been cast under Section 11-C of the Act on Consolidation Authorities as aforesaid to protect the rights of the State Government, the Gaon Sabha or any other local Body or Authority in any proceeding that is entertained by them.
(26) From a perusal of the judgment rendered by the Hon'ble Supreme Court in Vidur Impex and Traders Private Limited and Others (Supra), also this Court finds that the judgment rendered in the circumstances where two private parties are fighting over property owned by them. The observation made by the Section in Paragraph nos. 41.1, 41.2 and 41.3 supports the order passed by the DDC.
(27) More so, when the statute itself casts a duty upon the Consolidation Authorities to protect the interest of the State Government and the Gaon Sabha or Local Body or Authority.
(28) This Court, therefore, does not find any good ground to show interference in such order.
(29) The petition is dismissed. No order as to costs.
Order Date :- 15.11.2019 PAL