Allahabad High Court
Ram Jeet & Others vs Dy. Director Of Consolidation Jaunpur & ... on 31 May, 2013
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. 24. RESERVED Case :- WRIT - B No. - 42465 of 1999 Petitioner :- Ram Jeet & Others Respondent :- Dy. Director Of Consolidation Jaunpur And Others Petitioner Counsel :- Ganga Prasad, S.C. Tripathi Respondent Counsel :- C.S.C., D.D. Yadav, Dan Bahadur Yadav, Mansih Deo Singh, Shashi Nandan Hon'ble Ram Surat Ram (Maurya),J.
1. Heard Sri S.C. Tripathi for the petitioners, Sri Mansih Deo Singh, for the respondents.
2. The writ petition has been filed for quashing the order of Deputy Director of Consolidation, Jaunpur (respondent-1) dated 21.09.1999, passed in Revision No. 6297, Ram Lakhan Vs. Khirodhan and others, arising out of the chak allotment proceedings under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act).
3. During consolidation, Khirodhan (now represented by the petitioners) was allotted Chak-52, Ram Jeet and others (the petitioners) were allotted Chak-97, Ram Lakhan (respondent-2) was allotted chak-304, Sita Ram (father of respondent-3) was allotted Chak-391. The dispute relates to the allotment of plot No. 133/622, which was Gaon Sabha land. The petitioners claim that plot No. 133/622 is lying in front of their house and from a long before the consolidation, they were using this plot as their appurtenant and occupied by keeping their nad, charan and tying cattle over it and plot No. 136 was their original holding, as such they are claiming for allotment of this plot in their chak. On the other hand, plot No. 133 was the original holding of Ram Lakhan (respondent-2) who also claims for allotment of plot No. 133/622 in his chak on the allegations that he had occupied plot No. 133/622 by keeping his nad, charan, madaha and also installed a hand pump and diesel pumping set over it. Plot No. 133 was his largest original holdings and in this vicinity, he has his maximum original holdings. It may be mentioned that Assistant Consolidation Officer valued plot No. 133/622 and allotted in the chak of Ram Lakhan (respondent-2), chak holder 304.
4. The petitioners, chak holder 97, filed an objection under Section 20 of the Act, against their proposed chak claiming that a part of land lying in front of their house, over which their hand pump and bhatta was situate be reserved for extension of their abadi and by taking area of plot No. 133, 133/622, 134, 136 and 185, a rectangular chak be allotted in his chak, by abolishing their proposed chak on plot Nos. 174, 174/661. The objection of the petitioners was dismissed by the Consolidation Officer.
5. The petitioners, chak holder 97, filed an appeal (registered as Appeal No. 291) from the order of the Consolidation Officer. Ram Lakhan (respondent-2), chak holder 304, filed an appeal (registered as Appeal No. 299) claiming his chak on plot Nos. 129, 135 etc. Two other appeals, namely Appeal No. 276, Shripal Vs. Ram Jeet, Appeal No. 289, Dayaram Vs. Sewak were also filed. Shripal, chak holder 371 was claiming plot No. 184 in his chak on the ground that it was lying in front of his house. The aforementioned four appeals were consolidated and heard by Settlement Officer Consolidation, Jaunpur, who after spot inspection and hearing arguments of the parties by his order dated 28.04.1998 held that during spot inspection, over a part of plot No. 184, nad charan of Khirodhan, chak holder 52 was lying and remaining area of plot No. 184 was lying in front of the house of Shripal, chak holder 371. Entire area of plot No. 133/622 was found in the occupation of the petitioners, who had their kolhada over it. Thus according to the demand of Ram Jeet and others, chak holder 97, Settlement Officer Consolidation by his order dated 28.04.1998 allotted a compact chak taking area of plot No. 184, 133, 133/622 and 134 to Khirodhan, chak holder 52, some area of plot No. 184 was allotted to Shripal, chak holder No. 371 and plot Nos. 129, 131 were allotted in the chak of Ram Lakhan (respondent-2), chak holder 304.
6. Three chak revisions were filed from the order dated 28.04.1998, namely Revision No. 6219, Ram Jeet and others Vs. Firtu and others, claiming that chak 52 be carved in rectangular shape on plot No. 174, 174/661 which were their original holdings. Revision No. 6297, Ram Lakhan and others Vs. Khirodhan and others were filed claiming allotment of plot No. 133/622 in his chak. Revision No. 6306, Shripal Vs. Khirodhan and others was filed claiming entire area of plot No. 184 in his chak 371, from the aforesaid orders. The revisions were consolidated together. Deputy Director of Consolidation (respondent-1) made spot inspection and after hearing the arguments, by his order dated 21.09.1999, held that an area of 0.006 hectare, left for chak road was useless as such an area of 0.006 hectare of plot No. 184 is also liable to be included in chak 52 and an area of 0.002 hectare from chak road on plot No. 184 is liable to be allotted to Shripal, chak holder 371. Demand of chak holder 52 (namely Khirodhan) for making his chak on plot No. 174 and 139 in rectangular shape was proper. So far as demand of Ram Lakhan (respondent-2) chak holder 304, is concerned he was proposed a chak on his original holding plot No. 133, taking plots 132, 133, 134, 135, 129. His demand that by taking entire area of plot 133/622, his chak at this place be made in rectangular shape is proper. On these findings respondent-1 by order dated 21.09.1999, took plots 133 (area 0.061 hectare) and 133/622 (area 0.035 hectare) from chak 52 and allotted in chak 304 of Ram Lakhan and took plots 139 (0.063 hectare) and 174 (area 0.014 hectare) from chak 52 and allotted in the chak 166 of Fitru and an area of 0.006 hectare of plot No. 137 was left as chak road. The petitioners are aggrieved by the order dated 21.09.1999, so far as plots 133 (area 0.061 hectare) and 133/622 (area 0.035 hectare) were taken from chak 52 and allotted in chak 304 of Ram Lakhan (respondent-2).
7. The petitioners have stated that Revision No. 6297, Ram Lakhan and others Vs. Khirodhan and others was time barred. Ram Lakhan had filed an application for condonation of delay to which the petitioners had filed their objection but no order has been passed on it. The revisional court had no jurisdiction to hear the revision on merit without condoning the delay. Khirodhan was arrayed as the respondent in the revision although Khirodhan had died long before the filing of the revision. No notice of Revision No. 6297 was issued to the petitioners and they were not given any opportunity of hearing in this revision. The judgment was passed against a dead person and is nullity. Hearing of all the revisions were done separately, which were not consolidated. Respondent-1 has not made spot inspection nor any inspection memo is on the record but in the order, it has been wrongly mentioned that he had made spot inspection. The village map was also not examined. In the memorandum of revision, Ram Lakhan has illegally mentioned that plot 133/622 was his original holdings. Respondent-1 has not passed any order, summoning the record of the lower court relating to Revision No. 6297. Settlement Officer Consolidation, after spot inspection found that plot No. 133/622 was in the occupation of the petitioners. Even the house of the petitioners was on some portion of plot No. 133. Looking to the need of the petitioners, they were allotted chak on plot 133 and 133/622 for extension of sahan. Respondent-1 has illegally taken these plots from the chak of the petitioners causing grave miscarriage of justice. The order of Respondent-1 suffers from error apparent on the face of record and is liable to be quashed.
8. Ram Lakhan in his Counter Affidavit has stated that in Revision No. 6297, Khirodhan was arrayed as respondent-1 as chak 52 was carved out in his name but the petitioners who are heirs of Khirodhan were also arrayed as respondents in the revision. The petitioners put appearance in Revision No. 6297 and filed their objection to the delay condonation application, allegations that they had no notice of Revision No. 6297 is false. All the three revisions were consolidated and heard together. The revision filed by the petitioners was also time barred and delay has not been condoned. At the time of hearing, the petitioners had not raised any objection that delay has not been condoned or the record has not been summoned as such no objection in this respect can be raised in the writ petition. Under Section 48 of the Act, the revisional jurisdiction can be exercised by Deputy Director of Consolidation suo motu as such there is no inherent lack of jurisdiction and judgment cannot be set aside on this ground. Deputy Director of Consolidation has made spot inspection, statement contrary to it is false. Even Settlement Officer Consolidation during spot inspection found that nad charan of the petitioners were in plot No. 184 and not in plot No. 133/622 and frontage of the house of the petitioners was towards plot No. 184 which has been allotted to them for extension of their sahan. Ram Lakhan has his maximum original holdings on plot No. 133, 134 etc., and has his house, sahan, nad charan, hand pump and pumping set on plot No. 133/622. Deputy Director of Consolidation during spot inspection found that aforesaid developments of Ram Lakhan on plot 133/622 as such he has allotted these plots to Ram Lakhan, making his chak in rectangular shape at this place. Order of Deputy Director of Consolidation does not suffer from any error but is fully in consonance of the principles as given under Section 19 of the Act. The writ petition has no merit and is liable to be dismissed.
9. I have considered the arguments of the parties and examined the record. The first question raised is that Revision No. 6297 was time barred and delay in filing the revision has not been condoned as such respondent-1 had no jurisdiction to pass any order on merit in the revision. The counsel for the petitioners in support of his arguments relied upon the judgments of Supreme Court in Ram Lal and others Vs. Rewa Coalfields Ltd., AIR 1962 SC 361, Raghav Singh Vs. Mohan Singh, 2000 (91) RD 689, K. Ayya Thayalnayagiammal Vs. T.V. Thomas, JT 2000 (7) SC 384, Sri Veera Hanuman Rice and Floor Mill and another Vs. State Bank of India, JT 2000 (6) SC 219, and judgment of Privy Council in Maqbul Ahmad Vs. Onkar Pratap Narain Singh, AIR 1935 PC 85, Krishnasami Panikondar Vs. Ramasami Chettiar, AIR 1917 PC 179 and judgment of this Court Nathu Ram Vs Ganga Bux, AIR 1930 All 815, and Ram Baran Vs. DDC and others, 1987 RD 89.
10. In reply to the aforesaid arguments, the counsel for the respondents submitted that under Section 48 of the Act, the revisional power can be exercised by the Deputy Director of Consolidation suo motu, for which no limitation has been prescribed. For that purpose, he can exercise his jurisdiction even on the revision filed by the private party. Since the revision has been decided on merit, as such, it cannot be said that there was inherent lack of jurisdiction, in hearing the revision without condoning the delay. The revision of the petitioners was also time barred. All the revisions were consolidated and decided by a common order and the petitioners have not raised any objection before respondent-1 that delay has not been condoned. Accordingly, he cannot be permitted to raise any ground in this respect in the revision. He also submits that in the circumstances, delay would be deemed to have been condoned. The counsel for the respondents placed reliance on the Full Bench judgment in Rama Kant Singh vs. DDC and others; AIR 1975 Alld. 126 (FB) and Gaon Sabha, Hunra Vs. DDC and others; 2000 RJ 356, Jainul Abdin Vs. DDC and others, 1974 (Supplement) RD 162, Sangam Singh Vs. Commissioner and others, 1966 RD 312.
11. In Rama Kant Singh (supra), the Full Bench of this Court held as follows:-
"6. It shall be noticed that the exercise or non-exercise of the revisional jurisdiction, depends solely upon the Director of Consolidation. He can exercise this power suo motu on information received from others or on an application made by an aggrieved party. Limitation has been prescribed under Rules 111 of the U.P. Consolidation of Holdings Rules for an application in revision made by a party and not for the suo motu exercise of revisional jurisdiction. Consequently, even if a revision application has been made beyond the prescribed period of limitation, the Director of Consolidation is not debarred from exercising such jurisdiction suo motu which will generally be on information given by others. The information given by the sub-ordinate authority is on a reference made under sub-section (3). In other words, therefore, the Director of Consolidation still has jurisdiction to exercise the revisional jurisdiction even though the application made by the parties is barred by limitation or is defective."
12. Limitation Act, 1963 prescribed limitation for suit, appeal, application etc. as given in various articles of it's schedule. Section 3 of the Limitation Act, 1963 provides a mandatory provision that suit, appeal and application etc. made after prescribed period of limitation shall be dismissed although limitation has not been set up as defence. In view of the mandatory provision of Section 3, it has been held that so long as delay has not been condoned, no order on merit can be passed. However the proceedings where, Limitation Act, 1963 is not applicable, it would be difficult to apply the principle of Section 3. The Consolidation of Holdings Act, 1953 is a special Act and has been enacted to do substantial justice between the parties who are generally illiterate. Rigour of technicalities has not been applied. Under Rule 111 framed therein, limitation of 30 days has been provided for filing the revision by a private party. No limitation has been provided for exercising suo motu power of Deputy Director of Consolidation under Section 48 (1) and for making reference under Section 48 (3). By virtue of Section 53-B, Section 5 of the Limitation Act, 1963 only has been applied to the proceedings under the Act. Section 3 of the Limitation Act, 1963 has not been applied. Full Bench decision of this Court (supra) held that filing of the time barred revision by a party does not debar the Deputy Director of Consolidation for exercising his suo motu power. The case law relied upon by the counsel for the petitioners are in this respect of the proceedings, where the Limitation Act was applicable. However, in the proceedings under the Act, the law laid down in the various cases relied upon by the counsel for the petitioners will not be applicable. Full Bench decision of this Court still holds the field and is a good law. This court is bound by the decision of the Full Bench. There is no force in the argument of the counsel for the petitioners that as delay has not been condoned, respondent-1 had no jurisdiction to decide the revision on merit. Otherwise also this Court in Jainul Abdin Vs. DDC and others, 1974 (Supplement) RD 162, Sangam Singh Vs. Commissioner and others, 1966 RD 312 and the Supreme Court in Dalvinder Pal Sahgal Vs. Partap Steal Rolling Mills (P) Ltd., AIR 2002 SC 451, has held that if the order on merit has been passed without condonation of delay, then it shall be deemed that delay has been condoned.
13. The counsel for the petitioner next argued that the revisions were decided without summoning the lower court record, as such, the revision could not be heard on merit. The allegation in this respect has been made in paragraph 19A of the writ petition. In this respect, counsel for the petitioner has placed reliance upon the judgment of this court in Kameshwar Singh vs. DDC and others; 2001 (92) RD 492. In support of the allegation, the petitioner has filed a questionnaire in which it has been mentioned that as to whether there was any order of the Deputy Director of Consolidation for summoning the record and reply has been given in negative. The respondents have denied this allegation and had stated that the records were summoned. The record may have been summoned by the official of the revisional court in routine manner. The quarry as taken shows that it was a clever misrepresentation of the fact. The Deputy Director of Consolidation in his judgment has mentioned the various facts relating to the record which clearly show that the record of the lower court has been summoned and examined by the Deputy Director of Consolidation. The petitioners have not been able to show that what prejudice has been caused to him. Supreme Court in B.K. Muniraju Vs. State of Karnataka, (2008) 4 SCC 451 held that unless there is grave injustice or gross failure of justice, writ of certiorari cannot be issued. As such no interfere is required with the order of Deputy Director of Consolidation on this ground.
14. The next point argued by counsel for the petitioner is that Khirodhan was dead and the judgment has been passed against a dead person. The petitioner has filed the memorandum of the revision filed by Ram Lakhan as annexure 3 to the writ petition which shows that Khirodhan was arrayed as respondent-1 and the petitioners were arrayed as respondents-4 to 6 in the revision. Admittedly, the petitioners are legal representatives of Khirodhan. They advanced the cause of Khirodhan before the appellate court and they were arrayed as respondents in the revision. They also put appearance before the revisional court and filed an objection (filed as annexure 4 to the writ petition) to the delay condonation application. Accordingly, the argument of counsel for the petitioners in this respect is incorrect. The counsel for petitioners in this respect relied upon the judgment of Supreme Court in Jangli and another vs. Deputy Director of Consolidation and others; (1982) 1 SCC 478, Union of India vs. Ram Charan; AIR 1964 SC 215 and judgment of this court in K.B. Agarwala vs. Smt. Chandrawati and others; AIR 1976 Alld. 15. But as held above the petitioners, who are the heirs of Khirodhan were also made parties in the revision as such the aforesaid case law are not applicable in this case.
15. Apart from the fact that the petitioners were arrayed as party in the revision filed by Ram Lakhan, they have also filed their separate revision, which was consolidated and decided by a common order as such, they were heard before passing of the order. The estate of Khirodhan was represented by the petitioners and the argument that the judgment was passed against dead person, is incorrect. The grounds raised by the petitioners that order was passed against dead person and they had no notice of the revision of Ram Lakhan are false. The petitioner themselves had filed copy of the objection filed by them in the delay condonation application as annexure 4 to writ petition, which proves that they were contesting.
16. The counsel for the petitioner lastly submitted that the Deputy Director of Consolidation has no jurisdiction to set aside the finding of fact recorded by Settlement Officer Consolidation which was recorded after spot inspection. The Settlement Officer, Consolidation found that the petitioners were in occupation of plot no. 133/622 as their kolhada was found over it. On this ground the petitioners were allotted chak on plot no. 133 and 133/622. The Deputy Director of Consolidation has illegally set aside the finding of fact in this respect. The counsel for the petitioner relied upon the judgment of this Court in Virendra Singh vs. Joint Director of Consolidation and others; 2000 (91) RD 639, in which it has been held that Deputy Director of Consolidation has no jurisdiction of reappraisal of the evidence.
17. I have considered the arguments of counsel for the petitioners in this respect. The Settlement Officer, Consolidation in his judgment has found that the petitioners had their kolhada over plot no. 133/622. The nad charan, etc. of the petitioners were found on plot no. 184. Thus, on plot no. 133/622, user of the petitioners were temporary only during the cane crushing season, which hardly go for two to three months. The apparatus used for crushing of the sugarcane as well as its preparation, are the temporary fixture and can easily be shifted to any other place. Admittedly, plot no. 133/622 does not belong to the petitioner. It is admitted that plot nos. 132, 133, 134, 135, 129, etc. belong to Ram Lakhan, respondent-2. In order to give a compact chak to respondent-2, the Deputy Director of Consolidation has allotted plot no. 133 and plot no. 133/622 in the chak of respondent-2, which is fully in consonance with the provisions of Section 19(1)(e) of the Act. Thus, even if it is assumed that the petitioners were in temporary occupation over the plot no. 133/622, then also they are not entitled for allotment of chak on its basis under Section 19 of the Act. On the other hand, the allotment of chak to respondent-2 at this place, on his largest original holding is fully in consonance with Section 19(1)(e) of the Act and there is no illegality in the order of respondent-1 in this respect. Supreme Court in Ram Dular Vs. DDC and others, 1994 (Supplement) (2) SCC 198, Preetam Singh Vs. DDC and others, (1996) 2 SCC 270, Sheo Nand Vs. DDC and others, (2000) 3 SCC 103, Gulzar Singh Vs. DDC and others, (2009) 12 SCC 590 has consistently held that Deputy Director of Consolidation has very wide power to decide issue relating to fact and law both under Section 48 of the Act after re-appreciating the evidence on record. Apart from it Explanation III has been added in Section 48 of the Act with retrospective effect from 10.11.1980 which provides that 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. The case law relied upon by the counsel for the petitioner does not hold a good law and contrary to the decision of the Supreme Court.
18. In view of the aforesaid discussion, I do not find any illegality in the order of respondent-1. The writ petition has no merit and is dismissed. The parties shall bear their own costs.
Order Date :- 31.5.2013 Jaideep/-