Allahabad High Court
Siddh Narayan Son Of Sri Ram Suchit vs The Deputy Director Of Consolidation ... on 16 August, 2007
Equivalent citations: 2008(1)AWC219
Author: Krishna Murari
Bench: Krishna Murari
JUDGMENT Krishna Murari, J.
1. Heard Sri Anil Bhushan, learned Counsel for the petitioner.
2. Dispute relates to plot No. 1288 situate in, village Nigdilpur, Pargana Nawabganj, District-Allahabad which was recorded in the name of Anad Behari Maharaj Virajman Mandir trust through its 'Sarwarakar'. Trust is stated to be a private trust. The petitioner claims to have purchased the land in dispute from one Vishwambhar Naravan who is stated to have been authorised by the trust for disposal of the property in dispute by the management of the Trust to secure money for maintenance of Mandir. Thereafter, the petitioner moved ah application under Section 12 of U. P. Consolidation of Holdings Act for short the Act') for mutation of his name which was allowed by Assistant Consolidation officer vide order dated 30th April 1991. The village came to be de-notified under Section 52 of the Act on 8.7.2004 Gaon Sabha/respondent No. 5 filed a time barred appeal challenging the order dated 30th April 1991 on 5th October 2006. Petitioner filed an objection regarding maintainability of the appeal after de-notification under Section 52 of the Act. Settlement Officer Consolidation vide-order dated 25th June 2007 overruled the preliminary issue raised by the petitioner holding that even after de-notification under Section 52 of the Act the appeal was maintainable. The petitioner went up in revision. Deputy Director of Consolidation vide order dated 18th July 2007 dismissed the same. Feeling aggrieved, petitioner has approached this Court.
3. It has been urged by learned Counsel for the petitioner that appeal filed by Gaon Sabha after de-notification of consolidation operation under Section 52 of the Act was not at all maintainable and his preliminary objection has wrongly been overruled. Reliance in support of the contention has been placed on the decisions of learned single Judge of this Court in the case of Raj Bahadur Singh v. Deputy Director of Consolidation Hardoi and Ors. 1914 R.D. (suppl.) 181 and Nanhki v. Deputy Director of Consolidation, Pratapgarh and Ors. 1994 R.D. 264 and a Division Bench of this Court in the case of Hari Ram v. Deputy Director of Consolidation, Azamgarh and Ors. 1989 R.D. 281.
4. In so far as the cases of Hari Ram (supra) and Nanhki (supra) are concerned, the same have no application to the facts and circumstances of the present case inasmuch as in the said two cases the question before the Court was whether Deputy Director of Consolidation could have entertained and decided reference proceedings in exercise of powers conferred by Section 48(3) of the Act even after issuance of issuance of the notification under Section 52 of the Act.
5. The question for consideration in this case is whether an appeal against the order of the Consolidation Officer could be filed, entertained and proceeded with even after notification under Section 52 of the Act has been issued.
6. It is well settled that institution of a suit or proceedings carries with it the implication that all rights of Appeal then in forces remain preserved with the parties thereto till the proceedings are finally decided and that right of appeal is a vested right which accrues to the litigant from the date the lis commenced. Reference may be made to the following observation of the Hon'ble Supreme Court in the case of Gari Kapati v. Subbaih Choudhary .
Legal persuit of a remedy, suit appeal and second appeal are really but steps in a series of proceedings ail connected by an intrinsic entity and are to be regarded as one legal proceeding and that the right of Appeal was not a mere matter of procedure but was a substantive right Thus, it is clear that right of a lit gant to take proceedings to a higher Court, in case of an adverse order, comes into existence the moment proceeding is initiated and continues till the lis continues. The right is to be governed, by the law prevailing at the time of institution of the suit, proceedings or appeal and not by the law that prevails at the time of decision or the of the filing of the appeal unless it was expressly or by necessary implication so provided.
Section 11 of the Act Providing to appeal reads as under;
11. Appeals. -(1) Any party to the proceedings under Section 9-A aggrieved. by an order of the Assistant. Consolidation Office, or he Consolidation Officer under that section, may within 21 days of the date of the order, file an appeal before the Settlement Officer Consolidation, who shall 11 after affording opportunity of being heard to the parties concerned, give his decision'', thereon which, except as otherwise provided by or under this Act, shall be final and not be questioned in any Court of law.
(2) The Settlement Officer, Consolidation hearing an appeal under Sub-section (1) shall be deemed to be a court of competent jurisdiction, anything to the contrary contained in any law for the time being in force notwithstanding.
Section 52(1) and (2) of the Act around which the entire controversy revolves reads as under;
52. Close of consolidation operations.- (1) As soon as may be after fresh maps and records have been prepared under Sub-section (1) of Section 27, the State Government shall issue a notification in the official Gazette that the consolidation operation have been closed in the unit and village or villages forming part of the unit shall then cease to be under consolidation operations:
Provided that the issue of the notification under this, section shall not affect the powers of the State Government to fix, distribute and recover the cost of operations under this Act.
(1-A) The notification issued under Sub-section ( 1) shall be published also in a daily newspaper having circulation in the area and in such other manner as may be; considered proper.
(2) Notwithstanding anything contained in Sub-section (1), any order passed by a Court of competent jurisdiction in cases of writs filed under the provisions of the Constitution of India 'or in cases of proceedings', pending under this Act on the date of issue of the notification under Sub-section (1), shall be given effect to by such authorities as may be prescribed and the consolidation operation shall for that purpose, be deemed to have not been closed.
(3) ...
7. From the aforesaid it would be seen that Sub-section (2) of Section 52 which-has been added by amending Act No. VIII of 196 3 is 'a deeming clause which clearly provides that for, the purpose of giving effect to the orders which may be passed by a Court of competent: jurisdiction either in cases of writs or proceedings pending under the Act on the date of issuance of notification under Section 52, Consolidation operation shall not be deemed to have been closed.
8. There is nothing either in Section, 11 not be Section 52 of the Act which either expressly or by necessary implication takes away the right of appeal. In view of the deeming clause contained in Section 52(2) of the Act, in cases- where the proceedings under the Act are pending on the date of issuance of notification under Sub-section (1), the consolidation operation shall not be treated to be closed meaning thereby in such cases the provisions of the Act shall continue to remain in force as if notification under Section 52(1) notifying the close of consolidation operation has not been issued.
9. In the case in hand, against the order passed by the Consolidation Officer the contesting respondents had a right to approach the Settlement Officer Consolidation in appeal. However before their rights to approach the appellate Court came to an end notification under Section 52(1) of the Act was issued. However, in view of the deeming clause under Section 52(2) notification issued under Section 52(1) of the Act will have not have the effect of destroying the right of appeal which came to be vested in the contesting respondents inasmuch as the proceedings initiated under Section 9 of the Act had not been finally decided when notification under Section 52(1) of the Act was issued.
10. The question whether an appeal or revision could be filed even after issuance of notification under Section 52(1) of the Act came up for consideration before a learned single Judge in the case of Gopi Singh v. deputy Director of Consolidation 1967 AWR 264 Learned single Judge while holding that the appeal would be maintainable observed as under;
The term proceedings. in Section 52(2) has, in my opinion, been used in that comprehensive sense to include the entire series of proceedings commencing from the one which is initiated before the Consolidation Officer and including 'that taken in the appeal court. When an appeal is instituted the proceeding which commenced in the trial Court continues. The appeal does not initiate a fresh proceeding. On the institution of the appeal the proceedings which have become dormant oh the decision by the trial court, revive and remain pending. The only difference being that it is now pending in a different court, namely the court of appeal.
It was further observed:
The word cases' in the phrase cases of writs filed under the Constitution', in Sub-section (2) will include orders passed by higher courts of appeal including the Supreme Court. Thus, Sub-section (2) is designed to preserve and make effective orders passed by any one or more of the hierarchy of courts established under the Act, irrespective, of whether the proceeding was pending in any particular court or in any Court subordinate thereto, on the date of issue of the notification in Sub-section (1).
11. The aforesaid view of the learned single Judge was approved by a Division Bench in the case of Dilawar Singh v. Gram Samaj 1972 AWR 557. The same was the view of another Division Bench in the case of Ram Bahadur v. Deputy Direct of Consolidation 1973 AWR 207.
12. The same principles have been applied with equal force in case of a revision before the Deputy Director of Consolidation under Section 4 8 of the Act by the Division Bench in the case of Dilawar Singh (supra) wherein it was observed as under;
The principle of a vested right of a litigant to take a proceeding to the superior', court by an appeal would be equally applicable in case of a revision. It is true that a revision is a power conferred on a court or authority to be exercised at its discretion but it does not mean that the litigant does not possess the right to approach the superior court through a petition for revision. The only basic difference between an appeal and a revision is that in case of an appeal the appellant is entitled to a relief if he succeeds in establishing that the order of the subordinate Court or authority was unsound contrary to law. In case of a revision that court has discretion to refuse the relief if, for example, in its opinion substantial justice had been done between the parties although the order, sought to be revised suffered from infirmities which could justify an interference by the revising court.... If under a statute a party has right to approach the superior court with a prayer to revise the order of the subordinate court, the proceeding can be said to be pending'- till the right to exercise the right of approaching the superior court subsists in the applicant and so long that right subsists, it cannot be said that the proceedings had finally come to an end. The right to approach the superior court through an appeal or a revision can be exercised only after an adverse judgment or order is passed against the--party. Till then the right only remains dormant and when that right: is exercised the-original proceedings become pending.
13. Even in cases where the limitation of filing recall application or appeal or revision has run out prior to date of notification under Section 52 of the Act, aggrieved person can file restoration application, appeal or revision as held by the Division Bench in the case of Ram Bahadur (supra) The Bench was of the view that proceedings for, recall are on the same footing as an appeal because they have the effect of reviving the original proceedings. The same view was again reaffirmed by another Division Bench in the case of Jiwa Ram and Anr. v. Deputy Director of Consolidation 1974 (Suppl.) R.D. 40. Reference may also be made to the following decisions of the learned single judge taking the same view Jhagru v. Deputy Director of Consolidation Basti 1989 RD 126, Shyam Narain Rai v. Deputy Director of Consolidation Ballia 1981 RD 307, Ram Rati v. Deputy Director of Consolidation 1998 (2) AWC 973 and Tara Chand v. Deputy Director of Consolidation Ballia 2004 (96) RD 193.
14. In view of the aforesaid discussions and the law laid down by the Division Bench pronouncements in the case of Dilawar Singh (supra) Ram Bahadur (supra), Jiwa Ram (supra), the contrary decision of a learned single Judge in the case of Raj Bahadur Singh v. Deputy Director of Consolidation, Hardoi and Ors. (supra) relied upon by the learned Counsel for the petitioner cannot be accepted as laying down correct law and has no binding or even persuasive value.
15. In view of above, there is no illegality in the impugned orders passed by Settlement Officer Consolidation overruling the preliminary objection raised by the petitioner that the appeal would not be maintainable after issuance of notification under Section 52(1) of the Act as well as the revisional order passed by Deputy Director of Consolidation.
16. In the result, the writ petition fails and is dismissed.