Allahabad High Court
Raj Kishore vs Deputy Director Of Consolidation And ... on 28 February, 2002
Equivalent citations: 2002(2)AWC1326, 2002 ALL. L. J. 1086, 2002 A I H C 2692, (2002) REVDEC 307, (2002) 2 COMCAS 1326
Author: Ashok Bhushan
Bench: Ashok Bhushan
JUDGMENT Ashok Bhushan, J.
1. Heard Sri Sankatha Rai, counsel for the petitioner and Sri Satyendra Kumar Singh and Manish Kumar Nigam appearing for the contesting respondents. Counter and rejoinder-affidavits have been exchanged and both the parties had prayed that the writ petition be finally decided. Both the parties have been heard at length.
2. This writ petition has been filed challenging the order dated 30.10.1998 passed by the Deputy Director of Consolidation, Ballia and the order dated 29.12.1995 and 22.11.1997 passed by the Settlement Officer of Consolidation and the Assistant Settlement Officer of Consolidation. Ballia. The writ petition arises out of the proceedings under Section 9A of U. P, Consolidation of Holdings Act, 1953.
3. The facts of the case as emerge from the pleadings of the parties are :
The consolidation proceedings started in village Sanwara and Rattopur. Pargana Kopacheet Garvi. District Ballia. In basic year, plots in dispute were recorded in the names of Parmanand, Dharmdeo and Ramdhari, sons of Sukhai. The pedigree of the family as given in paragraph 3 of the writ petition is not disputed. Sukhai had three brothers, one of which was Akaloo. Petitioner and respondent No. 4 both were sons of Ramdhari. Petitioner was adopted by Akaloo. An objection under Section 9 (2) of U. P. Consolidation of Holdings Act was filed by the petitioner claiming co-tenancy right over the land in dispute of both the villages claiming that land in dispute is ancestral property and he has share in the Khata. The Assistant Consolidation Officer decided the dispute raised by the petitioner on the basis of consolidation. The order was passed by the Assistant Consolidation Officer on 2.2.1973/20.2.1973 accepting the claim of the petitioner with regard to village Sanwara. With regard to village Rattopur orders, were passed by the Assistant Consolidation Officer on 16.7.1973 and 7.8.1973. On the basis of the orders passed by the Assistant Consolidation Officer, consolidator recorded the name of the petitioner over Khata in dispute and chak was carved out in the name of the petitioner separately and in the name of Ramdhari, the natural father of the petitioner separately. C.H. Forms 41 and 45 were prepared in favour of the petitioner. Village Rattopur was de-notified under Section 52 of the U. P. Consolidation of Holdings Act on 7.7.1977 and village Sanwara was de-notified under Section 52 of the U. P. Consolidation of Holdings Act on 27.9.1980. Ramdhari the natural father of the petitioner, and respondent No. 4 died on 7.1.1984. The respondent No. 4 filed belated appeal challenging the orders passed by the . Assistant Consolidation Officer. Against the order dated 2.2.1973/20.2.1973 of the Assistant Consolidation Officer with regard to village Sanwara, an appeal was filed on 24.2.1984 and with regard to village Rattopur, appeals were filed on 5.5.1934 and 16.5.1984. Benefit of Section 5 of the Limitation Act was claimed by the respondent No, 4. The respondent No. 4 claimed in his appeal that the petitioner has no share in the land in dispute, He claimed that his share is half and other half share belongs to Shiv Nath and Shiv Muni, sons of Parmanand. He further stated that before Assistant Consolidation Officer, his father did not sign and the Assistant Consolidation Officer has no Jurisdiction to pass order. He had stated that after the death of his father, he came to know that by the aforesaid order of the Assistant Consolidation Officer, the share of the respondent No. 4 has been reduced. Objection was filed by the petitioner before the Settlement Officer of Consolidation. Petitioner filed objection in the time barred appeal that the question of delay should be first heard. The Settlement Officer of Consolidation passed order on 17.11.1994 that the parties may raise argument with regard to question of delay. Prior to that, the Settlement Officer of Consolidation has earlier allowed the appeal on 8.5.1989 ex pane to the petitioner and on the restoration application being filed by the petitioner, the said ex parte order was set aside vide order dated 29.10.1994. The Settlement Officer of Consolidation passed an order on 29.12.1995 condoning the delay in filing the appeal and further set aside the orders of Assistant Consolidation Officer on the ground that the said orders were without jurisdiction. The Settlement Officer of Consolidation after setting aside the order of the Assistant Consolidation Officer remanded the matter before the Consolidation Officer. Petitioner filed an application for recall of the order of the Settlement Officer of Consolidation on the ground that the Settlement Officer of Consolidation has heard the parties only on the question of delay but the Settlement Officer of Consolidation has decided the appeal on merit. It was claimed by the petitioner that they had no opportunity to have their say on the merits of the case ; hence the order of the Settlement Officer of Consolidation be recalled. The said application was rejected by the Assistant Settlement Officer of Consolidation on 22.11.1997. Two revisions were filed by the petitioner before the Deputy Director of Consolidation. Revision No. 1452 was filed against the order of the Settlement Officer of Consolidation dated 29,12.1995 and the Revision No. 1753 was filed against the order dated 22.11.1997. The Deputy Director of Consolidation dismissed both the revisions vide his order dated 30.10.1998. The Deputy Director of Consolidation took the view that the order dated 29.12.1995 passed by the Settlement Officer of Consolidation is only an interlocutory order against which revision is not maintainable. With regard to order dated 22.11.1997, it was held by the Deputy Director of Consolidation that the earlier order of the Settlement Officer of Consolidation was passed after hearing the parties and there being no power of review, the revision is liable to be dismissed. The petitioner has come up in this Court challenging the order of the Deputy Director of Consolidation dated 30.10.1998 and the orders dated 29.12.1995 and 22.11.1997 passed by the Settlement Officer of Consolidation and Assistant Settlement Officer of Consolidation respectively.
4. Shri Sankatha Rai, counsel for the petitioner raised following submissions in support of the writ petition :
(1) The Settlement Officer of Consolidation committed error in condoning the delay in filing the appeals by respondent No. 4. The Settlement Officer of Consolidation has not recorded any finding that sufficient reasons have been given by the respondent No. 4 for condoning the delay. The order condoning the delay is vitiated in law.
(2) According to the order of the Settlement Officer 'of Consolidation dated 17/11.1994, the Settlement Officer of Consolidation has directed the parties to address argument on the condonation of delay. The Settlement Officer of Consolidation heard the parties on condonation of delay and has allowed the appeals on merits after condoning the delay.
(3) The view of the Settlement Officer of Consolidation that the orders passed by the Assistant Consolidation Officer in favour of the petitioner were without jurisdiction in erroneous. The Assistant Consolidation Officer has full jurisdiction to pass orders on conciliation. The petitioner's name has been recorded in pursuance of the order of the Assistant Consolidation Officer, hence the same was given effect to in consolidation records. It is not open to the respondent No. 4 to say that the orders of Assistant Consolidation Officer were without jurisdiction.
(4) The revision filed by the petitioner was fully maintainable and the Deputy Director of Consolidation committed error in holding that the revision was not maintainable.
5. The counsel for the respondent No. 4 has refuted the submissions of counsel for the petitioner. It was contended by the counsel for the respondents that the Settlement Officer of Consolidation rightly condoned the delay in filing the appeal. It was contended by the counsel for the respondents that the order of the Assistant Consolidation Officer being nullity the Settlement Officer of Consolidation has rightly set aside the same giving the benefit of Section 5 of the Limitation Act. It was further contended that the petitioner has no right over the land in dispute since he was adopted by Akaloo brother of Sukhai and by virtue of Section 12 of the Hindu Adoptions and Maintenance Act, 1956, he will lose all his rights in the family of his natural father. It was contended that there was no compliance of Rule 25A of the U. P. Consolidation of Holdings Rules. 1954, by the Assistant Consolidation Officer before passing the order.
6. The counsel for the respondents in support of his submission that the order passed by the Assistant Consolidation Officer is nullity which will not come in way of condoning the delay has placed reliance on Union of India v. Ajit Mehta and Associates, Pune and Ors., AIR 1990 Bom 45. In the aforesaid case, the Bombay High Court in paragraph 34 has held :
"The nullity in such cases further runs with the award and the objection with regard to it can be raised at any stage including the stage of its execution or enforcement. The bar of limitation enacted by Article 119 of the Limitation Act, therefore, does not either prevent a party from raising such objection or prevent the Court from using its suo motu power to set aside the award on that ground."
7. The counsel for the respondents has further relied on Kiran Singh and Ors. v. Chaman Paswan and Ors.. AIR 1954 SC 340. The Apex Court in the aforesaid judgment has held that it is well established that the decree passed by the Court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced. Paragraph 6 of the aforesaid judgment is extracted below :
"6. The answer to these contentions must depend on what the position in law is when a Court entertains a suit or an appeal over which it has a jurisdiction, and what the effect of Section 11 of the Suits Valuation Act is on that position. It is a fundamental principle well-established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties. If the question now under consideration fell to be determined only on the application of general principles governing the matter, there can be no doubt that the District Court of Monghyr was 'coram non judice' and that its Judgment and decree would be nullities. The question is what is the effect of Section 11 of the Suits Valuation Act on this position,"
8. That another decision relied by the counsel for the petitioner is Badlu v. Ram Narain and Ors., 1994 RD 170, in which the Court held that the order of the Deputy Director of Consolidation being order of remand though not happily worded and the consolidation authorities being the Court of fact, no interference is called in proceedings under Article 226.
9. That from the contentions raised by the counsel for the parties, the main question which arises for consideration in the present writ petition is as to whether the Assistant Consolidation Officer had jurisdiction to entertain the claim of the petitioner for co-tenancy right and pass an order on basis of conciliation under Section 9A (I) of the U. P. Consolidation of Holdings Act. The first, second and third submissions raised by the counsel for the petitioner are inter-connected and are being considered together. The Settlement Officer of Consolidation has condoned the delay in filing the appeals by the respondent No. 4 and has set aside the order of the Assistant Consolidation Officer on the ground that the orders passed by the Consolidation Officer were without jurisdiction. Thus, for condoning the delay as well as for allowing the appeal on merit, only basis which has been given in the order of the Settlement Officer of Consolidation is that the order of Assistant Consolidation Officer was without jurisdiction.
10. The U. P. Consolidation of Holdings Act, 1953, has been enacted to provide for consolidation of agricultural holding for development of agriculture. After Issuance of notification under Section 4 of the U. P. Consolidation of Holdings Act, under Section 7 revision of village map is taken. Section 8 provides for revision of field book and correction of annual register, determination of valuations and shares in joint holdings. Section 8A provides for preparation of statement of principles, Section 9 (1) provides for issue of extract from record and publication of records. Section 9 (2) provides :
"9 (2) Any person to whom a notice under Sub-section (1) has been sent, or any other person interested may, within 21 days of the receipt of notice, or of the publication under Sub-section (1), as the case may be, file before the Assistant Consolidation Officer, objections in respect thereof disputing the correctness of nature of the entries in the records or in the extracts furnished therefrom or in the Statement of Principles, or the need for partition."
11. Section 9A (1) pertains to disposal of cases relating to claims to land and partition of Joint holdings. Section 9A (1) enjoins upon the Assistant Consolidation Officer to settle the disputes, correct the mistakes, effect partition as far as may be by conciliation between the parties appearing before him and pass orders on the basis of conciliation. Section 9A as it existed at the time when the Assistant Consolidation Officer passed the orders, is quoted below :
"9A. Disposal of cases relating to claims to land and partition of joint holdings.--(1) The Assistant Consolidation Officer shall :
(i) Where objections in respect of claims to land or partition of joint holdings are filed, after hearing the parties concerned ; and
(ii) Where no objections are filed, making such enquiry as he may deem necessary.
settle the disputes, correct the mistakes and effect partition as far as may be by consolidation between the parties appearing before him and pass orders on the basis of conciliation.
(2) All cases which are not disposed of by the Assistant Consolidation Officer under subsection (1), all cases relating to valuation of plots and all cases relating to valuation of trees, wells or other improvement, for calculating compensation therefor, and its appointment amongst Consolidation Officer-owners, if there be more owners than one, shall be forwarded by the Assistant Consolidation Officer to the Consolidation Officer. Who shall dispose of the same in the manner prescribed.
(3) The Assistant Consolidation Officer, while acting under Sub-section (1) and the Consolidation Officer, while acting under Sub-section (2), shall be deemed to be a court of competent jurisdiction, anything to the contrary contained in any other law for the time being in force notwithstanding."
12. The question raised in this writ petition is as to what is the scope of orders which are to be passed by the Assistant Consolidation Officer under Section 9A (I) and whether in the facts of the present case, the Assistant Consolidation Officer had any jurisdiction to consider the objection filed by the petitioner and pass orders thereon.
13. Section 9A (1) refers to objections in respect of claims of land. Those objections which can be decided by the Assistant Consolidation Officer, may be objections in respect of claims to land. Claims to land referred to in Section 9A (I) has not been further elaborated but according to the scheme of the Act. has to be understood as all types of claims to the land. Objections may be of sole tenancy, co-tenancy, and rights on basis of adverse possession, rights on basis of sale, lease or any other kind of claim. The two other expressions "settle the dispute" and "by conciliation between the parties" who appear before the Assistant Consolidation Officer have been used in Section 9A (1). The very concept of conciliation comprehends bringing of an agreement between the two opposite parties. The word 'conciliation' means "bringing of opposing parties or individuals into harmony". A Division Bench of this Court has held that the scheme of consolidation could not possibly be successful unless all disputes relating to title in respect of different holdings in a village were first adjudicated upon and decided finally between the parties. In Kushar v. Ahmed Khan and Ors., 1962 RD 172, the Division Bench held :
"The U. P. Consolidation of Holdings Act. 1953, was placed under a statute book for providing for ' the consolidation of agricultural holding in Uttar Pradesh. The scheme of Consolidation could not possibly be successful unless all disputes relating to title in respect of different holdings in a village were first adjudicated upon and decided finally between the parties. If that were not so even after the consolidation of holding has taken place rival claimants would continue to agitate matters in respect of their rights and there was likely to be fragmentation of the holding again as the dispute may be decided one way or the other. That is the main reason why the Act makes specific provision for the disposal of all the disputes relating to questions of title in the source of the consolidation proceedings themselves."
14. Thus, the very scheme of the Act contemplates that the disputes of all natures have to be settled and since there are no restriction or exception to the claims to land which can be decided by the Assistant Consolidation Officer the dispute claiming a co-tenancy right by any person is fully covered by dispute which can be decided by the Assistant Consolidation Officer by conciliation. The aforesaid Division Bench further held :
"In order that the holdings may be consolidated according to the final rights of the parties Section 7 provides for the revision of village maps and after that is done provision is made under Section 8 for the revision of the field book after the field to field partal and also the current annual register after it is properly tested and verified. A statement is then to be prepared showing the mistakes and disputes discovered during the course of field to field partal. Notices are then served under Section 9 on all the tenure holders together with the relevant extracts of current annual register and also to other persons who may be interested in particular holdings calling upon them to file before the A.C.O. their objections within 15 days of the date of receipt of the notice. The intention is that the A.C.O. must have before him all objections relating to the entries in the annual register so that all the disputes in respect of them may be decided in the course of the consolidation proceedings. The A.C.O. Is to make an attempt to dispose of those disputes on the basis of conciliation under subsection (2) of Section 9 and all those disputes which remain undecided ask a result of conciliation attempts on his behalf are to be reported to the Consolidation Officer under subsection (3) of the same section."
15. Section 9A (I) contemplates settlement of dispute by conciliation, i.e., by agreement between the parties, procedure and manner under which the conciliation will be arrived at and order will be passed by the Assistant Consolidation Officer, as has been provided under Rule 25A. Rule 27 further provides that the Consolidation Lekhpal shall note the orders of the Assistant Consolidation Officer in the records. Rule 25A and Rule 27 are quoted below :
"25-A. (See Sections 9A, 9B and 9C).-- (1) The Assistant Consolidation Officer, as far as possible, would deal with all the objections filed by a tenure-holder with regard to matters referred to in clause (I) of Sub-section (1) of Section 9A and Sub-section (1) of Section 9B in the village itself. In deciding disputes on the basis of conciliation in terms of subsection (1) of Section 9A, he shall record the terms of conciliation in the presence of at least two members of the Consolidation Committee of the village. These terms shall then be read to the parties concerned and their signatures or thumb impressions obtained. The members of the Consolidation Committee present shall also sign the terms of conciliation. The Assistant Consolidation Officer shall then pass the orders deciding the disputes in terms of conciliation specifying the precise entries to be made in the records. Details of the operative part of the orders passed by the Assistant Consolidation Officer shall be noted in the Misilband register. No ex parte order or orders in default shall be passed by the Assistant Consolidation Officer.
(2) in all cases in which the Assistant Consolidation Officer sends a report under the provisions of Sub-section (2) of Section 9A. or Sub-section (1) of Section 9B to the Consolidation Officer for disposal and communicate the same to the parties present before him and issue notices in C.H. Form 6A to the parties not so present. The report of the Assistant Consolidation Officer in such cases shall clearly bring out the points in dispute between the parties and the efforts made by him to reconcile them.
27. (See Section 9A and 54).--The Consolidation Lekhpal shall note the orders of Assistant Consolidation Officer and the Consolidation Officer passed under Section 9A with regard to :
(i) rights in and liabilities to the land.
(ii) valuation of plot, trees, wells and other improvements, and (iii) partition of Joint holdings : (a) on the basic of khatauni. (b) Khasra Chakbandi in C.H. Form 2A. and
(c) The relevant columns of the revised Annual Register in C.H. Form 11 (as soon as it has been prepared) respectively.
He shall enter case number, the date of order and its operative portion in the records of aforesaid. The correctness of the entries made by the Consolidation Lekhpal shall be attested by the Consolidation. The Assistant Consolidation Officer shall also check at least 20 per cent of the entries to ensure that they have been correctly mode."
16. Section 9A (I) does not contemplate adjudication of rights by the Assistant Consolidation Officer on disputed questions of title. If no agreement is arrived between the parties and the claim of the objector is disputed by any of the parties, the case has to be treated as disputed case and he has to refer it to the Consolidation Officer for decision. From the facts which have come in the record, it is not in dispute that the petitioner and respondent No. 4 both were sons of Ramdhari. Petitioner, however, was adopted by Akaloo who was father's brother of Ramdhari. The petitioner thus was member of family both by natural birth as well as by adoption. Ramdhari the father of the respondent No. 4 and father of petitioner before adoption had at no point of time challenged the orders of the Assistant Consolidation Officer. The order of the Assistant Consolidation Officer was passed on conciliation and in the basic year Parmanand, Dharmdeo and Ramdhari sons of Sukhal were recorded thus recorded tenure holders had entered into conciliation on the objection filed by the petitioner. The facts as clear from the pleadings of the parties are that Assistant Consolidation Officer did pass order under Section 9A (I) in the year 1973 accepting the objection of the petitioner by virtue of which the name of the petitioner was recorded on 1/4th share and the chak in his favour was carved and the final consolidation records were prepared in favour of the petitioner. It was father of respondent No. 4 and other recorded tenure holders who were to reconcile with the objection of the petitioner. Rule 25A further provides that Assistant Consolidation Officer has to record the terms of conciliation. Thus, it is only the terms of conciliation which is required to be recorded and not the reasons for accepting the reconciliation or title of objector. The submission of counsel for the respondents that petitioner having been adopted by Akaloo, he had no right to claim any share in the land in dispute, cannot be accepted. Since even after adoption, he will be treated to be son of Akaloo who was none else than brother of recorded tenure holder's father. In paragraph 5 of the writ petition, specific allegations have been made by the petitioner that objection of the petitioner was that the land in dispute was ancestral and Joint family tenancy of the parties, The petitioner had claimed himself as co-tenure holder along with the recorded persons being adopted son of Akaloo in respect of disputed Khata. Thus, it cannot be said that claim raised by the petitioner in his objection; was without any basis and was not permissible to be allowed under Section 9A (1) if the recorded tenure holder did not object to the claim of the petitioner and agreed to accept him as co-tenant and the order was accordingly passed by the Assistant Consolidation Officer. It cannot be said that the order of Assistant Consolidation Officer was without Jurisdiction. There is no dispute that the proposition laid down by the Apex Court in the case of Kiran Singh's case, (supra) cited by the counsel for the respondents that a decree which is without jurisdiction can be avoided at any stage but in view of the above discussions, it is held that the order passed by Assistant Consolidation Officer cannot be termed as without jurisdiction hence the aforesaid judgment does not help the respondents.
17. The Settlement Officer of Consolidation while condoning the delay in filing the appeal has held that since the order of the Assistant Consolidation Officer was without jurisdiction, hence the question of limitation will not be attracted in such cases and the benefit of Section 5 of the Limitation Act is to be granted. The decision of Bombay High Court in Union of India v. Ajit Mehta and Associates (supra) supports the contention of the respondents that question of limitation does not come in the way of the Court in setting aside the order which is without jurisdiction. There is no need to further ponder over the proposition as laid down by the Bombay High Court since it has been found in discussion as above that the order of the Assistant Consolidation Officer was not without jurisdiction. The order of the Assistant Consolidation Officer not being without jurisdiction, the order of the Settlement Officer of Consolidation condoning the delay in filing the appeal automatically falls on the ground since for condonation that was basis given by the Settlement Officer of Consolidation, it is to be noted in the present case that belated appeal was filed by the respondent No. 4 who was not even party to the conciliation proceedings challenging the conciliation proceedings much after de-notification of the village under Section 52 of the U. P. Consolidation of Holdings Act. The father of the respondent No. 4 admittedly died on 7.1.1984, thus was alive for more than ten years from passing of the order by the Assistant Consolidation Officer but at no point of time, he raised any objection to the orders of the Assistant Consolidation Officer and carvation of chak in favour of the petitioner. These facts clearly lay a very heavy burden on the respondent No. 4 who was seeking condonation of delay of more than ten years in filing the appeal. The Apex Court in P. K. Ramchandran v. State of Kerala and Anr., JT 1998 (7) SC 21, has held that law of limitation has to be applied with all its rigour when the statute so prescribes. Following was laid down in paragraph 6 by the Apex Court :
"Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statutes so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor Judicious. The order condoning the delay cannot be sustained. The appeal, therefore. succeeds and the Impugned order is set 'aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the Miscellaneous First Appeal shall stand dismissed as barred by time. No costs."
18. The case of Badlu (supra) as relied upon by the counsel for the respondents also does not help the respondents. In the aforesaid case, the remand order passed by the Deputy Director of Consolidation was justified on the ground that the consolidation authorities being the Court of facts, determination of rights of parties in the peculiar facts and circumstances of the case was directed by the Deputy Director of Consolidation. In the present case the ground on which the remand was made and the delay was condoned by the Settlement Officer of Consolidation was that the Assistant Consolidation Officer had no Jurisdiction. The order of the Assistant Consolidation Officer having been held to be not without Jurisdiction, the condonation of delay of more than ten years in filing the appeal itself falls on the ground. Thus, the case relied by the counsel for the respondent is distinguishable and does not help the respondent in support of his argument.
19. From the above discussions, it is clear that the Assistant Consolidation Officer had full Jurisdiction to allow objection regarding co-tenancy right filed by the petitioner, hence the order of the Settlement Officer of Consolidation dated 29.12.1995 condoning the delay in filing the appeal and setting aside the order of the Assistant Consolidation Officer only on the ground that the Assistant Consolidation Officer had no Jurisdiction to pass the orders, cannot be sustained.
20. The next submission of the counsel for the petitioner that the revisions filed by the petitioner were fully maintainable and the order of the Deputy Director of Consolidation dismissing the revisions as not maintainable is erroneous, is also to be considered. Admittedly, by the same order of the Settlement Officer of Consolidation dated 29.12.1995 the condonation of delay in appeal was granted as well as the appeal was allowed on merits. The application for condoning the delay in filing the appeal is itself a separate proceeding which finally decides the question. When a question pertaining to condonation of delay has been decided while deciding the appeal, it cannot be held that the revision against the said order is not maintainable. This Court in Girja Shankar and Anr. v. Deputy Director of Consolidation, Bhadoi, Camp at Gyanpur and Ors., 1996 (2) AWC 1018 : 1996 RD 465, laid down that the order passed by the Settlement Officer of Consolidation condoning the delay in filing the appeal is revisable under Section 48 of the U. P. Consolidation of Holdings Act. It was held by this Court at page 467:
"Now the impugned order of the Deputy Director of Consolidation aforesaid has been challenged by the petitioners firstly on the ground that the Deputy Director of Consolidation had no jurisdiction to entertain and allow the revision as the order granting the benefit of Section 5 of the Limitation Act was only an interlocutory order and a revision against the interlocutory order is expressly barred by the provisions of Section 48 of the U. P. Consolidation of Holdings Act. In my view, this plea is not tenable. The term interlocutory order has been defined as below in Explanation (2) of Section 48 of the U. P. Consolidation of Holdings Act :
"Explanation (2).--For the purposes of this section the expression 'interlocutory order' in relation to a case or proceeding means such order deciding any matter arising in such case or proceedings or collateral thereto as does not have the effect to finally disposing of such case or proceeding."
The matter relating to Section 5 of the Limitation Act was to be disposed of first. If the application under Section 5 of the Limitation Act was allowed, the appeal was to be listed for disposal on merit and in case application under Section 5 of the Limitation Act was rejected, the appeal before the Settlement Officer (Consolidation) was to be dismissed, as Section 5 of the Limitation Act for condonation of delay will amount to a proceeding and whether the prayer is allowed or disallowed, the proceeding will come to an end in any case......... if allowed the appeal will be heard on merits and in the other case the appeal will be dismissed as barred by time. So, it cannot be said that the order passed by the Settlement Officer (Consolidation) allowing the application under Section 5 of the Limitation Act in both the appeals was an interlocutory order. Consequently, it was competent for the Deputy Director of Consolidation to entertain the revision against the order dated 19.1.1988 for condonation of delay in preferring the appeals and dispose of the revision on merits.
When an order has been made under Section 5 of the Limitation Act by the lower court in the exercise of its discretion allowing or disallowing an application to extend time, it could be interfered with in revision, where the lower court has acted with material irregularity or contrary to law or has come to that conclusion on no evidence as held in Shanti Prasad Gupta v. Deputy Director of Consolidation, 1984 RD 382 (SC).--
21. Thus, the order of the Deputy Director of Consolidation dated 30.10.1998 cannot be sustained and the Deputy Director of Consolidation committed error in rejecting the revision as not maintainable. However, since the order of the Settlement Officer of Consolidation impugned in the writ petition has been examined on merit by this Court in this writ petition, no useful purpose will be served in asking the Deputy Director of Consolidation again to decide the revision.
22. One more aspect of the case needs to be considered. From the pleadings of the parties, it is clear that the appeal was filed by the respondent No. 4 without even annexing the copies of the orders of the Assistant Consolidation Officer. The Settlement Officer of Consolidation has observed that since file of Assistant Consolidation Officer could not be obtained, it will be presumed that the respondent No. 4 was not party to the reconciliation. The aforesaid observation made by the Settlement Officer of Consolidation was based on conjectures. The burden lay on the party who was challenging the order to satisfy the Court that the order was passed not in accordance with law, as noted above Rule 27 provides entry in the records of the orders passed by the Assistant Consolidation Officer. Admittedly the entries of the orders passed by the Assistant Consolidation Officer has been made in the records, copy of which has been annexed as Annexures-4 and 5 to the writ petition. The entries clearly refer to case number, date of decision and the orders passed by the Assistant Consolidation Officer. With regard to the petitioner, the order was that his name be recorded as adopted son of Akaloo. There are entries of the orders of the Assistant Consolidation Officer in the records and further on the basis of the entry, chaks were carved out in favour of the petitioner and the final consolidation records were prepared in the name of the petitioner which clearly shows that the orders of the Assistant Consolidation Officer were passed and given effect to. Admittedly, the father of respondent No. 4 Ramdhari never challenged in his life time reconciliation or the orders passed by the Assistant Consolidation Officer. The order of the Assistant Consolidation Officer being recorded in the records as required by Rule 27. Presumption of regularity of the proceedings have to be drawn. Nothing was brought out by respondent No. 4 on the records to the contrary. The Settlement Officer of Consolidation thus committed error in drawing presumption that the father respondent No. 4 had not signed the conciliation. With regard to order dated 22.11.1997 praying for recalling of the order dated 29.12.1995, there is no need to consider further in view of the discussion as above that the order dated 29.12.1995 itself was erroneous.
23. In view of what has been stated above, the writ petition is allowed and the order dated 29.12.1995 passed by the Settlement Officer of Consolidation, order dated 22.11.1997 passed by the Assistant Settlement Officer of Consolidation and the order dated 30.10.1998 passed by the Deputy Director of Consolidation are quashed. The parties shall bear their own costs.