Allahabad High Court
Awadh Narain vs Deputy Director Of Consolidation, ... on 1 September, 1998
Equivalent citations: 1998(4)AWC91
Author: Shitla Pd. Srivastava
Bench: Shitla Pd. Srivastava
JUDGMENT Shitla Pd. Srivastava, J.
1. This writ petition under Article 226 of the Constitution has been filed by the petitioner for quashing the orders dated 29.10.1994 and 27.2.1993 and for writ of mandamus staying the operation of the aforesaid two orders.
2. From the order sheet dated 27th April, 1998 it is apparent that office report dated 24th April, 1998 was that the respondents are not served and substitution application was filed. Shri R. P. Shastri, Advocate has made a statement that he is representing respondent Nos. 3/1 and 3/2, i.e.. the proposed heirs of the deceased respondent, who are mentioned in the substitution application dated 11th April, 1997 and is ready to argue the case finally at the admission stage. As the parties have exchanged counter and rejoinder-affidavits, therefore, the matter was heard and the supplementary affidavit was also asked for as per order dated 29th April. 1998, which has been filed, therefore, the matter was finally heard with the consent of the learned counsel for the parties at the admission stage itself.
3. The brief facts, as stated in the petition, are that the petitioner got chak over plot No. 1 whereas the contesting respondent No. 3 had his chak over plot No. 32. Against the decision taken by the Assistant Consolidation Officer. Varanasi, the petitioner preferred appeal under Section 21 of the Consolidation of Holdings Act. His contention was that his 1st chak over plot No. 45/1 has been allotted whereas he has been given second chak at plot Nos. 77 and 78. He demanded that his second chak at plot Nos. 77 and 78 should be abolished and he may be given chak over plot Nos. 82 and 83. His further contention was that he was given chak at plot No. 45/1 whereas others were chak at plot Nos. 35, 37 and 38.
4. The Settlement Officer Consolidation considered the grievance of the petitioner and on 13.11.1992 rejected the demand of the contesting respondents. The petitioner filed Revision No. 568 before the Dy. Director of Consolidation as he was not given single chak. His contention was that he had his pumping set at plot No. 48. The Dy. Director of Consolidation rejected the revision of the petitioner by the impugned order dated 27.2.1993. It is further stated by the petitioner that two more revisions were filed, i.e., Revision Nos. 575 and 576. These two revisions were filed by the contesting respondent Sonu. Revision No. 575 was filed by Sonu against Higooo and others, whereas Revision No. 576 was filed against the petitioner and others. These two revisions, namely Revision Nos. 575 and 576 were decided by a common judgment by the Deputy Director of Consolidation. It is stated that as a matter of fact all the three revisions (Revision Nos. 568, 575 and 576) should have been consolidated and decided by a common judgment by the Deputy Director of Consolidation but it was not done. It is further stated that while deciding the two revisions, i.e.. Revision Nos. 575 and 576 the Deputy Director of Consolidation did not consider the case of the petitioner and disturbed his chak, vide his order dated 27.2.1993 as Revision No. 575 filed by respondent No. 3. Sonu against the petitioner was allowed. A copy of the order allowing the revision against the petitioner has been filed as Annexure-5 to the writ petition.
5. It is further stated that the Deputy Director of Consolidation has wrongly observed in his order that nothing was said from the side of the petitioner about his Improvement in the chak which he has disturbed in Revision No. 576. The grievance of the petitioner is that actually at the time of hearing of the Revision Nos. 575 and 576, neither the petitioner, nor his counsel was present, but the Deputy Director of Consolidation has wrongly mentioned in the order that from the side of the petitioner his counsel Sri Kailash Narain Singh was heard. It is further stated that Sri Kailash Narain Singh was the counsel in Revision No. 568, which was heard by the same Deputy Director of Consolidation and Kailash Narain Singh was not counsel for the petitioner in Revision No. 576 or even in Revision No. 575. The petitioner has stated that he filed a restoration application in Revision No. 576, which was also decided along with Revision No. 575 and in this restoration application it was asserted that by the judgment given in Revision No. 576 the main chak of the petitioner which was near the private source of his irrigation has been Illegally disturbed without any justification.
6. The restoration application filed by the petitioner was rejected by the Deputy Director of Consolidation by order dated 29th October, 1994, A certified copy of this order has been filed as Annexure-6 to this writ petition. Thus, the petitioner has challenged these two orders, i.e., order dated 7th February, 1993 deciding the two revisions together and the order dated 29th October, 1994. rejecting the restoration application.
7. The petitioner has challenged these two orders mainly on the ground that the petitioner had not engaged Kailash Narain Singh in Revision Nos. 575 and 576, which were decided separately, rather he has engaged Sri Kailash Narain Singh in Revision No. 568 only, which was also decided on the same date, i.e., 27th February. 1993. It is further stated that there was no Vakalatnama of Shri Kailash Narain Singh filed on behalf of the petitioner in Revision No. 576, nor Kailash Narain Singh or anybody argued on behalf of the petitioner in the abovenoted two revisions.
8. Learned counsel for the petitioner has vehemently urged that as three revisions, i.e.. Revision Nos. 568, 575 and 576 were filed against the same judgment of the Settlement Officer Consolidation dated 13.11.1992. They were decided by the two separate orders on the same day. The petitioner had only engaged Sri Kailash Narain Singh in his Revision No. 568, which was dismissed and had not engaged him in Revision No. 576. The order dated 27th February, 1993 passed in Revision No. 576 in which the petitioner was respondent is ex-parte and the observation made by the Deputy Director of Consolidation that Sri Kailash Narain Singh, Advocate was also heard in this revision is against the record. The second submission is that the petitioner had not filed Vakalatnama of Sri Kailash Narain Singh in Revision No. 576, therefore, there was no question of appearance of Sri Kailash Narain Singh in that revision on behalf of the petitioner. His third submission is that the Deputy Director of Consolidation Sri C. K. Pandey also committed mistake in rejecting the restoration application filed by the petitioner without considering the real position and has observed that Revision No. 575 was filed by the petitioner himself, whereas the petitioner had filed only Revision No. 568. His further submission is that the observation made by the Deputy Director of Consolidation that the absence of Vakalatnama is not a sufficient cause for review of the order passed by the Deputy Director of Consolidation on earlier occasion. On this point Sri S. N. Singh has vehemently urged that this observation itself shows that there was no Vakalatnama of Kailash Narain Singh in revision in question. In the last he has stated that a bare perusal of the main judgment under consideration passed by the Deputy Director of Consolidation would show that he has not discussed or even touched any point relating to the grievance of the petitioner.
9 . A counter-affidavit has been filed in this case controversing the allegations contained in the writ petition. In the counter-affidavit filed by Sonu Singh in paragraph 8 it is stated that Revision Nos. 575 and 576 were filed by contesting respondent against the order dated 13th November, 1992 and both the revisions were consolidated and heard. In both the revisions Sri Kailash Narain Singh, Advocate appeared and argued the case on behalf of the petitioner and his father Hinoo Singh and the Deputy Director of Consolidation has correctly conceded with the admission of the answering respondent for chak no plot Nos. 35 and 36. In paragraph 9 of the counter-affidavit it is stated that it is incorrect to state that the petitioner and his Advocate, Sri Kailash Narain Singh were not present at the time of hearing of the Revision Nos. 575 and 576. The respondents have stated that the petitioner has admitted that Sri Kailash Narain Singh, Advocate appeared for him on the same day in Revision No. 568. In paragraph 11 of the counter-
affidavit it is stated that the Deputy Director of Consolidation has specifically observed that Sri Kailash Narain Singh appeared and was heard for the petitioner and his father. It is further stated that the pumping set belonging to Hinoo Singh who is father of the petitioner who has been given chak No. 38, near his pumping set and therefore, the alleged private source of Irrigation does not belong to the petitioner. It is further stated that opportunity of hearing was given to the petitioner. In paragraph 14 of the counter-affidavit it is stated that there appears to be typing error in the judgment, where it is mentioned that Revision No. 575 was filed by the petitioner. It is admitted that at this place it should have been 568.
10. A rejoinder-affidavit has been filed on behalf of the petitioner. In reply to the paragraph 8 of the counter-affidavit a reply has been given in paragraph 9 of the rejoinder-affidavit, where ft is reiterated that the petitioners were not heard in Revision Nos. 575 and 576. It is stated that Kailash Narain Singh it appears had argued on behalf of Hinoo Singh and Daya Singh and the petitioner had not received any notice in Revision Nos. 575 and 576. nor filed any Vakalatnama of any counsel and Sri Kailash Narain Singh never argued on behalf of the petitioner and further that there is no argument on behalf of the petitioner mentioned in the judgment of the Deputy Director of Consolidation made by Sri Kailash Narain Singh regarding the pumping set etc. as such the order is ex-parte. In reply to paragraph 9 of the counter-affidavit in paragraph 10 of the rejoinder-affidavit it is stated that Sri Kailash Narain Singh actually argued only in Revision No. 568, which was heard separately on that date itself along with Revision Nos. 575 and 576. as the three revisions arising out of the same judgment were not consolidated as such mistake has occurred. In reply to the paragraph 11 of the counter-affidavit in paragraph 12 of the rejoinder-affidavit it is stated that the pumping set is the joint property of the petitioner and the petitioner being the son has been using the pumpting set in his own right, that therefore, it cannot be said that it was not the private source of irrigation of the petitioner. In paragraph 14 of the rejoinder-affidavit it is stated that there is no typing error in the judgment of the Deputy Director of Consolidation while making the mention of the Revision No. 575.
11. Learned counsel for the respondent Sri. R. P. Shastri has vehemently urged that from the averments made in the writ petition, rejoinder-affidavit and original judgment urged that' the order rejecting the restoration application. It is apparent on' the face of the record that against the same order three separate revisions were filed and further that the petitioner had engaged Sri Kailash Narain Singh as counsel in his Revision No. 568 and it is also clear that the Deputy Director of Consolidation has mentioned in his judgment while deciding the Revision Nos. 575 and 576 that Sri Kailash Narain Singh has argued the case on behalf of the respondent and the petitioner has admitted in the rejoinder-affidavit that all the three revisions were heard on the same date and Sri Kailash Narain Singh had argued in Revision No. 568, therefore, it cannot be said that the petitioner had no knowledge about other two revisions, i-e., Revision Nos. 575 and 576. His further submission is that if the petitioner had not engaged any counsel in Revision No. 576, he should have informed the Deputy Director of Consolidation by moving an application, that there is no Vakalatnama of Sri Kailash Narain Singh in Revision No. 576.
12. Interrupting the argument of Sri R. P. Shastri, the learned counsel for the petitioner, Sri S. N. Singh has submitted that there was some application to which Sri Shastri submitted that that application is not on record. His submission is that in the absence of the application it would be seen what were the actual grounds raised by the petitioner in the application and the objection is also not on record, therefore, on 29th April. 1998, the Court directed the petitioner to file application along with the supplementary affidavit and the learned counsel for the respondent was also directed to file copy of the objection along with the supplementary affidavit. The supplementary affidavit filed by the petitioner is of one Tej Bahadur Singh along with the supplementary affidavit a copy of the application for restoration has been filed which was filed by Awadh Narain Singh. The petitioner in paragraph 3 of this application it is specifically stated that Sri Kailash Narain Singh had not argued the case on behalf of the applicant, rather he was busy in some other case on the date of the argument and Informed the petitioner that after making spot inspection the case will be heard.
13. In supplementary affidavit filed by the respondent which is of one Sri Shiv Pujan Singh, it is stated that the petitioner had engaged Sri Kailash Narain Singh and he argued the revision on behalf of the petitioner (i.e.. Revision Nos. 575 and 576) and further Vakalatnama is executed in favour of Sri Kailash Narain Singh was in the revision file which has been removed from the files subsequently. Along with the affidavit he has filed certified copy of the affidavit, which was filed before the Deputy Director of Consolidation in Revision Nos. 575 and 576. In this annexure it is stated that a notice was served on the applicant who has filed the restoration application and in paragraph 2 of this affidavit it is also stated that Sri Kailash Narain Singh. Advocate was engaged as a counsel by the petitioner and he argued the case. In paragraph 7 of the supplementary affidavit it is stated that on 26th February. 1993 when two revisions (i.e.. Revision Nos. 575 and 576) were consolidated and hearing was done, Sri Kailash Narain Singh. Advocate appeared on behalf of Sri Ningu Singh. the father of Awadh Narain Singh in Revision Nos. 575 and 576 and argued the case. In support of this averment he has annexed a certified copy of the order sheet of 26th February, 1993, parsed in Revision Nos. 575 and 576. In ordersheet it is mentioned that Sri Radhey Krishna Mtsra. Advocate appeared on behalf of the revisionist and Sri Kailash Narain Singh appeared on behalf of the respondent.
14. Mr. R. P. Shastri has urged that in view of this ordersheet and the affidavit filed along with the supplementary affidavit that the order was not ex-parte. rather it was on merit after hearing the learned counsel for the parties.
15. In reply to the argument of the learned counsel for the respondent. Sri S. N. Singh urged that in view of Order III, Rule 4 of the Civil Procedure Code, no pleader shall act for any person in any Court unless he has been appointed for the purpose by such person by a document in writing sent by such person or by his recognised agent, or by some other person duly authorised by or under power of attorney to make such appointments he has to laid emphasis on sub-clause 2 of this Rule, which is quoted herein below :
"Every such appointment shall be filed in Court and shall for the purpose of sub-rule 1 be deemed to be enforced until determined with the leave of the Court by any document in writing by client or the pleader, as the case may be and file in Court, or until client or the pleader dies, or until all the proceedings in the suits are ended so far as regards the client."
His submission is that the observation made by the Deputy Director of Consolidation, while rejecting the restoration application that mere filing of the Vakalatnama is not sufficient cause for allowing the restoration application and is without any foundation. His submission is that unless Vakalatnama was filed Sri Kailash Narain Singh Advocate had no power or authority to argue on behalf of the petitioner. Similar is the provision in Revenue Court Manual and Rule 55 lays down that no legal practitioner shall act for any person in any manner, unless he has been appointed for the purpose by such person by Vakalatnama signed by such person. The relevant paragraph is quoted herein below :
Rule 55--"No legal practitioner shall act for any person in a Court, unless he has been appointed for the purpose by such person by Vakatatnama signed by such person or by his recognised agent, or by some other person duly authorised by or under a power of attorney to make such appointment provided that the legal practitioner when unable personally to attend a case in which he has briefed may handover the brief to other legal practitioner without latter filing a Vakalatnama or Mukhtamama and his fee to whom whatsoever, paid, after duly certified with taxable cost."
On the basis of these two provisions Sri S. N. Singh submitted that the observation made by the Deputy Director of Consolidation that mere filing or non-filing of Vakalatnama will be not sufficient cause for restoration is not correct legal position.
16. After hearing the learned counsel for the parties at length and going through the record. I am of the view that the Deputy Director of Consolidation while rejecting the application for restoration has not applied the correct law on the subject. A bare perusal of his judgment would show that he has rejected the application on the basis of the observation made by his predecessor in Interest in the body of the judgment that Sri Kailash Narain Singh, Advocate has appeared and argued the case on behalf of the respondent and has also observed at the same place that mere non-existence of Vakalatnama cannot be a basis of restoration application. Paragraph 11 of the Revenue Court Manual says that how appearance etc. put in person or through a recognised agent is to be made. The relevant paragraph is quoted herein below :
"Any appearance or act in revenue court, required or authorised by taw to be made or done by a party in such a Court may accept this was expressly provided by any law for the time being in force be made or done by party in person or by a legal practitioner appearing or acting as the case may be on his behalf, provided such appearance shall if the Court so directs be made by a party in person (Rule 1, Order III, C.P.C.)
17. Section 41 of the Consolidation of Holdings Act lays down that unless otherwise expressly provided by or under this Act the provisions of Chapter IX and Chapter X of U. P. Land Revenue Act. 1901 shall apply to all the proceedings including the appeal and application under this Act. Chapter IX of the Land Revenue Act deals with the procedure of Revenue Court and Revenue Officers and Chapter X deals with the appeals.
18. In Chapter IX the power to consolidate the cases has been given to the Courts when more cases than the one involving substantially the same question for determination and based on the same cause of action or pending in one and more Courts.
19. Section 196 of the Land Revenue Act deals with the mode of serving the notice and Section 200 of the U. P. Land Revenue Act of the same Chapter IX says hearing in the absence of the party. It lays down that whenever any party to such proceedings is required to attend on a day specified in the summons or any day to which the case may have been postponed, the Court may dismiss the case in default, or may hear and determine it ex-parte.
20. From the above provisions it is also clear that the power to decide the case ex-parte is available to the consolidation authorities, in case when a party fails to appear after getting the summons. From the judgment of the Deputy Director of Consolidation, rejecting the application for restoration it is clear that he has observed that non-existence of Vakalatnama is not a ground for restoration. It means that he was not sure by seeing the record, when there were allegations that Vokatatnama was filed and counter allegations that it was removed from the record and further that whether the provisions of Order HI, Rule 1 has been made or not.
21. Earlier the decision was taken by Smt. Sandhya Tiwari, Deputy Director of Consolidation and the application for restoration was rejected by Sri C. K. Pandey, therefore, it was impossible for the successor in interest to come to a finding as to whether Sri Kailash Narain Singh had actually appeared in this case or not. He was only to consider the application as to whether the order was ex-parte or not on the basis of the record, t.e.. whether the summons were served in Revision No. 576 in which the petitioner was a party and as to whether any Vakalatnama was actually filed or not. It appears from the Judgment that he has rejected the application on the ground that the petitioner had himself Rled Revision No. 575, which is admittedly incorrect and as admitted in the counter-affidavit to be incorrect, which is explained by the respondent to be a typing error. Thus, from the judgment rejecting the restoration application it is apparent that the Deputy Director of Consolidation was of the view that Revision Nos. 575 and 576 were decided by a common judgment and Revision No. 575 was filed by the petitioner himself and both the cases were decided by a common judgment. The order was not ex-parte and even if there is no Vakalatnama on the record, the original order passed by the Deputy Director of Consolidation should not be recalled as it was not ex-parte. Considering the facts and circumstances of the case and arguments of the learned counsel for the parties I am of the view that as the restoration application has been rejected, it is not necessary for this Court to consider the merit of the original order, dated 27th February, 1993 and to consider the case on merit by this Court in this writ petition, but the order dated 29.10.1994, passed by the Deputy Director of Consolidation, rejecting the restoration application is liable to be set aside and the matter should be sent back to the Deputy Director of Consolidation to restore the application for restoration and decide the same in view of the observations made in the body of the judgment in accordance with law.
22. Accordingly, I quash the orders dated 20.10.1994 passed by the Deputy Director of Consolidation (Annexure-6), send back the case to him to restore the restoration application to its original number and hear the parties afresh on the restoration matter and decide the same in accordance with law.
23. The parties shall bear their own costs.