Alimuddin And Others vs D.D.C. And Others
2012 Latest Caselaw 5995 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 18
 

 
Case :- WRIT - B No. - 60568 of 2012
 

 
Petitioner :- Alimuddin And Others
 
Respondent :- D.D.C. And Others
 
Petitioner Counsel :- K.P.S. Yadav,Deepak Singh Yadav
 
Respondent Counsel :- C.S.C.,Bijendra Kumar Mishra,Sanjiv Kumar Shukla
 

 
Hon'ble Ran Vijai Singh,J.

Through this writ petition, the petitioenrs have prayed for issuing a writ of certiorari quashing the order dated 17.10.2012, passed by Deputy Director of Consolidation in Revision No. 815/874 (Sultana Begum Vs. Alimuddin and others), by which the Deputy Director of Consolidation has allowed the revision and remitted the matter back to the Settlement Officer, Consolidation for deciding the recall/review application dated 29.12.2009, after providing opportunity of hearing to all parties of the proceeding.

The facts giving rise to this case are that, the order dated 19.12.1973, passed by Consolidation Officer, Pushp Nagar, Azamgarh was made subject matter of Appeal No. 2492/2877 of 2009 (Alimuddin and others Vs. Khursheed and others). The appeal was time barred by 36 years, therefore, it was accompanied by an application for condonation of delay. The Settlement Officer, Consolidation, after hearing the learned counsel for the appellant, has rejected the application for condoning the delay vide order dated 26.12.2009.

The petitioners, herein, have filed an application dated 29.12.2009 for recall of the order dated 26.12.2009 on the ground that the aforesaid order was passed ex parte and the Settlement Officer, Consolidation has allowed the same vide order dated 15.02.2010, holding that the aforesaid order was an ex parte order, and fixed 17.02.2010. On that day, he condoned the delay and allowed the application for condonation of delay as well as appeal, both. This order was subject matter of the Revision No. 815/874 (Sultana Begum Vs. Alimuddin and others).

Shri K.P. S. Yadav, learned counsel appearing for the petitioners contends that the Deputy Director of Consolidation has erred in allowing the revision and quashing the order dated 15.02.2010 and 17.02.2010, passed by Settlement Officer, Consolidation. In his submissions the order dated 26.12.2009 was not an ex parte order and the Settlement Officer, Consolidation has exceeded his jurisdiction in condoning the delay and allowing the appeal.

The submissions of the learned counsel for the petitioners have been refuted by Shri Brijendra Kumar Mishra and Shri Sanjiv Kumar Shukla, learned counsel appearing for respondents on the ground that once the application filed under Section 5 of Limitation Act was rejected after hearing learned counsel for the appellant, then there was no occasion for the Settlement Officer Consolidation to hold that this order was an ex parte order as against the appellant, and taking note of that, recalling the order dated 26.12.2009 after condoning the delay and allowing the appeal.

I have heard the learned counsel for the parties and perused the record.

It is not in dispute that the Appeal No. 2492 (Alimuddin and others Vs. Khursheed and others) was filed against the judgment and order dated 19.12.1973, passed by the Consolidation Officer Pushp Nagar, Azamgarh, after 36 years along with an application for condonation of delay. It is also not in dispute that the aforesaid application was rejected by the Settlement Officer, Consolidation after hearing the learned counsel for the appellant. Further, the recalling of the order dated 26.12.2009 on the instance of the petitioners and allowing the appeal after condoning the delay on 17.02.2010 are also not in dispute.

The lawyers are engaged in the Court and they pursue the matter before the Court on engagement by the parties. Appendix H to the Code of Civil Procedure, 1908 provides the format for engagement of a counsel in the Court of law. The aforesaid format is reproduced hereunder:-

"VAKALATNAMA

In the Court...........................Suit/Miscellaneous case/Civil Appeal/Execution Case No...............of 19..../20......,fixed for Plaintiff/Appellant/Applicant/D.H.............Defendant/Respondent/Opposite Party/J.D. Vakalatnama of Plaintiff/Appellant Applicant/D.H./Defendant/Respondent/Opposite Party/J.D.

In the case noted above Sri........................., each of Sarvasri.............Advocate, is hereby appointed as counsel, to appeals, plead and act on behalf of the undersigned, in any manner, he thinks it proper, either himself or through any other Advocate, and in particular to do the following, namely,-

To receive any process of Court (including any notice from any appellate or revisional Court), to file any applications, petitions or pleadings, to file, produce or receive back any documents, to withdraw or compromise the proceedings, to refer any matter to arbitration, to deposit or withdraw any moneys, to execute any decree or order, to certify payment, and receive any money due under such decree or order.

The undersigned should be bound by all whatsoever may be done in the aforesaid case (including any appeal or revision therefrom) for and on behalf of the undersigned by any of the said counsel.

Signature..........

Name in full........................

Date.................

Attesting Witness:

Name in full........................

Address......................................

Date.........................

Accepted/Accepted on the strength of the signature of the attesting witnesses."

From the perusal of the conditions and undertaking given by the client, as contained in the aforesaid format, it is apparent that each and every proceeding conducted on behalf of the party before the Court be treated to be conducted on behalf of the client.

Therefore, I am of the view that the restoration application, for recall of the order dated 26.12.2009, on the instance of the petitioners, that they were not heard when the order dated 26.12.2009 was passed, was not maintainable at all, because the counsel engaged by the appellant had power to argue the matter. It is not the case of the petitioners that they have never engaged the counsel and the counsel was not heard before the Settlement Officer, Consolidation when the application under Section 5 was rejected.

In the submissions of the learned counsel for respondents, the order dated 15.02.2010 and 17.02.2010, both, were passed ex parte, without notice to them, which require to be corrected. From the perusal of the impugned orders, it nowhere reflect that the parties have been heard. Therefore, also, the orders are vitiated as the same has been passed in breach of the principles of natural justice.

It is also noticeable that under the Uttar Pradesh Consolidation of Holdings Act, 1953, there is no provision of review and the consolidation courts cannot review its own order unless the order has been obtained by playing fraud or concealment of material fact. Reference may be given to Full Bench of this Court in Smt Shiv Raji & Ors. Vs. Deputy Director of Consolidation & Ors., 1997 (88) RD 562.

Here, in this case, once the application under Section 5 was rejected by the Settlement Officer, Consolidation after hearing the counsel, it was not open for the Settlement Officer, Consolidation to entertain the recall/review application and set aside the earlier order condoning the delay. Therefore, also, the orders passed by the Settlement Officer, Consolidation dated 15.02.2010 and 17.02.2010 were bad in law and without jurisdiction.

So far as the order of Deputy Director of Consolidation is concerned, although the Deputy Director of Consolidation has set aside both the orders dated 15.02.2010 and 17.02.2010 passed by the Settlement Officer, Consolidation, but remanded the matter back to the Settlement Officer, Consolidation for deciding the review application on merit, which is impermissible as the consolidation courts/authorities have no statutory power to review its own judgment unless it is an outcome of concealment of fact or fraud.

The matter may be examined from another angle also. The Apex Court in P. Venkateswarlu Vs. Motor and General Traders, AIR 1975 SC 1409; Ashwinkumar K. Patel Vs. Upendra J. Patel and others, AIR 1999 SC 1124; P. Purushottam Reddy and another Vs. Pratap Steels Ltd., 2002 (48) ALR 319 (SC); and learned Single Judge of this Court in Raj Narain and others Vs. Deputy Director of Consolidation, reported in 2009(106) RD 98 held that if the entire material was available before the Deputy Director of Consolidation, instead of remanding the matter, he should himself have considered the matter on merit, and the order of remand was held to be unsustainable.

The effect of the impugned order of remand amounts to conferment of the jurisdiction upon the Settlement Officer, Consolidation, which is beyond power under the Act. It is well settled that the jurisdiction can neither be conferred, nor assumed, nor presumed, nor acquired by acquiescence of the parties vide Committee of Management of Ganga Khand Inter College, Khera Dayal Nagar, Aligarh & Anr. Regional Joint Director of Education, Agra & Ors., (2004) 3 UPLBEC 2731; Munna Lal Singh & Anr. Vs. State of U.P. & Ors., 2005 (6) AWC 5958; and Committee of Management, Sri Yadvesh Inter College & Anr.State of U.P. & Ors., 2011 (8) ADJ 493. Therefore, the order of the Deputy Director of Consolidation remanding the matter is unsustainable and the writ petition is dismissed.

However, the liberty is given to the petitioners to challenge the order dated 26.12.2009 before the appropriate Court. In case any such case is instituted/filed along with a certified copy of the order of this Court, the same shall be decided by the Court/Authority concerned, in accordance with law, on its own merit.

Order Date :- 11.12.2012

AKSI