Kulwant Singh vs Dy. Director Of Consolidation ...
2013 Latest Caselaw 6628 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
RESERVED
 
COURT NO. 18								 	
 
Case:-  WRIT- B No. 51608 of 2013
 
Petititoner:- Kulwant Singh
 
Respondent:- Dy. Director Of Consolidation  Rampur And 8 Others
 
Counsel for Petititoner:- K.Ajit
 
Counsel for Respondent:-  C.S.C. 
 
Hon'ble. Ram Surat Ram (Maurya), J.

1.Heard Sri K. Ajit, counsel for the petitioner and Standing Counsel for the respondents.

2.The writ petition has been filed against the orders of Settlement Officer Consolidation (respondent-2) dated 06.07.2011, allowing the substitution application filed by respondent-3 to 9 (hereinafter referred to as the respondents) for substituting the heirs of Singhara Singh in their appeal and Deputy Director of Consolidation (respondent-1) dated 03.08.2013, dismissing the revision of the petitioner filed against the aforesaid order, in title proceedings, under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act).

3.The respondents filed an appeal (registered as Appeal No. 663 of 2008) from the order of Consolidation Officer dated 10.11.1993, under Section 11 of the Act, in which Singhara Singh, the father of the petitioner was impleaded as the sole respondent. Singhara Singh died on 23.09.2010. The respondents filed an application dated 18.05.2011 for substituting the heirs of Singhara Singh in the appeal. Settlement Officer Consolidation (respondent-2), by order dated 06.07.2011, allowed the application and issued the notices to the heirs of Singhara Singh in the appeal. The petitioner filed a revision (registered as Revision No. 188 of 2012-13) from the aforesaid order, which was dismissed by Deputy Director of Consolidation (respondent-1), by the order dated 03.08.2013. Hence this writ petition has been filed.

4.The counsel for the petitioner submitted that under Paragraph-179 read with Appendix-A of U.P. Revenue Court Manual, the provisions of Order 22 C.P.C. are applicable to the appeals under U.P. Land Revenue Act, 1901. As by Section 41 of the Act, provisions of Chapter IX and X of U.P. Land Revenue Act, 1901, have been applied to the proceedings under the Act as Paragraph-179 read with Appendix-A of U.P. Revenue Court Manual are applied to the appeals before Settlement Officer Consolidation. In the substitution application filed in the appeal before respondent-2, by the respondents, date of death of Singhara Singh was not mentioned. Singhara Singh died on 23.09.2010 and the respondents filed the application for substituting his heirs on 18.05.2011. Under Article 120 of the Limitation Act, 1963, ninety days limitation, from the date of death, has been provided for substituting the legal representative of the deceased respondent. The substitution application was not filed within ninety days from the death. The appeal was abated under Order 22 Rule 4 (3) C.P.C. Under Article 121 of the Limitation Act, 1963, sixty days limitation, from the date of abatement, has been provided for the application for setting aside the abatement under Order 22 Rule 9 C.P.C. The respondents neither filed any application for setting aside abatement nor any application for condonation of delay along with the substitution application. The substitution application was time barred and ought to have been rejected in view of the provisions of Section 3 the Limitation Act, 1963. Respondent-2 illegally allowed the substitution application without issuing any notice to the proposed heirs of the deceased. The order of respondent-2 was illegal and without jurisdiction. The revision filed by the peittioner has been illegally dismissed.

5.The first question arises for consideration as to whether provisions of Order 22 C.P.C. are applicable to the proceedings before consolidation authorities. U.P. Consolidation of Holdings Act, 1953 and U.P. Consolidation of Holdings Rules, 1954 do not contain any provision for substituting the heirs of the deceased parties nor the provisions of Order 22 C.P.C. have been applied. Section 9-A (2) of the Act provides that Consolidation Officer shall dispose of the cases in the manner prescribed. The procedure for Consolidation Officer has been prescribed under Rules 26 (2) of the Rules, which provides that Consolidation Officer shall hear the parties, frame issues on the points in dispute, take evidence, both oral and documentary and decide the objection. Section 11 (1) of the Act provides that Settlement Officer Consolidation after affording opportunity of hearing to the parties concerned decide the appeal. Thus under Rule 26 (2) of the Rules and Section 11 (1) of the Act the only requirement is to afford opportunity of hearing to the parties concerned. If the parties is dead then his heirs are required to be given opportunity of hearing. In this case, the application moved by the respondents for substituting the heirs of Singhara Singh, in the appeal was allowed and notices of the appeal was issued to the heirs in order to provide them opportunity of hearing. Thus the procedure as given under the Act and Rules have been complied with.

6.The counsel for the petitioner submitted that by Section 41 of the Act, the provisions of Chapter IX and X of U.P. Land Revenue Act, 1901 have been applied to all the proceedings including the appeal and application under the Act. Chapter X of U.P. Land Revenue Act, 1901 contains the provisions of the appeal and revision. The procedure for deciding the appeal and revision have been given in U.P. Revenue Court Manual. Under Paragraph-179 read with Appendix-A of U.P. Revenue Court Manual, the provisions of Order 22 C.P.C. are applied to the appeals as such same provision will apply to the appeal before Settlement Officer Consolidation. In order to appreciate the arguments in this respect Section 41 is quoted below:-

Section 41. Application of U.P. Land Revenue Act, 1901.- Unless otherwise provided by or under this Act, the provisions of Chapter IX and X of the U.P. Land Revenue Act, 1901 shall apply to all proceedings including appeal and applications under this Act.

7.Thus use of the words "Unless otherwise provided by or under this Act "shows only those provisions of Chapter IX and X of the U.P. Land Revenue Act, 1901 have been applied, in respect of which there is no provision under the Act. The procedure for appeal and hearing of the appeal has been provided under Section 11 of the Act, as such, the provision of the appeal and procedure for hearing of the appeal, as provided under U.P. Land Revenue Act, 1901 have not been applied. The provisions of U.P. Revenue Court Manual are neither expressly nor impliedly applied. The issue as to whether provisions of Code of Civil Procedure are applied to the proceedings before consolidation authorities came for consideration before Full Bench of this Court in Bijai Narain Singh State of U.P. and others, 1971 RD 471, in which it has been held that the various authorities constituted under the Act are neither the court of civil jurisdiction nor governed by the procedure of Code of Civil Procedure. Section 220, falling under Chapter X of U.P. Land Revenue Act, 1901, confers jurisdiction of review to Board of Revenue, U.P. The question that Board of Revenue, U.P. is highest judicial authority under U.P. Land Revenue Act, 1901 as such jurisdiction of review conferred to Board of Revenue, U.P. under Section 220 would be available to Deputy Director of Consolidation, also by virtue of Section 41 of the Act, came for consideration before another Full Bench of this Court in Smt. Shivraji Vs. DDC and others, 1997 RD 562. Full Bench held that power of review is a substantive provision as such in the absence of any specific provision for review under the Act. This power is not available to consolidation authorities including Deputy Director of Consolidation. In view of the authoritative pronouncement of two Full Benches of this Court, the arguments raised by the counsel for the petitioner that provisions of Order 22 C.P.C. are applicable to the appeal under the Act, is not liable to be accepted.

8.The counsel for the petitioner, relying upon the judgment of Supreme Court in Maghu Ram Ram Pershad Vs. Municipal Corporation Delhi and others, AIR 1976 SC 105 submitted that by virtue of Section 29 (2) of the Limitation Act, 1963, the provisions of Section 3 to 24 of Limitation Act 1963 are applicable to the proceeding and application under the Act. As the substitution application was not filed within time nor any application has been filed for condonation of delay under Section 5 of the Limitation Act, 1963, the substitution application was liable to be rejected under Section 3 of the Limitation Act, 1963. In order to appreciate the arguments, Section 29 (2) of the Limitation Act, 1963, is quoted below:-

Section 29. Savings.--

(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (both inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.

9.Bare reading of Section 29 shows that where special or local Act prescribe any period of limitation for the application, then Section 3 of the Limitation Act, 1963 will apply. As held above, U.P. Consolidation of Holdings Act, 1953 and U.P. Consolidation of Holdings Rules, 1954 do not contain any provision for substitution of the heirs of deceased party nor any limitation has been provided for filing the substitution application as such Section 3 of the Limitation Act, 1963 does not apply. As stated above, the heirs are required to be substituted only for giving opportunity of hearing, for which no limitation has been prescribed under the Act. So far as Section 4 to 24 of the Limitation Act, 1963 are concerned these sections deals with the condonation of delay and do not help the petitioner.

10.In view of the aforesaid discussions, the impugned orders do not suffer from any illegality. The writ petition has no merit and is dismissed.

Order Date: 28.10.2013

Jaideep/-