Allahabad High Court
Om Prakash And Another vs Deputy Director Of Consolidation ... on 18 August, 2021
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 21
Case :- WRIT - B No. - 976 of 2021
Petitioner :- Om Prakash And Another
Respondent :- Deputy Director Of Consolidation And 2 Others
Counsel for Petitioner :- Puneet Kumar Verma
Counsel for Respondent :- C.S.C.,Ashutosh Kumar Singh
Hon'ble Dinesh Pathak,J.
1. Heard Sri Puneet Kumar Verma, learned counsel for the petitioners and learned Standing Counsel representing the respondent no.1 and 2 and Sri Satyendra Narayan Singh, Advocate holding brief of Sri Ashutosh Kumar Singh, learned counsel for the respondent no.3 and perused the record.
2. Instant writ petition has been filed by the present petitioners challenging order dated 14.06.2021 (Annexure-12) passed by the Deputy Director of Consolidation, Ghazipur (in brevity 'D.D.C.') (respondent no.1) and order dated 10.09.2020 (Annexure-10) passed by the Settlement Officer of Consolidation, Ghazipur (in brevity 'S.O.C.') (respondent no.2).
3. Grievances of the petitioners is that the S.O.C. has illegally rejected the application moved by them to decide the maintainability of appeal and application for condonation of delay first, before entering into the merits of the appeal. Order passed by the S.O.C. was illegally affirmed by the D.D.C., which is under challenge.
4. Facts giving rise to present writ petition is that the Consolidation Officer (in brevity 'C.O.') has passed the orders dated 31.03.1995 and 22.10.1999 in a proceeding under Section 9A (2) of the Uttar Pradesh Consolidation of Holdings Act, 1953 (in brevity 'U.P.C.H. Act'). Feeling aggrieved, against the aforesaid both orders, two appeals were filed by the contesting private respondents on 02.09.2003 and 28.07.2012 respectively. During pendency of the aforesaid appeals, a preliminary objection was raised on behalf of the present petitioners (respondents in appeal before the S.O.C.), in respect of maintainability of appeals and it was urged that question of maintainability and application for condonation of delay should be decided first before entering into merits of the case. Aforesaid prayer made on behalf of the present petitioners has been negated by the respondent no.2, vide order dated 13.11.2019 (Annexure-7), with an observation that it would be appropriate to decide all these issues simultaneously. It appears that against the order dated 13.11.20219 passed by the respondent no.2, present petitioners have moved another application dated 05.12.2019 (Annexure-8) seeking recall of the order dated 13.11.2019 and for deciding the maintainability of appeals and condonation of delay in filing the appeals first, before entering into the merits of the case. The aforesaid application was rejected by the respondent no.2 vide its order dated 10.09.2020 (Annexure-10). Feeling aggrieved, present petitioners have filed a revision dated 30.01.2021 (Annexure-11) challenging the order dated 10.09.2020. The D.D.C.(respondent no.1), vide its order dated 14.06.2021 (Annexure-12), has dismissed the revision filed by the petitioners on the ground that the S.O.C. (respondent no.2) has rightly passed the orders dated 13.11.2020 and 10.09.2020 in order to ensure early disposal of the appeals pending before him.
5. Learned counsel for the petitioners submits that order passed by the S.O.C. (respondent no.2) as well as the order passed by the D.D.C. (respondent no.1) are illegal and unwarranted under law, inasmuch as, without deciding the maintainability of the appeal and question of delay in filing the appeal, Court concerned has got no jurisdiction to entertain the matter on merits, therefore, the S.O.C. may be directed to decide maintainability of appeal and delay condonation application first, before entering into the merits of the case.
6. Learned counsel for the caveator has submitted that the S.O.C. and D.D.C. have not committed any irregularity or illegality in holding that the maintainability of the appeal and application for delay condonation under Section 5 of the Limitation Act, 1963, could be decided simultaneously along with the merits of the case and no ground is made out to entertain the present writ petition against the orders passed by the S.O.C. and the D.D.C.
7. Perused the record on board and considered the submissions advanced by learned counsel for the parties.
8. Order dated 13.11.2019 (Annexure-7) reveals that the prayer made on behalf of present petitioners has been turned down by the S.O.C. (respondent no.2) in the light of dictum passed by a Co-ordinate Bench of this Court in the case of Devesh Singh and others vs. Deputy Director of Consolidation and others, RD 2005 (98) 446. In the aforesaid matter, Co-ordinate Bench of this Court has held that all the questions relating to the maintainability of lis (at any stage), limitation and merits of the case can be decided simultaneously. Paragraph 11 of the aforesaid judgment is reproduced below :-
"11. So far as last question that if appeal filed by a party is barred by time or it is said to be not maintainable then whether these questions are to be dealt with as preliminary issue or all the questions including merits are to be dealt with simultaneously. Similarly, there may be situation where there is a revision by a party which is also said to be barred by time and not maintainable and there may be case where objection itself under Section 9-A(2) of the Act is barred by time and that may be said to be not maintainable also and thus in all the three classes of cases, how the courts are to proceed in respect to the question of maintainability, limitation and merit is to be seen. For the reasons indicated class of cases covered by appeal and revision can be said to be one class and so far cases at the stage of Consolidation Officer, that may be of another class. So far as cases covered by appeal and revision is concerned, if they are barred by time and they are said to be not maintainable then all the question i.e. question of maintainability, limitation and merit are to be dealt with simultaneously as normally before appellate authority and the revisional court either of the party is not required to lead any evidence. Before these courts only arguments are to be advanced. If we permit the argument only on the question of limitation/maintainability then on decision either way, either of party, is to take up the matter to the revisional court in case of decision in appeal and in case of decision in revision to this Court upon which it is to take lot of time in attaining its finality. At the same time, if all the aspects are permitted to be dealt together all the questions in issue will stand finalised at one and same time which will save both sides of any harassment. Needless to say that unless the concerned court condones delay and takes a view that appeal/revision is maintainable, he cannot decide the matter on merits and thus, if technical objections are answered in favour of opposite party, matter ends there and if finding comes against the opposite party on preliminary issue, then judgment comes on merits also about claim of parties. By aforesaid process, none of the party can be said to have suffered in any manner and court's precious time is also saved. Against the decision of the court on all three issues together, a party feeling aggrieved by that decision has remedy to challenge the findings on each count before the higher forum. Take a case that if appeal filed by 'A' was wrongly held to be maintainable or delay was wrongly condoned and appeal was allowed on merit, then the opposite party while taking up the matter to revisional court can challenge that judgment on the ground that appeal was wrongly held to be maintainable and delay was wrongly condoned and thus in no way the opposite party by simultaneous decision on all counts can be said to have suffered. The only thing which has been said in the past and which is often argued in support of the plea that question of maintainability and delay is to be decided as preliminary issue is that unless court holds that the appeal/revision is maintainable and delay is to be condoned, the court has no jurisdiction to proceed on merits. This court is also not saying that unless the aforesaid things are answered in favour of appellant/revisionist, the courts have jurisdiction to proceed on merits. Nobody can say that unless delay in filing the appeal/revision is condoned and proceedings are held to be maintainable appeal/revision can proceed on merits. Thus, this Court is of the considered view that all the questions of maintainability, condonation of delay and merits are to be dealt together."
9. After perusal of the orders passed by the Consolidation Courts, in the light of the judgment passed in case of Devesh Singh (supra), I do not find any justification to interfere in the orders passed by the D.D.C. and the S.O.C., who have rightly held that the maintainability of appeal, application for delay condonation and merits of the case could be decided simultaneously and there is no need to deal with aforesaid matters separately.
10. There is no illegality, perversity or irregularity in the orders passed by the S.O.C. and the D.D.C. Counsel for the petitioners could not substantiate his submissions advanced in support of the petition. He has failed to point out as to what prejudice would cause to the petitioners, in case, all the questions were decided by the Consolidation Courts simultaneously.
11. Present writ petition is devoid of merits and, accordingly, it is dismissed.
Order Date :- 18.8.2021
Manish Himwan
