Allahabad High Court
Lakhpati And Another vs The State Of U.P. And 21 Others on 20 December, 2022
Bench: Chandra Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 52
Case :- WRIT - B No. - 3383 of 2022
Petitioner :- Lakhpati And Another
Respondent :- The State Of U.P. And 21 Others
Counsel for Petitioner :- Vishal Khandelwal
Counsel for Respondent :- C.S.C.,Ajit Kumar,Krishna Kant Singh
Hon'ble Chandra Kumar Rai,J.
1. Supplementary affidavit filed today is taken on record.
2. Heard Sri Vishal Khandelwal, counsel for the petitioners, Mr. Syed Irfan Ali, holding the brief of Sri Ajit Kumar for respondent no.6, Sri Krishna Kant Singh for the respondent/Land Management Committee and the learned standing counsel for respondent nos. 1 to 4.
3. Notice in respect of respondent nos. 7 to 22 are dispensed with as they are stated to be the proforma respondents.
4. With the consent of the parties, the writ petition is heard and disposed of without calling for any counter affidavit.
5. Brief facts of the case are that dispute relates to Khata No.129 Plot No.-364/1 area 1 Bigha 9 Biswa situated in village-Kishopur Jofri, Pragana and Tehsil-Koil, District-Aligarh. Against the order of Assistant Consolidation Officer dated 6.02.1963 an appeal under Section 11(1) of U.P.C.H. Act was filed after 50 years by respondent no.6 along with delay condonation application which was allowed setting aside the order of Assistant Consolidation Officer dated 6.02.1963 and remitted the matter back for fresh consideration vide order dated 18.3.2016. Petitioner filed revision before respondent no.2 under Section 48 of U.P.C.H. Act against the appellate order dated 18.3.2016 which was dismissed holding that remand order is interlocutory order as such revision is not maintainable hence this writ petition.
6. Counsel for the petitioners submitted that against the order of the Assistant Consolidation Officer, an appeal was filed by the contesting respondent no.6, after 50 years and the appellate court by passing a cryptic order, has granted benefit of Section 5 of the Limitation Act and even by the same order, the appeal has been allowed setting aside the order of the Assistant Consolidation Officer dated 6.02.1963 as well as the matter has been remitted back for a fresh decision. It is further submitted that a revision under Section 48 was filed by the petitioners against the appellate order and the revisional court has dismissed the revision, saying that the remand order passed by the appellate court is interlocutory in nature, as such, revision is not maintainable. He further placed reliance on a decisions of this Court, reported in 2022 RD (155) 309, Ram Prakash vs. D.D.C. and Others and in 2010 (110) RD 584 Deena Nath & Others vs. Deputy Director of Consolidation and Others.
7. On the other hand, counsel for respondent no.6 submitted that the order passed by the Assistant Consolidation Officer dated 6.02.1963 is without jurisdiction and the Asst. Consolidation Officer has no jurisdiction to pass the order, as such, that order has been rightly set aside by the appellate court and the matter has been remitted back for fresh decision on merits, as such, no interference is required.
8. I have considered the arguments advanced by counsel for the parties and perused the records.
9. There is no dispute about the fact that the appeal has been filed after delay of about 50 years against the order of the Asst. Consolidation Officer dated 6.2.1963 and the appellate court by common order, had condoned the delay and allowed the appeal, setting aside the order of the Assistant Consolidation Officer. The revisional court has dismissed the revision, holding that the remand order passed by the appellate court is interlocutory in nature.
10. Since the Division Bench of this Court has held that the Settlement Officer (Consolidation) while deciding the appeal should consider the delay condonation matter separately and he should pass separate orders on delay condonation and thereafter the appeal on merits should be heard and disposed of.
11. In the instant case the appellate court by the common order has granted the benefit of Section 5 of the Limitation Act as well decided the appeal on merit also which is in violation of the principles laid down by this Court in Ram Prakash (supra).
12. In Deena Nath (Supra), this court has held that remand order passed by the appellate court is revisable under Section 48 of the U.P.C.H. Act, as such the impugned revisional order can not be sustained in the eye of law.
13. Considering the entire facts and circumstances of the case as well as the ratio of law laid down in Ram Prakash (supra) and Deena Nath (supra), the impugned revisional order dated 11.8.2022, passed by the respondent no.2 and appellate order dated 18.3.2016 passed by respondent no.3 are liable to be set aside and are hereby set aside.
14. The writ petition stands allowed in part and the matter is remitted back before the appellate court to decide the appeal afresh in the light of the judgment given by this Court in Ram Prakash (supra), after affording opportunity of hearing to both the parties, in accordance with law, expeditiously, preferably within a period of 4 months from the date of production of the certified copy of the order.
Order Date :- 20.12.2022
C.Prakash
