Dhananjay And 2 Others vs Settlement Officer Of ...
2022 Latest Caselaw 16443 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 52
 

 
Case :- WRIT - B No. - 2986 of 2022
 

 
Petitioner :- Dhananjay And 2 Others
 
Respondent :- Settlement Officer Of Consolidation And 4 Others
 
Counsel for Petitioner :- Yash Padia
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Mr. Yash Padia, Counsel for the petitioners and learned Standing Counsel for respondent Nos.1 to 5.

2. With the consent of the parties, writ petition is being heard and disposed of without inviting counter affidavit.

3. The brief facts of the case are that petitioners are tenure holders of Plots of Khata No.123. Consolidation officer vide order dated 26.06.1963 in the proceeding under Section 9A(2) of U.P. Consolidation of Holdings Act passed an order in favour of petitioners' great grand father Adalat and petitioners are accordingly in possession of the plots in dispute. On 24.09.2003 respondent No.4 (Collector/District Magistrate) passed an order expunging the name of petitioners and for recording the name of Gaon Sabha. Petitioners challenged the order dated 24.09.2003 before this Court through writ-C No.56065 of 2003, this Court vide judgment and order dated 02.03.2021 allowed the writ petition and set aside the order dated 24.09.2003. State of U.P. through Assistant District Government Advocate filed appeal after about 60 years under Section-11 (1) of U.P. Consolidation of Holdings Act before respondent No.1 against the order dated 26.6.1963 passed by Consolidation Officer in which notice was issued to the petitioners accordingly petitioners filed their objection. In appeal petitioners also filed an application dated 14.09.2022 with the prayer that delay condonation matter be decided first and thereafter the appeal be heard on merit but respondent No.1 by impugned order dated 19.10.2022 held that delay condonation matter and merit will be decided together, hence this writ petition.

4. Counsel for the petitioners submitted that against the order passed by the Consolidation Officer dated 26.06.1963, an appeal under Section 11 (1) of U.P.C.H. Act has been filed by the State through Assistant District Government Advocate, Azamgarh after about 60 years without proper explanation of delay. He further submitted that in appeal petitioners filed an application/ objection that since the appeal is barred by inordinate delay hence limitation question be decided first, but the appellate court has disposed of the application by impugned order stating that the limitation question and merit will be considered together.

5. Counsel for the petitioner placed reliance upon the Division Bench judgement of this Court reported in R.D. 2022 (155) 309 (Ram Prakash vs. Deputy Director of Consolidation and others) in which Division Bench has held that application seeking condonation of delay has to be decided first

6. On the other hand, learned Standing Counsel submitted that by the impugned order appellate court has said that the limitation question as well as merit will be decided together as such no interference is required against the impugned order. He further submitted that petitioners can avail remedy of revision against the appellate order and the writ petition is not to be entertained.

7. In reply, Counsel for the petitioner submitted that since the appellate order has been passed against the Principle laid down by this Court in the Ram Prakash (Supra), as such, the writ petition is to be entertained against the impugned order.

8. I have considered the argument advanced by counsel for the parties and perused the record

9. There is no dispute about the fact that the Consolidation Officer has passed the order under Section 9 of the U.P.C.H. Act on 26.06.1963 and after expiry of more than 60 years appeal has been filed under section 11(1) of U.P.C.H. Act and the appellate court has ordered that the limitation question and merit of the appeal will be decided together.

10. Since this Court in the case of Ram Prakash (Supra) has held that the limitation question has to be decided first as such the impugned order passed by the respondent No.1 cannot be sustained in the eye of law. Paragraph Nos. 19, 20, 21, 22 and 23 of the judgment rendered in Ram Prakash (Supra) will be relevant which are as follows:-

"19. We are not going into the issue as to whether an order passed by appellate authority on an application seeking condonation of delay is an interim order or final as the same has not been referred for consideration by the Division Bench. Different situations may arise in an appeal filed along with application seeking condonation of delay. Firstly, the application for seeking condonation of delay may be dismissed. As a consequence thereof, the appeal will also fail. Another situation may be that application seeking condonation of delay is allowed and thereafter the appeal may either be accepted or rejected.

20. If any statute provides certain period for filing of appeal, an appeal filed beyond the time limit will certainly be not entertained. If the provisions of 1963 Act are applicable and party is entitled to seek condonation of delay in filing appeal, an application has to be filed specifying the grounds on which delay in filing the appeal is sought to be condoned. It is only after that the application is allowed, the appeal can be entertained and heard on merits. Before that the appeal cannot be taken up and considered on merits.

21. As far as the issue regarding hearing of the application seeking condonation of delay and the appeal simultaneously is concerned, in our view, firstly the application has to be considered. Only thereafter, the appeal can be considered on merits but there is nothing in law which requires hearing of appeal on merits to be postponed mandatorily after acceptance of the application seeking condonation of delay. Both can be taken up on the same day. However, the appeal has to be heard on merits only after the application seeking condonation of delay has been accepted.

22. In view of the aforesaid discussion, we answer the question referred to the Division Bench that an application seeking condonation of delay has to be decided first before the appeal is taken up for hearing on merits. However, it can be on the same day and there is no requirement of adjourning the hearing of appeal on merits after acceptance of the application seeking condonation of delay.

23. Let the matter be listed before learned Single Judge as per roster for further proceedings in the case."

11. In the objection petitioners have also taken a plea regarding the maintainability of the appeal and this Court while allowing the writ-B No.56065 of 2003 filed by the petitioners against the order of 24.09.2003 set aside the order dated 24.09.1993, but while passing the impugned order, the appellate court has taken into consideration the order dated 24.09.2003, which has been set aside by this Court and no more in existence, the relevant portion of the judgment rendered in Writ-C No.56065 of 2003 is as follows:

"Having heard learned counsel for the petitioners Sri Vishnu Singh and the learned counsel appearing for the respondents Sri S.C. Verma, this Court is of the view that when in the impugned order itself, a mention was made with regard to the fact that the case which the predecessors in interest of the petitioners had filed before the Consolidation Court was in existence then no interference can be drawn that the revenue entries were fraudulent. The entries were definitely there and the petitioners were also there in possession.

Under such circumstances, the order impugned dated 24.09.2003 cannot be sustained and is, therefore, quashed.

The writ petition is, accordingly, allowed."

12. Considering the entire facts and circumstances of the case as well as ratio of law laid down by this Court in Ram Prakash (Supra), the impugned order dated 19.10.2022 passed by respondent No.1 Settlement Officer of Consolidation cannot be sustained and is hereby set aside.

13. Writ petition is allowed and the matter is remanded back before the respondent No.1 to decide the limitation question first before deciding the appeal on merit after affording opportunity of proper hearing to both the parties expeditiously preferably within in a period of two months from the date of production of certified copy of this order.

14. No order as to costs.

Order Date :- 10.11.2022

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