Navab Ali And Another vs Deputy Director Of Consolidation ...
2023 Latest Caselaw 2988 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 5
 

 
Case :- WRIT - B No. - 3839 of 2022
 

 
Petitioner :- Navab Ali And Another
 
Respondent :- Deputy Director Of Consolidation Rampur And 6 Others
 
Counsel for Petitioner :- Brajesh Shukla
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Dinesh Pathak,J.

Heard learned counsel for the petitioners and learned Standing Counsel representing respondent nos. 1 and 2 and perused the record on board.

In view of the peculiar facts and circumstances of the case and the order proposed to be passed hereunder by this Court, instant writ petition is being decided finally at the admission stage with the consent of the counsel for the parties present without calling for their respective affidavits (counter affidavit and rejoinder affidavit) and without putting notice to the remaining respondent nos. 3 to 7 with liberty that they may file a restoration/recall application in case any fact mentioned in the instant writ petition are incorrect.

The petitioners have invoked the extraordinary jurisdiction of this Court by filing the instant writ petition under Article 226 of the Constitution of India assailing the order dated 27.08.2018, by which substitution application moved on behalf of the petitioners has been rejected and revision was ordered to be dismissed as abated, and the order dated 23.09.2022 by which restoration application filed on behalf of the petitioners against the order dated 27.08.2018 has been dismissed.

Question for consideration involved in the present matter lies in a very narrow compass as to whether provision as enunciated under Order 22 of C.P.C. is applicable in a proceeding under the U.P. Consolidation of Holdings Act (in brevity "U.P.C.H. Act").

Record reveals that Smt. Dilbari has filed a revision before the Deputy Director of Consolidation. During pendency of the revision Smt. Dilbari has died on 27.11.2014. Present petitioners, who are sons of Dilbari, have moved a belated substitution application dated 22.09.2017. Said substitution application was rejected on the ground of laches and the revision was ordered to be dismissed as abated vide order dated 27.08.2018. Against the said order restoration application filed on behalf of the petitioners was also rejected vide order dated 23.09.2022.

The matter relating to applicability of C.P.C. in proceeding under the U.P.C.H. Act has already been discussed by this Court in Writ-B No. 590 of 2022 (Surender And 3 Others vs. The Deputy Director of Consolidation And 5 Others), reported in Manu/UP/3737/2022. In the aforesaid judgment following observation has been made by this Court:-

"Order 22 of Code deals with the substitution of heirs and legal representatives of the deceased, who arrayed as a party in the cause title of suit/appeal being plaintiff/appellant or defendant/opposite party. U.P. Consolidation of Holdings Act (in brevity "U.P.C.H. Act") is an special enactment and under the provisions as enunciated under Section 4 of Code the provisions of the Code shall not be deemed to limit or otherwise affect the provisions of U.P.C.H. Act. For the purposes of proceedings before the consolidation courts, procedure has been provided under Section 38 of U.P.C.H. Act read with Rule 26 of U.P. Consolidation of Holdings Rules (in brevity "Rules"). In additional to these provisions, Section 41 of U.P.C.H. Act enunciates that unless otherwise specially provided by or under U.P.C.H. Act, the provisions of Chapter IX and X of U.P. Land Revenue Act, 1901 shall apply to all proceedings including appeal and application under U.P.C.H. Act. No doubt that by virtue of Section 40 of U.P.C.H. Act proceedings before the consolidation authorities have been treated as a judicial proceeding but it does not mean that the provisions of Code are made applicable in the proceeding under the U.P.C.H. Act.

Considering the applicability of Code in proceedings under the U.P. C.H. Act, Full Bench of this Court in the case of Bijai Narain Singh and others vs. State of U.P. and others, reported in A.I.R. 1970 All 241 (FB) has expounded that provisions of Code are not fully applicable in the proceeding under U.P.C.H. Act. Relevant paragraph no. 32 of the judgment is being quoted herein under:-

"32. It may now be seen as to whether the various authorities constituted under the Act are governed by the Code of Civil Procedure in the matter of procedure. On an examination of the various provisions of the Act it would appear that all the provisions of the Code of Civil Procedure have not been made applicable to the proceedings under the Act. Some limited powers have been specifically given under Section 38 and enlarged by Rule 26, which have been again supplemented by S. 41, which says that the provisions of Chapters IX and X of the U.P. Land Revenue Act, 1901, shall apply to all proceedings under the Act. On a perusal of the provisions of Section 38 and Rule 26 it would appear that they make a mention of the application of only some provisions of the Code of Civil Procedure. In the same way the provisions in Chapter IX and X of the Land Revenue Act show that all the provisions of the Code of Civil Procedure have not been made applicable to the proceedings under that Act also. As such, it could not be held that all the provisions of the Code of Civil Procedure have been made applicable to the proceedings under the Act. Had the intention of the legislature been to make all the provisions of the Code of Civil Procedure applicable to the proceedings under the Act, it could have said so just in one sentence."

In the matter of Anand Narayan and others vs. Deputy Director of Consolidation, Gorakhpur and others, reported in 2013(121) RD 45, question relating to applicability of Order 22 of Code was considered and answered by the coordinate Bench of this Court that the provisions as enunciated under Order 22 of Code qua substitution of the heirs and legal representatives of the deceased on the record is not applicable in the cases/appeal/revision under the U.P.C.H. Act. Relevant paragraph no. 12 of the judgment in Anand Narayan (supra) is being quoted herein under:-

"12. In such circumstances, the provisions of Order 22 Rule 3(2) and Rule 4(3) CPC which provides for abatement of the suit and proceeding for not filing the substitution application within 90 days of the death of the parties will not automatically apply to the proceeding before the consolidation authorities and in view of Section 4 CPC, the special provisions regulating the proceedings before the consolidation authorities will have overriding effect and the provisions of CPC will not be imported to the proceeding in the consolidation. The case law relied by counsel for the respondents in the cases of Khedan Vs. Vishwanath, 1989 RD 364, Dibhag Singh Vs. DDC and others, 1990 RD 151, Ishwari Vs. DDC and others, 1990 RD 175 and Ranvir Singh Vs. JDC and others, 2007 (102) RD 42 as well as the Full Bench judgment of this Court in Bijai Narain Singh and Others v. State of U.P. and Others AIR 1970 All 241 (FB) squarely cover the controversy. In such circumstances, the argument of counsel for the petitioner is not liable to be accepted."

Similar question has been considered in the case of Shivrani and others vs. Deputy Director of Consolidation and others, decided on 06.12.1989 by the coordinate Bench of this Court, reported in 1990 RD 175, holding that though the provisions under Order 22 of C.P.C. are not applicable to the U.P. Consolidation of Holdings Act but principle contained under Order 22 of C.P.C. can be borrow to do justice. Therefore, heirs and legal representatives of deceased should be brought on the record.

Considering the proposition of law laid by the Full Bench of this Court, it is now no more res integra that the provisions of C.P.C. are not full applicable in the proceedings under U.P.C.H. Act. Even in those matters where substitution application was filed at a belated stage, there will be no abatement in the matter inasmuch as provisions as enunciated under Order 22 of Code and the provisions as enunciated under Article 120 and 121 of the Limitation Act are not applicable in a proceeding under the U.P.C.H. Act, though provisions of section 5 of the Limitation Act, 1963 has been made applicable, for the limited purposes in proceedings under U.P.C.H. Act by virtue of Section 53-B of the U.P.C.H. Act. Therefore, mere furnishing an information qua death of any party, along with the details of his/her heir and legal representatives, arrayed in the cause title of any proceeding under U.P.C.H. Act would be suffice for the purpose of survival of the cause of action involved in the matter."

Learned counsel for the petitioners has cited the judgment this Court in the case of Awadh Narayan vs. Dy Director of Consolidation, reported in 2014 (125)R.D. 326, wherein also same issue has been discussed by the coordinate Bench of this Court.

As such, instant writ petition succeeds and is allowed. The order dated 27.08.2018 and 23.09.2022 passed by the Deputy Director of Consolidation (Annexure Nos. 1 and 2) are hereby quashed. Revision petition before the Deputy Director of Consolidation is hereby restored to its original number. The Deputy Director of Consolidation is hereby directed to consider the substitution application in accordance with law, as discussed above, and pass appropriate order, after affording opportunity of hearing to the parties concerned.

Order Date :- 30.1.2023

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