Manmohan Rastogi And 3 Others vs Deputy Director Of Consolidation ...
2023 Latest Caselaw 6744 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 5
 

 
Case :- WRIT - B No. - 811 of 2023
 

 
Petitioner :- Manmohan Rastogi And 3 Others
 
Respondent :- Deputy Director Of Consolidation And 2 Others
 
Counsel for Petitioner :- Vinod Kumar Rai,Ashok Kumar Singh
 
Counsel for Respondent :- C.S.C.,Satendra Kumar Singh,Suresh Chandra Varma
 

 
Hon'ble Dinesh Pathak,J.

Heard learned counsel for the petitioners, learned Standing Counsel representing respondent nos. 1 and 2 and learned counsel for the private respondent nos. 3 at admission stage of the instant writ petition and perused the record on board.

In view of the peculiar facts and circumstances of the case and the order proposed to be passed, this Court proceeds to decide the instant writ petition 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).

Facts culled out from the averment made in the writ petition are that assailing the order dated 26.08.1973 passed by the Assistant Consolidation Officer, Govind Prasad (predecessor in the interest of the petitioners) has preferred a highly belated appeal dated 16.06.2021. During pendency of the appeal, while the appellant came to know that most of the respondents in the appeal had already died before filing the appeal, he has moved an application to implead the heirs and legal representatives of the deceased in the appeal. The Settlement Officer of Consolidation, vide order dated 08.10.2021, has allowed the impleadment application on the cost of Rs. 200/-. It appears that during pendency of the appeal an interim order dated 22.12.2021 was also passed in favour of the appellants/ petitioners. Assailing the order dated 08.10.2021, by which impleadment application was allowed, and order dated 22.12.2021, by which interim order was granted, a revision has been preferred by the respondent no. 3. The Deputy Director of Consolidation has allowed the revision, vide impugned order dated 13.01.2023, with a direction that the appeal should be heard first on the point of limitation and the maintainability. Having been aggrieved instant writ petition has been filed assailing the order passed by the Deputy Director of Consolidation.

Learned counsel for the petitioners submits that the Deputy Director of Consolidation has illegally interfered in the interlocutory orders dated 08.10.2021 and 22.12.2021, respectively, passed by the Settlement Officer of Consolidation by which impleadment application was allowed and the interim order was granted in favour of the appellants. It is further submitted that inadvertently the appeal was filed against the dead persons, therefore, the appellant has right to cure the defects in filing the appeal and to bring the heirs and legal representatives of the deceased on record. It is further submitted that the Settlement Officer of Consolidation has rightly granted interim order dated 22.12.20221 in favour of the appellant/ petitioners considering the urgency in the matter. It is next submitted that the Deputy Director of Consolidation has allowed the revision in a cursory manner without properly appreciating the facts and circumstances in passing the orders dated 08.10.2021 and 22.12.2021. It is next submitted that the impugned orders are liable to be quashed being illegal, unwarranted under the law and tainted with irregularity.

Per contra, learned counsel for the respondents has contended that the appeal filed on behalf of the petitioners itself was not competent, being filed against the dead person and with inordinate delay of 48 years. It is further contended that without condoning the delay in filing the appeal the Settlement Officer of Consolidation has no justification to pass any interim order in favour of the appellants, which will adversely affect the right and title of the respondents. Since the appeal is not competent under the law, no interim order can be granted by the Settlement Officer of Consolidation in favour of the appellants. It is further contended that the Settlement Officer of Consolidation, vide order dated 08.10.2021, has allowed the impleadment application without giving any opportunity of hearing to the contesting respondents, therefore, same has rightly been quashed by the Deputy Director of Consolidation in revision. It is next contended that the instant writ petition is liable to be dismissed in limine, being misconceived and devoid on merits.

Having considered the rival submissions advanced by the learned counsel for the parties and perusal of record it reveals that the Deputy Director of Consolidation, vide impugned order dated 13.01.23, has remitted the matter before the Settlement Officer of Consolidation to decide the point of limitation and maintainability of the appeal filed on behalf of the petitioners. It appears that Govind Prasad (predecessor in the interest of the petitioners) has preferred an appeal dated 16/06/2021 at a belated stage against the order dated 26.08.1973. The application for condonation of delay in filing the appeal is still pending before the Settlement Officer of Consolidation and no decision has been taken thereon. Despite pendency of the delay condonation application, the Settlement Officer of Consolidation has passed the interim order dated 22.12.2021 staying further constructions on the spot and to maintain status quo. Point of limitation relates to the jurisdiction of the court concerned before whom application/appeal/case etc has been filed beyond the prescribed period of limitation, therefore, unless the delay in filing the appeal is condoned, court concerned has got no jurisdiction to pass any order on the merits of the appeal or on the merits of the stay application. It appears that the Settlement Officer of Consolidation has granted the interim order in hurried manner without any justification, whereas the appeal itself was filed at a belated stage assailing the order of 1973. The court cannot oblivious of the fact that successful litigation has acquired certain rights on the basis of the judgment under challenge, therefore, any order passed behind his back, without following the provisions of law, will adversely affect his right, title and interest which is not sustainable in the eye of law. Interim order dated 22.12.2021 passed by the Settlement Officer of Consolidation has rightly been quashed by the Deputy Director of Consolidation and there is no justification to interfere in the order passed by the Deputy Director of Consolidation so far as it relates to the quashing of the interim order dated 22.12.2021.

So far as the order dated 08.10.2021, by which impleadment application has been allowed, is concerned, the Deputy Director of Consolidation has set aside the order dated 08.10.2021 in zeal and stopped the opportunity of the appellants/petitioners to cure the defect in filing the appeal. Admittedly, the appeal was filed against the dead persons, therefore, to cure the defect, appellants have moved an impleadment application to bring on record the heirs and legal representatives of all the deceased. There in nothing on record to demonstrate as to whether notices were issued to the persons who were sought to be impleaded in the memo of appeal or not. It appears that the order dated 08.10.2021, by which impleadment application has been allowed, is an ex parte order passed behind the back of the persons who were sought to be impleaded. This court cannot deny the proposition of law that appeal filed against the dead persons would be rendered incompetent to be entertained by the court concerned, therefore, before entertaining the same it is right of the appellant to cure the defects in filing the appeal. As such, the petitioners are at liberty to bring on record the heirs and legal representatives of all the deceased so that the appeal as well as delay condonation application in filing the appeal would be decided on merits after hearing all the parties concerned.

In this conspectus, as above, present writ petition succeeds and is allowed partly. The order dated 13.01.2021 passed by the Deputy Director of Consolidation, so far as it relates to the order dated 08.10.2021 by which impleadment application was allowed, is hereby quashed. The order of the Deputy Director of Consolidation is modified to the extent that the impleadment application is restored to its original number and the parties are relegated before the Settlement Officer of Consolidation who is hereby directed to decide the said impleadment application afresh after affording due opportunity of hearing to the parties concerned. It is made clear that the order passed by the Deputy Director of Consolidation with respect to quashing of the interim order dated 20.12.2022 shall remain stand.

Order Date :- 2.3.2023

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