Ramesh Chandra And Another vs State Of U.P. And 10 Others
2023 Latest Caselaw 8906 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 18
 

 
Case :- WRIT - B No. - 572 of 2023
 

 
Petitioner :- Ramesh Chandra And Another
 
Respondent :- State Of U.P. And 10 Others
 
Counsel for Petitioner :- Pramod Kumar Dwivedi
 
Counsel for Respondent :- C.S.C.,Achal Singh,Rishikesh Tripathi,Sunil Kumar
 

 
Hon'ble Chandra Kumar Rai,J.

Heard Mr. Pramod Kumar Dwivedi, Counsel for the petitioners, learned Standing Counsel for the State-respondents, Mr. Rishikesh Tripathi, Counsel for respondent Nos.7 to 10 and Mr Achal Singh, Counsel for respondent No.6-A/ Gram Sabha.

The instant petition has been filed for quashing the order dated 13.04.2017 passed by Settlement Officer of Consolidation, Banda (respondent No.3) in Appeal No.32 of 2017 as well as for mandamus directing the respondent No.5/Sub Divisional Magistrate, Tehsil-Atarra, Distict-Banda to record the name of the petitioners in revenue record in compliance of the order dated 27.05.1977 and issue fresh Khatauni to the petitioners.

Stamp report has reported laches of 2038 days in filing the petition.

Counsel for the petitioners submitted that since the petitioners were not impleaded by the contesting respondent in the appeal filed against the order of Assistant Officer of Consolidation, as such petitioners were not aware about the appellate order, as soon as, they came to know about the appellate order, the instant writ petition has been filed. In view of submission advanced by learned counsel for the petitioner the writ petition is being entertained as the laches has been explained.

Brief facts of the case are that village-Oran, Tehsail-Atarra, District-Banda came under operation of U.P. Consolidation of Holdings Act through notification dated 05.05.1972 under Section-4 of U.P. Consolidation of Holdings Act. According to the petitioners, an order was passed by Assistant Officer of Consolidation on the basis of compromise on 27.05.1977 by which name of the petitioners' ancestors was ordered to be recorded over the plot in dispute. The notification under Section 6 (1) of U.P.C.H. Act took place on 07.06.2016 in respect to village-Oran. After the cancellation of consolidation proceeding under Section 6 (1) of U.P.C.H. Act, the contesting respondents filed an appeal along with application under Section 5 of Limitation Act in the year 2017. According to the petitioners, petitioners were not impleaded in the appeal and without any notice or opportunity afforded to the petitioners impugned order has been passed by Settlement Officer Consolidation setting aside the order dated 27.05.1977 passed by Assistant Consolidation Officer and abated the proceeding of the case, Hence this writ petition.

Counsel for the petitioners submitted that order dated 27.05.1977 passed by the Assistant Consolidation Officer has attained finality, as such the petitioners are entitled to the benefit as provided under Section 6 (2) of U.P.C.H. Act.. He further submitted that appeal filed by contesting respondents along with application under Section 5 of Limitation Act after issuance of notification under Section 6 (1) of the U.P.C.H. Act was not maintainable, but the same has been illegally entertained and order dated 27.05.1977 has been set aside. He further submitted that petitioners have not been impleaded as party in the appeal as such the impugned order is also liable to be set aside on the ground of violation of Principle of Natural Justice. He next submitted that after issuance of the notification under Section 6 (1) of U.P.C.H. Act appeal filed by contesting respondent was not maintainable in view of law laid down by this Court in case of Shriram and 4 others vs. State of U.P. and 5 others decided on 01.03.2023 in which it has been held that revision filed after issuance of notification under Section 6 (1) of U.P.C.H. Act is not maintainable.

On the other hand, Mr. Rishikesh Tripathi, respondent Nos.7 to 10 submitted that order dated 27.05.1977 passed by the Assistant Consolidation Officer on the basis of compromise was manipulated one, as such the appeal was rightly entertained and disposed of by the appellate court even after issuance of notification under Section 6 (1) of U.P.C.H. Act. He further submitted that order passed by Assistant Consolidation Officer on 27.05.1977 has not seen the light of the day since 27.05.1977 as such same has been rightly set aside by the appellate court. He next submitted that in view of law laid down by this Court in case of Om Prakash Versus Deputy Director of Consolidation and others reported in 2014 (123) RD 210 & in view of the law laid down by Apex Court in the case of Glaxo Smith Kline Plc and others Vs. Controller of Patents & Design and others reported in 2009 AIR SCW 376, the appeal is maintainable before the appellate Court in certain circumstances. He further submitted that petitioners have not availed the alternative remedy of revision as such writ petition is not maintainable. He further submitted that earlier writ petition filed by the petitioner bearing writ Petition No.448 of 2022 (Ramesh Chandra Tiwari and another vs. State of U.P. and 3 others) filed by petitioners for correcting the revenue record, was disposed of vide order dated 15.03.2023 and on the basis of order of this Court, application/representation filed by the petitioners has been rejected vide order dated 10.08.2022 which has not been challenged by the petitioners, as such the petitioners are not entitled to any relief in the matter.

In reply, counsel for the petitioners submitted the District Magistrate vide order dated 10.01.2023 disposed of the representation filed by the petitioners and accepted version of the petitioners for finality of the order passed by the Assistant Consolidation Officer in respect to the other plots. He further submitted that District Magistrate has aribtrarilly rejected the representation in respect of the disputed plot vide order dated 10.08.2022.

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

There is no dispute about the fact that village has been notified under Section 4 of U.P.C.H. Act on 05.05.1972 and notification under Section 6 (1) of U.P.C.H. Act has taken place on 07.06.2016. According to the petitioners, the order dated 27.05.1977 passed by Assistant Consolidation officer on the basis of compromise in faovur of the ancestors of the petitioners has attained finality before issuance of notification under Section 6 (1) of U.P.C.H. Act but contesting respondents denying the fact and stating that the order dated 27.05.1977 has been challenged by contesting respondents after issuance of notification under Section 6 (1) of U.P.C.H. Act through appeal under Section 11 (1) of U.P.C.H. Act and the appellate court has set aside the order passed by Assistant Consolidation officer.

Since the impugned appellate order dated 13.04.2017 has been passed in appeal without impleading the petitioners, as such the same cannot be maintained on the ground of want of notice and opportunity of hearing to the petitioners.

The Settlement Officer of Consolidation without considering the delay condonation matter in proper manner has condoned the delay and set aside the order dated 27.05.1977 passed by Assistant Consolidation Officer as well as abated the proceeding which is not proper on the part of Settlement Officer Consolidation. It is also material that order dated 27.05.1977 was passed in favour of ancestor of petitioners as such without impleadment of petitioners the impugned order cannot be passed setting aside the order dated 27.05.1977.

The Division Bench of this Court in the case reported in (2022) 155 RD 309 Ram Prakash versus Deputy Director of Consolidation Hardoi and others (Consolidation No.6574 of 2016) decided on 03.02.2022 has held that delay condonation matter shall be decided first before consideration of the appeal on merit as such the order of delay condonation should be passed in proper manner and after that merit part should be considered and disposed of. Paragraph Nos.20 and 21 of the judgment rendered in Ram Prakash (Supra) are relevant which are as under:

"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"

In the instant case appeal No.32 of 2017 was filed on 09.02.2017 impleading the Gaon Sabha only and the appeal has been disposed of on 13.04.2017 just in two months period in arbitrary manner, which cannot be sustained in the eye of law.

On the point of alternative remedy Apex Court in the case of Committee of Management and another Vs. Vice Chancellor and others 2009 (1) AWC 437 (SC) has held that if the impugned order has been passed in violation of principle of natural justice then alternative remedy will not be bar. Paragraph No.21 of the judgment is as under:

"21. Furthermore, when an order has been passed by an authority without jurisdiction or in violation of the principles of natural justice, the superior courts shall not refuse to exercise their jurisdiction although there exists an alternative remedy. In this context, it is appropriate to refer to the observations made by this Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai & Ors. (1998) 8 SCC 1 :

"15. .... But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. ...."

[See also Guruvayoor Devaswom Managing Committee & Anr. v. C.K. Rajan & Ors. (2003) 7 SCC 546]

In this case, albeit, before us for the first time, the vires of the proviso appended to Section 16 of the Act is in question, besides other points noticed by us hereinbefore"

Considering the facts and circumstances of the case, the impugned order passed by the Settlement officer of Consolidation dated 13.04.2017 is liable to be set aside and the same is hereby set aside. The writ petition is allowed in part and matter is remitted back before respondent No.3/Settlement Officer Consolidation, Banda to decide the appeal No. 32 of 2017 after giving notice and opportunity of hearing to the petitioners in accordance with law. The contesting respondents, who are appellant in the appeal No.32 of 2017 is directed to implead the petitioners in appeal No.32 of 2017 so that petitioners may be afforded proper opportunity of hearing in the appeal.

Respondent No.3 is also directed to decide the aforementioned appeal in accordance with law expeditiously preferably within a period of three months from the date of production of certified copy of this order after giving opportunity to both the parties in following manners:

(i) Respondent No.3 shall consider the delay condonation matter first and pass order in accordance with law.

(ii) After consideration of the delay condonation matter maintainability of appeal shall be considered in the light of the judgment mentioned in the body of the judgment.

Order Date :- 27.3.2023

PS*