Rajesh Kumar Rai vs State Of U.P. And 3 Others
2023 Latest Caselaw 13543 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 18
 
Case :- WRIT - B No. - 1444 of 2023
 
Petitioner :- Rajesh Kumar Rai
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Pradeep Kumar Rai,Prajyot Rai
 
Counsel for Respondent :- C.S.C.,Rishabh Kumar Pandey,Santosh Kumar Singh
 

 
Hon'ble Chandra Kumar Rai,J.

Heard Mr. Prajyot Rai, Counsel for the petitioner, learned Standing Counsel for State-respondents and Mr. Rishabh Kumar Pandey, Counsel for respondent No.3.

The instant writ petition has been filed for the following relief:

(i) Issue a writ, order or direction in the nature of certiorari quashing the order dated 09.01.2023 passed by the Deputy Director Consolidation/Chief Revenue Officer, Ballia in revision No.235/237/240 (Bachcha Rai vs. Rajendra Prasad Rai and others) (Annexure No.1 to the writ petition)

Brief facts of the case are that plots in dispute are situated in three villages, namely Chak Kalandar, Chak Tulan and Chak- Mirzapur in District-Ballia. The plots in dispute were recorded in the name of Bachcha son of Suraj Rai. In order to appreciate the controversy, family pedigree is being given as under:

Indradev Rai

_______________________|______________________

| | |

Suraj Rai Ramapati Rai Ramauatar Rai

| |

______|__________ |

| | Rajesh Kumar Rai

Bachcha Rai Rajendra Prasad Rai

Consolidation operation came in the village by way of notification under Section 4(2) of U.P.C.H. Act. On 24.08.1973, the Assistant Consolidation Officer passed an order in Case No. 1557 regarding plot situated in village-Mirzapur and the order dated 23.08.1973 passed in Case No.4131 under Section 9-A(2) regarding plot situated in Village-Chaktulan and on 06.10.1972 Assistant Consolidation Officer passed the order under Section 9-A(2) of U.P.C.H. Act in Case No. 33 regarding plot situated in village-Chak Kalandar. C.H. Form Nos. 41 and 45 were also prepared accordingly,. Respondent No.3 Bachcha Rai filed three separate time barred appeals on 12.05.2003 against the order passed Assistant Consolidation Officer dated 23.08.1973 regarding plot situated in village-Chaktulan, which was numbered as appeal No.505. Another appeal was filed on 12.05.2003 against the order dated 24.08.1973 in respect to the plot in dispute village-Mirzapur, which was numbered as appeal No.507. Third appeal was filed in respect to the plot situated in village-Chak Kalandar, which was numbered as appeal No.506. All the three appeals were consolidated and heard together. The Settlement Officer of Consolidation passed an order dated 22.03.2007 to the effect that point of limitation and maintainability shall be heard first. Appellate Court vide order dated 22.03.2007 has fixed the appeals for hearing on the point of limitation and maintainability. Against the order dated 22.03.2007 the revision was filed by respondent No.3 Bachha Rai under Section 48 of U.P.C.H. Act agaisnt the orders passed in appeal Nos.506, 505, 507. The Deputy Director of Consolidation/ respondent No.2 passed the order dated 09.01.2023 setting aside the appellate order dated 23.07.2007 and remitted the matter back before the Settlement Officer of Consolidation to decide the appeal on the point of limitation as well as on merit, Hence this writ petition.

Counsel for the petitioner submitted that appellate court has rightly passed an order dated 22.03.2007 for considering the limitation question first before deciding the appeals on merit. He further submitted that revision under Section 48 of U.P.C.H. Act filed against the interlocutory order was not maintainable but the revisional court has illegally entertained the revision, set aside the appellate order and remanded the matter back to the appellate court to decide the appeals considering the point of limitation as well as on merit. He further submitted that order passed by revisional court is contrary to the law laid down by this Court reported in 2022 (155) R.D.309, Ram Prakash Vs. Deputy Director of Consolidation and Others.

On the other hand, Mr. Mr. Rishabh Kumar Pandey counsel for the contesting respondents submitted that appeal was rightly filed by respondent No.3 as there was illegality in the order of Assistant Consolidation Officer. He further submitted that revisional Court has rightly entertained the revision and set aside the appellate order. He further submitted that Division Bench of this Court in Ram Prakash (Supra) has held that question of limitation and merit can be decided on the same date simultaneously, as such there is no illegality in the revisonal order and no interference is required against the impugned revisional order.

I have considered the arguments advanced by the counsel for the parties and perused the records.

There is no dispute about the fact that appeal filed by respondent No.3 under Section 11 (1) of U.P.C.H. Act along with delay condondaion application under Section 5 of limitation Act is pending before the appellate court. There is also no dispute about the fact that appellate court has said that appeal shall be considered on the point of limitation question and maintainability first, but in revision the order of appellate court has been set aside holding that appeal shall be heard and decided considering the limitation question and merit together.

In order to appreciate the controversy, Paragraph Nos. 19, 20, 21, 22 and 23 of the judgment rendered in Ram Prakash (Supra) will be relevant which are as under:

"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."

The Divison bench has held that limitation question in appeal shall be decided first before deciding the appeal on merit however, order on limitation and merit can be passed simultaneously on the same date.

In view of ratio of law laid down by this court in Ram Prakash (Supra) order passed by appellate court was in accordance with law but the revisional court has passed the impugned order against the ratio of the law laid by this Court. Operative portion of revisonal court order is as follows:

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Perusal of the operative portion of the revisional order reveals that the impugned order is against the ratio of law laid down by the Ram Prakash (Supra).

Considering the entire facts and circumstances of the case as well as ratio of law laid down in Ram Prakash (Supra) revisional order dated 09.01.2023 is liable to be set aside the same is hereby set aside. Writ petition stands allowed It is directed that appellate court shall decide the appeal in pursuance of the appellate order dated 22.03.2007 expeditiously preferably within a period of three months from the date of production of certified copy of this order after giving opportunity of hearing to the parties concerned and without granting unnecessary adjournments to either of the parties.

Order Date :- 1.5.2023

PS*