Alamgir vs State Of Up And 3 Others
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Allahabad High Court

Alamgir vs State Of Up And 3 Others on 3 May, 2024

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:79612
 
Court No. - 48
 
Case :- WRIT - B No. - 1048 of 2024
 
Petitioner :- Alamgir
 
Respondent :- State Of Up And 3 Others
 
Counsel for Petitioner :- Pramod Kumar Sinha
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Chandra Kumar Rai,J.
 

1. Heard Mr. Pramod Kumar Sinha, learned counsel for the petitioner and Mr. Hari Mohan Srivastava, learned Additional Chief Standing Counsel for the State respondents.

2. Brief facts of the case are that plot No. 286 area 0.29 hectare of khata No. 194, plot No. 146 area 0.26 hectare of khata No. 191, plot No. 248 area 0.53 hectare, plot No. 450 area 0.34 hectare, plot No. 456 area 0.20 hectare of khata No. 188 situated at Village Chhitauni, Tehsil- Shahbad, District Rampur were finally settled in favour of petitioner and his family members on the basis of orders dated 11.8.1995/31.7.1995 passed by Assistant Consolidation Officer in the proceeding under Section 9A (2) of U.P.C.H. Act. The Village in question has been denotified under Section 52 of U.P.C.H. Act on 15.1.2014. The respondent no.4 who is former Gram Pradhan of the Village in question filed a highly time barred appeal under Section 11 (1) of U.P.C.H. Act alongwith prayer for condonation of delay of about 18 years which has been registered as appeal No. 383/202254135900000034/2013 Neetu Vs. Alamgir and Others. State has also filed two appeals under Section 11 (1) of U.P.C.H. Act along with prayer for condonation of delay of about 18 years which have been registered as appeal No. 414/202254135900000032 and appeal No. 413/202254135900000131/2013 State of U.P. through Collector Vs. Alamgir and Others. Petitioner filed a transfer application under Rule 65 (2) of U.P.C.H. Rules for transferring the aforementioned appeals from the Court of respondent no.3 to another district which was registered as Transfer Application No. 530 of 2023. The aforementioned transfer application has been rejected by respondent no.2 under impugned order dated 9.2.2024 hence this writ petition for following reliefs:-

" (i) Issue a writ order or direction in the nature of certiorari calling for the records and quashing the impugned order dated 9.2.2024 passed by respondent no.2 in Transfer Application No. 530 of 2023, Alamgir Vs. Smt. Neetu and Others under Rule 65 (2) of the U.P.C.H. Rules 1954.

(ii) Issue a writ order or direction in the nature of mandamus commanding the respondent no.3 not to proceed with the appeal No. 383/2023/202254135900000034, Smt. Neetu Vs. Alamgir and others, appeal No. 413 of 2023, 202254135900000032, State of U.P. through Ziladhikari Vs. Alamgir and others and the appeal No. 414 of 2013, 202254135900000032, State of U.P. Vs. Alamgir and others under Section 11 (1) of U.P.C.H. Act, 1953 pending before him."

3. Counsel for the petitioner submitted that highly time barred appeal under Section 11 (1) of U.P. Consolidation of Holdings Act, 1953 hereinafter referred as U.P.C.H. Act filed by private respondent no.4 as well as State against the order of Assistant Consolidation Officer dated 11.8.1995 and 31.7.1995 have been registered as appeal No. 383/2013/202254135900000034, Smt. Neetu Vs. Alamgir and others, appeal No. 413 of 2013, 202254135900000131, State of U.P. through Ziladhikari Vs. Alamgir and others and the appeal No. 414 of 2013, 202254135900000032, State of U.P. Vs. Alamgir and others under Section 11 (1) of U.P.C.H. Act. He submitted that petitioner has filed an application that appeal is liable to be dismissed on the ground of limitation as there is no proper explanation for delay of about 18 years but Settlement Officer Consolidation has fixed the appeal for disposal of the same on merit rather to pass order on the delay condonation matter first in the light of the decision of Division Bench of this Court reported in 2022 (155) R.D.309, Ram Prakash Vs. Deputy Director of Consolidation and Others. He submitted that petitioner has also filed an application under Rule 65 (2) of U.P.C.H. Rules 1954 to transfer the appeal from the Court of concerned Settlement Officer Consolidation to another district as reasonable apprehension has arose in the mind of the petitioner that he will not get justice from the Court of concerned Settlement Officer Consolidation. He submitted that respondent no.2 has passed the impugned order in arbitrary manner, rejecting the transfer application, as such, the impugned order is liable to be set aside and petitioner is entitled to the prayer made in the transfer application.

4. On the other hand, Mr. Hari Mohan Srivastava, learned Additional Chief Standing Counsel for the State respondents submitted that transfer application has rightly been rejected under the impugned order and no interference is required in the matter. He further submitted that title appeals filed by State as well as private respondent no.4 are pending before appellate Court for last more than 10 years due to lingering tactics of petitioner.

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

6. There is no dispute about the fact that three appeals filed by State as well as private respondent no.4 under Section 11 (1) of U.P.C.H. Act along with delay condonation matter are pending before respondent no.3 since 30.4.2013/6.5.2013. There is also no dispute about the fact that transfer application filed by petitioner has been dismissed under the impugned order.

7. The perusal of transfer application filed by petitioner to transfer the pending title appeal from the Court of respondent no.3 to another district as well as the impugned order passed by respondent no.2 fully demonstrate that there is no ground to transfer the pending appeals to another district, as such, impugned order dated 9.2.2024 do not require any interference by this Court under Article 226 of the Constitution of India.

8. So far as the procedure for disposal of time barred appeal under Section 11 (1) of U.P.C.H. Act is concerned, Division Bench this Court in the case of Ram Prakash (Supra) has held that in the case of time barred appeal, Settlement Officer Consolidation shall decide the delay condonation matter first in place of deciding the delay condonation matter and merit together however both exercise can take place on the same day. The 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."

9. In the instant matter, there is delay of 18 years in filing appeal under Section 11 (1) of U.P.C.H. Act, as such, appellate Court should decide the delay condonation matter first in view of the ratio of law laid down by Division Bench of this Court in Ram Prakash (Supra).

10. 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 instant petition is finally disposed of directing the respondent no.3, Settlement Officer Consolidation, Rampur to consider the delay condonation matter first in the aforementioned title appeals in the light of the ratio of law laid down by Division Bench of this Court in Ram Prakash (Supra) and pass order on the delay condonation matter first within period of three months from the date of production of certified copy of this order and thereafter proceed in accordance with the ratio of law laid down by this Court in Ram Prakash (Supra).

Order Date :- 3.5.2024

Vandana Y./PS*