2 vs Deputy Director Of Consolidation
2021 Latest Caselaw 3303 UK

-IN THE HIGH COURT OF UTTARAKHAND
                    AT NAINITAL
       ON THE 26TH DAY OF AUGUST, 2021
                        BEFORE:
 HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI


    WRIT PETITION (M/S) No. 3290 of 2019


BETWEEN:

Brij Mohan Saini.                           ..........Petitioner


AND:
Ranjendra Prasad Semwal & others.          ....Respondents

                              with
    WRIT PETITION (M/S) No. 3274 of 2019


BETWEEN:

Raghuvir.                                   ..........Petitioner


AND:
Ranjendra Prasad Semwal & others.          ....Respondents

     (By Mr. Aditya Pratap Singh, Advocate for the petitioner,
     Mr. Nagesh Aggarwal, Advocate for respondent no. 1 and
     Mr. I.P. Kohli, Standing Counsel for the State of
     Uttarakhand)

                      JUDGMENT

Since common question of fact and law are involved in both petitions, therefore they are clubbed together and are being heard & decided by a common judgment. However, for the sake of convenience, facts of WPMS No. 3290 of 2019 are being considered.

2. Petitioner filed Revision Petition under Section 48 of U.P. Consolidation of Holdings Act, 1953 challenging the order dated 30.01.2018 passed by Settlement Officer, Consolidation. Since there was some delay in filing Revision Petition, therefore, petitioner also filed an application for condonation of delay.

3. Learned Revisional Court dismissed the Revision Petition filed by the petitioner on merit vide judgment and order dated 29.06.2019. Thus, feeling aggrieved, petitioner has approached this Court.

4. Learned counsel for the petitioner submits that learned Deputy Director of Consolidation proceeded to hear and decide petitioner's revision without condoning the delay, which is impermissible, therefore, the judgment passed by learned Revisional Court is liable to be set aside on this ground alone. In support of this contention, learned counsel for the petitioner has relied upon a judgment rendered by Single Judge of Hon'ble Allahabad High Court in the case of Prabhu and another Vs. Deputy Director of Consolidation, Ghazipur and others reported in 2013 (118) RD 48.

5. Per contra, Mr. Nagesh Agarwal, learned counsel appearing for respondent no. 1 submits that learned Deputy Director of Consolidation has passed a reasoned judgment, which suffers from no infirmity whatsoever. He further submits that once petitioner's revision has been decided on merit, it does not lie in his mouth to say that it could not have been considered on merit without condoning the delay. He further submits that although, there is no express order for condonation of delay, however, the Revisional Court considered the

revision filed by the petitioner on merit goes to say that delay stood condoned by implication. In support of this submission, he has relied upon a judgment rendered by Hon'ble Allahabad High Court in the case of Basant Lal (dead) through LRs Vs. Joint Director of Consolidation, Allahabad and others reported in 2006 (1) RD 749.

6. Perusal of the impugned judgment indicates that Revisional Authority has noted that there is no objection filed by respondents to the delay condonation application and he has dealt with the revision on merits by giving benefit of Section 5 of the Limitation Act to the revisionist, although no express order for condonation of delay was passed.

7. After hearing learned counsel for the parties, this Court is in respectful agreement with the judgment rendered in the case of Basant Lal (supra). The Consolidation of Holdings Act is a self-contained Code in which the powers to be exercised and procedure to be followed by the authorities is prescribed, therefore, the judgments rendered in the context of procedure laid down in Code of Civil Procedure will not be applicable to the proceedings under Consolidation of Holdings Act. Relevant paragraphs of the said judgment are reproduced below:-

"7. It is no doubt correct that Deputy Director of Consolidation found that explanation submitted by the petitioner for delay was not sufficient but as a matter of fact he did not dismiss the revision as time barred but proceeded to consider the same on merits. Though the Deputy Director of Consolidation has not specifically mentioned in the order that delay is being condoned, the fact that he considered the revision on merits gets to show that delay stood condoned by implication, The petitioner has himself stated that delay was only of four days and it was liable to be condoned. Once

his revision has been dismissed on merits it does not lie in his mouth to say that it could not have been considered on merits without condoning the delay. In any case if the delay as stated by the petitioner was liable to be condoned and would have been condoned the revision would have proceeded on merits. No prejudice can be said to have been caused to him by such decision even in the absence of specific order condoning the delay.

8. The judgment of the Apex court in the case of Ram Kali Devi (Smt.) v. Manager, Punjab National Bank (Supra) relied upon by the learned Counsel for the petitioner has no application to the facts of the present case. In the said case the appeal was dismissed by the District Judge on the ground of limitation without touching the merits of the case. When the matter came to the High Court the case was decided on merits without considering whether the District Judge rightly or wrongly dismissed the appeal on the ground of limitation. In such circumstances, the Hon'ble Apex Court remanded the case back to the High Court to give a final judgment on all points including the point of limitation. The facts of the present case are entirely different. In this case the order passed by the Consolidation Officer accepting the reference was challenged in revision before the Deputy Director of Consolidation on merits.

9. Reference, by sub-ordinate consolidation authorities are covered by Sub-section (3) of Section 48 and by virtue of Sub-section (2) the power conferred by Sub-section (1) of the said Section is exercisable by the Deputy Director of Consolidation in case of reference made under Sub-section (3). Section 48(1) of the Act runs as follows:

"The Director of Consolidation may call for and examine the record of any case decided or proceedings taken by any subordinate authority for I he purpose of satisfying himself as to the regularity of the proceedings; or as to the correctness, legality or propriety of any order other than interlocutory order passed by such authority in the case of proceedings and may, after allowing the parties concerned an opportunity of being heard, make such order in the case of proceedings as he think fit."

10. In view of the aforesaid provisions the Director of Consolidation while deciding a

reference is vested with the power to call for and examine the record and thereafter, after allowing the parties concerned an opportunity of being heard, make such order as he may deem fit. The question whether after the record has been called for by the Deputy Director of Consolidation under Section 48 of the Act it is open to him to dismiss the revision on some technicalities such as limitation or that necessary party has not been impleaded or the like has been subject matter of adjudication by a full bench of our court in the case Rama Kant v. Deputy Director of Consolidation and Ors., the question was answered by the bench in following words:

"After the record has been called for by the Deputy Director of Consolidation under Section 48 of U.P. Consolidation of Holdings Act he should examine the record to decide whether it was a fit case for exercise of rivisional jurisdiction suo moto. Such opinion shall have to be form even where the application in revision moved by a party is defective having been made beyond the prescribed period of limitation or all the necessary parties have not been impleaded."

11. In view of the aforesaid interpretation of the rivisional power of the Deputy Director of Consolidation, once the record was summoned by him he rightly proceeded to decide the revision filed by the petitioner on merits. Though not specifically mentioned in the case law relied upon by learned Counsel for the petitioner but from the facts narrated therein it appears that the said case was arising out of suit filed under the provision of Code of Civil Procedure, However, in the present case the dispute was under Consolidation of Holdings Act. The power to be exercised and procedure for adjudication is prescribed by the Act itself and is quite distinct from the procedure prescribed under the Code of Civil Procedure and as such also the case law is clearly distinguishable and is of no help to the petitioner."

8. The judgment in the case of Prabhu (supra) relied upon by learned counsel for the parties is distinguishable on facts. In that case, the Revision Petition was allowed by Deputy Director of Consolidation without condoning the delay, therefore, the other party,

who was respondent in the revision before Deputy Director of Consolidation had approached the High Court challenging the order passed by Revisional Authority contending that his valuable right of filing objection to the delay condonation application has been denied. The said contention found favour and the writ petition was allowed.

9. Thus, the ratio, which can be culled out from the judgment rendered in Prabhu and another Vs. Deputy Director of Consolidation, Ghazipur and others is that without hearing the version of the other side, delay in filing Revision Petition under Section 48 of the aforesaid Act cannot be condoned. However, the next question would be who can raise grievance, if revision is decided without condoning delay.

10. In my humble opinion, it is the respondent alone who can raise such grievance, as his valuable right would be affected, if he is not noticed and heard while condoning delay in filing the revision.

11. In such view of the matter, the aforesaid ground of challenge raised by the petitioner is without any substance.

12. Even otherwise also, learned Deputy Director of Consolidation has considered and discussed all relevant aspects of the matter and has passed a reasoned judgment. It has been observed in the impugned judgment that Settlement Officer, Consolidation has made effort to allot chaks to the tenure holders in their original holding.

13. Intention of the legislature is also that upon consolidation, as far as possible, chaks may be allotted at the place of original holding so that tenure holders may not suffer inconvenience.

14. In such view of the matter, this Court does not find any reason to interfere with the impugned judgment.

15. Accordingly, the writ petitions fail and are dismissed.

(MANOJ KUMAR TIWARI, J.) Arpan