Awadh Narayan vs Dy. Director of Consolidation

@DELETEUPPERDATA

Anjani Kumar Mishra, J.—Heard Sri R.C. Yadav, learned Counsel for the petitioner and learned Standing Counsel for the State-respondents. This petition arises out of an objection under section 9A(2) of the U.P. Consolidation of Holdings Act and is directed against the order dated 1.8.2014 passed by respondent No. 1 in Revision No. 1216, Aivadh Narayan and others v. Sugreev and others, as also the order dated 25.11.2008 passed by the Consolidation Officer, Sadar, Second, Azamgarh.

The facts of the case briefly stated are that the petitioner is the son of one Govind. It is stated that an order was passed by the Assistant Consolidation Officer on 14.12.1984 on the basis of an alleged compromise and claiming on the basis of an unregistered sale-deed, said to have been executed by Govind in 1973, the respondents were mutated over the land in question. This order is said to have been passed on 19.1.1985. It has further been stated that an objection under section 9A(2) was filed by one Ramanand son of Mathura, Shyaman-and and Shyam Narayan sons of Jaikaran, Ram Vilas, Ram Lagan and Ram Lagan sons of Garang Dabbal, Dal Sin-gar son of Raghunandar. The objection under section 9A(2) was contested to by Govind by means of a written objection dated 6.2.2002. It is further alleged that the father of the petitioner, namely, Govind died on 31.10.2002. In the pending objection, a substitution application is said to have been filed by Deep Chand on 9.11.2004 for substituting the heirs of Govind and another time barred application for substitution is said to have been filed by Sugreev on 13.6.2004.

It is the case of the petitioner that the application of Deep Chand did not mention the names of the heirs of Govind. This application was filed on 9.11.2004. It was allowed on the same day and notices were directed to be issued thereupon. The petitioner''s restoration application for recall of this order dated 9.11.2004 on the ground that it was ex parte was allowed. Thereafter, the petitioner filed an objection against the substitution application.

Another application for substituting the heirs of Govind is said to have been filed by Sugreev on 11.7.2005. The petitioner opposed this application also by means of a written objection. The Consolidation Officer by his order dated 25.11.2008 allowed both the substitution applications.

Against the order allowing the substitution application, the petitioner and his brothers, namely, Lalbihari, Kailash, Arjun and Sarjan filed a revision. This revision has been dismissed by the impugned order.

Learned Counsel for the petitioner has submitted that the first application for substitution filed by Deep Chand could not have been allowed because apart from being belated it did not mention the names of the heirs of the deceased Govind. No prayer was made therein for condoning the delay nor was the substitution application accompanied by any application under section 5 of the Limitation Act.

As regards the application filed by Sugreev, learned Counsel for the petitioner has urged that even this application was belated and was not accompanied by any application for condonation of delay. He has therefore submitted that the Consolidation Officer has wrongly condoned the delay in filing the substitution application despite objection in writing by the petitioner and his brothers and while passing this illegal order, the Consolidation Officer has failed to consider the various judgments cited in support of the submissions made. He has lastly submitted that the revisional order also-suffers from the same illegality and, therefore, both the orders are liable to be set aside and the objection is liable to be ordered to abate.

In support of his contentions, learned Counsel for the petitioner has placed reliance upon the provisions of law as contained in Order XXII, Rules 2, 3 and 4 of the Civil Procedure Code and upon Article 12 of the Schedule under the Limitation Act, 1963. He has also relied upon the following judgments.

"1. Naidar v. Deputy Director of Consolidation and others 1986 Law Suit (All) 470.

Sugni Devi (decd.) through L.Rs. Vs. Jodhi Devi (decd.) through L.Rs., .

Damodaran Pillai and Others Vs. South Indian Bank Ltd., .

Union of India (UOI) Vs. Ram Charan and Others, .

Katari Suryanarayana and Others Vs. Koppisetti Subba Rao and Others, .

Bijai Narain Singh and Others Vs. State of Uttar Pradesh, .

Smt. Jaitoon Vs. Joint Director of Consolidation and Others, ."

I have considered the submissions made by learned Counsel for the petitioner and have perused the record as also the judgment cited by him.

Insofar as the first five judgments are concerned, they all arises out of proceedings under the Civil Procedure Code and have been passed considering the provisions contained in Order XXII C.P.C. The provisions of the Civil Procedure Code have not been made applicable to proceedings under the U.P. Consolidation of Holdings Act On a query by the Court, the learned Counsel for the petitioner has not been able to point out any provision under the U.P. Consolidation of Holdings Act, whereby the provisions of the Civil Procedure Code have been made applicable to the proceedings thereunder.

Learned Counsel for the petitioner has also failed to point out any provision in the U.P. Consolidation of Holdings Act or the Rules framed thereunder providing the limitation for filing a substitution application in the proceedings under the said Act.

The LLP. Consolidation of Holdings Act, 1953 is a complete code in itself. Neither the Act nor the Rules framed thereunder provide for any limitation for filing a substitution application. It has been repeatedly held that at best the broad principles contained in the Civil Procedure Code may be attracted to the proceedings under the Act. It therefore, emerges that the U.P. Consolidation of Holdings Act does not prescribe any period of limitation for filing a substitution application. The submission of the learned Counsel for the petitioner that the limitation of 90 days provided under Article 120 of the Schedule 2 to the Limitation Act, 1963 is attracted, is misconceived. Article 120 reads as follows:--

"Under the Code of Civil Procedure, 1908 (3 of 1908) to have the legal representative of a deceased, plaintiff or appellant or of a deceased-defendant or respondent made a party." The limitation provided under this head is 90 days. This limitation of 90 days is counted from the death of the plaintiff, appellant, defendant or respondent, as the case may be."

It is, therefore, abundantly clear that Article 120 provides the limitation for applications filed in proceedings under the Civil Procedure Code. As already observed hereinabove, the Civil Procedure Code has not been made applicable to the proceedings under the U.P. Consolidation of Holdings Act and, therefore, the reliance of learned Counsel for the petitioner upon Article 120 of the Limitation Act is misplaced.

Under section 53 (b) of the U.P. Consolidation of Holdings Act, the provisions of section 5 of the Limitation Act, 1963 have been made applicable to applications, appeals, revisions and other proceedings under the Act or the Rules made thereunder. Therefore, the entire Limitation Act, 1963 is not applicable and only section 5 of the said Act has been made applicable to proceedings under the Consolidation of Holdings Act. Even if it is assumed, that the Limitation Act is applicable, and since the U.P.C.H. Act and the Rules framed thereunder do not provide any limitation for filing a substitution application, the matter at best would be covered by Article 137 of the Schedule with the Limitation Act, 1963.

Article 137 provides that the limitation for filing any application for which no period is provided elsewhere, would be three years from the date of the right to apply, accrues.

In such circumstances, the limitation, if any, for filing a substitution application in proceedings under the U.P. Consolidation of Holdings Act and for which no period has been provided within the Act itself or the Rules framed thereunder, would at best be three years.

It is admitted case of the petitioner that Govind died on 31.10.2002. Both the applications for substitution have therefore been filed within three years from the date of death. As already noted hereinabove. The first application filed by Deep Chand was filed on 9.11.2004 while the second application filed by Sugreev was on 11.7.2005. It is, therefore, clear that both these applications were filed within three years from the date of death.

For the reasons given above, I am constrained to hold that the case Smt. Jaitoon Vs. Joint Director of Consolidation and Others, which holds that the delay in filing an application cannot be condoned unless there is specific prayer made for the same and the delay has been explained through an affidavit has no application in the instant case. The said authority, in any case, would be applicable if there was a period of limitation prescribed for filing a substitution application and the application was filed after expiry of such period.

Since I have already held that the limitation for filing a substitution application is not provided in the U.P. Consolidation of Holdings Act nor in the Rules framed thereunder, in such circumstances, the limitation would, at best, be three years in view of Article 137 of the Limitation Act. The substitution applications that have been allowed were filed within three years from the date of death of Govind, the petitioner is not entitled to any benefit under the judgments cited, which are clearly distinguishable on facts.

The substitution applications therefore cannot be said to be belated. The impugned orders therefore suffer from no illegality. There was no necessity for filing any application for condonation of delay. For the same reason, I see no illegality in the order passed by the Consolidation Officer, whereby he has allowed the substitution application.

The Deputy Director of Consolidation has rightly dismissed the revision holding that the Civil Procedure Code is not applicable to the proceedings under the Consolidation of Holdings Act.

Accordingly, I find no merit in the submissions made by learned Counsel for the petitioner. The orders impugned are perfectly justified and call for no interference in exercise of equity jurisdiction under Article 226 of the Constitution of India. The writ petition lacks merit and is accordingly dismissed.