Indrajeet Singh vs D.D.C. and Others

Ram Surat Ram (Maurya), J.—Heard Sri Manish Goel along with Sri Kamlesh Kumar Mishra, for the petitioner. The writ petition has been filed against the order of Settlement Officer Consolidation dated 1.2.2014, rejecting the application of the petitioner for postponing hearing of the appeal during pendency of the revision filed by the petitioner against the order dated 31.12.2013 by which the application of the petitioner for deciding the delay condonation application and preliminary objection relating to maintainability of the appeal, before hearing arguments on merit in the appeal has been rejected and for issue of writ of prohibition restraining Settlement Officer Consolidation from deciding the appeal on merit before deciding preliminary objection, arising out of proceeding u/s 12 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act).

During consolidation, Chak 190 of village Koni tappa Kewatali, pargana Haveli, district Gorakhpur was carved out in the name of Harvinder Singh (re-spondent-5). The petitioner filed an application (registered as Case No. 85) u/s 12 of the Act, for mutating his name over an area of 0.416 hectare, of the second chak of Harvinder Singh, on the basis of deed dated 2.5.2002. It is alleged that the matter was compromised before Assistant Consolidation Officer between the parties. Assistant Consolidation Officer by order dated 25.7.2003 directed for recording the name of the petitioner over an area of 0.416 hectare on the second chak Harvinder Singh.

Harvinder Singh filed an appeal (registered as Appeal No. 2838 of 2007-08) u/s 11 of the Act on 9.4.2007 along with delay condonation application from the order dated 25.7.2003. The petitioner filed an objection on 11.11.2009 in delay condonation application and also raised objection regarding maintainability of the appeal and prayed for deciding the delay condonation application and preliminary objection relating to maintainability of the appeal, before hearing arguments on merit in the appeal. Settlement Officer Consolidation, by order dated 31.12.2013, rejected the application of the petitioner and held that delay condonation application and preliminary objection relating to maintainability of the appeal would be decided along with the appeal on merit and fixed 2.1.2014 for final arguments. The petitioner filed a revision (registered as Revision No. 941 of 2013-14) from the aforesaid order but further proceedings of the appeal has not been stayed by Deputy Director of Consolidation in revision. Then he filed an application before Settlement Officer Consolidation for postponing hearing of the appeal during pendency of the revision, which has been rejected by impugned dated 1.2.2014. Hence, this writ petition has been filed.

The Counsel for the petitioner submits that issue relating to limitation is a issue relating to jurisdiction of the Court. So long as delay is not condoned, Settlement Officer Consolidation has no jurisdiction to hear and decide the appeal on merit. The order impugned in the appeal is an order based on compromise and no appeal is maintainable against a consent order. This Court in Writ B No. 18963 of 2011 has not directed to hear the appeal on merit, ignoring the aforesaid objections. Settlement Officer Consolidation has illegally rejected the application of the petitioner for deciding the delay condonation application and preliminary objection relating to maintainability of the appeal, before hearing arguments on merit in the appeal. He relied upon the judgment of Supreme Court in Manu Bhai J. Patel v. Bank of Baroda, (2000) 10 SCC 253 in which it has been held that before condoning delay in filing the appeal, the appeal cannot be decided on merit and judgment of this Court in Radhey Shyam Vs. Kamla Shanker and Others, in which it has been held that u/s 11 of the Act, only aggrieved party to the proceeding can file an appeal.

I have considered the arguments of the counsel for the petitioner and examined the record. Section 11 of the Act, which provides the provision for appeal is quoted below:

Section 11- Appeal--(1) Any party to the proceedings u/s 9-A aggrieved by an order of the Assistant Consolidation Officer or the Consolidation Officer under that section may within 21 days of the date of the order, file an appeal before Settlement Officer Consolidation, who shall after affording opportunity of being heard to the parties concerned, give his decision thereon which, except as otherwise provided by or under this Act, shall be final and not be questioned in any Court of law.

There is no restriction in section 11 of the Act as contained u/s 96(3) of Code of Civil Procedure, 1908, regarding maintainability of an appeal from the consent order. It may be noted that Code of Civil Procedure, 1908 has also been amended by Act No. 104 of 1976 and Rule 1-A has been added under Order XLIII providing an appeal from compromise order also. Now an appeal can be filed, challenging the validity of compromise. Thus the objection that the appeal is not maintainable from an order passed on the basis of compromise cannot be accepted. The word "person aggrieved" has been interpreted as "a person who has been wrongly deprived of his entitlement" by Division Bench of this Court in Dharam Raj Vs. State of U.P. and Others, Thus in view of law as laid down in Dharam Raj''s case, even if a person was not impleaded as party before Consolidation Officer but has been deprived of his entitlement, then he can file an appeal from the order of Assistant Consolidation Officer or Consolidation Officer.

By virtue of section 12(2) of the Act, an appeal lies u/s 11 from the order passed in the proceeding u/s 12 of the Act. By section 53-B of the Act, provisions of section 5 of the Limitation Act, 1963 has been applied to all the proceedings under the Act. Section 5 of the Limitation Act, 1963 is quoted below:--

Section 5.--Extension of prescribed period in certain case.--Any appeal or application, other than the application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908) may be admitted after prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.

Before insertion of Order XLI Rule 3-A in Code of Civil Procedure, 1908, or in other enactment, where there is no such provision as Order XLI Rule 3-A, CPC, Supreme Court in State of Orissa and others Vs. Kalicharan Mohapatra and another, and L/Naik Mahabir Singh Vs. Chief of Army Staff, and this Court also took in view that delay can be condoned even on oral prayer. Section 5 of the Limitation Act, 1963 requires explanation of the cause, for not preferring the appeal or the application within period of limitation prescribed under the Act. Explanation of delay can be given even in memorandum of the appeal. Supreme Court in The State of West Bengal Vs. The Administrator, Howrah Municipality and Others, Davinder Pal Sehgal and Another Vs. Partap Steel Rolling Mills Pvt. Ltd. and Others, and Hindustan Construction Company Ltd. v. Gopal Krishna Sen Gupta, AIR 2003 SC 2335 and this Court in Jainul Abdin v. DDC and others, 1974 (Suppl) RD 162 held that if the order in appeal has been passed ignoring delay condonation application then delay shall be deemed to be condoned.

U.P. Consolidation of Holdings Act, 1953 does not prescribed for filing a separate application for condonation of delay as required under Order XLI Rule 3-A in Code of Civil Procedure, 1908. The appeal, application and revision under the Act are decided, adopting summary procedure. This Court in Ram Rati Vs. Dy. Director of Consolidation, Banda and others, held that delay condonation application can be decided while deciding the objection on merit. In the absence of any specific procedure, consolidation authorities used to decide delay condonation application in the appeal, application and revision under the Act, along with the appeal, application and revision. u/s 11 of the Act, giving opportunity of hearing is only requirement. Order of Settlement Officer Consolidation dated 31.12.2013 directing to hear delay condonation application and preliminary objection along with final arguments in appeal does not suffer from any illegality.

Supreme Court in Ramesh Chandra Sankla Etc. Vs. Vikram Cement Etc., held that the Law Commission also considered the question and did not favour the tendency of deciding some issues as preliminary issues. Dealing with Rule 2 of Order XIV (before the amendment), the Commission stated: This Rule has led to one difficulty. Where a case can be disposed of on a preliminary point (issue) of law, often the Courts do not inquire into the merits, with the result that when, on an appeal against the finding on the preliminary issue, the decision of the Court on that issue is reversed, the case has to be remanded to the Court of first instance for trial on the other issues. This causes delay. It is considered that this delay should be eliminated, by providing that a Court must give judgment on all issues, excepting, of course, where the Court finds that it has no jurisdiction or where the suit is barred by any law for the time being in force.

Apart from the fact that the provisions of the Code do not stricto sensu apply to "industrial adjudication", even under the Code, after the Amendment Act, 1976, the normal rule is to decide all the issues together in a civil suit.

In the circumstance that procedure of CPC has not been applied in the proceeding under the Act and in view of the latest pronouncement of Supreme Court in Ramesh Chandra Sankla''s, Manubhai J. Patel''s case cannot be followed.

In view of the aforesaid discussion, the writ petition has no merit and is dismissed. However, Settlement Officer Consolidation is directed to deal all the points raised by the petitioner and decide them by giving reasons, while deciding the appeal on merit. The petitioner is permitted to appear before Settlement Officer Consolidation on the next date fixed and argue all the point simultaneously.