Jagdish vs Dy. Director of Consolidation

@DELETEUPPERDATA

Anjani Kumar Mishra, J.—Heard Sri Rama Shankar Mishra, learned Counsel for the petitioners and Sri Kuldeep Saxena holding brief of Sri Sanjive Kumar Gupta, who has filed caveat on behalf of Jai Lal, respondent No. 3 in the writ petition. This writ petition arises out of proceedings under section 9A(2) of the U.P. Consolidation of Holdings Act in respect of Khata No. 416, which in the basic year record were recorded in the name of Shiv Lal, Vikram and Moti. The objection under section 9A(2) was filed by the petitioners. This objection was decided on the basis of a compromise vide order dated 20.10.1994, whereby the petitioners were ordered to be recorded over the land of Khata No. 416. Two appeals, bearing Appeal Nos. 243 of 2011 and 244 of 2011, were filed by the contesting respondents against the compromise order dated 20.10.1994. These appeals were filed almost 11 years after the compromise order was passed.

The contesting respondents objected alleging that notification under section 52(1) of the Act had been published and that the appellants were not party to the proceedings before the Assistant Consolidation Officer and, therefore, were not entitled to maintain the appeal. The Settlement Officer, Consolidation, Badaun by his order dated 19.3.2012, condoned the delay in filing the appeals subject to payment of Rs. 300/- as cost. He has also held that the appeals were maintainable.

Aggrieved by the order, the petitioners preferred Revision Nos. 552 and 553 of 2011-12 before the respondent No. 1. These revisions had been dismissed by the impugned order dated 28.5.2014. Hence this writ petition.

The case of the petitioners is that the contesting respondents, who had filed the appeal, were not parties in the objection, which was decided on the basis of a compromise. Relying upon section 11(1) of the U.P. Consolidation of Holdings Act, it has been submitted that they were not competent to maintain the appeal because the appeal can file only by a party to the proceedings. It has further been held that the various judgments cited before the Courts below in support of this contention had been wrongly ignored. It has further been submitted that the orders impugned are contrary to the express provisions of law contained in section 11(1) of the U.P. Consolidation of Holdings Act and, therefore, deserves to be set aside.

Learned Counsel appearing for the caveators on the other hand submitted that the appellants were aggrieved persons and, therefore, entitled to maintain the appeal. The view taken by the Courts below is perfectly justified. The writ petition lacks merit and deserves to be dismissed.

From the submissions noted above, it emerges that the only point of consideration involved in the instant writ petition is as to whether a person, who is not a party to the objection filed under section 9A(2), is entitled to maintain an appeal against an order passed in such proceedings, in case he is aggrieved by such order.

Section 11(1) of the U.P. Consolidation of Holdings Act, 1953 is quoted below:--

"Any party to the proceedings under section 9A, 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 the 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."

Learned Counsel for the petitioners has placed reliance upon the following judgments:--

Smt. Kiran Devi Vs. Deputy Director of Consolidation and Others, .

Lakhraj Vs. Deputy Director of Consolidation, Assistant Settlement Officer, Consolidation, State of U.P. and Ram Asrey, .

Vishwanath and another v. Deputy Director of Consolidation, Varanasi and others 2009 (108) RD 721.

In so far as the judgment in the case of Kiran Devi (supra) is concerned, the same deals with section 11A of the U.P. Consolidation of Holdings Act, which contains a principle akin to principle of res judicata. In this case, an objection regarding valuation of the original holding of the objector, was raised by means of an objection under section 21 (1) of the Act. It was held that such an objection could have been raised under section 9, which was not done and, therefore, such an objection regarding the valuation of the original holding of the objector could not be raised at the stage of allotment of chaks, in view of the bar created by section 11A of the Act, It is, therefore, clear that reliance upon this judgment is misplaced and this authority is on an entirely different point, which does not arise in the instant writ petition.

Similar is the position in the case of Lakhraj (supra), wherein also the Court was considered the wordings of section 11A and, therefore, even this judgment also does not help the petitioners.

In the case of Vishwanath (supra), it has been held that an appeal can be filed only by the parties to the proceedings. It has been held as follows:--

"It is well-settled that right of appeal, revision or review are statutory rights. They are conferred by the statute and unless conferred, they cannot be availed off by any person and no authority can entertain the appeal, revision or review unless the said authority is authorized by the statute to entertain the same. Therefore, the appeal at the instance of Ram Kiran was not maintainable before the consolidation authority as he was not party before the Consolidation Officer in proceeding initiated at the instance of petitioners. Section 11 read with 45 of U.P. Consolidation of Holdings Act clearly provides that any party to proceeding under section 9A can file an appeal. As Ram Karan was not a party to the proceeding, the appeal at his instance was not maintainable."

It is no doubt true that this authority is directly on the point in issue and holds in favour of the petitioners and completely supports his contention. However, it appears that the Court while pronouncing this judgment has relied exclusively on the wordings of section 11 (1) of the Act, which starts with the word ''any party to the proceedings under section 9A.........'' These words have been very elaborately considered in the case of Smt. Lal Dei v. Dy. Director of Consolidation, Varanasi and it has been held therein that any person claiming himself to be aggrieved by an order passed by the Assistant Consolidation Officer/Consolidation Officer, on proof of prejudice and adverse effect from the order sought to be challenged, has a right to move that very Court or the Appellate Court against such order. Thus, irrespective of right to file appeal and its maintainability, the relief is to be given to a person, who satisfies the Appellate Court that he is adversely affected, and unless this is proved, the Appellate Court will not allow an appeal, which has been filed even by the person, who was party in the proceedings. Elaborately further it has been stated in paragraph 19 that "If this view is taken then that will lead to very alarming situation inasmuch as before the Assistant Consolidation Officer/Consolidation Officer anybody just may file an objection/claim without any right and obtains an ex-parte order without any proper service, or on the basis of some compromise or by any other device and then take plea that look here your appeal is not maintainable and thus leave that aggrieved person to run here and there in the trace of his proper Forum where to get justice and from which Court/Forum to get hearing in respect to the order so to be challenged."

Again paragraph 22 of the said judgment is reproduced below:--

"In view of the analysis made above this Court is of the considered view that as and when there is an order by the Assistant Consolidation Officer/Consolidation any person claiming himself aggrieved on proof of prejudice and adverse effect from the order sought to be challenged have a right to move that very Court or the Appellate Court and his contention has to be examined on merits subject to recording of a findings and the satisfaction about prejudice"

It is, therefore, clear that it has been held that to be able to maintain an appeal, the appellant has to establish that he is aggrieved by the order under appeal.

The Deputy Director of Consolidation in the impugned order has rightly held that a person aggrieved, even if not a party to the proceedings, has the right to maintain an appeal as noticed in the case of Lal Dei (supra). This Court has rightly held that in case the wordings of section 11(1) are strictly construed, it will lead to a very anomalous situation, enabling persons to obtain orders in their favour without impleading necessary parties, who would thereafter be left remediless not been able to challenge the order by which they are aggrieved, merely on the ground that they were not party to the proceedings.

Accordingly and in view of the discussion above, I find no illegality in the impugned orders. The writ petition is wholly devoid of merits.

The contention of the petitioners that only a party to the proceedings before the Assistant Consolidation Officer/Consolidation Officer can maintain an appeal against an order passed in such proceedings, cannot be accepted. The writ petition is therefore dismissed.