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2014 Supreme(All) 3237
ALLAHABAD HIGH COURT
Anjani Kumar Mishra, J.
Lakhpati - Appellant
Versus
Dy. Director of Consolidation and Ors. - Respondent
Writ-B No. 50521 of 2014
Decided On : 11-11-2014
For the Appellant : Manish Kumar Nigam and Ashok Kumar
For the Respondents: C.S.C. and S.K. Mishra
Consolidation authorities can decide preliminary objections along with an appeal or a revision, and the application of the Code of Civil Procedure in the proceeding under the Act.
Headnote:
Delay - Land Dispute - U.P. Land Revenue Act - Section 34, Order XIV - The court discussed the delay in filing the appeal, the authority of consolidation authorities to decide preliminary objections along with an appeal or a revision, and the application of the Code of Civil Procedure in the proceeding under the Act.
Fact of the Case:
The petitioner claimed land on the basis of a Will executed in her favor, but the order for mutating her name over the land was not implemented in the revenue records. The heirs of the original owner were mutated, and the petitioner initiated proceedings under section 34 of the U.P. Land Revenue Act. The appeal against the order of the Naib Tehsildar was allowed, and subsequent revisions were filed.
Finding of the Court:
The court dismissed the writ petition and affirmed the impugned orders, citing the authority of consolidation authorities to decide preliminary objections along with an appeal or a revision.
Issues: Delay in filing the appeal, authority of consolidation authorities to decide preliminary objections along with an appeal or a revision.
Ratio Decidendi: The court held that there is no bar on consolidation authorities to decide preliminary objections along with an appeal or a revision, citing the decision of the Apex Court in Ramesh Chandra Sankala v. Vikram Cement.
Final Decision: The writ petition was dismissed, and the impugned orders were affirmed.
Anjani Kumar Mishra, J.
1. Heard Sri Manish Kumar Nigam, learned Counsel for the petitioner and Sri S.K. Mishra, who has filed caveat on behalf of respondent No. 3, the sole contesting respondent in the writ petition. The writ petition is directed against the orders dated 15.4.2014 and 27.6.2014, passed by the Settlement Officer, Consolidation (for short, SOC) and the Dy. Director of Consolidation (for short, DDC), respectively.
2. The facts of the case, briefly stated, are that, admittedly, the land in dispute belonged to one Avtar. The petitioner claims on the basis of a Will executed in her favour by Avtar. It is the further case of the petitioner that an order was passed in her favour by the Assistant Consolidation Officer (for short, ACO) for mutating her name over the land in dispute on the basis of the aforesaid will on 14.4.1994. Although this order was passed, the same was not implemented in the revenue records.
3. On the contrary, on the death of Avtar, his heirs were mutated, as a result whereof the petitioner initiated proceedings under section 34 of the U.P. Land Revenue Act for recording her name over the plots in dispute on the basis of the order of the ACO passed in her favour. The Naib Tehsildar, by his order dated 15.10.1999 allowed the application under section 34 of the Land Revenue Act.
4. Against the said order of the Naib Tehsildar, respondent No. 3 preferred an appeal, which was allowed by the Assistant Record Officer on 12.6.2003.
5. The consequential revision filed by the petitioner was allowed by the Addl. District Magistrate (Finance and Revenue), vide order dated 9.3.2007.
6. Subsequent to the order dated 9.3.2007, respondent No. 3 preferred a time-barred appeal against the order dated 14.4.1994 before the SOC. This appeal was filed on 30.3.2007 along with an application for condonation of delay. The petitioner filed her objection to this application for condonation of delay. She also filed another application praying that the question of delay be decided first, as a preliminary issue. This application of the petitioner was dismissed by the SOC vide order dated 15.4.2014, who held that both the questions of limitation and merits of the appeal would be decided together. This order has been affirmed by respondent No. 1, who dismissed the revision filed by the petitioner on 27.6.2014.
7. Learned Counsel for the petitioner has submitted that the appeal was filed after an inordinate delay of about 23 years. The contesting respondent was aware of the order, at least since 15.10.1999 when she filed the appeal against the order passed by the Naib Tehsildar in proceedings under section 34 of the Land Revenue Act. He has, lastly, submitted that till such time the delay in filing the appeal; is condoned, there is no appeal in the eyes of law and, therefore, the impugned orders are patently illegal and are liable to be set aside.
Learned Counsel appearing for the caveator-respondent, on the other hand, has vehemently supported the impugned orders and has placed reliance on the judgment in Indrajeet Singh v. DDC and others, 2014 (123) RD 254 .
8. I have considered the aforesaid submissions made by the learned Counsel for the parties and have perused the record.
9. This Court in the case of Indrajeet Singh (supra), relying upon the decision of the Apex Court in the case of Ramesh Chandra Sankala v. Vikram Cement, (2008) 14 SCC 58 , has held that there is no bar on the consolidation authorities to decide preliminary objections along with an appeal or a revision. Paragraph 11 of the said judgement, passed by the learned Single Judge of this Court, is reproduced below:
"The Supreme Court in Ramesh Chandra Sankla v. Vikram Cement, 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
