Jawahar Lal vs Dy. Director of Consolidation

@DELETEUPPERDATA

Anjani Kumar Mishra, J.

Heard Sri S.C. Tripathi, learned Counsel for the petitioner. This petition arises out of an objection under section 9-A(2) and pertains to plot Nos. 308 and 429, which were recorded in the name of Smt. Rupau in the basic year record. It appears that on an objection filed by the petitioner claiming on the basis of an alleged gift deed dated 20.2.1969 his name was mutated in place of Smt. Rupau. Aggrieved Smt. Rupau preferred Appeal No. 723/733 before the Settlement Officer, Consolidation along with an application for condonation of delay. The appeal was dismissed on 30.7.1991 on the ground of latches. Consequential revision filed by the Smt. Rupau was disposed of on 25.5.1993 in terms of a compromise dated 27.4.1993. By the compromise order, the name of Smt. Rupau appears to have been ordered to continue in the revenue record.

It appears that Smt. Rupau died on 31.3.1998 leaving behind the contesting respondent, who is her sole legal representative. It is further the case of the contesting respondent that on 16.4.2006 she was informed that the compromise order dated 25.5.1993 have been set aside and the name of the petitioner has been ordered to be mutated. It is alleged that on 24.6.1998 an application was filed to recall the compromise order dated 25.5.1993. This application was filed by the petitioner without impleading Smt. Rupau or her heir and this application was allowed ex-parte and the compromise order dated 25.5.1993 was recalled on 31.12.2001.

Aggrieved by the order dated 31.12.2001, the contesting respondent filed Writ Petition No. 24897 of 2006. This writ petition was disposed of granting liberty to the petitioner therein to file an application to recall the order dated 31.12.2001. It was further provided that if such application was filed within a period of two weeks from the date of the order, the same be heard in accordance with law within three months from the date of presentation of the application itself. It further appears that there was some typographical error in the order passed by the High Court, which required correction. The correction sought for was ultimately made on 22.5.2006 and thereafter the recall application was preferred on the very next day. The Deputy Director of Consolidation on 16.1.2008 rejected the application on the ground that the application had not been filed within a period of two weeks from the date of the order.

The contesting respondent thereafter filed a Writ Petition No. 6895 of 2008. This Court by its order dated 14.11.2008 allowed the writ petition and set aside the order impugned dated 16.1.2008 imposing cost of Rs. 3,000/- on the respondent No. 2 therein (petitioner in the instant writ petition). The D.D.C. was further directed to decide the recall application within a period of four months from the date of production of a certified copy of the order.

It is in such circumstances that the dispute is pending consideration before the Deputy Director of Consolidation. Learned Counsel for the petitioner has submitted that subsequent to the order passed by this Court in Writ Petition No. 6895 of 2008, the contesting respondent has filed another recall application on the ground that the original recall application filed by her is not traceable. This application was filed on 25.3.2014.

The case of the petitioner is that the subsequent recall application is not maintainable and he has already filed an objection to this effect, copy whereof is Annexure-6 to this writ petition. It has further been alleged that the Deputy Director of Consolidation has not taken any steps in this regard. No formal complaint has been lodged regarding loss of the Court file nor any departmental enquiry initiated for fixing the responsibility for such loss nor any order have been passed for reconstruction of the record itself. It has lastly been averred that the respondent No. 1 the Deputy Director of Consolidation is in hot haste to decide the restoration application without considering the petitioner''s objection regarding its maintainability.

It is in this backdrop that a writ of prohibition has been sought prohibiting opposite party No. 1 from proceeding any further in respect of restoration application dated 25.3.2014 filed in Revision No. 1585/1130/1841/2000.

The second relief prayed in the writ petition is for a mandamus directing the respondent No. 1 to decide the question of maintainability of the restoration application dated 25.3.2014 as a preliminary issue.

The submissions made by learned Counsel for the petitioner may be summarized as follows:--

(1) No effort has been made by the Deputy Director of Consolidation for tracing out the original restoration application filed by the contesting respondent in pursuance of the directions issued by this Court in 2006. Copy of the original application has not been filed by the contesting respondent and that no responsibility has been fixed for loss of the original application.

(2) Repeated restoration applications filed by the contesting respondent are not maintainable till such time a finding is recorded that the original application is not traceable.

(3) Two simultaneous applications for the same relief cannot be entertained.

(4) A specific objection regarding the issue of maintainability of the subsequent recall application has been made in writing but the Deputy Director of Consolidation has failed to pass any orders thereon despite a period of one year having elapsed since such objections were filed.

In support of his contention, learned Counsel for the petitioner has relied upon the following decisions:--

Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others,

Shewpujanrai Indrasanrai Ltd. Vs. The Collector of Customs and Others,

Khageshwar Vs. Hoshram and Others,

Shri Bhagwan and Another Vs. Ram Chand and Another,

In the case Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others, , the Apex Court while considering the scope of proceedings under Article 226 of the Constitution of India has held that Election Tribunals functioning within the territorial jurisdiction of the High Court fall within the ambit of that power. If the High Courts are to recognize or admit any limitation on this power, it must be founded on some provision in the Constitution itself.

Relying upon this decision the submission of learned Counsel for the petitioner is that this Court can issue a writ of prohibition in the facts and circumstances of the instant case.

Insofar as this legal proposition is concerned, there is absolutely no dispute that this Court in exercise of its jurisdiction under Article 226 of the Constitution of India can issue a writ of prohibition in case the Subordinate Authority exercises jurisdiction not vested in it. However, this is not the position in the case at hand. Merely because certain applications have been filed, it will not necessarily lead to a conclusion that the subordinate Court, namely, the Deputy Director of Consolidation in the instant case is acting in excess of his jurisdiction. There is no law which prevents a party from filing an application. It is for the Court to consider the same and to reject it, in case the same cannot be entertained or the relief claimed therein is beyond the jurisdiction of the Court concerned. In the instant case, though applications have been filed, which according to petitioner are not maintainable, the same have not been entertained or considered and, therefore, it cannot be said that the Deputy Director of Consolidation is exceeding his jurisdiction.

In the case Shewpujanrai Indrasanrai Ltd. Vs. The Collector of Customs and Others, , the Apex Court has held that a writ of prohibition will issue to prohibit doing what is in excess of jurisdiction. In this case, the Apex Court was considering the conditions imposed by the Collector of Customs for release of gold seized on payment of fine in lieu of confiscation under the Sea Customs Act. Certain conditions imposed by the Collector of Customs were found to be in excess of jurisdiction and, therefore, a writ of certiorari was issued in respect of such conditions.

As already noted hereinabove, the Deputy Director of Consolidation has not passed any order which can be said to be in excess of jurisdiction nor he has entertained and allowed any application which is barred under law.

In the case of Khageshwar Vs. Hoshram and Others, , an appeal was preferred against an order passed under section 42A of the U.P. Consolidation of Holdings Act. The opposite party contended that such appeal was incompetent as the same had not been provided for, in the U.P. Consolidation of Holdings Act. This preliminary objection was rejected by the Settlement Officer, Consolidation, whereupon a writ of prohibition was filed for restraining the Settlement Officer, Consolidation for proceeding with the appeal. The Division Bench of this Court issued a writ of prohibition on the finding that it is not disputed that no appeal lies from an order passed under section 42A and, therefore, such appeal was incompetent. The said authority does not help the petitioner because in the instant case, no order has been passed on the application filed by the petitioner raising the question of maintainability of the restoration application filed in 2014. The petitioner may have a cause of action only if such application is held to be maintainable and the petitioner''s objection regarding its maintainability is turned down. Since an application has been filed, whereupon orders have not been passed, therefore, in the facts and circumstances of we case, in my considered opinion, the instant writ is premature and has been filed on mere apprehension.

The last decision relied by learned Counsel for the petitioner is Shri Bhagwan and Another Vs. Ram Chand and Another, , wherein it has been held that in case a Court wishes to take a view contrary to an earlier decision, judicial propriety demands that the matter be either referred to a larger Bench or the papers be directed to be placed before the Chief Justice for constituting a larger Bench.

This particular authority has no application in the facts and circumstances of the instant case. This Court is not taking any view which is contrary to earlier reported decisions. On the contrary, this Court is of the opinion that the authorities cited by learned Counsel for the petitioner are not attracted and have no application in the facts and circumstances of the instant case..

In view of the above discussion, I find no merit in the submissions made by learned Counsel for the petitioner. The restoration application filed in the year 2006 was filed in pursuance of directions issued by this Court. In 2008, this Court has again directed that the application be decided on merits. Both the aforesaid orders of this Court have attained finality and, in my considered opinion, the petitioner in the instant writ petition seeks modifications of these two orders which have attained finality. It may further be pointed out that there is no inherent lack of jurisdiction in so far as the consideration of a recall/restoration application filed before the Deputy Director of Consolidation is concerned. The writ petition appears to be an attempt to delay disposal of a restoration application filed in pursuance of directions of this Court, on technicalities. Accordingly and for the reasons given above, the writ petition lacks merit and is dismissed.