# Alam & Ors v. Deputy Director of Consolidation Faizabad & Ors

- **Citation:** (2019) 4 ILRA 1
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-15
- **Case number:** Consolidation No. 31286 of 2019
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/alam-ors-v-deputy-director-of-consolidation-faizabad-ors-44906
- **Pages:** 7

## Headnote

Law-U.P.
Consolidation
of
Holdings Act, 1953 - Section 11-C - In
the course of hearing of an objection
under Section 9-A or an appeal under
Section 11, or in proceedings under
Section 48, the Consolidation Officer, the
Settlement Officer (Consolidation) or the
Director of Consolidation, as the case
may be, may direct that any land which
vests in the State Government or the
Gaon Sabha or any other local body or
authority may be recorded in its name,
even though no objection, appeal or
revision
has
been
filed
by
such
Government,
Gaon
Sabha,
body
or
authority. (Para 16)

The application of Revision was moved by the
opposite party, it was entertained and
therefore, the Dy. Director of Consolidation
was within his jurisdiction to consider whether
such application was defective and whether all
necessary parties had been impleaded in the
said Revision or not? (Para 23)

Held:- The Dy. Director of Consolidation has
exercised the necessary jurisdiction as has
been given to him under the statute - A duty
has been cast under Section 11-C of the Act
on Consolidation Authorities to protect the
rights of the State Government, the Gaon
Sabha or any other local Body or Authority in
any proceeding that is entertained by them.
(Para 25)

Writ Petition dismissed. (E-7)

List of cases cited: -

1.Vidur Impex and Traders Private Limited and
Others Vs. Tosh Apartments Private Limited
and Others, (2012) 8 SCC 384

2.Bibi Zubaida Khatoon V. Nabi Hasan, (2004)
1 SCC 191

3.Sarvinder Singh v. Dalip Singh (Supra) and
Dhurandhar Prasad Singh V. Jai Prakash
University, (2001) 6 SCC 534

4.Ramakant
Singh
Vs.
Dy.
Director
of
Consolidation, U.P. and Others, AIR 1975
Allahabad 126

## Text

4 All. Alam & Ors. Vs. Deputy Director of Consolidation Faizabad & Ors.
1
(2019)12 ILR A1
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.11.2019

BEFORE
THE HON'BLE MRS. SANGEETA
CHANDRA, J.

Consolidation No. 31286 of 2019

Alam & Ors. ...Petitioners
Versus
Deputy
Director
of
Consolidation
Faizabad & Ors. ...Respondents

Counsel for the Petitioners:
Ankit Pande

Counsel for the Respondents:
C.S.C.

A.
Civil
Law-U.P.
Consolidation
of
Holdings Act, 1953 - Section 11-C - In
the course of hearing of an objection
under Section 9-A or an appeal under
Section 11, or in proceedings under
Section 48, the Consolidation Officer, the
Settlement Officer (Consolidation) or the
Director of Consolidation, as the case
may be, may direct that any land which
vests in the State Government or the
Gaon Sabha or any other local body or
authority may be recorded in its name,
even though no objection, appeal or
revision
has
been
filed
by
such
Government,
Gaon
Sabha,
body
or
authority. (Para 16)

The application of Revision was moved by the
opposite party, it was entertained and
therefore, the Dy. Director of Consolidation
was within his jurisdiction to consider whether
such application was defective and whether all
necessary parties had been impleaded in the
said Revision or not? (Para 23)

Held:- The Dy. Director of Consolidation has
exercised the necessary jurisdiction as has
been given to him under the statute - A duty
has been cast under Section 11-C of the Act
on Consolidation Authorities to protect the
rights of the State Government, the Gaon
Sabha or any other local Body or Authority in
any proceeding that is entertained by them.
(Para 25)

Writ Petition dismissed. (E-7)

List of cases cited: -

1.Vidur Impex and Traders Private Limited and
Others Vs. Tosh Apartments Private Limited
and Others, (2012) 8 SCC 384

2.Bibi Zubaida Khatoon V. Nabi Hasan, (2004)
1 SCC 191

3.Sarvinder Singh v. Dalip Singh (Supra) and
Dhurandhar Prasad Singh V. Jai Prakash
University, (2001) 6 SCC 534

4.Ramakant
Singh
Vs.
Dy.
Director
of
Consolidation, U.P. and Others, AIR 1975
Allahabad 126

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J)

(1) Heard Shri R.S. Pande, learned
Senior Advocate assisted by Shri Ankit
Pande for the petitioners and Shri
Upendra Singh, learned Standing Counsel
appearing on behalf
of the Staterespondents.

(2) This petition has been filed
challenging the order dated 01.11.2019 passed
by the Dy. Director of Consolidation,
Faizabad now Ayodhya for impleading the
U.P. Express Way Industrial Development
Authority, Lucknow, by exercising "Suomoto" power in the Revision pending before
him, against the order passed by the
Settlement Officer Consolidation in respect of
a dispute with regard to the co-tenancy right in
Khata No.102 situated in Village Idilpur,
Pargana-Khandasa, Tehsil Milkipur, District
Ayodhya.
2 INDIAN LAW REPORTS ALLAHABAD SERIES

(3) It has been submitted by the
learned counsel for the petitioners that on
 18.02.1978, the Assistant Consolidation
Officer passed an order giving co-tenancy
rights to the opposite party nos.2 to 6, on
the basis of an alleged compromise under
Section 9 of the Act. The order dated
18.02.1978 was also recorded in the
Khatauni of 1382 & 1384 Fasli. The
petitioners filed a time barred Appeal on
01.04.2017
against
the
order
dated
18.02.1978 before the Settlement Officer
Consolidation under Section 11 of the Act
with the claim that the land in question
was obtained by his father through Patta
granted by Gram Panchayat and it was
non-Bhumidhari
land
with
nontransferable right, being leased out by the
Gram Panchayat to the father of the
petitioners i.e. Nanhey.

(4) The Appeal filed by the
petitioners was allowed by the Settlement
Officer, Consolidation on 23.06.2017.
Since the shares were not determined
between the brothers of the petitioners,
the petitioners filed a Revision before the
Dy. Director of Consolidation, against the
order dated 23.06.2017. The Dy. Director
Consolidation allowed the Revision and
determined 1/4th share of each of the
petitioners by his order dated 19.07.2017.

(5) The opposite party nos. 2 to 6
moved a Recall/Restoration application
for recalling of order dated 19.07.2017.
The said Recall application was rejected
on the ground that opposite party nos.2 to
6 had already filed another Revision
No.673/1342/2019 before the opposite
party no.1 which was pending for
disposal.

(6) It has been submitted that the
petitioners being apprehensive of the
attitude of the current DDC filed an
application for transfer of Revision from
the Court of the opposite party no.1
before the District Magistrate, Ayodhya,
on 30.10.2019 but before said application
could be disposed of, the current DDC
passed the order on 01.11.2019 directing
them to implead Government of U.P. and
U.P. Expressway Industrial Development
Authority (for short UPEIDA).

(7) Shri R.S. Pande, has submitted
that no power as has been exercised by
the DDC could have been exercised Suomoto as the Government of U.P. had no
say in the dispute regarding co-tenancy
rights. It was a purely private dispute
between the petitioners and the opposite
party nos.2 to 6.

(8) Learned counsel for the
petitioners has placed reliance upon the
judgment of the Hon'ble Supreme Court
rendered in Vidur Impex and Traders
Private Limited and Others Vs. Tosh
Apartments Private Limited and Others
reported in (2012) 8 SCC 384. (Paragraph
nos.40 & 41) The said Paragraphs nos.40
and 41 of the judgment are being quoted
hereinbelow:-

"40. In Bibi Zubaida Khatoon
V. Nabi Hasan (2004) 1 SCC 191, this
Court was called upon to consider the
correctness of the High Court's order,
which declined to interfere with the order
passed by the trial Court dismissing the
applications filed by the appellant for
impleadment as party to the cross suits of
which one was filed for redemption of
mortgage and the other was filed for
specific performance of the agreement for
sale. While dismissing the appeal, this
Court referred to the judgments in
Sarvinder Singh v. Dalip Singh (Supra)
4 All. Alam & Ors. Vs. Deputy Director of Consolidation Faizabad & Ors.
3
and Dhurandhar Prasad Singh V. Jai
Prakash University reported in (2001) 6
SCC 534 and observed that there is no
absolute rule that the transferee pendente
lite shall be allowed to join as party in all
cases without leave of the Court and
contest the pending suit.

41. Though there is apparent
conflict in the observations made in some
of the aforementioned judgments, the
broad principles which should govern
disposal
of
an
application
for
impleadment are:

1. The Court can, at any stage
of
the
proceedings,
either
on
an
application made by the parties or
otherwise, direct impleadment of any
person as party, who ought to have been
joined as plaintiff or defendant or whose
presence before the Court is necessary for
effective and complete adjudication of the
issues involved in the suit.

2. A necessary party is the
person who ought to be joined as party to
the suit and in whose absence an effective
decree cannot be passed by the Court.

3. A proper party is a person
whose presence would enable the Court to
completely,
effectively
and
properly
adjudicate upon all matters and issues,
though he may not be a person in favour
of or against whom a decree is to be
made.

4. If a person is not found to be
a proper or necessary party, the Court
does not have the jurisdiction to order his
impleadment against the wishes of the
plaintiff.

5.
In
a
suit
for
specific
performance,
the
Court
can
order
impleadment of a purchaser whose
conduct is above board, and who files
application for being joined as party
within reasonable time of his acquiring
knowledge about the pending litigation.

6. However, if the applicant is
guilty of contumacious conduct or is
beneficiary of a clandestine transaction
or a transaction made by the owner of the
suit property in violation of the restraint
order passed by the Court or the
application is unduly delayed then the
Court will be fully justified in declining
the prayer for impleadment."

(9) This Court has carefully perused
the judgment rendered by a Division
Bench of the Hon'ble Supreme Court with
regard to the question it was considering
on the facts as mentioned before it. The
question before the Hon'ble Supreme
Court was that the Suit property was
leased by the Secretary of State for India
to Sidh Nath Khanna and Sukh Nath
Khanna sometime in the year 1930. After
12 years, the Governor General-inCouncil sanctioned the grant of perpetual
lease in favour of one of them, namely,
Sidh Nath Khanna. In the family partition
which took place in December, 1955, the
Suit property fell to the share of Shri Devi
Prasad Khanna, who was one of the heirs
of Sidh Nath Khanna the name of the son
of Devi Prasad Khanna was entered in the
records of the Ministry of Works and
Housing, Land and Development Office,
and the lease was transferred in his name.
He rented out the same to the Sudan
Embassy on 12.09.1962. In October,
1977, the name of Mr. Pradeep Kumar
Khanna (son of Devi Prasad Khanna, who
died during the pendency of the litigation
before
the
High
Court
and
was
represented by his legal representatives)
was entered in the records of the Ministry
of Works and Housing, Land and
Development Office and the lease was
transferred in his name in March 1980.
Pradeep Kumar Khanna mortgaged the
said property to Shri S.N. Tandon. After 5
4 INDIAN LAW REPORTS ALLAHABAD SERIES
years, he entered into a collaboration
agreement with Shri Arun Kumar Bhatia
for
construction
of
a
multi-storied
building. He also executed an agreement
for sale in favour of Arun Kumar Bhatia.
Pradeep Kumar Khanna then took loan
from Shri Avtar Singh and also created an
equitable mortgage in his favour. On
13.09.1988
Pradeep
Kumar
Khanna
executed an agreement for sale in favour
of Tosh Apartments Private Limited for a
consideration of Rs.2.5 crores. After some
time, Arun Kumar Bhatia executed an
assignment deed dated 13.12.1988 in
favour of Pradeep Kumar Khanna. A
Collaboration agreement was also entered
into between Pradeep Kumar Khanna and
Arun Kumar Bhatia.

(10) After three months, Pradeep
Kumar Khanna again mortgaged the Suit
property in favour of one other person. In
1992 respondent nos.2 and 4 entered into
an agreement whereby the latter agreed to
provide various services including the one
that he will get the suit property vacated
from the Sudan Embassy, and for that he
will charge Rs.4 crores. The Sudan
Embassy vacated the Suit property on
12.05.1982 and handed over possession to
Pradeep Kumar Khanna, who is said to
have handed over the same to respondent
no.4. On coming to know about the
proposed alienation of property, Tosh
Apartments. The Respondent no.1 filed a
suit in the Delhi High Court for specific
performance of agreement for sale dated
13.09.1988 and for award of damages and
an injunction.

(11) Although the respondent no.2
Pradeep Kumar Khanna and respondent
no.4 also filed an application under Order
7 Rule 11 CPC for rejection of plaint on
the ground that the same was barred by
time, such application was rejected by the
learned Single Judge of the High Court on
05.04.1994 who directed continuance of
interim injunction.

(12) Thereafter on 19.02.1997,
Pradeep Kumar Khanna executed six
agreements for sale in favour of Vidur
Impex and Traders Private Limited and
Others, the appellants, for a total sale
consideration
of
Rs.2.88
crores.
In
furtherance of thus agreement, six sale
deeds were executed and registered on
30.05.1997.

(13) The appellants Vidur Impex in
turn executed the agreement for sale dated
18.03.1997
in
favour
of
Bhagwati
Developers for a consideration of Rs.4.26
crores and received Rs.3.05 crores. The
appellants Vidur Impex and Traders
Private Limited and Others, thereafter filed
an application for impleadment on the
ground that they are subsequent purchasers
and they are necessary and proper parties to
be heard. They also filed an application for
vacation of interim injunction.

(14) Several other developments
have been noted by the Hon'ble Supreme
Court in its judgment. The question that
was being considered by the Supreme
Court was framed in Paragraph 2 of the
judgment as "whether M/s Vidur Impex
and Traders Private Limited and five
Other Companies who were said to
purchase the suit property i.e. 21 New
Delhi in violation of order of injunction
passed by the learned Single Judge, Delhi
High Court, are entitled to be impleaded
as parties to suit no.4 to 5 in 1993 filed by
Tosh Apartments Private Ltd. thereof."

(15) The Supreme Court made
observations as aforesaid in Paragraph 41
4 All. Alam & Ors. Vs. Deputy Director of Consolidation Faizabad & Ors.
5
of its judgment in the context in which the
facts were being considered by it, with
regard to a totally private dispute where
no statutory/obligation was cast upon the
Court to implead necessary and proper
parties in the proceedings before it.

(16) However, learned Standing
counsel Shri Upendra Singh has pointed
out Section 11 C of the U.P. Consolidation
of Holdings Act, 1953 which is being
quoted hereinbelow:-

"11 C. In the course of hearing of
an objection under Section 9-A or an appeal
under Section 11, or in proceedings under
Section 48, the Consolidation Officer, the
Settlement Officer (Consolidation) or the
Director of Consolidation, as the case may be,
may direct that any land which vests in the
State Government or the Gaon Sabha or any
other local body or authority may be recorded
in its name, even though no objection, appeal
or revision has been filed by such Government,
Gaon Sabha, body or authority."

(17) It has been submitted that the
Statute itself cast a duty upon the
consolidation authorities to protect the
interest of the State Government or the Gaon
Sabha, or any other local body or Authority,
in case land is recorded in its name, even
though no objection against Appeal or
Revision has been filed by such Government
Gaon Sabha, Body or Authority.

(18) It has been submitted by the
learned counsel appearing for the Staterespondents that from a perusal of the
order impugned, which is a short order,
directing
impleadment
of
U.P.
Government as a party to the Revision, it
is apparent that the Dy. Director of
Consolidation
has
recorded
his
satisfaction that the land in dispute Gata
No.172 and 23 had been sold to the
Government
on
24.10.2016
and
29.10.2016 and land had vested in the
State
Government
and
the
State
Government has been recorded as its
owner
in
the
Revenue
record
on
03.12.2016 and 07.12.2016 respectively.
By
another
sale
agreement
dated
21.01.2017 which has been recorded in
the Revenue records on 06.03.2017, the
Government had been recorded as tenure
holder/owner of the property. However,
the Appellant did not implead the State
Government or U.P. as a party though it
was filed in April, 2017, the SOC in his
order dated 26.03.2017 did not notice this
fact that even before the decision of the
Appeal the land had been recorded in
favour of the State Government as its
owner. Since the State of U.P. was not
made a party by the SOC in the Appeal
nor was impleaded in the Revision and
UPEIDA which was the beneficiary of
such sale transaction was also not
impleaded, the DDC rightly directed them
to be impleaded and that they should be
served notice and be heard before any
order could be passed in the Revision.

(19) Learned Standing Counsel has
pointed out that the land having vested in
the State Government and thereafter being
transferred to U.P.E.I.D.A. by the State
Government, the DDC exercised his
jurisdiction under Section 11 C of the Act
to direct impleadment and no fault can be
found in the order passed by the DDC,
which is only an interlocutory order. This
Court should not interfere in its extra
ordinary jurisdiction under Article 226 in
such an order.

(20) Shri R.S. Pande, in rejoinder
has placed reliance upon a Full Bench
6 INDIAN LAW REPORTS ALLAHABAD SERIES
decision rendered by this Court in
Ramakant Singh Vs. Dy. Director of
Consolidation, U.P. and Others, reported
in AIR 1975 Allahabad 126, where this
Court has observed that after the record
has been called for by the Dy. Director of
Consolidation under Section 48 he should
examine the record to decide whether it
was a fit case for exercise of the
revisional jurisdiction Suo-motu. Such
opinion shall have to be formed even
where the application in Revision moved
by a party is defective, having been made
beyond
the
prescribed
period
of
limitation, or all the necessary parties
have not been impleaded. If the Dy.
Director of Consolidation finds that the
case requires further hearing, he shall give
notice to all the necessary parties
irrespective of whether they were, or were
not impleaded, in the application and after
giving them reasonable opportunity of
hearing, pass such order as he thinks fit.
Where the application in Revision is not
defective and is maintainable, the exercise
of revisional jurisdiction shall be at the
instance of the parties and not Suo-moto.

(21) It has been submitted on the
basis of such observations made by the
Full Bench that it was not open for the
DDC
to
exercise
his
Revisional
Jurisdiction to direct impleadment of State
Government and UPEIDA Suo-moto.

(22) This Court has carefully
considered the judgment cited of the Full
Bench of this Court. It finds that there are
two instances mentioned by the Full
Bench; one relates to exercise of power of
revision Suo-moto, by calling records and
examining the same; the other relates to
application being made in Revision under
Section 48 (1) by a party. When such
application is moved, the Dy Director of
Consolidation has power to see whether it
is a defective application for Revision, it
can see the defects with regard to the
period of limitation and whether all
necessary
parties
have
not
been
impleaded.

(23) In this case, the application of
Revision was moved by the opposite party
nos.2 to 6, it was entertained and
therefore,
the
Dy.
Director
of
Consolidation was within his jurisdiction
to consider whether such application was
defective and whether all necessary
parties had been impleaded in the said
Revision or not?

(24) The judgment cited by the
learned Senior Advocate, in fact, supports
the order passed by the Dy. Director of
Consolidation, rather than going against it.

(25) This Court finds that the Dy.
Director of Consolidation has exercised
the necessary jurisdiction as has been
given to him under the statute. A duty has
been cast under Section 11-C of the Act
on Consolidation Authorities as aforesaid
to protect the rights of the State
Government, the Gaon Sabha or any other
local Body or Authority in any proceeding
that is entertained by them.

(26) From a perusal of the judgment
rendered by the Hon'ble Supreme Court in
Vidur Impex and Traders Private Limited
and Others (Supra), also this Court finds
that the judgment rendered in the
circumstances where two private parties
are fighting over property owned by them.
The
observation
made
by
the
4 All. Ram Kishore Vs. State of U.P. & Ors.
7
Section in Paragraph nos. 41.1, 41.2 and
41.3 supports the order passed by the
DDC.

(27) More so, when the statute itself
casts a duty upon the Consolidation
Authorities to protect the interest of the
State Government and the Gaon Sabha or
Local Body or Authority.

(28) This Court, therefore, does not
find
any
good
ground
to
show
interference in such order.

(29) The petition is dismissed. No
order as to costs.
----------
(2019)12 ILR A7
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.11.2019

BEFORE
THE HON'BLE AJIT SINGH, J.

Criminal Revision No. 3318 of 2019

Ram Kishore ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Krishna Mishra

Counsel for the Opposite Parties:
A.G.A.

A.Criminal Law - Maxim- judex damnatur
cum
nocens
absolvitur
(judge
is
condemned when guilty is acquitted)
and this doctrine must be used as a
beacon light while explaining the ambit
and the spirit underlying the enactment
of
Section
319
Code
of
Criminal
Procedure. (Para 7)

B.Criminal Law - Code of Criminal
Procedure, 1973 - Sections 397/401 &
Indian Penal Code, 1860 - Sections
302,201,404 - Application u/s 319 -
rejection-witnesses
were
crossexamined
by
the
counsel
for
the
accused-no
admissible
evidence
on
record indicating the complicity of the
opposite parties in the commission of
offence-trial court rightly rejected the
application. (Para 9 & 10)

It is the duty of the court to do justice by
punishing
the
real
culprit.
Where
the
investigating agency for any reason does not
array one of the real culprits as an accused,
the court is not powerless in calling the said
accused to face trial. The question remains
under what circumstances and at what stage
should the court exercise its power as
contemplated in Section 319 Cr.P.C. The Court
is the sole repository of justice and a duty is
cast upon it to uphold the rule of law and,
therefore, it will be inappropriate to deny the
existence of such powers with the courts in
our criminal justice system where it is not
uncommon that the real accused, at times, get
away by manipulating the investigating and/or
the prosecuting agency. The desire to avoid
trial is so strong that an accused makes efforts
at times to get himself absolved even at the
stage of investigation or inquiry even though
he may be connected with the commission of
the offence. (Para 7)

Criminal Revision dismissed. (E-6)

List of cases cited: -

1. Hardeep Singh Vs. St. of Punjab, reported in
(2014) 3 SCC, 92

2. Vikas Vs. St. of Rajasthan, 2013 (11) SCALE
23

(Delivered by Hon'ble Ajit Singh, J.)

1. Heard learned counsel for the
revisionist and the learned A.G.A.

2. Present revision under Sections
397/401 Cr.P.C. has been filed with prayer
to set aside the order dated 27.05.2019
passed by Additional Sessions Judge,