# Alimuddin and others v. D.D.C. and others

- **Citation:** (2013) 1 ILRA 129
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-12-11
- **Case number:** Civil Misc. Writ Petition No. 60568 of 2012
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/alimuddin-and-others-v-d-d-c-and-others-42412
- **Pages:** 5

## Headnote

Constitution of India, Article 226-reviewonce the delay condonation applicationrejected by S.O.C.-such order can not be
recalled-in absence of power of ReviewD.D.C. While allowing revision set-a-side
both
orders-remanded
back
before
S.O.C. For fresh consideration-amounts
to confer the power of review contrary to
statutory
provisions-remand
order
quashed.

Held: Para-14

So far as the order of Deputy Director of
Consolidation is concerned, although the
Deputy Director of Consolidation has set
aside both the orders dated 15.02.2010
and
17.02.2010
passed
by
the
Settlement Officer, Consolidation, but
remanded
the
matter
back
to
the
130 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Settlement Officer, Consolidation for
deciding the review application on merit,
which
is
impermissible
as
the
consolidation courts/authorities have no
statutory power to review its own
judgment unless it is an outcome of
concealment of fact or fraud.
Case Law discussed:
1997 (88) RD 562; AIR 1975 SC 1409; AIR
1999 SC 1124; 2002 (48) ALR 319 (SC); 2009
(106) RD 98; (2004) 3 UPLBEC 2731; 2005 (6)
AAWC 5958; 2011 (8) ADJ 493

## Text

1 All] Alimuddin and others V. D.D.C. and others
129
remanded the matter back. Consequently,
the claim of the petitioner for regularization
was required to be considered in respect of
the earlier faslis and the present years was
not required to be considered.

6. The Court further finds that persons
similarly situated to the petitioner whose
claim was earlier rejected were granted the
relief
and
were
regularised
with
retrospective effect, but in the petitioner's
case the relief has been denied. The Court
gets a feeling that the respondents are
deliberately denying the relief to the
petitioner
and
consequently,
for
the
aforesaid reasons, the impugned order
cannot be sustained and is quashed. The
writ petition is allowed.

7. No useful purpose would be served
in remitting matter back to the authority to
decide the matter afresh since the Court
finds that this is the fourth round of
litigation and that there is a deliberate
attempt on the part of the respondents to
deny the claim for one reason or the other.
The fact remains that in the judgment of the
Court dated 28th July, 2008 passed in Writ
Petition No. 50758 of 2004, the petitioner
had been categorised in 'A' category and
had made a recovery of more than 70%
which had never been disputed by the
respondents and consequently, the Court is
of the opinion, that no useful purpose would
be served in remitting the matter to the
respondents to decide the matter afresh. The
Court is of the opinion, that the time has
come to issue a positive mandamus. The
Court, consequently, issues a writ of
mandamus commanding the respondents to
issue an order of regularization of the
service of the petitioner under the Rules of
1974 on the post of Seasonal Collection
Amin. This order is required to be passed
within four weeks from the date of
production of a certified copy of this order.
In view of the fact that the petitioner is
fighting for his right for the past 16 years,
the Court directs that he is entitled for cost
which the Court computes at Rs. 16,000/-
which shall also be paid by the respondents
to the petitioner within the aforesaid period.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.12.2012

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 60568 of 2012

Alimuddin and others

 ...Petitioner
Versus
D.D.C. And Others
 ...Respondents

Counsel for the Petitioner:
Sri K.P.S. Yadav
Sri Deepak Singh Yadav

Counsel for the Respondents:
C.S.C.
Sri Bijendra Kumar Mishra
Sri Sanjiv Kumar Shukla

Constitution of India, Article 226-reviewonce the delay condonation applicationrejected by S.O.C.-such order can not be
recalled-in absence of power of ReviewD.D.C. While allowing revision set-a-side
both
orders-remanded
back
before
S.O.C. For fresh consideration-amounts
to confer the power of review contrary to
statutory
provisions-remand
order
quashed.

Held: Para-14

So far as the order of Deputy Director of
Consolidation is concerned, although the
Deputy Director of Consolidation has set
aside both the orders dated 15.02.2010
and
17.02.2010
passed
by
the
Settlement Officer, Consolidation, but
remanded
the
matter
back
to
the
130 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Settlement Officer, Consolidation for
deciding the review application on merit,
which
is
impermissible
as
the
consolidation courts/authorities have no
statutory power to review its own
judgment unless it is an outcome of
concealment of fact or fraud.
Case Law discussed:
1997 (88) RD 562; AIR 1975 SC 1409; AIR
1999 SC 1124; 2002 (48) ALR 319 (SC); 2009
(106) RD 98; (2004) 3 UPLBEC 2731; 2005 (6)
AAWC 5958; 2011 (8) ADJ 493

(Delivered by Hon'ble Ran Vijai Singh, J.)

1. Through this writ petition, the
petitioenrs have prayed for issuing a writ of
certiorari
quashing
the
order
dated
17.10.2012, passed by Deputy Director of
Consolidation in Revision No. 815/874
(Sultana Begum Vs. Alimuddin and others),
by
which
the
Deputy
Director
of
Consolidation has allowed the revision and
remitted the matter back to the Settlement
Officer, Consolidation for deciding the
recall/review application dated 29.12.2009,
after providing opportunity of hearing to all
parties of the proceeding.

2. The facts giving rise to this case are
that, the order dated 19.12.1973, passed by
Consolidation
Officer,
Pushp
Nagar,
Azamgarh was made subject matter of
Appeal No. 2492/2877 of 2009 (Alimuddin
and others Vs. Khursheed and others). The
appeal was time barred by 36 years,
therefore, it was accompanied by an
application for condonation of delay. The
Settlement Officer, Consolidation, after
hearing the learned counsel for the
appellant, has rejected the application for
condoning the delay vide order dated
26.12.2009.

3. The petitioners, herein, have filed
an application dated 29.12.2009 for recall of
the order dated 26.12.2009 on the ground
that the aforesaid order was passed ex parte
and the Settlement Officer, Consolidation
has allowed the same vide order dated
15.02.2010, holding that the aforesaid order
was an ex parte order, and fixed 17.02.2010.
On that day, he condoned the delay and
allowed the application for condonation of
delay as well as appeal, both. This order
was subject matter of the Revision No.
815/874 (Sultana Begum Vs. Alimuddin
and others).

4. Shri K.P. S. Yadav, learned counsel
appearing for the petitioners contends that
the Deputy Director of Consolidation has
erred in allowing the revision and quashing
the order dated 15.02.2010 and 17.02.2010,
passed
by
Settlement
Officer,
Consolidation. In his submissions the order
dated 26.12.2009 was not an ex parte order
and the Settlement Officer, Consolidation
has exceeded his jurisdiction in condoning
the delay and allowing the appeal.

5. The submissions of the learned
counsel for the petitioners have been refuted
by Shri Brijendra Kumar Mishra and Shri
Sanjiv Kumar Shukla, learned counsel
appearing for respondents on the ground
that once the application filed under Section
5 of Limitation Act was rejected after
hearing learned counsel for the appellant,
then there was no occasion for the
Settlement Officer Consolidation to hold
that this order was an ex parte order as
against the appellant, and taking note of
that, recalling the order dated 26.12.2009
after condoning the delay and allowing the
appeal.

6. I have heard the learned counsel for
the parties and perused the record.

7. It is not in dispute that the Appeal
No. 2492 (Alimuddin and others Vs.
1 All] Alimuddin and others V. D.D.C. and others
131
Khursheed and others) was filed against the
judgment and order dated 19.12.1973,
passed by the Consolidation Officer Pushp
Nagar, Azamgarh, after 36 years along with
an application for condonation of delay. It is
also not in dispute that the aforesaid
application was rejected by the Settlement
Officer, Consolidation after hearing the
learned counsel for the appellant. Further,
the recalling of the order dated 26.12.2009
on the instance of the petitioners and
allowing the appeal after condoning the
delay on 17.02.2010 are also not in dispute.

8. The lawyers are engaged in the
Court and they pursue the matter before the
Court on engagement by the parties.
Appendix H to the Code of Civil Procedure,
1908 provides the format for engagement of
a counsel in the Court of law. The aforesaid
format is reproduced hereunder:-

"VAKALATNAMA

In
the
Court...........................Suit/Miscellaneous
case/Civil
Appeal/Execution
Case
No...............of
19..../20......,fixed
for
Plaintiff/Appellant/Applicant/D.H.............D
efendant/Respondent/Opposite
Party/J.D.
Vakalatnama
of
Plaintiff/Appellant
Applicant/D.H./Defendant/Respondent/Opp
osite Party/J.D.

In
the
case
noted
above
Sri.........................,
each
of
Sarvasri.............Advocate,
is
hereby
appointed as counsel, to appeals, plead and
act on behalf of the undersigned, in any
manner, he thinks it proper, either himself
or through any other Advocate, and in
particular to do the following, namely,-

To receive any process of Court
(including any notice from any appellate or
revisional Court), to file any applications,
petitions or pleadings, to file, produce or
receive back any documents, to withdraw or
compromise the proceedings, to refer any
matter to arbitration, to deposit or
withdraw any moneys, to execute any
decree or order, to certify payment, and
receive any money due under such decree
or order.

The undersigned should be bound by
all whatsoever may be done in the aforesaid
case (including any appeal or revision
therefrom) for and on behalf of the
undersigned by any of the said counsel.

Signature..........

Name in full........................

Date.................

Attesting Witness:

Name in full........................

Address......................................

Date.........................

Accepted/Accepted on the strength of
the signature of the attesting witnesses."

9. From the perusal of the conditions
and undertaking given by the client, as
contained in the aforesaid format, it is
apparent that each and every proceeding
conducted on behalf of the party before the
Court be treated to be conducted on behalf
of the client.

10. Therefore, I am of the view that
the restoration application, for recall of the
order dated 26.12.2009, on the instance of
the petitioners, that they were not heard
132 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
when the order dated 26.12.2009 was
passed, was not maintainable at all, because
the counsel engaged by the appellant had
power to argue the matter. It is not the case
of the petitioners that they have never
engaged the counsel and the counsel was
not heard before the Settlement Officer,
Consolidation when the application under
Section 5 was rejected.

11. In the submissions of the learned
counsel for respondents, the order dated
15.02.2010 and 17.02.2010, both, were
passed ex parte, without notice to them,
which require to be corrected. From the
perusal of the impugned orders, it nowhere
reflect that the parties have been heard.
Therefore, also, the orders are vitiated as the
same has been passed in breach of the
principles of natural justice.

12. It is also noticeable that under the
Uttar Pradesh Consolidation of Holdings
Act, 1953, there is no provision of review
and the consolidation courts cannot review
its own order unless the order has been
obtained by playing fraud or concealment of
material fact. Reference may be given to
Full Bench of this Court in Smt Shiv Raji &
Ors. Vs. Deputy Director of Consolidation
& Ors., 1997 (88) RD 562.

13. Here, in this case, once the
application under Section 5 was rejected by
the Settlement Officer, Consolidation after
hearing the counsel, it was not open for the
Settlement
Officer,
Consolidation
to
entertain the recall/review application and
set aside the earlier order condoning the
delay. Therefore, also, the orders passed by
the Settlement Officer, Consolidation dated
15.02.2010 and 17.02.2010 were bad in law
and without jurisdiction.

14. So far as the order of Deputy
Director of Consolidation is concerned,
although
the
Deputy
Director
of
Consolidation has set aside both the orders
dated 15.02.2010 and 17.02.2010 passed by
the Settlement Officer, Consolidation, but
remanded the matter back to the Settlement
Officer, Consolidation for deciding the
review application on merit, which is
impermissible
as
the
consolidation
courts/authorities have no statutory power
to review its own judgment unless it is an
outcome of concealment of fact or fraud.

15. The matter may be examined from
another angle also. The Apex Court in P.
Venkateswarlu Vs. Motor and General
Traders,
AIR
1975
SC
1409;
Ashwinkumar K. Patel Vs. Upendra J.
Patel and others, AIR 1999 SC 1124; P.
Purushottam Reddy and another Vs.
Pratap Steels Ltd., 2002 (48) ALR 319
(SC); and learned Single Judge of this Court
in Raj Narain and others Vs. Deputy
Director of Consolidation, reported in
2009(106) RD 98 held that if the entire
material was available before the Deputy
Director of Consolidation, instead of
remanding the matter, he should himself
have considered the matter on merit, and the
order
of
remand
was
held
to
be
unsustainable.

16. The effect of the impugned order
of remand amounts to conferment of the
jurisdiction upon the Settlement Officer,
Consolidation, which is beyond power
under the Act. It is well settled that the
jurisdiction can neither be conferred, nor
assumed, nor presumed, nor acquired by
acquiescence of the parties vide Committee
of Management of Ganga Khand Inter
College, Khera Dayal Nagar, Aligarh &
Anr. Regional Joint Director of Education,
Agra & Ors., (2004) 3 UPLBEC 2731;
1 All] Yadram and others V. D.D.C. and others
133
Munna Lal Singh & Anr. Vs. State of U.P.
& Ors., 2005 (6) AWC 5958; and
Committee of Management, Sri Yadvesh
Inter College & Anr.State of U.P. & Ors.,
2011 (8) ADJ 493. Therefore, the order of
the Deputy Director of Consolidation
remanding the matter is unsustainable and
the writ petition is dismissed.

17. However, the liberty is given to
the petitioners to challenge the order dated
26.12.2009 before the appropriate Court. In
case any such case is instituted/filed along
with a certified copy of the order of this
Court, the same shall be decided by the
Court/Authority concerned, in accordance
with law, on its own merit.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.01.2013

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 65543 of 2012

Yadram and others
 ...Petitioners
Versus
D.D.C. And Others
 ...Respondents

Counsel for the Petitioner:
Sri G.P. Singh

Counsel for the Respondents:
C.S.C.

U.P. Consolidation of holding Act Section
48-Jurisdiction to entertained revisionagainst the order passed by S.O.C.
Meerut-although
appeal
filed
before
S.O.C.
Gautam
Buddh
Nagarsubsequently transfer to S.O.C. Meerutwhether the D.D.C. Gautam Buddh Nagar
or D.D.C. Gautam Buddh Nagar camp
Bulandshahr has jurisdiction ?-held-the
revision would be maintainable before
the D.D.C. of District where appeal was
initially filed.

Held: Para-11

Following the judgment in Darbari Lal
(supra) another learned single Judge of
this Court has also taken the same view
in
Prashuram
(supra).
In
Prashuram(supra)
all
other
contrary
decisions have been considered and
distinguished and to my knowledge this
judgment still holds the field. So far as
judgment
in
Haider
Ali
(Supra)
is
concerned, as has been noticed the
learned single Judge himself has stayed
the further proceedings pursuant to the
judgment rendered in that case.

(Delivered by Hon'ble Ran Vijai Singh, J.)

1. Through this writ petition, the
petitioners have prayed for issuing writ of
certiorari
quashing
the
order
dated
27.06.2012, passed by the Deputy Director
of
Consolidation,
Bulandshahr,
Camp
Gautam Buddh Nagar (In short DDC), by
which the revision filed by the petitioners
has been dismissed on the ground that the
DDC, Bulandshahr, Camp Gautam Buddh
Nagar has no jurisdiction to entertain the
revision with the further direction to the
revisionists to avail the remedy before the
appropriate court.

2. The facts giving rise to this case are
that, it appears, against the judgment and
order
dated
05.03.2011,
passed
by
Consolidation Officer, Gautam Buddh
Nagar in Case No. 45/63, an appeal was
filed
before
the
Settlement
Officer,
Consolidation, Gautam Buddh Nagar (in
short SOC), which was numbered as
Appeal No. 81 of 2006. The said appeal was
transferred, on the Transfer Application No.
77 of 2011, filed under Rule 65-A (2) of the
Uttar Pradesh Consolidation of Holdings
Rules, 1954 before SOC, Meerut, by the