# Anoop Baranwal Thekma v. U.P. Public Service Commission

- **Citation:** (2000) 3 ILRA 49
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anoop-baranwal-thekma-v-u-p-public-service-commission-39539
- **Pages:** 7

## Text

3All] Anoop Baranwal Thekma V. U.P. Public Service Commission
49
Bar council, is should be deemed that
he is practising from that date and three
years' period will be counted from that
date. It can not expected that for each
person enquiry should be conducted to
ascertain whether a particular person is
doing practice and attending the court
regularly as an Advocate. The only
practicable view can be that the person
should be enrolled by the Bar Council as
an Advocate and as such it will be deemed
that he has attended the Court as practising
lawyer from that date.

With the aforesaid observations, the
writ petition is dismissed.

Petition Dismissed.

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By the Court

1. This petition, under Article 226 of
the Constitution of India, has been filed,
by the petitioners for quashing the order
dated 8.1.1991 and 1.3.1988, passed by the
Deputy Director of Consolidation and
Settlement
Officer
Consolidation
respectively. Further prayer has been made
for issue of writ in the nature of mandamus
commanding the respondent no.1 (Deputy
Director of Consolidation) to reconsider
the case on merit and finally decide it.

2. The brief facts as stated in the writ
petition are that the petitioners were
recorded in the basic year Khatauni and
the respondents were given joint chak over
plot nos. 7, 22 and 108. Respondents
moved an application under Rule 109-A (I)
of the U.P. Consolidation of Holdings
Rules for partition before the consolidation
court and the same was decided in their
favour. On the basis of the orders darted
25.8.1976 and 12.1.1979 passed by the
Deputy Director of Consolidation and
Consolidation
officer
respectively
the
respondents 3 to 6 move an application for
partition
under
Rule
109
of
U.P.
INDIAN LAW REPOSTS ALLAHABAD SERIES [2000
50
Consolidation
of
Holdings
Act.
The
application was allowed on 1.3.1979 in the
absence of the petitioners. The petitioners
on 27.4.1979 filed a restoration application
recalling the order dated 1.3.1979, which
was allowed on 27.6.1979. Against the
order dated 27.6.1979 nos. 3 to 6 moved
an application dated 20.7.1979 on the
ground that ex parte order has been
recalled by the court concerned without
giving opportunity of hearing to the
respondents.
On
11.10.1979
the
Consolidation
Officer
allowed
the
application 27.4.1979 came for hearing
again. It was rejected and dismissed in
default
of
the
petitioners
by
the
Consolidation
Officer
on
7.10.1982.
Therefore, the order dated 27.4.1979 was
upheld which was in favour of the
respondents. In paragraph 5 of the writ
petition it is stated that in the aforesaid
case 6.10.1982 was the date fixe in the
Court but on account of holiday the court
was closed. On 7.10.1982 the petitioners
could not appear and the case was
dismissed in default. The petitioners again
filed time barred restoration application
along with affidavit to condone the delay.
The Consolidation Officer on 22.8.1985
recalled the ex parte order dated 1.3.1979
and 7.10.1982 on payment of Rs.50/- as
cost. The respondent nos. 3 to 6 filed
appeal
before
the
respondent
no.2,
Settlement Officer Consolidation, who on
1.3.1988
quashed
the
order
dated
22.8.1985 and restored the application
dated 27.4.1979. A revision was filed by
the petitioners against the order dated
1.3.1988 passed by the Settlement Officer
Consolidation on the ground that the
Settlement
Officer
Consolidation
has
misinterpreted Rule 109-A of the aforesaid
Rules.
The
Deputy
Director
of
Consolidation decided the question of
maintainability of the revision and held
that the order passed by the appellate court
under Rule 109-A of the aforesaid Rule
was final and dismissed the revision as not
maintainable.
The
petitioners
have
challenged this order by means of the
present writ petition in this Court.

3. Heard learned counsel for the
parties, perused the record. From a perusal
of the order passed by the Deputy Director
of Consolidation it is apparent that he
dismissed the revision as not maintainable,
firstly, on the ground that the order passed
in
appeal
against
the
decision
in
proceedings under Rule 109-A is final and,
secondly, the village has been notified
under Section 52 of the aforesaid Act,
therefore, no revision is maintainable
under Section 48 of the U.P. Consolidation
of Holdings Act

4. Before discussing the argument of
the learned counsel for the parties it is
necessary to see the relevant Rule 109-A
of the aforesaid Rules, which is quoted
herein below :-

"109. Orders passed in cases covered
by sub-section (2) of Section 52 shall
be given effect by the consolidation
authorities authorised in this behalf
under sub-section (2) of Section 42.
In case there be no such authority the
Assistant Collector, in-charge of the
sub-division, the Tehsildar, the Naib
Tehsildar the Supervisor, Kanungo,
ad the Lekhpal of the area to which
the case relates shall, respectively,
perform the functions and discharge
the duties of the Settlement Officer
Consolidation, Consolidation Officer,
the Assistant Consolidation Officer,
the
Consolidation
and
the
Consolidation Lekhpal respectively
3All] Ram Pujan & others V. Dy. Director Consolidation, Ghazipur & others
51
for the purpose of giving effect to the
orders aforesaid.

(2). If for the purpose of giving
effect to any order referred to in subrule (1) it becomes necessary to
reallocate affected chaks, necessary
orders
may
be
passed
to
the
Consolidation
Officer,
or
the
Tehsildar, as the case may be after
affording
proper
opportunity
of
hearing to the parties concerned.

(3) Any person aggrieved by the
order of the Consolidation Officer, or
the Tehsildar, as the case may be,
within 15 days of the order passed
under sub-rule (2), file an appeal
before
the
Settlement
Officer
Consolidation,
or
the
Assistant
Collector
in-charge
of
the
subdivision, as the came may be, who
shall decide the appeal after affording
reasonable opportunity of being heard
to the parties concerned, which shall
be final.

(4)

In
case
delivery
of
possession becomes necessary as a
result of orders passed under sub-rule
(2) or sub-rule (3), as the case may
be, the provisions of Rules 55 and 56
shall, mutatis mutandis, be followed."

5. Sub-rule (3) of this Rule is
relevant which says that the order passed
by the Settlement Officer Consolidation in
appeal shall be final. Section 48 of the
U.P. Consolidation of Holdings Act is also
relevant which is quoted below :-

"48. Revision and reference:- (1)
Director of Consolidation may call for
and examine the record of any case
decided or proceedings taken by any
subordinate authority for the purpose
of satisfying himself as to the
regularity of the proceedings; or as to
the correctness, legality or propriety
of
any
order
(other
than
an
interlocutory order) passed by such
authority in the case of proceedings,
may,
after
allowing
the
parties
concerned an opportunity of being
heard, make such order in the case or
proceedings as he think fit.

(2) Powers under sub-section (1) may
be exercised by the Director of
Consolidation also on a reference
under sub-section (3).

(3) Any authority subordinate to the
Director of Consolidation may, after
allowing the parties concerned an
opportunity of being heard, refer the
record of any case or proceedings to
the Director of Consolidation for
action under sub-section (1).

"[ Explanation-[(1)]- For the purpose
of this section, Settlement Officer
Consolidation,
Consolidation
Officers,
Assistant
Consolidation
officer,
Consolidation
and
Consolation
Lekhpals
shall
be
subordinate
to
the
Director
of
Consolidation.]"

"[Explanation-(2)- For the purpose of
this
Section
the
expression
interlocutory order in relation to a
case or proceedings, means such
order deciding any matter arising in
such case for proceeding or collateral
thereto as does not have the effect to
finally disposing of such case or
proceeding.]"
INDIAN LAW REPOSTS ALLAHABAD SERIES [2000
52
6. Sri Sankatha Rai, learned counsel
for the petitioners urged that though it is
mentioned that the order of the Settlement
Officer Consolidation shall become final
but it does not mean that no revision lies.
He interpreted Section 48 of the aforesaid
Act quoted above and submitted that
revision is maintainable against the order
passed
by
the
Settlement
Officer
Consolidation. He placed before the Court
Sections 11 and 21 of the aforesaid U.P.
Consolidation of Holdings Act which is
quoted below:-

"11. Appeals-(1) Any party to the
proceedings
under
Section
9-A,
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."

Section 21 (2) also says that the
appeal filed before the Settlement Officer
Consolidation shall be decided by him and
his decision shall, except as otherwise
provided by or under this Act shall be
final.

7. Sri Sankatha Rai, learned counsel
for the petitioners has submitted that in
both sections finality has been attached to
the judgement of the Settlement Officer
Consolidation while exercising power of
the appellate court and here also the
Settlement Officer Consolidation decides
the appeal arising out of the proceeding
under section 109 of the Act as appellate
court,
therefore,
when
revision
was
maintainable against the order passed by
the Settlement Officer Consolidation while
deciding the appeal under section 11 or 21
the revision is also maintainable against
the order passed arising out of section 109A proceeding. He has submitted that
"final" means final for the purpose of
appeal but never the less revision is
maintainable. For that purpose he has
placed reliance in a case reported in AIR
1938, Allahabad, page 47- Ashraf versus
L. Saith Mal. It was a case under the
provisions of U.P. Encumbered Estates
Act in which the Court interpreted the
word "final". Head Note (a) is relevant
which says that word "final" in Section 45
(5) of U.P Encumbered Estates Act only
means "not subject to appeal". It does not
mean final in the sense that power of
revision of the High Court under Section
115 of Civil Procedure Code is also shut
out. He has further placed reliance in a
case reported in 1972. R.D., page 228-
Smt. Krishna Devi versus Board of
Revenue, U.P. at Allahabad and others
for the purpose that revision lies.

8. Sri S.K. Verma, learned counsel
for the respondent has vehemently urged
that when there is specific provisions in
the special Act then the provisions of other
Act cannot be taken into consideration. His
submission is that under Section 11 and 21
of the U.P. Consolidation of Holdings Act
it has been stated that the order shall
become final unless otherwise specially
provided under the Act but the same word
has not been used in Rule 109-A of the
aforesaid Rules. Therefore, revision was
not maintainable. He has placed reliance
upon a case reported in AIR 1957,
Supreme Court, page 18- Ram Narain
versus State of U.P. and others. Relevant
3All] Ram Pujan & others V. Dy. Director Consolidation, Ghazipur & others
53
paragraph 10 of the aforesaid judgement is
quoted herein below:-

"(10). In the 1948 Allahabad decision,
the main question was whether the
provisions of S. 2, Professions Tax
Limited Act (20 of 1941) affected the
powers conferred upon the District
board by S. 108, U.P. District Boards
Act, to levy a tax on 'circumstances
and property'. A subsidiary question
was also raised, whether S. 131, U.P.
District Boards Act, barred out that
the name given to a tax did not
matter, what had to be considered was
the pith and substance of it. It was
held that in pith and substance the tax
was
one,
which
attracted
the
provisions of S. 2, Professions Tax
Limitation Act (20 of 1941).

A tax on 'circumstances and
property' is a composite tax and the
word 'circumstances' means a man's
financial position, his status as a
whole depending, among other things,
on his income from trade or business.
Far
from
militating
against
the
principle that in considering the
circumstances of a person his income
from trade or business within the
Town Area may be taken into
consideration, the decision approves
of the principle. In the course of his
judgement, Bind Basni Prasad J.,
referred to S. 128, U.P. Municipalities
Act,
1916,
where
'taxes
on
circumstances and property' appear as
a head district from the 'taxes on
trades, callings and vocations and
employments' and the agreement was
that the taxes being under different
heads should be treated as being
entirely different, one from the other.

It was rightly pointed out that it
is no sound principle of construction
to interpret expressions used in one
Act with reference to their use in
another Act. The meanings of words
and expressions used in an Act must
take their colour from the context in
which they appear. It is true that in
the Act under our consideration the
taxes
which
the
Town
Area
Committee may impose appear under
different heads in sub-s.(1) of S. 14.
We have already stated that though
the clauses are different, the words
used in the section show that there
may be over-lapping between the
different clauses, and to prevent the
same person being subjected to
multiple taxation, a proviso was
incorporated in cl. (f)."

9. He has further submitted that after
notification under Section 52 of the Act
revision was not maintainable. For that
purpose he has placed reliance in a case
reported in 1989. R.D., page 281-Hari
Ram versus D.D.C., Azamgarh and others.
Relevant portion of the judgement is
quoted below:-

"We find that on October 29, 1987 an
objection
was
preferred
by
the
petitioner before the Deputy Director
of Consolidation. The position of law
is well settled. The Deputy Director
of Consolidation has no jurisdiction to
exercise power under Section 48(3) of
the Act, if a de-notification has
already taken place under Section 52
of the Act. The Deputy Director of
Consolidation, therefore, will first
record a finding as to whether a
Notification under Section 52 of the
Act had, in fact, been issued on
February 13, 1982. If he finds that
INDIAN LAW REPOSTS ALLAHABAD SERIES [2000
54
such a notification exists and if he
also finds that the land which is the
subject matter of dispute is covered
by the said Notification, he shall
desist from exercising any power
under Section 48(3) of the Act. With
this direction the petition is disposed
of finally."

10. His submission is that under
Section 42 of the aforesaid Act the officers
and authorities under the Act have been
described but while hearing the appeal
arising out of proceedings under section
109-A of the aforesaid Act the Settlement
Officer Consolidation was not exercising
power
of
the
Settlement
Officer
Consolidation and he was not subordinate
to the Deputy Director of Consolidation
and he was not subordinate to the Deputy
Director of Consolidation but he was a
tribunal. He has submitted that the case
reported in AIR 1938, Allahabad, and page
47(supra) is not applicable as it was arising
out of U.P. Encumbered Estates Act.

Sri Sankatha Rai in reply to the
argument of Sri S.K. Verma has submitted
that appeal was filed after notification
under section 52(2) of the aforesaid Act,
therefore, the word used except otherwise
of the Act under Sections 11 and 21 of the
aforesaid Act will not take away the right
of the petitioners to file revision. He has
placed reliance in a case reported in AIR
1973. Allahabad, page 411- Dilawar Singh
versus The Gram Samaj and others.
Paragraph 6 of the aforesaid judgement is
quoted herein below :-

"6. The principle of a vested right of a
litigant to take a proceeding to the
superior court by an appeal would be
equally applicable in case of a
revision. It is true that a revision is a
power conferred on a Court or
authority to be exercised at discretion
but it does not mean that the litigant
does not possess the right to approach
the superior Court through a petition
for revision. The only basic difference
between an appeal and a revision is
that in case of an appeal, the appellant
is entitled to a relief if he succeeds in
establishing that the order of the
subordinate Court or authority was
unsound or contrary to law. In case of
a revision the Court has discretion to
refuse the relief if for example, in its
opinion substantial justice had been
done between the parties although the
order sought to be revised suffered
from infirmities which could justify
an
interference
by
the
revising
Court."

11. After hearing learned counsel for
the parties at length and going through the
record of the case and perusing the
relevant provisions of the Act I am of the
view that in view of the amended
provisions of Section 48 of the aforesaid
Act
when
Deputy
Director
of
Consolidation has been given vide power
to summon the record and see the
propriety etc. of the order of the subordinate authorities and revision was
maintainable against any order passed by
the
Settlement
Officer
Consolidation.
Section 44-A of the aforesaid Act says that
where powers are to be exercised or duties
to be performed by any authority under
this Act made thereunder, such powers or
duties may also be exercised or performed
by an authority superior to it. Section 42 of
the aforesaid Act mentions the officers and
authorities and had said that the State
Government may appoint such authorities
and had said that the State Government
may appoint such authorities and officers,
3All] Ajai Kumar V. U.P. Public Service Commission & another
55
and for such areas, as may be
necessary, to give effect to the provisions
of this Act. Sub-section (9) of Section 3 of
the aforesaid Act defines the Settlement
Officer Consolidation, which is as under :-

"(9)-'Settlement
Officer
Consolidation means the person
appointed as such by the State
Government to exercise the powers
and
perform
the
duties
of a
Settlement
Officer
Consolidation
under this Act or the rules made
thereunder and shall include an
Additional
Settlement
Officer
Consolidation
and
Assistant
Settlement Officer Consolidation."

12. There is nothing on record to
prove
that
the
Settlement
Officer
Consolidation was not appointed by the
State Government, therefore, he was subordinate to the Deputy Director of
Consolidation and in view of Section 48 of
the aforesaid Act, as amended, the Deputy
Director of Consolidation has jurisdiction
to entertain the revision and decided the
same.

13. In the result, the writ petition
succeeds and is allowed. The order passed
by the Deputy Director of Consolidation,
Ghazipur dated 8.1.1991 is, hereby, set
aside and the matter is sent back to the
Deputy Director of Consolidation with a
direction to restore the revision to its
original number and decide the same
afresh on merit. There will be no orders as
to cost.
Petition Allowed.

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