# Court Niadar v. D.D.C. and others, 1987

- **Citation:** (2010) 3 ILRA 1005
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-08-13
- **Case number:** Civil Misc. Writ Petition No. 55774 of 2003
- **Bench:** Mrs. Poonam Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/court-niadar-v-d-d-c-and-others-1987-41714
- **Pages:** 6

## Headnote

Sri Prabhakar Dubey
Sri Anuj Kumar
Sri Preetam Yadav
Sri M.N. Singh
C.S.C.

U.P.
Consolidation
of
Holdings
Act-
Section 48-A-read with Evacuee.Property
Act-Section 24, 27-Sale certificate issued
by custodian on 26.5.76-No appeal or
revision filed.by Gaon Sabha or Stateconsolidation officer allowed objection
placing reliance upon decision of court
appeal
after
two
years-without
application to condone to delay duly
supported with affidavit-can not be
allowed-The S.O.C.and the joint Director
of
consolidation
both
Committed
manifest
error-ignoring
statutory
provision of section 48-A-before the
court the litigants are or on same futting
either private or state authority or state.

Held: Para 14 & 15

For the aforesaid reasons, apparently
there is no legal justification for allowing
the substitution application which was
much
beyond
time
without
any
explanation or request for condonation
of delay. The orders of the Settlement
Officer Consolidation as well as Joint
Director Consolidation impugned in the
instant
writ
petition
are
therefore,
manifestly
erroneous
and
blatant
disregard to the procedure provided by
Code and in the circumstances, the
impugned orders are without any basis.

There is yet another circumstance which
I can not ignore. In a decision of this
Court Niadar Vs. D.D.C. and others, 1987
RD, 17, it was held that the order passed
by Custodian became final and in case
the petitioner was feeling aggrieved
either with the order of Custodian or
Sale
Certificate
in
favour
of
the
respondents, he should have preferred
an appeal under Section 24 or revision
under
Section
27
of
the
Evacuee
Properties Act but having failed to do so
the said order can not be challenged. Any
civil or revenue suit to challenge the
order passed by the Custodian was
completely barred. Besides, Section 48A
of U.P.C.H. Act provides special provision
with
respect
to
Evacuee
Property.
Section 48A of U.P.C.H. Act completely
prohibits to entertain any dispute on the
orders passed by Custodian and it cannot
be challenged before the consolidation
authority
Case law Discussed:
AIR 1964 Supreme Court, 215, JT 2009 (5) SC,
283, 2005 (99) RD 657, 1987 RD, 17

## Text

3 All] Smt. Jaitoon V. Joint Director of Consolidation and others
1005
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.8.2010

BEFORE
THE HON'BLE MRS. POONAM SRIVASTAV, J.

Civil Misc. Writ Petition No. 55774 of 2003

Smt. Jaitoon

 ...Petitioner
Versus
Joint Director of Consolidation and
others

 ...Respondents

Counsel for the Petitioner:
Sri Shekhar Srivastava
Sri A.K. Gupta
Sri Rakesh Ojha
Sri A. Kulshrestha
Sri B.P. Singh

Counsel for the Respondents:
Sri Prabhakar Dubey
Sri Anuj Kumar
Sri Preetam Yadav
Sri M.N. Singh
C.S.C.

U.P.
Consolidation
of
Holdings
Act-
Section 48-A-read with Evacuee.Property
Act-Section 24, 27-Sale certificate issued
by custodian on 26.5.76-No appeal or
revision filed.by Gaon Sabha or Stateconsolidation officer allowed objection
placing reliance upon decision of court
appeal
after
two
years-without
application to condone to delay duly
supported with affidavit-can not be
allowed-The S.O.C.and the joint Director
of
consolidation
both
Committed
manifest
error-ignoring
statutory
provision of section 48-A-before the
court the litigants are or on same futting
either private or state authority or state.

Held: Para 14 & 15

For the aforesaid reasons, apparently
there is no legal justification for allowing
the substitution application which was
much
beyond
time
without
any
explanation or request for condonation
of delay. The orders of the Settlement
Officer Consolidation as well as Joint
Director Consolidation impugned in the
instant
writ
petition
are
therefore,
manifestly
erroneous
and
blatant
disregard to the procedure provided by
Code and in the circumstances, the
impugned orders are without any basis.

There is yet another circumstance which
I can not ignore. In a decision of this
Court Niadar Vs. D.D.C. and others, 1987
RD, 17, it was held that the order passed
by Custodian became final and in case
the petitioner was feeling aggrieved
either with the order of Custodian or
Sale
Certificate
in
favour
of
the
respondents, he should have preferred
an appeal under Section 24 or revision
under
Section
27
of
the
Evacuee
Properties Act but having failed to do so
the said order can not be challenged. Any
civil or revenue suit to challenge the
order passed by the Custodian was
completely barred. Besides, Section 48A
of U.P.C.H. Act provides special provision
with
respect
to
Evacuee
Property.
Section 48A of U.P.C.H. Act completely
prohibits to entertain any dispute on the
orders passed by Custodian and it cannot
be challenged before the consolidation
authority
Case law Discussed:
AIR 1964 Supreme Court, 215, JT 2009 (5) SC,
283, 2005 (99) RD 657, 1987 RD, 17

(Delivered by Hon'ble Mrs. Poonam Srivastav, J.)

1. Heard learned counsel for the
petitioner and Standing Counsel on behalf
of respondents.

2. Counter and rejoinder affidavits
have been exchanged and writ petition is
being heard finally.

3. The prayer in the instant writ
petition is for quashing judgment and
1006 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
orders
dated
16.7.2001
passed
by
Settlement Officer Consolidation, District
Bijnor, Annexure-3 to the writ petition
and 17.5.2002 passed by Joint Director
Consolidation,
Muzaffar
Nagar,
Annexure-7 to the writ petition.

4. The property in dispute was
originally enemy property which was
purchased by petitioner along with some
others
vide
sale
certificate
dated
26.5.1976 issued by the Custodian of the
Enemy Property at Lucknow, U.P. This
sale was never challenged at any stage but
according to the petitioner, they came to
know that their names have not been
recorded in the revenue records though
they were actual owners on the basis of
Sale-Certificate dated 26.5.1976 and were
in possession. When the consolidation
proceedings commenced in the year 199091 of the village where the disputed land
is situated only then it came to their
knowledge that the name of the petitioner
could not be mutated. An objection under
Section 9(2) of the Consolidation of
Holdings Act was moved before the
Consolidation Officer where the entry
was challenged. The Sale-Certificate was
produced before the Consolidation Officer
who allowed the objections of the
petitioner vide order dated 21.5.1994.
Reliance was placed by the Consolidation
Officer on a decision reported in 1987
RD, 17. It was held that consolidation
courts should enter the name of purchaser
of
the
Enemy
Properties
if
Sale
Certificates issued by Custodian of
Enemy Property in India is produced. It
was also held that any objection regarding
genuineness of the Sale Certificate can
only be raised before the Custodian
General and it can not be examined by the
Consolidation Officer. In fact the limited
power to the Consolidation Officer is to
ascertain
genuineness
of
the
Sale
Certificate. In the instant case, evidently,
there was no contest or objection
regarding genuineness of the said Sale
Certificate. Accordingly name of the
petitioner
and
21
co-owners
were
recorded. Name of the petitioner was only
for the portion mentioned in the original
Sale Certificate issued by Custodian of
Enemy Property. The State preferred an
appeal before the Settlement Officer
Consolidation challenging the order of the
Consolidation Officer under Section 11(1)
of the Act. During pendency of the
appeal, two respondents namely Sri
Naseebudin son of Shri Alibeg respondent
no. 1 and Sri Raziul Hasan son of Sri
Innayat respondent no. 21 expired.
Applications
were
filed
before
the
Settlement
Officer
Consolidation
on
2.6.1999 and 9.4.1999 in appeal bringing
this fact to the notice of the opposite
party. This fact is specifically mentioned
in paragraph 3 of the writ petition.
However, this has been denied in the
counter affidavit.

5. Subsequently the State of U.P. as
well as Gaon Sabha moved substitution
application on 25.4.2001 after lapse of
two years. The claim
set up by
respondents was that Sri Naseebudin died
issueless as such the property should
revert back to the State. The main
grievance which revolves in the present
writ petition is that this substitution
application was filed after lapse of two
years
without
any
application
for
condonation of delay. No application
under Section 5 of the Indian Limitation
Act or any assertion in the form of
explanation on affidavit was filed along
with substitution application. Substitution
application and objection of the petitioner
have been annexed as Annexures 1 and 2
3 All] Smt. Jaitoon V. Joint Director of Consolidation and others
1007
to the writ petition. There is positive
assertion in paragraph 5 that neither date
of death of the deceased persons was
mentioned nor date of knowledge. Perusal
of application shows that there is an
assertion that since the application to
substitute deceased party was liable to be
moved from the date of knowledge,
therefore, substitution application will be
deemed to be filed within time. No date of
knowledge or the date of death is
mentioned. The Assistant Consolidation
Officer
allowed
the
substitution
application vide order dated 16.7.2001
and permitted to enter the name of Gaon
Sabha. Names of heirs of late Sri Raziul
Hasan with their respective shares were
mutated in the revenue records vide
Annexure-3 to the writ petition. The
petitioner along with others filed a
revision
before
the
Joint
Director
Consolidation against the order dated
16.7.2001 which was also dismissed on
17.5.2002. The two orders are impugned
in the instant writ petition.

6. The petitioner has annexed a
questionnaire as Annexure-6 to the writ
petition which denotes that there was no
separate application under Section 5 of
the Limitation Act along with substitution
application and admittedly no affidavit
which was filed after lapse of two years.

7. Submission of learned counsel for
the petitioner is that the Joint Director
Consolidation erred in upholding the
order
dated
16.7.2001
as
well
as
Consolidation
Officer
by
allowing
substitution
application
without
explanation of delay whereas the natural
consequence is that once the substitution
application is filed within time then
whether any party files an abatement
application or not, natural consequence is
that in absence of substitution application,
the proceeding stands abated. It is only
when application for condoning the delay
supported
by
an
affidavit
giving
explanation and reasons for delay, the
substitution application can be allowed
provided the court accepts the explanation
after giving an opportunity to the opposite
party to file objections.

8. In the written submission learned
counsel has also mentioned that a third
person namely Alam deen son of Nazaur
made his claim as heir of late Sri
Naseebuddin on the basis of Will which
was ignored by the Settlement Officer
Consolidation as well as Joint Director
Consolidation. However, at present the
question of succession on the basis of
Will is not involved in the present dispute.

9. Standing Counsel has disputed
each and every arguments on behalf of
respondents. Submission is that since the
substitution application was filed within
90
days
of
knowledge,
therefore,
Settlement Officer Consolidation and
Joint Director Consolidation did not
commit any error whatsoever and writ
petition is liable to be dismissed.

10. After hearing the respective
counsels at length and going through
entire record, admitted position is that
substitution application was filed after
lapse of two years and there was no
application under Section 5 of Limitation
Act. There is no explanation whatsoever
and Settlement Officer Consolidation as
well
as
revisional
court
allowed
substitution application illegally whereas
they should have directed the State to file
an affidavit giving detailed explanation
and reason for delay on oath. The order
dated 17.5.2002 passed by the Joint
1008 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Director Consolidation as well as that of
the Settlement Officer Consolidation
suffers from apparent error of law.
Section 40 of the Consolidation of
Holdings Act provides that proceedings
before the consolidation court are judicial
proceedings and Section 41 of U.P. Land
Revenue Act is also applicable. Meaning
thereby the proceedings before the
consolidation
courts
are
judicial
proceedings and as such the provision of
C.P.C. are squarely applicable. In absence
of procedure under the Consolidation of
Holdings Act or separate Rules for
substitution, provision of Order 22 C.P.C.
is applicable. It is settled law that an
affidavit should support an application for
condonation of delay and affidavit should
contain
all
the
detailed
reasons,
explanation and inability to substantiate a
justifiable cause for condoning the delay.
No doubt, the courts have all along ruled
that a liberal approach should be adopted
while considering an application for
condonation of delay in a substitution
application but if there is no such
application whatsoever, no liberty can be
granted to any of the parties even if the
party concerned is a State or Union of
India. The law and procedure provided is
same. The Apex Court in the case of
Union of India Vs. Ram Charan through
its legal representatives, AIR 1964
Supreme Court, 215 held that the court
can not invoke any inherent powers for
the purposes of impleading the legal
representatives of a deceased respondent,
if the suit had abated and the appellant has
not taken appropriate steps within time to
bring the legal representatives of the
deceased party on record. Mere allegation
about belated knowledge of death of
opposite party is not sufficient. Reasons
leading to not knowing of death within
reasonable time must be stated. Paragraph
8 of the said decision is quoted below:-

"(8)
There
is
no
question
of
construing
the
expression
'sufficient
cause' liberally either because the party
in default is the Government or because
the question arises in connection with the
impleading of the legal representatives of
the deceased respondent. The provisions
of the Code are with a view to advance
the cause of justice. Of course, the Court,
in considering whether the appellant has
established sufficient cause for his not
continuing the suit in time or for not
applying for the setting aside of the
abatement within time, need not be overstrict in expecting such proof of the
suggested cause as it would accept for
holding certain fact established, both
because the question does not relate to
the merits of the dispute between the
parties and because if the abatement is set
aside, the merits of the dispute can be
determined while, if the abatement is not
set aside, the appellant is deprived of his
proving his claim on account of his
culpable negligence or lack of vigilance.
This, however, does not mean that the
Court should readily accept whatever the
appellant alleges to explain away his
default. It has to scrutinize it and would
be fully justified in considering the merits
of the evidence led to establish the cause
for the appellant's default in applying
within time for the impleading of the legal
representatives of the deceased or for
setting aside the abatement.

11. Similar view was adopted in a
recent decision by the Apex Court in the
case of Katari Suryanarayana and others
Vs. Koppisetti Subba Rao and others, JT
2009 (5) SC, 283. It was held by reason of
various decisions of the Court that
3 All] Smt. Jaitoon V. Joint Director of Consolidation and others
1009
different considerations arise in the mater
of condoning the delay in filing an
application for setting aside an abatement
upon condonation of delay in a suit and an
appeal. It is further neither in doubt nor in
dispute that such applications should be
considered liberally. The Court would
take a more liberal attitude in the matter
of condonation of delay in filing such an
application.

12. It is thus apparent that the Apex
Court has held that a liberal view should
be
adopted
while
considering
an
application for condonation of delay but
in the instant case, there is no application
whatsoever, neither an affidavit with
some explanation and, therefore, in
absence of any request for condonation of
delay,
the
Settlement
Officer
Consolidation
and
Joint
Director
Consolidation could not have allowed the
substitution
application
and
natural
consequence is that the proceedings stood
abated.

13. In the case of Damodaran Pillai
and others Vs. South Indian Bank Ltd.,
2005 (99) RD, 657, the Apex Court held
that
the
principles
underlying
the
provisions
prescribing
limitation
are
based on public policy aiming at justice,
the principles of repose and peace and
intended to induce claimants to be prompt
in claiming relief. Hardship or injustice
may be a relevant consideration in
applying the principles of interpretation of
statute, but cannot be a ground for
extending the period of limitation. The
starting period of limitation for filing of a
restoration application would be the date
of the order and not the knowledge
thereabouts The period of limitation can
not be stretched by invoking inherent
powers under Section 151 C.P.C.

14. For the aforesaid reasons,
apparently there is no legal justification
for allowing the substitution application
which was much beyond time without any
explanation or request for condonation of
delay. The orders of the Settlement
Officer Consolidation as well as Joint
Director Consolidation impugned in the
instant
writ
petition
are
therefore,
manifestly
erroneous
and
blatant
disregard to the procedure provided by
Code and in the circumstances, the
impugned orders are without any basis.

15.

There
is
yet
another
circumstance which I can not ignore. In a
decision of this Court Niadar Vs. D.D.C.
and others, 1987 RD, 17, it was held that
the order passed by Custodian became
final and in case the petitioner was feeling
aggrieved either with the order of
Custodian or Sale Certificate in favour of
the respondents, he should have preferred
an appeal under Section 24 or revision
under
Section
27
of
the
Evacuee
Properties Act but having failed to do so
the said order can not be challenged. Any
civil or revenue suit to challenge the order
passed by the Custodian was completely
barred. Besides, Section 48A of U.P.C.H.
Act provides special provision with
respect to Evacuee Property. Section 48A
of U.P.C.H. Act completely prohibits to
entertain any dispute on the orders passed
by Custodian and it cannot be challenged
before the consolidation authority.

16. In view of this, the writ petition
stands
allowed
and
orders
dated
16.7.2001 passed by the Settlement
Officer Consolidation and 17.5.2002
passed
by
the
Joint
Director
Consolidation
are
quashed.
If
any
correction in the revenue records have
been
made
by
the
consolidation
1010 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
authorities on the basis of impugned
orders, the same are liable to be corrected
and revenue entries be rectified.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.09.2010

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 61214 Of 2008

Urmila Devi

 ...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri Ram Autar Verma,
Sri Ghan Shyam Das

Counsel for the Respondents:
C.S.C.

Constitution
of
India
Art.
226Compassionate
appointment-cancelled
after 11 years ground lack of educational
qualification-petitioner
on
basis
of
Madhayama
equivalent
intermediatewas given appointment on class III postsubsequently if found that the certificate
of Sahitya Sammelan is not equivalent to
Intermediate-held-being
High
school
entitled for appointment on class 4th
post- petitioner not guilty committed any
fraud- appointment on class 4th post be
made within 3 weeks.

Held: Para 7

So far as the status of the petitioner is
concerned, it is undoubtedly admitted to
the
opposite
parties
that
she
was
entitled for compassionate appointment.
The petitioner did not play any fraud nor
has she committed any such act which
may amount to misrepresentation. In
such a situation the petitioner was
entitled for an employment and keeping
in view the fact that she has passed her
High School from the U.P. Board, she
was
entitled
for
a
compassionate
appointment
against
a
post
commensurate to such qualification.
Case law discussed:
(2006) 1 U.P.L.B.E.C 719.

(Delivered by Hon'ble A.P. Sahi, J.)

1. The petitioner is the widow of late
Sri Ved Prakash who was a Lekhpal and
died in harness on 16th December 1996.
The petitioner was offered appointment
on compassionate basis on the strength of
her
certificate
from
Hindi
Sahitya
Sammelan which the petitioner claims
equivalent
to
the
Intermediate
examinations conducted by the Board of
High School and Intermediate, Uttar
Pradesh. The petitioner was accordingly
appointed as a Class III employee keeping
in view the aforesaid qualification.

2. The petitioner however did not
make any efforts to learn typing and
subsequently the petitioner was put to
notice that her services would be
terminated in case she does not improve
upon herself. The petitioner has been now
found ineligible to continue on the said
post, vide order dated 25th September
2008 on the ground that her qualification
at the time of her initial appointment was
not
Intermediate,
inasmuch
as
the
certificate
from
the
Hindi
Sahitya
Sammelan obtained by her was not an
equivalent qualification.

3. Learned counsel contends that the
said order works great hardship inasmuch
as the petitioner has lost her service that
too even after 11 years of having served