# Dharm Pal Singh v. Dy. Director of Consolidation and others

- **Citation:** (2009) 3 ILRA 1170
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-12-04
- **Case number:** Civil Misc. Writ Petition No. 65928 of 2009
- **Bench:** Rakesh Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dharm-pal-singh-v-dy-director-of-consolidation-and-others-41421
- **Pages:** 5

## Headnote

Constitution
of
India-Article
226Practice
&
Procedure-entertaining
Revision
without
deciding
delay
condonation
Application-petitioner
encroached public land-Revision before
D.D.C.
filed
along
with
Section
5
(Limitation
Act)application-petitioner
same how desirous to continue illegal
possessor in garb of technically-while
revision still pending before DDC-instead
of filing objection filing Writ petitionhighly
dis-appreciated-petition
dismissed.

Held: Para 17

In the present case, as it appears from
the ordersheet, the Deputy Director of
Consolidation has merely entertained the
revision and as such it is still open for
the petitioner to raise any objection,
factual or legal, whatever he desires and
if the same is raised it can be dealt with
by the revisional authority. In fact, no
cause of action has accrued to the
petitioner for filing the present writ
petition
under
Article
226
of
the
Constitution of India.
Case law discussed:
1987 RD 89, 1989 RD 214, 1998 (98) RD 607,
1987 (13) ALR 306 (SC), 1998 (89) RD 80,

## Text

1170 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
The said rule, thus, provides for essential
qualification. Rule 45 is in three parts.
The
first
part
provides
for
the
qualification of a teacher who can be
appointed in the post of Headmaster. He
must be graduate with B.Ed. or other
equivalent qualification and must have at
least five years' experience in teaching
after acquisition of B.Ed. degree. The
second part of the rule provides for
consideration of such teachers only in the
event a graduate teacher is not available.
Indisputably, Respondent No. 6 fulfils the
educational qualification as also five
years' experience in
teaching after
acquisition of B.Ed. degree. Ignoring her
claim, Respondent No. 2 was appointed
whose case comes within the purview of
the second part of Rule 45, as she did not
have the qualification specified in the first
part thereof. Appellant was a Drawing
teacher. He, therefore, was a specialist
teacher. According to him his case comes
within the purview of the 'note' appended
to Rule 45.
9. For the time being, we may assume that
in view of fact that he had also acquired
the qualification of B.Ed. in April 1989,
his case also could be considered in terms
of Rule 45; although it is well-settled
principles of law that the note appended
to a statutory provision or the subordinate
legislation must be read in the context of
the substantive provision and not in
derogation thereof. Five years' teaching
experience for appointment to the post of
Headmaster was a sine qua non. Such
teaching experience was to be 'teaching
experience' and not a deemed teaching
experience."

14. In the facts of the present case, it
is not the case of the respondents that
there was any other professor after
1.4.2004 from which date, the petitioner
was working as Head of Department
E.N.T. After selection of the petitioner on
21.7.2004 by the U.P. Public Service
Commission on the post of Professor, the
petitioner was discharging all the duties
including the teaching of the medical
college. It is not the case of the
respondents that on the date when the
petitioner was declared selected as
Professor or thereafter the petitioner was
not performing teaching work. The above
case is thus, clearly distinguishable from
the facts of the present case.

15. Taking into consideration over
all facts and circumstances of the present
case and discussions made as above, we
are satisfied that the petitioner fulfils the
eligibility for the post of Principal and
was entitled to be considered for selection
by the Commission, which Commission
has actually done after an interim order of
this Court. As noted above, the petitioner
has already been selected on the post of
Principal.

16. In the result, the writ petition is
allowed. The impugned order dated
8.10.2009 is set aside. However, the
parties shall bear their own costs.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.12.2009

BEFORE
THE HON'BLE RAKESH SHARMA, J.

Civil Misc. Writ Petition No. 65928 of 2009

Dharam Pal Singh

...Petitioner
Versus
Deputy
Director
of
Consolidation,
Bulandshahr and others ...Respondents
3 All] Dharm Pal Singh V. Dy. Director of Consolidation and others
1171
Counsel for the Petitioner:
Sri Brajesh Shukla

Counsel for the Respondents:
Sri Ramesh Chandra Mishra
Sri D.D. Chauhan (S.C.-Gaon Sabha)

Constitution
of
India-Article
226Practice
&
Procedure-entertaining
Revision
without
deciding
delay
condonation
Application-petitioner
encroached public land-Revision before
D.D.C.
filed
along
with
Section
5
(Limitation
Act)application-petitioner
same how desirous to continue illegal
possessor in garb of technically-while
revision still pending before DDC-instead
of filing objection filing Writ petitionhighly
dis-appreciated-petition
dismissed.

Held: Para 17

In the present case, as it appears from
the ordersheet, the Deputy Director of
Consolidation has merely entertained the
revision and as such it is still open for
the petitioner to raise any objection,
factual or legal, whatever he desires and
if the same is raised it can be dealt with
by the revisional authority. In fact, no
cause of action has accrued to the
petitioner for filing the present writ
petition
under
Article
226
of
the
Constitution of India.
Case law discussed:
1987 RD 89, 1989 RD 214, 1998 (98) RD 607,
1987 (13) ALR 306 (SC), 1998 (89) RD 80,

(Delivered by Hon'ble Rakesh Sharma, J.)

1. Heard Sri Brajesh Shukla, learned
counsel for the petitioner and Sri Ramesh
Chandra Misra, holding brief of Sri D.D.
Chauhan, learned counsel for Gaon
Sabha, respondent no.3 as well as learned
Standing Counsel, who has put in
appearance on behalf of Respondent nos.
1 and 2. Perused the records also.

2. Through this writ petition, the
petitioner has sought for quashing of the
proceedings of Revision No. 1134/2009
pending before the Deputy Director of
Consolidation,
Bulandshahr
and
the
orders dated 21.10.2009 and 29.10.2009,
passed by the Deputy Director of
Consolidation.

3. According to learned counsel for
the petitioner, the Deputy Director of
Consolidation, without condoning delay,
as required under the provisions of U.P.
Consolidation of Holdings Act and
Section 5 of the Indian Limitation Act,
has
entertained
the
revision
and
proceeded with the same. The Settlement
Officer, Consolidation had rendered a
judgment in favour of the petitioner on
12.6.2009. Assailing the said judgment, a
revision was preferred on 28.8.2009. The
Deputy Director of Consolidation could
not have entertained the revision without
dealing
with
the
application
for
condonation
of
delay.
No
proper
application
and
affidavit
seeking
condonation of delay was filed. The
learned counsel for the petitioner has
relied upon two judgments as reported in
1989 RD 214, Mst. Bilqees Vs. Deputy
Director of Consolidation and 1987 RD
89, Ram Baran Vs. Deputy Director of
Consolidation, Gonda and others in
support of his submissions that the
revisional court must have taken into
account the point of limitation while
proceeding with the case.

4. While opposing the motion,
learned counsel for Gaon Sabha and
learned Standing Counsel, have submitted
that the petitioner has not even filed a
objection raising question of limitation
before
the
Deputy
Director
of
Consolidation. The Deputy Director has
1172 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
not passed any substantial order affecting
the rights of the petitioner and it is still
open for the petitioner to raise his
grievance before the Deputy Director of
Consolidation about maintainability of the
revision on the ground of limitation.
Therefore, the writ petition is not
maintainable.

5. Having heard learned counsel for
the parties and perused the record.

6. It is evident from perusal of the
record that the appeal was disposed of by
the Settlement Officer, Consolidation on
12.6.2009. The State of U.P. and Gaon
Sabnha etc. had admittedly preferred the
revision on 28.8.2009. An application,
under Section 5 of the Indian Limitation
Act, duly signed by the D.G.C.(Revenue)
seeking condonation of delay has also
been filed on 28.8.2009. This application
discloses that the authorities learnt about
this order for the first time on 24.8.2009
during the proceedings in Revision No.
123/2009. On learning about the said
order, certified copy of the order was
immediately obtained and the revision
was preferred. It was further submitted in
the application seeking condonation of
delay that the land in dispute is Gaon
Sabha's property. It is a public land and as
a result of the appellate order, the public
land
will
be
misappropriate
and
encroached upon by the petitioner.

7. Copies of the order-sheet dated
3.9.2009, 25.9.2009 and 15.10.2009 have
been annexed alongwith the writ petition.
These orders only indicate that the file
was produced and the lower court's record
was ordered to be summoned fixing
29.10.2009. Thereafter, 20.11.2009 was
fixed. No copy of the objection, raised by
the petitioner before the Deputy Director
of Consolidation, has been filed nor any
plea to that effect has been taken in the
writ petition. If the petitioner was
aggrieved by mere entertainment of the
revision by the Deputy Director of
Consolidation, he ought to have reacted
immediately before the Deputy Director
of Consolidation by filing an objection
regarding maintainability of the revision
or made a categorical statement taking a
stand before the revisional court that the
revision is barred by limitation. In the
absence of any such written objection, it
cannot be said that this plea was ever
raised before the Deputy Director of
Consolidation and the objections made
were not considered or the request of the
petitioner was rejected. There is nothing
on record to show that the Deputy
Director of Consolidation had declined to
entertain any such objection/application
alleged to have been submitted by the
petitioner.

8. This Court has taken note of the
fact that the State of U.P. and Gaon Sabha
had acted within two months, which
according to the Court, appears to be a
reasonable time. When counsel of Gaon
Sabha or Pradhan of the Village or other
concerned Officer could have gathered
the knowledge only thereafter they might
have processed the file and taken a
decision to file a revision, therefore, it
cannot be said that the revision was
highly belated or there was any deliberate
delay on the part of the State of U.P. or
Gaon Sabha in approaching the revisional
court.

9. In the present set of facts and
circumstances, the judgments relied upon
by the learned counsel for the petitioner
have no bearing on this case.
3 All] Dharm Pal Singh V. Dy. Director of Consolidation and others
1173
10. In the case reported in 1987 RD
89 (supra), the Deputy Director of
Consolidation had finally disposed of the
revision and the same was challenged
whereas in the present case the revision
has yet to be heard on merits and yet to be
decided finally, but instead of raising
objection before the Deputy Director of
Consolidation about maintainability of the
revision on the ground of limitation, the
petitioner has immediately rushed to this
Court
even
without
raising
any
preliminary objection before the Deputy
Director
of
Consolidation
regarding
limitation. In fact, the petitioner wants to
save his illegal encroachment over the
land in dispute and, therefore, he is taking
pre-emptive measures.

11. In the other case reported in
1989 RD 214 (supra) also the similar
situation exists.

12. In these cases, with great respect
to the observations made by their
Lordships in these judgments, it is
relevant to mention that in the decisions
of the Hon'ble Apex Court and this Court,
it has been repeatedly held that the Courts
must refrain from taking too technical or
hyper technical view in the case of
limitation. In the cases where objections
regarding limitation have been raised, the
Courts have to dispense substantial justice
and the Courts should not be guided by
the mere technicalities of law.

13. In the judgment of the Hon'ble
Apex Court reported in 1987 (13) ALR
306 (SC), Collector, Land Acquisition,
Anantnag and another Vs. Mst. Katiji
and others, it has been observed as
follows:-

"Refusing to condone delay can
result in a meritorious matter being
thrown out at the very threshold and cause
of justice being defeated. As against this
when delay is condoned the highest that
can happen is that a cause would be
decided on merits after hearing the
parties.
"Every
day's
delay
must
be
explained" does not mean that a pedantic
approach should be made. Why not every
hours delay, every second's delay? The
doctrine must be applied in a rational
common sense pragmatic manner.
When
substantial
justice
and
technical considerations are pitted against
each other, cause of substantial justice
deserves to be preferred for the other side
cannot claim to have vested right in
injustice being done because of a nondeliberate delay."

14. In yet another judgment of the
Hon'ble Apex Court reported in 1998 (98)
RD
607,
N
Balakrishnan
Vs.
M.
Krishnamurthy, the Hon'ble Apex Court
has observed as under:-
"....... ....... ......
Rules of limitation are not meant to
destroy the right of parties. They are
meant to see that parties do not resort to
dilatory tactics, but seek their remedy
promptly. The object for providing a legal
remedy is to repair the damage caused by
reason of legal injury......."

This Court, in a judgment reported in
1998 (89) RD 80, Smt. Nirmala Tandon
and others Vs. H.N. Tandon has
observed as follows:-
"............. ......... .......
6(3) It may also be added that the courts
are expected to decide the case as they are
not to indulge in technicality and there is
1174 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
no stage of filing application under
Section 5 of the Limitation Act."

15. According to learned counsel for
the petitioner, the State of U.P. and the
Gaon Sabha were expected to act with a
lightening
speed
and
instantly
approaching the revisional court.

16. The Hon'ble Apex Court has
also observed that in the matter of State
litigation, it takes some time in taking a
decision to challenge an order in Appeal
or Revision, therefore, the Courts must
not take a rigid view while condoning the
delay.

17. In the present case, as it appears
from the ordersheet, the Deputy Director
of Consolidation has merely entertained
the revision and as such it is still open for
the petitioner to raise any objection,
factual or legal, whatever he desires and if
the same is raised it can be dealt with by
the revisional authority. In fact, no cause
of action has accrued to the petitioner for
filing the present writ petition under
Article 226 of the Constitution of India.

18. In view of the discussions made
above, the writ petition, being devoid of
merits, is dismissed with costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.12.2009

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

Civil Misc. Writ Petition No. 67878 of 2009

Brahmapal Singh

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

Counsel for the Petitioner:
Sri A.B. Saran
Sri Vinod Kumar Rai

Counsel for the Respondents:
Sri Ashok Khare
Sri S.P. Singh
Sri A.K. Yadav
C.S.C.

U.P. Secondary Selection Board Act,
1982-appointment of principal petitioner
claiming his right to be interviewed
being senior most lecturer-G.O. dated
25.10.2000 provide benefit of lecturer to
Physical
Education
Training
teacherbenefit extended on 8.7.2006-benefit of
salary can not be ground to treat the
status of lecturer prior to 08.07.2006held-petitioner did have any experience
"as a lecturer" prior to that-in view of
lack of experience of four years-can not
claim for interviewed.

Held: Para 6 & 7

The petitioner therefore did not have any
experience "as a lecturer" prior to
08.07.2006.
The
petitioner
can
be
treated to have been acknowledged as a
lecturer only after the said date and his
experience has to be counted in this
capacity.

Accordingly,
the
petitioner
after
08.07.2006 does not have a minimum
experience of four years as held by the
Apex Court in Balbir Kaur's case (supra).
Case law discussed:
2008 (3) ESC 409,

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

1. Heard Shri A.B. Saran, learned
Senior Counsel for the petitioner assisted
by Shri Vinod Kumar Rai, Advoate, Shri
Ashok Khare, learned Senior Counsel for
the respondent no. 6 assisted by Shri S.P.
Singh, Advocate and the learned standing
counsel.