# Doodh Nath and others v. D.D.C. Jaunpur & another

- **Citation:** (2009) 2 ILRA 722
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-08-07
- **Case number:** Civil Misc. Writ Petition No. 40369 of 2009
- **Bench:** S.U. Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/doodh-nath-and-others-v-d-d-c-jaunpur-another-41442
- **Pages:** 3

## Headnote

U.P. Consolidation of Holdings Act-1963Section 48-Revision-after 16 yrs without
affidavit
in
support
of
condonation
allowed by D.D.C. In cryptic manner
ignoring
objection
filed
against
condonation
on
application-
held
-
provision of section 27 of limitation Act
are
equally
applicable,
accordingly
general
direction
issued
to
all
the
consolidation
authorities
for
further
action.

Held: Para-4

In respect of other claims, expiry of
period of limitation only bars the remedy
but not the right. However, by virtue of
Section 27 of Limitation Act, in respect of
claims
to
properties
particularly
immovable properties, expiry of period
of limitation bars both, i.e. remedy as
well
as
right
(popularly
known
as
maturity of title by adverse possession).
On the principle of the said Section,
delay condonation application in appeal/
revision involving right, title or interest
in
immovable
property
must
be
construed more strictly.

## Text

722 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

Section 28A was enacted giving a right
and remedy for re-determination.........The
Legislature appears to have presumed that
the same state of affairs continue to
subsist among the poor and inarticulate
persons and they generally fail to avail the
right under sub-section (1) of Section 18
due to poverty or ignorance or avoidance
of expropriation..............Parliament made
conscious discrimination between the
poor and inarticulate as a class and
comparatively affluent as another class
and conferred the rights under Section
28A in favour of the former.........Section
28A is just and fair and does not violate
Article 14. The procedure, therefore, is
just and fair and does not violate Article
21."

16. Their Lordships, in similar
circumstances,
had
held
that
the
provisions of Section 28-A of the Land
Acquisition Act, 1894 (as amended) are
applicable only in the cases of 'Little
Indians'
because
of
their
poverty.
Paragraph 12 of the judgment is being
reproduced below:-

"12. Thus, it is clear from the above,
that the provisions of Section 28A is
applicable only in a case of 'Little Indians'
who because of their poverty and
ignorance cannot afford to file the
reference under Section 18 of the Act and
if an application under the said provision
is filed by a person of that class, the same
cannot be decided unless the Court's
award on the basis of which the said
application has been filed does not attain
the finality. However, the provisions of
Section 28A are not intended to be
windfall for every landholder whose land
had been acquired under the same land
acquisition proceedings."

17. In the present case, the
claimants, land owners, are poor farmers
of the Meerut District, not Builders or
Colonisers or Developers. It is noteworthy
that for the land acquired in the same
vicinity, reference had been allowed and
compensation was awarded at the rate of
Rs.10/= per sq. yard. Even inferior quality
of land was rated at a higher price. This
Court has also scrutinised the impugned
judgment in the light of a recent judgment
of the Hon'ble Apex Court reported in
2009 (2) AWC 1617 (SC), Revenue
Divisional Officer-cum-L.A.O. Vs. Shaik
Azam Saheb etc. and found that the
impugned
judgment
order
of
the
Reference court is a legally sound,
detailed and reasoned judgment, which
does not require any interference.

18. In view of the discussions made
above, the First Appeals, being devoid of
merits, are dismissed.

No order as to cost.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.08.2009

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ Petition No. 40369 of
2009

Doodh Nath and others
...Petitioner
Versus
D.D.C. Jaunpur & another ...Respondents

Counsel for the Petitioner:
Sri C.B. Prasad
Sri V.K. Dwivedi

Counsel for the Respondent:
Sri B.P. Yadav
S.C.
2 All] Doodh Nath and others V. D.D.C., Jaunpur and another

723
U.P. Consolidation of Holdings Act-1963Section 48-Revision-after 16 yrs without
affidavit
in
support
of
condonation
allowed by D.D.C. In cryptic manner
ignoring
objection
filed
against
condonation
on
application-
held
-
provision of section 27 of limitation Act
are
equally
applicable,
accordingly
general
direction
issued
to
all
the
consolidation
authorities
for
further
action.

Held: Para-4

In respect of other claims, expiry of
period of limitation only bars the remedy
but not the right. However, by virtue of
Section 27 of Limitation Act, in respect of
claims
to
properties
particularly
immovable properties, expiry of period
of limitation bars both, i.e. remedy as
well
as
right
(popularly
known
as
maturity of title by adverse possession).
On the principle of the said Section,
delay condonation application in appeal/
revision involving right, title or interest
in
immovable
property
must
be
construed more strictly.

(Delivered by Hon'ble S.U. Khan, J.)

1. This writ petition is directed
against
judgment
and
order
dated
24.12.2008 passed by D.D.C. Jaunpur in
Revision No.3227 of 2008, Babu Nandan
Vs. State. For recalling the said order, an
application was filed, which was rejected
on 28.07.2009. That order has also been
challenged through this writ petition.

2. Revision was filed after 16 years.
Petitioners filed objections to the delay
condonation
application,
which
are
Annexure-5
to
the
writ
petition.
Objections were supported by affidavit,
which is Annexure-6 to the writ petition.
However, learned D.D.C. in his order
dated 24.12.2008 simply mentioned that
there was no objection to the delay
condonation application, hence in the
interest of justice delay was being
condoned. Firstly there was very serious
objection. Secondly, delay of 16 years
cannot be condoned in such a cryptic
manner without even mentioning in the
order the reason of condonation of delay
mentioned in the delay condonation
application.

3. I am constantly finding that
litigants, advocates and consolidation
authorities
are
labouring
under
the
misconception that under consolidation,
there is no concept of limitation. Such
mind-set requires to be changed.

4. In respect of other claims, expiry
of period of limitation only bars the
remedy but not the right. However, by
virtue of Section 27 of Limitation Act, in
respect of claims to properties particularly
immovable properties, expiry of period of
limitation bars both, i.e. remedy as well as
right (popularly known as maturity of title
by adverse possession). On the principle
of the said Section, delay condonation
application in appeal/ revision involving
right, title or interest in immovable
property must be construed more strictly.

5. Accordingly, learned counsel for
the respondent No.2, the only contesting
respondent, who has appeared through
caveat, i.e. Sri B.P. Yadav, learned
counsel is directed to file counter affidavit
within one month. Rejoinder affidavit
may be filed within one month thereafter.

6. List for admission after four
months.

7. Unless this order is modified or
vacated earlier, for a period of one year
724 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

order dated 24.12.2008 passed by D.D.C.
shall not be given effect to.

8. Office is directed to supply a copy
of this order free of cost to learned Chief
Standing counsel within a week, who
must send it to the Commissioner/
Director of Consolidation for being
circulated
to
all
the
consolidation
authorities i.e. C.Os., S.O.Cs. ad D.D.Cs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.08.2009

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

Civil Misc. Writ Petition No. 6057 of 2007

Ramesh Singh

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

Counsel for the Petitioner:
Sri Pankaj Kumar Srivastava,
Sri P.C. Sharma
Sri Himanshu Upadhyay

Counsel for the Respondent:
Sri K. Shahi,
Sri V.K. Singh
Sri Anil Kumar Sharma
S.C.

Constitution
of
India
Article-226-
.Selection of Shiksha Mitra- Respondent
No.5 got appointed proceeding forged
marks
sheet-stood
top
in
meritpetitioner as well as Respondent No.5
worked as Anudeshak under non formal
Education Scheme-authorities accepted
the
correction
of
mark
sheet
of
Respondent No.5 further in view of G.O.
24.04.06
-possess
longer
experience
under NFE as such got selected-heldwholly mis conceived G.O. relied by
authorities has no retrospective effect-
impugned
order
rejecting
claim
of
petitioner quashed with direction to D.M.
For
fresh
consideration
in
light
of
observations made by Court.

Held: Para-10

Apart from this, it is also evident that
Respondent No.5 first attempted to get
herself selected on the strength of
incorrect marks having been reflected.
This conduct of Respondent No.5 also
cannot be appreciated. The fact of the
correction of marks reflected in the
selection has been admitted in the
counter-affidavit. For all the reasons
aforesaid and keeping in view the
Division Bench decision in the case of
Smt. Parvati Devi (supra), the order
impugned
is
unsustainable.
The
impugned
order
dated
14.12.2006
(Annexure-7 to the writ petition) is
quashed. The matter is remitted back to
the District Magistrate, Etawah, to pass a
fresh
order
in
the
light
of
the
observations made herein above after
considering the claims of the parties as
expeditiously as possible but not later
than
3
months
from
the
date
of
production of a certified copy of this
order before him.
Case Law discussed:
2007 (2) ESC 788 (DB),
2007 (2) ESC 788 (DB),
2008 (1) ADJ 712 (DB).

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

1. The petitioner prays for quashing
of the order dated 14.12.2006 passed by
the District Magistrate, Etawah, rejecting
the claim of the applicant for being
appointed as Shiksha Mitra against the
advertisement dated 27.10.2005.

2. The petitioner along with
respondent
No.5-Smt.
Shiv
Kumari
applied for the post of appointment as
Shiksha Mitra in terms of Government
Order dated 10.10.2005; copy whereof is
Annexure No. 4 to the writ petition. The