# Mithlesh Kumari v. D.D.C. and others

- **Citation:** (2012) 3 ILRA 1648
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-11-21
- **Case number:** Civil Misc. Writ Petition No. 58093 of 2012
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mithlesh-kumari-v-d-d-c-and-others-42392
- **Pages:** 6

## Headnote

U.P. Consolidation of Holdings Act-1953Section
52
(2)-Appeal
against
the
judgment of consolidation officer filedwith delay condonation application-after
notification under Section 52 of the Actwhether appeal filed after notification
would be competent?-held-"Yes"-once
delay condoned-it shall be treated to be
filed
within
time-appeal
being
continuation of original proceeding-can
not be quashed.

Held: Para-13

On perusal of the meaning of the word
'pending', it is clear that the matter,
which
is
undecided
or
awaiting
settlement,
shall
be
treated
to
be
pending. Here in this case, the appeal
was filed after the notification under
section 52 of the Act along with an
application for condonation of delay. The
3 All] Mithlesh Kumari V. D.D.C. and others
1649
delay was condoned, meaning thereby,
the appeal came into existence and since
the Settlement Officer of Consolidation
has fixed the date for passing order on
the appeal, therefore, the same shall be
treated to be pending and would be
unaffected with the rigor of sub-section
(1) of section 52 of the Act.
Case Law discussed:
AIR 1957 SC 540; AIR 1967 ALD 214; AIR
1973 All. 414; AIR 1973 All 411; (JT 1987 (1)
SC 537=1987 (2) SCR 387); JT 1996 (7) SC
204; JT 1995 (7) SC 69; JT 1998 (6) SC 242;
JT 2000 (5) 389

## Text

1648 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
14.2.2006 (Annexure 2 to the writ petition)
30.7.2007 (Annexure 3 to the writ petition)
and 25.7.2008 (Annexure 1 to the writ
petition) all passed by District Inspector of
Schools, Allahabad are hereby quashed.
The petitioner shall be deemed to have been
appointed on the Class IV post validly with
all consequential benefits in view of his
appointment letter dated 15.10.2005 issued
by respondent no.3 after DIOS's approval
dated 10.10.2005.

58. Since appointment of respondents
No.4 and 5 are wholly illegal and have been
quashed hereinabove, the amount of salary
paid to them also wholly unauthorized and
illegal. However, since they have been
allowed to work by DIOS as well as the
Principal of the College, the responsibility
enabling
illegal
and
unauthorized
appointment to them lie upon respondents
No.2 and 3. In these circumstances, in my
view,
recovery
of
amount
paid
to
respondent No.4 and 5 towards salary must
be directed from respondents No.2 and 3 in
equal proportion.

59. Accordingly, I direct that
respondent No.1 shall proceed to recover
the amount of salary paid illegally to
respondents no.4 and 5, in equal proportion,
from respondents No.2 and 3 i.e. respective
officials held the office at relevant time
when alleged illegal appointment of
respondents No.4 and 5 were made, after
making such enquiry as provided in law.
Such enquiry shall be completed and
recovery shall be effected within a period of
six months from the date of production of a
certified
copy
of
this
order
before
respondent no.1.

60. For the purpose of compliance of
above direction this matter shall be listed
before this Court in the second week of
May, 2013 under the title "Compliance
Report".

61. The petitioner shall also be
entitled to cost, which I quantify to
Rs.25,000/-,
which
shall
be
equally
apportioned among all the respondents.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.11.2012

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 58093 of 2012

Mithlesh Kumari

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

Counsel for the Petitioner:
Sri K. Kumar Tripath
Sri Anand Mohan Pandey

Counsel for the Respondents:
C.S.C.

U.P. Consolidation of Holdings Act-1953Section
52
(2)-Appeal
against
the
judgment of consolidation officer filedwith delay condonation application-after
notification under Section 52 of the Actwhether appeal filed after notification
would be competent?-held-"Yes"-once
delay condoned-it shall be treated to be
filed
within
time-appeal
being
continuation of original proceeding-can
not be quashed.

Held: Para-13

On perusal of the meaning of the word
'pending', it is clear that the matter,
which
is
undecided
or
awaiting
settlement,
shall
be
treated
to
be
pending. Here in this case, the appeal
was filed after the notification under
section 52 of the Act along with an
application for condonation of delay. The
3 All] Mithlesh Kumari V. D.D.C. and others
1649
delay was condoned, meaning thereby,
the appeal came into existence and since
the Settlement Officer of Consolidation
has fixed the date for passing order on
the appeal, therefore, the same shall be
treated to be pending and would be
unaffected with the rigor of sub-section
(1) of section 52 of the Act.
Case Law discussed:
AIR 1957 SC 540; AIR 1967 ALD 214; AIR
1973 All. 414; AIR 1973 All 411; (JT 1987 (1)
SC 537=1987 (2) SCR 387); JT 1996 (7) SC
204; JT 1995 (7) SC 69; JT 1998 (6) SC 242;
JT 2000 (5) 389

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

1. Through this writ petition, the
petitioner has prayed for issuing a writ of
certiorari quashing the orders dated
16.8.2012 and 24.9.2011 passed by
respondent nos. 1 and 2 respectively.

2. Heard Sri Anand Mohan Pandey,
holding brief of Sri K. Kumar Tripathi,
learned counsel for the petitioner and
learned Standing Counsel.

3. It appears, respondent no. 3 filed
an appeal against the order dated 14.7.2008
passed by the Consolidation Officer. The
appeal was also accompanied with an
application for condonation of delay. The
Settlement Officer of Consolidation, after
hearing both the sides, condoned the delay
and fixed 30.11.2011 for passing the order
in the appeal. The petitioner herein has
filed revision no. 101 (Mithlesh Kumari
Vs. Ramwati). The said revision was
dismissed by the Deputy Director of
Consolidation on 16.8.2012.

4. Sri Pandey has vehemently
contended that after the order dated
14.7.2008 passed by the Consolidation
Officer, the notification under section 52 of
U.P. Consolidation of Holdings Act, 1953
(hereinafter referred to as, 'the Act') was
issued on 25.4.2009, whereas the appeal
was filed on 4.1.2010. Taking shelter of
sub-section (2) of section 52 of the Act, he
has further contended that the cognizance
by the consolidation courts could only be
taken
with
respect
to
the
pending
proceedings and no fresh proceeding could
be instituted in view of sub-section (1) of
section 52 of the Act. In his submissions,
since in this case, no appeal was pending,
before notification under section 52 of the
Act, therefore, both the courts below have
erred in passing the impugned orders.

5. Sri S.K. Mourya, learned Standing
Counsel appearing for the State contended
that the argument of learned counsel for
the petitioner is misconceived in view of
the provisions contained under section 53B
of the Act, which provides for applicability
of section 5 of the Limitation Act in the
consolidation
proceedings.
In
his
submissions, if the statute provides right of
filing appeal, along with an application for
condonation
of
delay,
in
that
circumstances, if the delay is condoned,
the appeal would be treated well within
time and in that eventuality, the provisions
contained under section 52 of the Act
would not be attracted as the appeal is
nothing but a creation of statute and
continuation of the suit proceedings.

6. I have heard learned counsel for
the
petitioner
and
learned
Standing
Counsel.

7. In order to resolve the controversy,
it would be useful to go through the
provisions contained in sub-sections (1) &
(2) of section 52 of the Act, which reads as
under:
1650 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

"52.
Close
of
consolidation
operations - (1) As soon as may be, after
fresh maps and records have been
prepared under sub-section (1) of Section
27, the State Government shall issue a
notification in the Official Gazette that the
consolidation operations have been closed
in the unit and the village or villages
forming a part of the unit shall then cease
to be under consolidation operations.

Provided that the issue of the
notification under this section shall not
affect the powers of the State Government
to fix, distribute and record the cost of
operations under this Act.

(2)
Notwithstanding
anything
contained in sub-section (1), any order
passed
by
a
Court
of
competent
jurisdiction in cases of writs filed under the
provisions of the Constitution of India, or
in cases of proceedings pending under
this Act on the date of issue of the
notification under sub-section (1), shall
be given effect to by such authorities, as
may be prescribed and the consolidation
operation shall, for that purpose, be
deemed to have not been closed."

8. From the bare reading of subsections (1) & (2) of section 52 of the Act,
it would transpire that effect of notification
under sub-section (1) of section 52 of the
Act would be closing of the consolidation
proceedings, but exception has been carved
out in sub-section (2) of section 52 of the
Act, according to which, any order passed
by a Court of competent jurisdiction in
cases of writs filed under the provisions of
the Constitution of India, or in cases of
proceedings pending under this Act on the
date of issue of the notification under subsection (1), shall be given effect to by such
authorities, as may be prescribed and the
consolidation operation shall, for that
purpose, be deemed to have not been
closed, meaning thereby, the pending
proceeding may be concluded on its own
merit
without
influenced
by
the
notification under section 52 of the Act.

9. The learned Standing Counsel has
submitted
that
the
appeal
is
the
continuation of the suit proceedings. I find
substance in the submission of learned
Standing Counsel, in view of the judgment
of the apex Court in Garikapati Veeraya
Vs. N. Subbiah Choudhry and Others
AIR 1957 SC 540, wherein following
observation has been made:

"23. From the decisions cited above
the following principles clearly emerge:

(i) That the legal pursuit of a remedy,
suit, appeal and second appeal are really
but steps in a series of proceedings all
connected by an intrinsic unity and are to
be regarded as one legal proceeding.

(ii) The right of appeal is not a mere
matter of procedure but is a substantive
right.

(iii) The institution of the suit carries
with it the implication that all rights of
appeal then in force are preserved to the
parties thereto till the rest of the career of
the suit.

(iv) The right of appeal is a vested
right and such a right to enter the superior
Court accrues to the litigant and exists as
on and from the date the lis commences
and although it may be actually exercised
when the adverse judgment is pronounced
such right is to be governed by the law
prevailing at the date of the institution of
the suit or proceeding and not by the law
3 All] Mithlesh Kumari V. D.D.C. and others
1651
that prevails at the date of its decision or
at the date of the filing of the appeal.

(v) This vested right of appeal can be
taken
away
only
by
a
subsequent
enactment, if it so provides expressly or by
necessary intendment and not otherwise."

10. A Full Bench of this Court in the
case of Shyam Sunder Lal Vs. Shagun
Chand AIR 1967 ALD 214 has held as
under:

"....The question that was the cardinal
question was whether the word 'suit' in
section 15 of the Act included an appeal
and as we have already held, there could
be, on decided cases and on general
principles of law as well, no escape from
the position that an appeal was a
continuation of a suit."

11. A Division Bench of this Court in
the case of Ram Bahadur Vs. Deputy
Director of Consolidation, AIR 1973 All.
414 relying upon another Division Bench
judgment in the case of Dilawar Singh Vs.
Gram Samaj and Others, AIR 1973 All
411 has held that an appeal does not
initiate a fresh proceeding.

12. Learned counsel for the petitioner
has contended that on the date of
notification under section 52 of the Act, no
appeal was pending, therefore, it could not
be instituted after the said notification. For
testing this argument, the meaning of word
'pending' has to be looked into. The word
'pending' has been defined in "(Law
Lexicon),
The
Encyclopedic
Law
Dictionary, General Editor Justice Y.V.
Chandrachud, 1997 Edition" as under:

"Pending: The term 'pending' means
nothing more than undecided. 'PENDING'
is defined to mean depending remaining
undecided; not terminated. An action is
considered as pending from the time of its
commencement of the proceeding. An legal
proceeding is "pending" as soon as
commenced and until it is concluded, i.e.,
so long as the Court having original
cognizance of it can make an order on the
matters in issue, or to be dealt with,
therein.
Asgarali
Nazarali
Singapore
Walla V. State of Bombay, AIR 1957 SC
503, 509.

Pending that matter is not concluded
and court having cognizance of it can
make order on matter in issue, until the
case is concluded it is pending. Lt. Col.
S.K. Kashyap and Another V. State of
Rajasthan, AIR 1971 SC 1120, 1128.

An action would not cease to be a
pending action, so as to prevent thte
operation of the statute of limitation,
because the clerk of the court had failed
for several terms to place it upon the
docket or court calendar. A suit is pending
until final judgment is rendered.

An action is pending until the
judgment is fully satisfied. A pending
action is an action which has been
commenced and in which some proceeding
may be taken. So long as it is possible for
any proceeding to be taken in a case, such
cause is still pending. For the purposes of
sec. 24(5) and (7) of the Judicature Act,
1873, and action is pending after final
judgment so long as the judgment remains
unsatisfied.

An action is pending the entire time
from the beginning of the action until final
judgment has been pronounced and
entered up, for until final judgment there
1652 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
cannot be said to be a termination of the
action and it is therefore still pending.

A prosecution will not be deemed
pending where no indictment has been
filed, but only preliminary proceedings
begun before a magistrate.

A suit filed in a court on the
averments in the suit giving jurisdiction to
the court to try the suit, but later on the
averments giving jurisdiction having been
found not correct, even then the suit was
legally pending before the court.

A criminal case is pending against
one as early as his arrest and commitment
for a crime for which he is afterwards
indicted.

The
appeal
preferred
to
the
Subordinate Judge (Under the Madras
Buildings (Lease & Rent Control Act) must
be deemed to be pending though it was
actually disposal of before Act 8 of 1951 so
long as the application to quash the order
is pending in the High Court.

Literally
hanging
in
suspense;
remaining
undecided
or
awaiting
settlement."

13. On perusal of the meaning of the
word 'pending', it is clear that the matter,
which is undecided or awaiting settlement,
shall be treated to be pending. Here in this
case, the appeal was filed after the
notification under section 52 of the Act
along with an application for condonation
of delay. The delay was condoned,
meaning thereby, the appeal came into
existence and since the Settlement Officer
of Consolidation has fixed the date for
passing order on the appeal, therefore, the
same shall be treated to be pending and
would be unaffected with the rigor of subsection (1) of section 52 of the Act.

14. The matter may be examined
from another angle also. In this case, the
order impugned in the appeal was passed
on 14.7.2008 and the notification under
section 52 of the Act was issued on
25.4.2009. Section 53B of the Act provides
that section 5 of the Limitation Act would
be
applicable
in
the
consolidation
proceedings, meaning thereby, for the
sufficient reason, appeal could be filed
even after expiry of the period of
limitation, along with an application under
section 5 of the Limitation Act, for
extending
the
period
of
limitation/condonation of delay in filing
the appeal and in case delay was condoned,
the appeal would be treated well within
time and shall be treated to be instituted
even before issuance of notification under
section 52 of the Act. Therefore also, no
infirmity can be attached to the orders
passed by the consolidation courts.

15. The last limb of the argument of
Sri Pandey is that the delay has wrongly
been condoned, as there was no sufficient
material to condone the delay. On that
count, it may be observed that this Court as
well as the apex Court in a number of
cases has observed that in the matter of
condonation of delay, the Court should
take liberal view as the law of limitation is
not meant to take away the right of appeal.
This has also been held by the apex Court
that every efforts should be made by the
courts to impart substantial justice to the
parties instead of scuttling the process of
justice on technicalities. The reference may
be given in the case of Collector, Land
Acquisition, Anantnag & Anr. Vs. Mst.
Katiji & Ors. ( JT 1987 (1) SC 537 = 1987
(2) SCR 387), Special Tehsildar, Land
3 All] Lalanjoo V. D.D.C. and others
1653
Acquisition, Kerala Vs. K.V. Ayisumma
JT 1996 (7) SC 204, Nand Kishore Vs.
State of Punjab JT 1995 (7) SC 69 and N.
Balakrishnan Vs. M. Krishnamurthy JT
1998 (6) SC 242.

16. Further, once the delay has been
condoned, the higher Court normally
should not interfere with the positive
exercise of the discretion of the court in
condoning the delay unless order is
perverse. The apex Court in the case of
State of Bihar and others Vs. Kameshwar
Singh and Others JT 2000 (5) 389, has
held as under:

" ........Once the court accepts the
explanation as sufficient, it is the result of
positive
exercise
of
discretion
and
normally the superior court should not
disturb such finding, much less in
revisional jurisdiction, unless the exercise
of discretion was on wholly untenable
grounds or arbitrary or perverse. But it is
a different matter when the first court
refuses to condone the delay. In such
cases, the superior court would be free to
consider the cause shown for the delay
afresh and it is open to such superior court
to come to its own finding even
untrammelled by the conclusion of the
lower court."

17. In view of that, I do not find any
illegality in the impugned judgments. The
petitioner has failed to make out any good
ground for interference with the orders
impugned. The writ petition is dismissed
summarily.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.12.2012

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 67665 of 2012

Lalanjoo

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

Counsel for the Petitioner:
Sri Pradeep Chandra
Sri Pratik Chandra

Counsel for the Respondents:
C.S.C.

U.P. Consolidation of Holding Act-1953Section 48 (2)-Revision-against order
allowing restoration application-being
interlocutory order revision itself not
maintainable-apart from that once the
consolidation
officer
exercised
its
jurisdiction for doing substantial justice
and
condoned
the
delay
in
filing
restoration with specific finding of no
proper service-can not be interfered by
superior authority on Court.

Held: Para-8 and 9

So far as the submissions with regard to
the condonation of delay is concerned, in
this regard also it is well settled that
once the delay has been condoned
meaning thereby the Court has exercised
positive discretion in condoning the
delay and the exercise of this kind of
discretion should not be interfered by
the
higher
court
particularly
the
revisional court unless the delay has
been condoned totally on non-existing
ground or without there being any
explanation for the simple reason that
the purpose of establishment of the
court is to impart substantial justice to
the parties and not to close the door of