# Mohan and others v. The Settlement Officer of Consolidation, Jaunpur and others

- **Citation:** (2005) 1 ILRA 330
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-09-10
- **Case number:** Civil Misc. Writ Petition No. 48402 of 2004
- **Bench:** S.K. Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohan-and-others-v-the-settlement-officer-of-consolidation-jaunpur-and-others-40366
- **Pages:** 5

## Headnote

Limitation Act, 1963, S-5 read with
Constitution
of
India,
Article
226-
Practice and Procedure-condonation of
delay- Appeal filed by the State barred
by time for few days- No prayer for
condonation of delay- even the memo of
appeal not signed by the Collectorargument
that
the
continuance
of
incompetent appeal- amounts to abuse
the process of law- hence the writ of
prohibition be issued restraining the
appellate authority to entertain and
decide such appeal-held-unless some
exceptional circumstances are there-
1 All] Mohan and others V. The Settlement Officer of Consolidation, Jaunpur and others
331
extraordinary
power
can
not
be
exercised-it can be pressed first before
the appellate or revisional court- various
aspects discussed.

Held- Para 7 and 8

It can be another situation that appeal is
barred by time or it is not maintainable
for various reasons but that can be an
objection by the respondents in any
appeal or revision and thus this Court is
of the considered view that unless there
are
exceptional
circumstances
straightway extraordinary powers is not
be exercised. On the facts this Court is
not satisfied that petitioner cannot get
their
objection
examined
by
the
appellate court so as to exercise the
jurisdiction as a writ court.

For the analysis as made above this
Court is not convinced that this is a case
where writ of prohibition can be issued,
as
prayed
by
the
petitioner.
The
objection about maintainability of the
appeal on various grounds appears to be
a routine one which is to be dealt by the
appellate authority while deciding the
appeal on merits in accordance with law.
Case law discussed:
1987 RD 240
AIR 1962 Alld-590
AIR 1967- 1274

## Text

330 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
Learned counsel for the petitioner has
relied upon the interim order passed by
me on 10.9.2002 in writ petition no.
37675 of 2002. After the decision in State
of U.P. Vs. Dasharath Singh Parihar, the
legal position has been more clarified.
The Home guards under section 4 serving
as auxiliary force to the police as and
when required, for maintaining public
order and internal security served under
the superintendence and administration
exercised by Commandant General. The
Home guards is a volunteer force and
when not called for service can take up
any
private
service.
The
powers,
privileges and protection of Home guards
is maintained under section 9 of the Act.
Section 10 of the Act provides that the
Home guard acting in the discharge of his
functions under the Act shall be deemed
to be public servant within the meaning of
section 21 of the Indian Penal Code. The
engagement of Home guard under the
U.P. Home Guards Act, 1963, is only part
tie. Any person either in private or in
Government Service cannot be enrolled as
Home guard. He only gets as honorarium.
The Act does not prescribe any retirement
age. By a Government order dated
6.11.1995, it is prescribed that a Home
Guard shall not be engaged after he
attains 58 years of age.

4. The expressions 'Civil Post',
'Public
Servant'
and
'Government
Servant' are well understood and have
well defined attributes. It is not necessary
that a person holding civil post is a
Government
Servant
or
that
the
protection, rights and privileges given to a
public servant makes him a government
servant. The Fundamental Rules do not
apply to all the holders of civil post and
public servants. These are as such not
applicable to the petitioner as a Home
Guard. The amendments made in Rule 56
are also not applicable to Home guards
giving the benefit of extension of service
beyond 58 years.

5. The same view was taken by me
in Surnam Singh Vs. State of U.P. (writ
petition no. 32279 of 2004 decided on
13.8.2004 and Nandi Prasad Vs. State of
U.P. (civil misc. writ petition no. 16093
of 2004 decided on 22.4.2004).

The writ petition is consequently
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD: 22.12.2004

BEFORE
THE HON'BLE S.K. SINGH, J.

Civil Misc. Writ Petition No. 48402 of 2004

Mohan and others
 ...Petitioners
Versus
The Settlement Officer of Consolidation,
Jaunpur and others
 ...Respondents

Counsel for the Petitioners:
Sri S.C. Tripathi

Counsel for the Respondents:
Sri Anuj Kumar, Addl. S.C., S.C.

Limitation Act, 1963, S-5 read with
Constitution
of
India,
Article
226-
Practice and Procedure-condonation of
delay- Appeal filed by the State barred
by time for few days- No prayer for
condonation of delay- even the memo of
appeal not signed by the Collectorargument
that
the
continuance
of
incompetent appeal- amounts to abuse
the process of law- hence the writ of
prohibition be issued restraining the
appellate authority to entertain and
decide such appeal-held-unless some
exceptional circumstances are there-
1 All] Mohan and others V. The Settlement Officer of Consolidation, Jaunpur and others
331
extraordinary
power
can
not
be
exercised-it can be pressed first before
the appellate or revisional court- various
aspects discussed.

Held- Para 7 and 8

It can be another situation that appeal is
barred by time or it is not maintainable
for various reasons but that can be an
objection by the respondents in any
appeal or revision and thus this Court is
of the considered view that unless there
are
exceptional
circumstances
straightway extraordinary powers is not
be exercised. On the facts this Court is
not satisfied that petitioner cannot get
their
objection
examined
by
the
appellate court so as to exercise the
jurisdiction as a writ court.

For the analysis as made above this
Court is not convinced that this is a case
where writ of prohibition can be issued,
as
prayed
by
the
petitioner.
The
objection about maintainability of the
appeal on various grounds appears to be
a routine one which is to be dealt by the
appellate authority while deciding the
appeal on merits in accordance with law.
Case law discussed:
1987 RD 240
AIR 1962 Alld-590
AIR 1967- 1274

(Delivered by Hon'ble S.K. Singh, J.)

1. Prayer in this petition is to issue
writ
in
the
nature
of
prohibition,
prohibiting the appellate authority to
entertain and decide the appeal no. 384
and 791 (Annexure no. 1 and 2
respectively to the writ petition.

2. Facts in brief will be useful to be
noticed for disposal of this petition.
Against
the
judgment
of
the
Consolidation Officer dated 2.5.1986
passed in case no. 1135/1136 in a
proceeding under Section 9-A (2) of the
U.P. C.H. Act two appeals referred above
came to be filed before the Settlement
Officer, Consolidation. One appeal was
filed by Ram Karan and others and other
appeal by the State. It is in respect to the
aforesaid appeals, submission of counsel
for the petitioners is that continuance of
the appeal is an abuse of process and thus
they may be directed not to be proceeded
and respondents may be directed to
withdraw the appeals.

3. Submission is that appeals filed
by the respondents were barred by time
and there is no prayer for condonation of
delay and in fact there is no application
for condonation of delay. It is also
submitted that there is no order of
Collector for the District Government
Counsel to file the appeal and the memo
do not bear the signature of the Collector.
Various averments in this respect are
contained in para 7 to 10 of the writ
petition. Submission is that appeals filed
by the respondent no. 3 and the State are
in competent and they could not have
been entertained by the respondents 1 and
2. In the last it was submitted that Gaon
Sabha withdrew its objection against the
petitioner and, therefore, the appeal filed
against the order of the Consolidation
Officer cannot be said to be maintainable.

4. In support of the submissions that
if
there
is
no
delay
condonation
application then appeal is to be dismissed
and that issue is to be decided first
reliance has been placed on 1987 RD 240
(Raj Deo Vs. Jai Karan) and 2000 RD
689 (Ragho Singh Vs. Mohan Singh
and
others ).
In support
of the
submissions that if the proceedings are
abuse of the process of the court then this
Court has to issue a writ straightaway,
reliance has been placed on AIR 1962
332 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
Alld. 590 (Raja Sriniwas Prasad Singh
Vs. S.D.O., Mirzapur and another),
AIR 1966 Alld. 191 (Khaeshwar Vs.
Hoshram and others) and AIR 1967 SC
1274 (S. Govinda Menon Vs. Union of
India and another).

5. The Court has examined the
matter in the light of the aforesaid
submission. At the very outset it can be
observed that entire submission of learned
counsel for the petitioner proceeds on the
ground that entire proceedings being
abuse of the process are liable to be
quashed straightaway by this Court. Thus
it is clear that it is in exceptional cases
where the aforesaid situation emerges and
the Court is satisfied with the gravity of
the matter then the writ as prayed is to be
issued.

6. Before dealing the facts in detail
the court may take note of the cases as has
been cited by learned counsel. So far the
decision as referred by the learned
counsel on the question of issue of writ of
prohibition suffice it to say that all the
three decisions as given in the cases of
Raja Sriniwas Prasad Singh Vs. S.D.O.
Mirzapur and another, Klhaeshwar Vs.
Hoshram and others and S. Govinda
Menon Vs. Union of India and another
(supra) they lays down that if there is
patent lack of jurisdiction i.e. if there is
want of jurisdiction then the writ can be
issued. So far the case in hand is
concerned it cannot be said that appeal
against the order of the Consolidation
Officer do not lie to the Settlement
Officer Consolidation as the same is
clearly provided under Section 11 of the
U.P.C.H. Act and thus decision on which
reliance has been place are of no help to
the petitioner. So far the decision as has
been
referred
on
the
question
of
condonation of delay is concerned it
appears to be not a stage for this Court to
examine this aspect as it is first for the
appellate court to pass appropriate orders
and it is only thereafter the matter can be
examined by the higher court.

7. So far the case in hand is
concerned appeals which are pending
before
the
Settlement
Officer
Consolidation arises out of the order
passed by the Consolidation Officer in the
proceedings under Section 9-A (2) of the
U.P.C.H. Act. The Consolidation of
Holdings Act is a complete code for
adjudication of the rights of any claimant
and for settling the rights of any party.
Adjudication between the parties starts on
the disposal of the objection by the
Consolidation Officer under Section 9-A
(2) of the U.P.C.H. Act against which
statutory
appeal
as
provided
under
Section 11 of the Act lies. It appears that
against the judgment of the Consolidation
Officer stated above two appeals were
filed. As stated in para 5 and 6 of the writ
petition one appeal was filed on 27.7.1986
and the other appeal was filed on
18.6.1986 and thus both appeals being
against the order of the Consolidation
Officer dated 2.51986 there can be hardly
few days delay in filing the appeal.
Submission about withdrawal of the
objection by Gaon Sabha before the
Consolidation Officer and thus no right to
appeal
also
appears
to
be
totally
misconceived as appeal no. 791 has been
filed by State through Collector who is
the overall incharge of the matter. Gaon
Sabha is respondent no. 2 in that appeal.
Be as it may, in respect of both aspects
that whether few days delay in filing the
appeal was to be condoned or not as it is
alleged that there is no application for
condonation of delay and there is no
1 All] Mohan and others V. The Settlement Officer of Consolidation, Jaunpur and others
333
prayer for the same and whether the
appeal at the instance of the Gaon Sabha ,
who is appellant no. 2 in appeal filed by
the State can proceed or not it cannot be
such a situation that this Court has to
intervene in the matter by issuing a writ of
prohibition to the appellate authority not
to proceed in the matter taking the view
that proceedings are abuse of the process
of Court. Needless to say that question of
maintainability of the proceeding at any
stage before any forum has to be first
addressed before that very authority as
that authority being in a more better
position to examine the things in the light
of the record and various factual and legal
aspect can decide the same. It is only in
exceptional cases where the things are so
apparent and lack of jurisdiction is so
clear that on accepting every fact the only
conclusion comes out that the authority
can not proceed in the matter, this Court
has to intervene. Thus on the admitted
fact of the case appeal filed by the
respondents being regular appeal ass
provided in the Consolidation of Holdings
Act having been filed by them cannot be
said to be unauthorized so as to take the
view that it is abuse of the process. It can
be another situation that appeal is barred
by time or it is not maintainable for
various reasons but that can be an
objection by the respondents in any
appeal or revision and thus this Court is of
the considered view that unless there are
exceptional
circumstances
straightway
extraordinary powers is not be exercised.
On the facts this Court is not satisfied that
petitioner cannot get their objection
examined by the appellate court so as to
exercise the jurisdiction as a writ court.
Appeals against the judgment of the
Consolidation Officer dated 2.5.1986
appears to have been filed in May/June,
1986 itself and thus hardly there is few
days delay but about 18 years has already
passed, the disposal of the appeal appears
to be still in dilemma. Various things can
be inferred in respect to delay in disposal
of the appeal but this may not be proper
for this court at this stage to make any
comment against the parties who appears
to be prima facie responsible for delay in
the matter.

8. For the analysis as made above
this Court is not convinced that this is a
case where writ of prohibition can be
issued, as prayed by the petitioner. The
objection about maintainability of the
appeal on various grounds appears to be a
routine one which is to be dealt by the
appellate authority while deciding the
appeal on merits in accordance with law.

9. Before parting with the case it
will be useful to make an observation for
appellate authority to decide the matter
pending before him with all expedition
preferably within three months from the
date of receipt of certified copy of this
order without allowing any unwarranted
adjournment to either of parties unless it
is required for very compelling reasons.
Petitioners are directed to file certified
copy of this order before the appellate
court within fifteen days from today.

In view of the foregoing discussion,
writ petition fails and is dismissed at
admission stage.
---------
334 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD: 10.3.2005

BEFORE
THE HON'BLE MUKTESHWAR PRASAD, J.

Civil Misc. Writ Petition No. 37155 of 1998

Shiv Charan Singh

...Petitioner
Versus
The
XIth
Additional
District
Judge,
Aligarh and others
...Respondents

Counsel for the Petitioner:
Sri Vipin Saxena

Counsel for the Respondents:
Sri J.J. Munir, S.C.

Code of Civil Procedure- Order 5 to 19-A
readwith o. 9 rule 13 C.P.C.- Ex parte
order suit for eviction-the date on which
the plaint presented about from service
through process server-Regd. Notices
also sent- without order of Court-
process server reported refusal-Regd.
Letter returned back without service
creates
great
doubt-issuing
process
through Regd. Post without order of
court is no service-no declaration by
Court about service-application under
order 9 rule 13-held maintainable-ex
parte order set a side with certain
direction issued to the judge, small
cause.

Held- Para 11 and 16

It further appears that the application
for amendment of the plaint was moved
and as such, a fresh summons was
ordered to be issued. On 1.2.1995, none
appeared on behalf of the defendant
despite service of summons. Again on
4.4.1995, the court passed order for
proceedings exparte and ultimately on
5.5.1995, the suit was decreed exparte.

Unless there is such declaration, the
summons cannot be said to have been
served under Rule 19-A. In the present
case, it does not appear from the record
that there was any such declaration
made under sub rule (2) read with the
proviso thereunder. I am, therefore, of
the clear opinion that there is nothing on
record to arrive at the conclusion that
the summons was served upon the
petitioner as alleged by the respondent.
Case law discussed:
2004 ALJ- 3852
1991 (2) ARC-305
1997 (i) ARC 328
1993 (i) ARC 21
AIR 1979 Raj-108

(Delivered by Hon'ble Mukteshwar Prasad, J.)

1. By means of this petition under
Article 226 of the Constitution of India by
tenant, the petitioner has prayed for
quashing the judgment and order-dated
5.5.1995
and
22.51998
passed
by
respondent no. 2 and 2.11.1998 passed by
the respondent no. 1 (Annexures 2,8 and 9
to the writ petition) respectively.

2. Counter and rejoinder affidavits
have been exchanged between the parties
and are on record. With the consent of
learned counsel for the parties, the
petition is being disposed of finally at this
stage.

3. It appears that S.C.C. Suit No. 99
of 1994 was filed by the land lord for
evicting the tenant-petitioner from house
no. 1/27, Indra Puri, Chharra Adda,
Aligarh and for recovery of arrears of rent
and damages in the Court of Judge Small
Cause. The suit was filed on 9.8.1994 and
the Judge directed to issue summons to
tenant fixing on 8.10.1994 for final
hearing. On 10.10.1994, summons was
received back unserved and court fixed
25.10.1994, for awaiting summons. On
25.10.1994, the plaintiff along with his