# Paras Nath v. Dy. Director of Consolidation and others

- **Citation:** (2008) 1 ILRA 196
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-02-15
- **Case number:** Civil Misc. Writ Petition No. 58671 of 2007
- **Bench:** Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/paras-nath-v-dy-director-of-consolidation-and-others-41011
- **Pages:** 6

## Headnote

U.P. Consolidation of Holdings Act 1953Section 48-Revision order condoning the
delay in filing objection under section 9
A(2)-not interlocutory order-such order
passed
by
Consolidation
Officer
is
subject
to
revisional
jurisdiction
of
D.D.C.

Held: Para 15

In view of the foregoing discussions it is
clear
that
an
order
passed
by
Consolidation
Officer
condoning
the
delay in an objection under Section
9A(2) of U.P. Consolidation of Holdings
Act, 1953 terminates the proceeding
under Section 5 of the Limitation Act,
hence the same cannot be treated to be
an interlocutory order and is subject to
revisional jurisdiction of Deputy Director
of Consolidation under Section 48 of U.P.
Consolidation of Holdings-Act,1953.
Case law discussed:
1972 R.D. 80, 2002(93) R.D. 764, 2003(94)
R.D. 353, 2004(97) R.D. 295, 1984 R.D. 382,
1 All] Paras Nath V. Dy. Director of Consolidation and others
197

## Text

196 INDIAN LAW REPORTS ALLAHABAD SERIES [2008

13. The decision in Smt. Alka Rani's
case applies to the facts of the case in
hand, as in this case also the allegations
are vague and specific instances and
material sought to be read in support of
the allegations against the petitioner have
not been mentioned. If no material is
mentioned in the suspension order then
substituting the material in the counter
affidavit would be of no help to the
respondents. We further find that along
with the suspension order no show cause
notice had been issued to the petitioner
directing him to show cause as to why his
fair price shop licenses/agreement may
not
be
cancelled.
The
impugned
suspension order is vitiated on this ground
alone being in violation of mandatory
requirements of G.O. dated 29.7.2004.

14. For the aforesaid reasons, we are
in agreement with learned counsel for the
petitioner that the impugned suspension
order is vague and on the basis of which
petitioner's
fair
price
shop
licence/agreement could not be cancelled
and the impugned order deserves to be
quashed.

15. In the result, this writ petition
succeeds and is allowed. The impugned
suspension order dated 25.5.2005 passed
by respondent No.2, Annexure-l to the
writ petition, is quashed.

16. The parties shall bear their own
costs.

Petition allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.02.2008

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 58671 of 2007
With
Civil Misc. Writ Petition No. 8439 of 2008

Paras Nath

...Petitioner
Versus
Deputy
Director
of
Consolidation,
Varanasi and others
 ...Respondents

Counsel for the Petitioner:
Sri. V.K. Singh
Sri. M.N. Singh

Counsel for the Respondents:
Sri. Shailendra kumar Singh
S.C.

U.P. Consolidation of Holdings Act 1953Section 48-Revision order condoning the
delay in filing objection under section 9
A(2)-not interlocutory order-such order
passed
by
Consolidation
Officer
is
subject
to
revisional
jurisdiction
of
D.D.C.

Held: Para 15

In view of the foregoing discussions it is
clear
that
an
order
passed
by
Consolidation
Officer
condoning
the
delay in an objection under Section
9A(2) of U.P. Consolidation of Holdings
Act, 1953 terminates the proceeding
under Section 5 of the Limitation Act,
hence the same cannot be treated to be
an interlocutory order and is subject to
revisional jurisdiction of Deputy Director
of Consolidation under Section 48 of U.P.
Consolidation of Holdings-Act,1953.
Case law discussed:
1972 R.D. 80, 2002(93) R.D. 764, 2003(94)
R.D. 353, 2004(97) R.D. 295, 1984 R.D. 382,
1 All] Paras Nath V. Dy. Director of Consolidation and others
197
(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard Sri V.K. Singh, learned
counsel for the petitioners and Sri
Shailendra Kumar Singh appearing for
respondent No.3, who is contesting
respondent in both the writ petitions.

2.

Learned
counsel
for
the
petitioners submits that respondent NO.3
is only contesting party and other
respondents being proforma respondents,
the writ petition be decided without
service to notice to other respondents.

3. Both the writ petitions raise
similar question of law and facts and are
being decided finally by this common
judgment by consent of the parties.

4. These two writ petitions pray for
quashing the order dated 20th September,
2007 passed by the Deputy Director of
Consolidation, dismissing the revision
filed by the petitioners under Section 48
of U.P. Consolidation of Holdings Act,
1953 as well as the order dated 16th
November, 2004 passed by Consolidation
Officer condoning the delay in objection
filed by respondent No.3. Writ Petition
No.58671 of 2007 is being treated as
leading case.

5. Brief facts necessary for deciding
the writ petitions are; respondent No.3,
Murlidhar, filed a belated objection under
Section 9A(2) of U.P. Consolidation of
Holdings Act. 1953 dated 23rd February,
2001 praying that by giving benefit of
Section 5 of Limitation Act the names of
petitioners be expunged and names of
contesting respondents be entered. Writ
Petition No.58671 of 2007 relates to
Khata No.293 and Writ Petition No.8439
of 2008 relates to Khata No.61. The
objection
of
respondent
No.3
was
contested by the petitioners by filing
objection objecting condonation of delay.
The Consolidation Officer by order dated
16th November, 2004 condoned the delay
in filing the objection. Against the order
dated 16th November, 2004 condoning the
delay, revisions were filed before the
Deputy Director of Consolidation under
Section 48 of U.P. Consolidation of
Holdings Act, 1953. The Deputy Director
of Consolidation by the impugned order
took the view that order of Consolidation
Officer
condoning
the
delay
is
interlocutory in nature, hence revision is
not maintainable. The Deputy Director of
Consolidation refused to interfere with the
order of Consolidation Officer on the
ground that order of Consolidation
Officer is interlocutory in nature. These
writ petitions have been filed challenging
the
order
of
Deputy
Director
of
Consolidation.

6.

Learned
counsel
for
the
petitioners, challenging the order of
Deputy
Director
of
Consolidation,
contended that order of Consolidation
Officer was not interlocutory in nature
since it disposed of the application under
Section 5 of the Limitation Act, which
prayed for condonation of delay in filing
objection. He has placed reliance on the
Division Bench judgment of this Court
reported in 1972 R.D. 80; Mst. Kailashi
vs. Deputy Director of Consolidation and
others.

7. Sri Shailendra Kumar Singh,
learned counsel for respondent No.3,
submits that order of Consolidation
Officer was interlocutory in nature and
the revision was not maintainable. He has
placed reliance on judgments of this Court
in 2002(93) R.D. 764; Paras Nath vs.
198 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Deputy Director of Consolidation, Basti
and
others,
2003(94)
R.D.
353;
Sukhjinder Jeet Kaur and others vs.
Deputy
Director
of
Consolidation,
Rampur and others and 2004(97) R.D.
295; Dhanush Raj and others vs. Deputy
Director of Consolidation, Mau and
others.

8. I have considered the submissions
of the counsel for the parties and perused
the record.

9. The objection, which was filed
under
Section
9A(2)
of
U.P.
Consolidation of Holdings Act. 1953, was
admittedly barred by time. The prayer for
condonation of delay was separately taken
up by the Consolidation Officer and was
allowed after hearing both the parties. The
effect of allowing application under
Section 5 of the Limitation Act was that
objection was treated within time and was
to be decided on merits. The revision was
filed
under
Section
48
of
U.P.
Consolidation of Holdings Act, 1953.
Section 48 of U.P. Consolidation of
Holdings Act, 1953 is in very wide term,
which is to the following effect:-

"[48. Revision and reference.-(1)
The Director of Consolidation may call
for and examine the record of any case
decided or proceedings taken by any
subordinate authority for the purpose of
satisfying himself as to the regularity of
the proceedings; or as to the correctness,
legality or propriety of any order [other
than interlocutory order] passed by such
authority in the case of proceedings and
may, after allowing the parties concerned
an opportunity of being heard, make such
order in the case of proceedings as he
thinks fit.

(2) Powers under sub-section (1)
may exercised by the Director of
Consolidation also on a reference under
sub-section (3).

(3) Any authority subordinate to the
Director of Consolidation may, after
allowing
the
parties
concerned
an
opportunity of being heard, refer the
record of any case or proceedings to the
Director of Consolidation for action
under subsection (1 ).]

[Explanation [(1)] - For the purposes of
this
section,
Settlement
Officer,
Consolidation, Consolidation Officers,
Assistant
Consolidation
Officers,
Consolidator and Consolidation Lekhpals
shall be subordinate to the Director of
Consolidation.]

[Explanation (2). For the purpose of this
section
the
expression
'interlocutory
order'
in
relation
to
a
case
or
proceedings, means such order deciding
any matter arising in such case or
proceeding or collateral thereto as does
not have the effect of finally disposing of
such case or proceeding.]"

10. There cannot be any dispute that
entertainment of revision is barred against
an interlocutory order as per amendments
made in Section 48 of the U.P.
Consolidation of Holdings Act, 1953. The
Explanation No.2 has also been added
explaining the term interlocutory order.
The objection under Section 9A(2) was
barred by time. The prayer for condoning
the delay under Section 5 of the
Limitation Act was although in the
objection under Section 9A(2) of U.P.
Consolidation of Holdings Act, 1953 but
has been separately dealt with and
decided. The prayer for condonation of
1 All] Paras Nath V. Dy. Director of Consolidation and others
199
delay in filing the objection has to be
treated as separate proceeding and after
condonation of delay the question of
Section 5 Limitation Act was terminated.
The word 'proceedings', which has been
used in Section 48 is a term of wide
import. The proceedings under Section 5
of the Limitation Act stands terminated
when an order is passed by Consolidation
Officer either condoning or refusing to
condone the delay. This can be better
explained by taking an example. In a case
where condonation of delay is refused by
Consolidation Officer, the application
shall stand rejected, which will have
effect of rejection of the objection also;
but in a case where condonation of delay
has been allowed although Section 5
proceedings shall come to an end but
objection will continue. Can the question
of entertainability of revision against such
order will vary in a case where the
condonation is allowed with a case where
condonation is refused. There cannot be
any doubt that when condonation is
refused, the proceeding is terminated,
hence the said order cannot be said to be
an interlocutory order within the plain
meaning of 'interlocutory order' as defined
in Explanation (2) because that terminates
the proceedings but drawing a distinction
between the cases where condonation is
allowed and condonation is refused for
purposes
of
Section
48
of
U.P.
Consolidation of Holdings Act, 1953
cannot be said to be legislative intent. The
revisional power under Section 48 of
Deputy Director of Consolidation shall
have to be available in both the cases and
it cannot be held to be available only in
cases where condonation is refused.

11. A Division Bench of this Court
in Mst Kailashi's case (supra) had
examined the scope of Section 48 of U.P.
Consolidation of Holdings Act, 1953 in
case delay condonation application was
allowed. The Division Bench held that
order condoning the delay was subject to
revisional power under Section 48 of U.P.
Consolidation of Holdings Act, 1953.
Following was held by the Division
Bench in paragraph 1 of the said
judgment:-

"1.
The
Consolidation
Officer
condoned the delay in filing an objection
under Section 9, U.P. Consolidation of
Holdings Act. The other side feeling
aggrieved filed a revision. The Dy.
Director went into the merits and held
that there was no sufficient explanation
for the delay. On this ground he allowed
the revision and set-aside the order
condoning the delay. Learned counsel for
the applicant has urged that the Dy.
Director had no jurisdiction to go into the
merits
of
the
application
for
the
condonation of delay. Section 48 of the
UP. Consolidation of Holdings Act
confers powers upon the Dy. Director to
reach on facts and law every kind of order
passed by a subordinate consolidation
authority. The order condoning the delay
was subject to the revisional powers
under Section 48 of the Act. Learned
counsel,
however,
relied
upon
the
decision of the Board of Revenue in
Mangali v. Putti Lal (1) to the effect that
where the Court of original jurisdiction
condones the delay, an appellate Court
has no power to go into the merits of such
condonation. It can go into the merits of
the case because an appeal would lie only
against an order passed by the trial Court
on the merits of the case. The decision
does not discuss the statutory provisions
in regard to the appellate or revisional
powers under the Zamindari Abolition
Act. We are not satisfied that this decision
200 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
lays down the law correctly; but it is
unnecessary to discuss the matter further
because it does not apply to the
proceedings under the Consolidation of
Holdings Act under which, as mentioned
above, the revisional powers are very
wide and they can reach every order
passed by a subordinate consolidation
authority. "

12. The Supreme Court in Shanti
Prasad Gupta vs. Deputy Director of
Consolidation, Camp at Meerut and
others reported in 1984 R.D. 382
considered the scope and power of
Deputy Director of Consolidation under
Section 48 of U.P. Consolidation of
Holdings Act. 1953. In the case before the
Supreme Court objection under Section
9A
was
filed
with
delay.
The
Consolidation Officer vide order dated
22nd July, 1975 condoned the delay in
filing the objection. A revision was filed
before
the
Deputy
Director
of
Consolidation challenging the order of
Consolidation
Officer.
The
Deputy
Director of Consolidation interfered with
the order of Consolidation Officer. The
writ petition was filed in the High Court
and thereafter matter was taken to the
Apex Court. The Apex Court laid down
that Deputy Director of Consolidation
cannot lightly interfere with the discretion
of the Consolidation Officer unless the
order sought to be revised is clearly
erroneous or is likely to cause gross
miscarriage of justice. Following was laid
down in paragraph 3 of the said
judgment:-

"3. ..... Whether or not there is
sufficient cause for condonation of delay,
is a question of fact dependent upon the
facts and circumstances of a particular
case, and the proposition is well settled
that when order has been made under
Section 5, Limitation Act by the lower
court in the exercise of its discretion
allowing or refusing an application to
extend time, it cannot be interfered with in
revision, unless the lower court has acted
with material irregularity or contrary to
law or has come to that conclusion on no
evidence. We are aware that the powers
of the Director under Section 48 of the
Act are wider than those mentioned in
Section 115 of the Code of Civil
Procedure. Even so, the Director cannot
lightly interfere with the discretion of
Consolidation Officer, unless the order
sought to be revised is clearly erroneous
or is likely to cause gross miscarriage of
justice. Such was not the case here. The
Consolidation Officer had in condoning
the
delay
exercised
his
discretion
judicially on the basis of evidence
produced before him by the parties. The
Deputy
Director
of
Consolidation
(exercising the powers of Director) had
without assigning any reason allowed the
revision-petitioner to produce additional
evidence (letter) before him, which the
revision-petitioner
could
with
due
diligence,
produce
before
the
Consolidation Officer, but failed to do so.
Then it is not apparent from the impugned
order whether the appellant before us,
was also given by the Deputy Director an
opportunity to produce evidence in
rebuttal of the additional evidence,
although a bold mention is there that "the
opposite party has not any documentary
evidence in rebuttal of this. "

13. The above quoted observations
of the Apex Court indicate that Apex
Court did not lay down that revision was
not maintainable against an order passed
by Consolidation Officer condoning the
delay but the Court took the view that the
1 All] Tinna and another V. State of U.P.
201
said order cannot be lightly interfered
with unless the order is clearly erroneous
or likely to cause gross miscarriage of
justice. The revisional power against such
order of Consolidation Officer condoning
the delay was not excluded but was
cautioned to be exercised in appropriate
case. This Court in Sukhjinder Jeet
Kaur's case (supra) has relied the above
Supreme Court judgment in Shanti
Prasad Gupta's case for the proposition
that revision is not maintainable against
interlocutory order. The Apex Court did
not lay down any such proposition that
order passed by Consolidation Officer is
an interlocutory order and against the said
order writ petition does not lie under
Section 48 of U.P. Consolidation of
Holdings Act, 1953.

14. The judgments, which have been
relied by counsel for respondent No.3 in
Paras Nath's case (supra), Sukhjinder
Jeet Kaur's case (supra) and Dhanush
Raj's case (supra) were the judgments in
which earlier Division Bench judgment
was not noticed. The Judgment in Paras
Nath's case (supra) was relied in
Sukhjinder Jeet Kaur's case (supra). The
order condoning the delay in filing an
objection, which was barred by time
cannot be treated to be an interlocutory
order not amenable to the revisional
jurisdiction of the Deputy Director of
Consolidation under Section 48 of U.P.
Consolidation of Holdings Act, 1953.
Coming to the facts of the present case,
the Deputy Director of Consolidation has
refused to enter into the merits of
condonation and has rejected the revision
only on the ground that the order of
Consolidation Officer is interlocutory and
the revision is not entertain able.

15. In view of the foregoing
discussions it is clear that an order passed
by Consolidation Officer condoning the
delay in an objection under Section 9A(2)
of U.P. Consolidation of Holdings Act,
1953 terminates the proceeding under
Section 5 of the Limitation Act, hence the
same cannot be treated to be an
interlocutory order and is subject to
revisional jurisdiction of Deputy Director
of Consolidation under Section 48 of U.P.
Consolidation of Holdings -Act, 1953.

16. In result, both the writ petitions
are allowed. The order dated 20th
September, 2007 of Deputy Director of
Consolidation is set-aside. The matter is
remitted to the Deputy Director of
Consolidation to decide the revision filed
by the petitioners afresh in accordance
with law. The revision being only
confined to the question of delay, it is in
the ends of justice that the said revision
shall be decided expeditiously preferably
within a period of six months from the
date of production of a certified copy of
this order.

17. With the aforesaid directions, the
writ petitions are disposed of.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.02.2008

BEFORE
THE HON'BLE S.S KULSHRESTHA, J.
THE HON'BLE VIJAY KUMAR VERMA, J.

Criminal Appeal No. 585 of 2008

Tinna and another ...Appellants (In Jail)
Versus
State of U.P.

...Opposite Party