# Shamsher Bahadur v. State of U.P. and

- **Citation:** (2003) 3 ILRA 866
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-08-06
- **Case number:** Civil Misc. Writ Petition No. 28029 of 2003
- **Bench:** Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shamsher-bahadur-v-state-of-u-p-and-40219
- **Pages:** 4

## Headnote

Indian Limitation Act-Section 5 read
with U.P. Consolidation of Holdings Act,
Section 11 (1)-appeal alongwith delay
condonation
application-S.O.C.
Condoned
the
delay
and
on
merit
remanded the case for fresh decision-
High Court declined to interfere-the
petitioner will get opportunity to say on
merit-

Held- Para 8
In view of the aforesaid discussion, it is
clear that no error has been committed
by
the
Settlement
Officer
of
Consolidation in deciding both questions
of condonation of delay as well as on
merit. The matter having only been
remanded to Consolidation Officer, the
petitioner will have opportunity to lead
his evidence and will have his say on
merits. The impugned orders do not call
for any interference in exercise of
jurisdiction
under
Article
226
of
Constitution of India.

## Text

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866 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
not arrested for alleged absence from
duty. The writ petitioner had endeavor to
give proper explanation along with
medical certificate of the C.M.O. as such
the decision of Mirza Barkat Ali is not
applicable in the present facts and
circumstances of the present case. The
petitioner also relied on the judgment of
Shamsher Bahadur v. State of U.P. and
others reported in (1993) 1 UPLBEC 488.
In the aforesaid facts and circumstances
this case is also not applicable in the
present case.

10. In (1997) 6 SCC 391 (State of
Punjab and others Vs. Bakhshish Singh)
the Supreme Court held that it is the
disciplinary authority to pass appropriate
punishment, the civil court or appellate
authority cannot substitute its own view to
that of the finding of disciplinary
authority imposed on the delinquent
official on the nature of punishment. The
court is also not to sit over the finding of
the disciplinary authority in view of the
(1997) 7 SCC 463 (Union of India and
another v. G. Ganayantham) and also
(1998) 9 SCC 220 (U.P. SRTC v. Har
Narain and others).

11. In view of the above observation
the
disciplinary
authority
and
the
reviewing authority in reference to the
direction given by this court has decided
the revision correctly, there is no scope of
any interference in these findings.

12. The writ petition is accordingly
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.08.2003

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 28029 of 2003

Laxmi Kant

...Petitioner
Versus
The State of U.P. & others ...Respondents

Counsel for the Petitioner:
Sri M.P. Sinha

Counsel for the Respondents:
Sri Sudhakar Pandey
S.C.

Indian Limitation Act-Section 5 read
with U.P. Consolidation of Holdings Act,
Section 11 (1)-appeal alongwith delay
condonation
application-S.O.C.
Condoned
the
delay
and
on
merit
remanded the case for fresh decision-
High Court declined to interfere-the
petitioner will get opportunity to say on
merit-

Held- Para 8
In view of the aforesaid discussion, it is
clear that no error has been committed
by
the
Settlement
Officer
of
Consolidation in deciding both questions
of condonation of delay as well as on
merit. The matter having only been
remanded to Consolidation Officer, the
petitioner will have opportunity to lead
his evidence and will have his say on
merits. The impugned orders do not call
for any interference in exercise of
jurisdiction
under
Article
226
of
Constitution of India.

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard Sri M.P. Sinha, counsel for
the petitioner and Sri Sudhakar Pandey
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3 All] Laxmi Kant V. The State of U.P. and others
867
learned
counsel
appearing
for
the
contesting respondents.

2. By this writ petition, the
petitioner has prayed for quashing the
order dated 11th March, 2003 passed by
Deputy Director of Consolidation and the
order dated 17th January, 2001 passed by
Settlement Officer of Consolidation.

3. Brief facts of the case as given in
the
writ
petition
are;
consolidation
operation started in the village. An order
was passed by Assistant Consolidation
Officer on the basis of compromise
regarding share of the parties on 2nd
October, 1988. An appeal was filed
against the said order by the contesting
respondents under Section 11 (1) of U.P.
Consolidation
of
Holdings
Act,
application was also filed under Section 5
of Indian Limitation Act by the appellants
praying for condonation of delay in filing
the appeal. Objection was filed by the
petitioner stating that appeal is barred by
time and should be rejected. The
Settlement Officer of Consolidation by
order dated 17th January,2001 condoned
the delay in filing the appeal, set-aside the
order of Consolidation Officer and
remanded the case to Consolidation
Officer for deciding the case after giving
opportunity
to
the
parties
to
lead
evidence. Against the said order dated 17th
January,2001, revision was filed by the
petitioner which has been dismissed by
Deputy Director of Consolidation vide his
order dated 11th March,2003.

4. The counsel for the petitioner
challenging the order of Settlement
Officer of Consolidation contended that
Settlement
Officer
of
Consolidation
having not condoned the delay in filing
the appeal, has no jurisdiction to decide
the appeal on merits. It was contended
that Settlement Officer of Consolidation
could not have even considered the
question of delay at the time of hearing of
appeal on merit. Reliance was placed by
counsel for the petitioner on judgment of
this Court in 1990 RD 243; Smt. Munaki
Devi and another Vs. Deputy Director of
Consolidation, Azamgarh and others.

5. Learned counsel appearing for the
contesting respondents contended that
Settlement Officer of Consolidation did
not commit any error in deciding the
question of delay as well as appeal on
merit by composite order. It was further
contended that Settlement Officer of
Consolidation condoned the delay in
filing the appeal and thereafter allowed
the appeal on merit.

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

7. From the perusal of the order of
Settlement Officer of Consolidation dated
17th January, 2001, it is clear that
Settlement Officer of Consolidation has
specifically given the benefit of Section 5
of Limitation Act in appeal. Delay having
been condoned by Settlement Officer of
Consolidation in filing the appeal, no
error has been committed by Settlement
Officer of Consolidation in deciding the
appeal on merits. The judgment of this
Court in Munaki Devi's case (supra) do
not lay down any proposition that
application under Section 5 of the
Limitation Act cannot be decided while
hearing the appeal, it has only been
observed that appeal shall be disposed of
on merits only when Section 5 application
is allowed. This Court has considered the
aforesaid Munaki Devi's case (supra) in a
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868 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
recent judgment in 2003 (1) CRC 249;
Abdul Karim Vs. Deputy Director of
Consolidation, Basti and others and
taken the view that no error was
committed by appellate authority in
considering the question of limitation as
well as merits together. Following was
laid down by this Court in paragraph -7
of the aforesaid judgment:-

"7. So far as the submission of
learned Counsel for the petitioner that the
application under Section 5 of Limitation
Act should have been decided by the
appellate
authority
first
before
proceeding on merits and the appeal was
not to be entertained as it was not
accompanied by an application under
Section 5 of Limitation Act, also merits
dismissal. A perusal of the memo of
appeal which has been filed by the
opposite party which has been brought on
record as Annexure 5 to the writ petition
clearly indicates that in the memo of
appeal itself, explanation has been offered
for filing appeal after Director of
Education-notification and a specific
prayer at several places besides in the
prayer clause has been made that the
appeal be allowed after giving benefit of
Section 5 of Limitation Act and thus the
submission that no separate application
has been filed in this respect, being too
technical on the facts, cannot be accepted.
The other submission that the appellate
authority was required to decide the
question of delay condonation first, also
cannot be accepted as the Deputy
Director of Consolidation has clearly
directed that the appellate authority will
decide the question of limitation as well
as merits together after hearing the
parties. In the event, appellate authority
finds that the appeal is barred by time and
there is no proper explanation, then there
may not be any question of adjudication
on merits and, therefore, there appears to
be no harm if the appellate authority is
permitted to hear the arguments on both
aspects together, i.e., the question of
limitation as well as merits. The aforesaid
exercise will save the time of the Court as
well as of both parties. The appellate
authority can only proceed on merits
when the delay in filing appeal is
condoned and thus in the event, the
judgment of the appellate authority goes
against the petitioner on both issues, i.e.
on merits and the limitation, it will be
open for him to challenge the same before
the revisional authority on both counts.
On the facts, this Court finds that in the
event the authority is directed to decide
only the question of limitation first then in
view of the decision either way, it will
lead to multiplicity of proceedings, i.e.,
taking the matter to the higher forum
which may not be in the ends of justice."

Another judgment of this Court which has
taken the same view is 1998 R.D. 118;
Sajjan Kumar Vs. Deputy Director of
Consolidation, Muzaffar Nagar and
others. It was held by this Court in
paragraph 4 of the said judgment:-

"4. There is, however, no bar that
the authority concerned cannot hear the
arguments on the application filed for
condonation of delay as well as on the
merit of the case. In case the delay is not
to be condoned the authority concerned
may reject the application. If however, the
authority
concerned
finds
that
the
application for condonation is to be
allowed, it can decide the case on merit."

8.
In
view
of
the
aforesaid
discussion, it is clear that no error has
been committed by the Settlement Officer
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3 All] Sita Ram V. Dy. Director of Consolidation, Jaunpur and others
869
of
Consolidation
in
deciding
both
questions of condonation of delay as well
as on merit. The matter having only been
remanded to Consolidation Officer, the
petitioner will have opportunity to lead
his evidence and will have his say on
merits. The impugned orders do not call
for any interference in exercise of
jurisdiction
under
Article
226
of
Constitution of India.

9. The writ petition lacks merit and
is summarily rejected.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.7.2003

BEFORE
THE HON'BLE JANARDAN SAHAI, J.

Civil Misc. Writ Petition No.1830 of 1973

Sita Ram

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

Counsel for the Petitioner:
Sri R.N. Singh
Sri S.N. Singh

Counsel for the Respondents:
Sri Sankatha Rai
S.C.

U.P. Consolidation of Holdings Act-S. 3
(5)- U.P. Zamindari Abolition and Land
Reforms Act, 1951-S.143-'Land'-Meaning
of -Inference drawn by D.D.C. that land
in question was abadi on the basis of
statement of Counsel that there was
pucca well, Sehan etc.- held, illegal.

Held-Para 8

From the facts stated above it is clear
that the only basis on which an inference
was drawn by the Deputy Director of
Consolidation that the land in question
was abadi was a statement made by the
learned counsel for the respondents that
there was pucca well, charani and sehan.
I have considered the definition of 'land'
in the aforesaid section and it does not
appear that the disputed plot would
cease to be land within the meaning of
Section 3 (5) of the Act.
Case law:
1979 R.D. 78

(Delivered by Hon'ble Janardan Sahai, J.)

1. Heard Sri S.N. Singh, learned
counsel for the petitioner and Sri
Sankatha Rai, learned counsel for the
respondents.

2. In the basic year the name of the
petitioner was recorded over the disputed
plots. Objections were filed by the
respondents Ram Nath and others before
the Consolidation Officer claiming the
sole sirdari right as heirs of Buddhu. The
case of the respondents was that Buddhu
was recorded over the land in dispute
since the year 1309 fasali and the name of
Ambar son of Buddhu continued to be
recorded in 1333 fasali and it was for the
first time in 1349 fasali that the name of
Puddhu
the
father's
father
of
the
petitioner was recorded. The respondents
allege that the name of Puddu from the
branch of the petitioner was wrongly
recorded. Oral evidence was led by both
the parties. The Consolidation Officer by
order
dated
25.6.1970
allowed
the
objection of the contesting respondent and
directed that the entry of the name of Sita
Ram, the petitioner be expunged. On
appeal filed by Sita Ram the Settlement
Officer of Consolidation reversed the
decision. The Settlement Officer of
Consolidation relied upon the fact that
consistently
from
1358
fasali
the
petitioner was recorded over the land in