# State of Bihar and others v. Kameshwar Prasad Singh and another

- **Citation:** (2012) 2 ILRA 807
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-07-09
- **Bench:** Devendra Kumar Upadhyaya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-bihar-and-others-v-kameshwar-prasad-singh-and-another-42161
- **Pages:** 6

## Headnote

C.S.C.
Sri B.R. Singh

U.P.
Consolidation
of
Holdings
ActSection
11-Appeal
with
Section
5
application-S.O.C. While condoning delay
decided appeal on merit and remanded
back for fresh consideration-interference
by D.D.C. under wrong assumption to
decide delay application first-thereafter
ought to have decide the appeal on
merit-held-wholly
misconceivedconsidering law laid down by Apex Court
in State of Bihar Vs Kamleshwar Prasda
Singh-question of limitation and meritboth can be considered simultaneously-it
can not be interfered-order passed by
D.D.C.-held-illegal-quashed.

Held: Para 17 and 18

So far as the power to condone the delay
conferred to the courts is concerned,
regard may be had to the judgment of
the Hon'ble Supreme Court in the case of
State
of
Bihar
and
others
Versus
Kameshwar Prasad Singh and another
with
other
connected
Civil
Appeals
(Supra) wherein, it has inter-alia been
observed that the power to condone the
delay in approaching the court has been
conferred to do substantial justice to the
parties by disposing the matter on
merits.

Looking into over all circumstances of
the case and the general legal principles
regarding condonation of delay laid
down by the Hon'ble Apex Court in the
case of State of Bihar and others Versus
Kameshwar Prasad Singh and another
with
other
connected
Civil
Appeals
(Supra)
and
also
in
the
case
of
N.Balakrishnan Versus M.Krishnamurthy
(Supra), this Court is of the definite view
that the order passed by the Assistant
Settlement Officer Consolidation, Gonda
could not have been interferred with by
the
learned
Deputy
Director
of
Consolidation, Gonda.
Case law discussed:
2006 (101) RD 69; 2003 (94) RD 186; 2001
(92) RD 596; 1998 (89) RD 607 (SC); (2000) 9
SCC 94; 1996 (87) RD 465; 1990 RD 162;
(2003) SCC 257; (2002) 1 SCC 633

## Text

2 All] Laxman and 9 others V. D.D.C., Gonda & 6 others
807
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.07.2012

BEFORE
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.

Consolidation NO. 241 of 2006

Laxman & 9 Ors.

 ...Petitioner
Versus
D.D.C., Gonda & 6 Ors. ...Respondents

Counsel for the Petitioner:
Sri B.L.Mishra

Counsel for the Respondents:
C.S.C.
Sri B.R. Singh

U.P.
Consolidation
of
Holdings
ActSection
11-Appeal
with
Section
5
application-S.O.C. While condoning delay
decided appeal on merit and remanded
back for fresh consideration-interference
by D.D.C. under wrong assumption to
decide delay application first-thereafter
ought to have decide the appeal on
merit-held-wholly
misconceivedconsidering law laid down by Apex Court
in State of Bihar Vs Kamleshwar Prasda
Singh-question of limitation and meritboth can be considered simultaneously-it
can not be interfered-order passed by
D.D.C.-held-illegal-quashed.

Held: Para 17 and 18

So far as the power to condone the delay
conferred to the courts is concerned,
regard may be had to the judgment of
the Hon'ble Supreme Court in the case of
State
of
Bihar
and
others
Versus
Kameshwar Prasad Singh and another
with
other
connected
Civil
Appeals
(Supra) wherein, it has inter-alia been
observed that the power to condone the
delay in approaching the court has been
conferred to do substantial justice to the
parties by disposing the matter on
merits.

Looking into over all circumstances of
the case and the general legal principles
regarding condonation of delay laid
down by the Hon'ble Apex Court in the
case of State of Bihar and others Versus
Kameshwar Prasad Singh and another
with
other
connected
Civil
Appeals
(Supra)
and
also
in
the
case
of
N.Balakrishnan Versus M.Krishnamurthy
(Supra), this Court is of the definite view
that the order passed by the Assistant
Settlement Officer Consolidation, Gonda
could not have been interferred with by
the
learned
Deputy
Director
of
Consolidation, Gonda.
Case law discussed:
2006 (101) RD 69; 2003 (94) RD 186; 2001
(92) RD 596; 1998 (89) RD 607 (SC); (2000) 9
SCC 94; 1996 (87) RD 465; 1990 RD 162;
(2003) SCC 257; (2002) 1 SCC 633

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.)

1. Heard Shri B.L.Mishra, learned
counsel for the petitioners and Shri
B.R.Singh, learned counsel appearing for
the respondents and have perused the
record.

2. The facts of the case as culled from
the pleadings available on record are that
the land in dispute was recorded in the
name of the predecessor-in-interest of the
petitioners, Arjun in the basic year khatauni.
On commencement of the consolidation
operations by issuance of Notification under
Section 4(2) of the U.P.Consolidation of
Holdings Act (hereinafter to be referred as "
Act" ), objections were filed by the
respondents under Section 9 of the Act
claiming their right over the land in dispute.
The case under Section 9-A (2) of the Act
was allegedly decided by the Consolidation
Officer by means of order dated 11.11.1979.
808 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Against
the
aforesaid
order
dated
11.11.1979 passed by the Consolidation
Officer, Gonda deciding the case on the
basis of the alleged compromise, an appeal
was preferred by the petitioners before the
Assistant Settlement Officer Consolidation,
Gonda. Taking therein various grounds, the
petitioners
assailed
the
order
dated
11.11.1979 passed by the Consolidation
Officer, Gonda. The appeal filed by the
petitioners was delayed. It has been
submitted by the learned counsel for the
petitioners that the petitioners had never
entered
into
compromise
with
the
respondents and also that the petitioners did
not have any information about the order
dated 11.11.1979 passed on the basis of the
alleged compromise by the Consolidation
Officer, Gonda. The appeal was allowed by
the
Assistant
Settlement
Officer,
Consolidation
vide
his
order
dated
23.11.2005 whereby while condoning the
delay in filing the appeal, the case was
remanded to the court of the Consolidation
Officer, Gonda with a direction to give
appropriate opportunity of leading evidence
and hearing to both the parties and decide
the matter on merits. The appellate court has
set aside the dated 11.11.1979 passed by the
Consolidation Officer, Gonda.

3. Feeling aggrieved by the aforesaid
order 23.11.2005 passed by the Assistant
Settlement Officer, Consolidation, Gonda,
the respondents preferred a revision petition
before the Deputy Director of Consolidation
under Section 48 of the Act which was
allowed
by
means
of
order
dated
17.02.2006 whereby, the appellate order
dated 23.11.2005 was set aside and the
matter was remanded back to the appellate
court for hearing the matter afresh.

4. It is the aforesaid order dated
17.02.2006 passed by the Deputy Director
of Consolidation, Gonda which has been
challenged by means of the instant writ
petition.

5. Learned counsel for the petitioners,
Shri B.L.Mishra has submitted that the
alleged compromise on the basis of which
the Consolidation Officer, Gonda passed the
order dated 11.11.1979, on the face of it, is
forged, that the same was not signed by all
the parties in the case before the
Consolidation Officer, Gonda and that the
parties
and
their
signatures/thumb
impressions were not verified as required
under law. He further states that a perusal of
the compromise, which has been annexed as
Annexure no.2 to the writ petition, itself
shows that the order, on the basis of the said
compromise, was not transcribed on a
separate order sheet , neither was it
transcribed on the running order sheet of the
trial court. He further stated that the
appellate court in it's order dated 30.11.2005
has elaborately discussed the issue and has
rightly set aside the order passed by the
Consolidation Officer, Gonda. He further
stated that the order dated 11.11.1979
passed by the Consolidation Officer was
passed on a Holiday (11.11.1979, being
Sunday).

6. Learned counsel for the petitioners,
Shri B.L.Mishra has further argued that the
appeal was allowed by the appellate court
condoning the delay in preferring the same
and since the matter was remanded to the
Consolidation Officer, Gonda to decide the
same on merits, there was no illegality in
the order of the appellate court which would
have called for any interference by the
learned Deputy Director of Consolidation.
He has also stated that the finding recorded
by the Deputy Director of Consolidation in
his order that the appellate court had
decided the appeal on merit without
2 All] Laxman and 9 others V. D.D.C., Gonda & 6 others
809
condoning the delay is factually wrong and
the fact that the appeal was decided on merit
while the delay in preferring the appeal was
condoned, can be gathered from a bare
perusal of the order dated 30.11.2005
passed by the appellate court. Learned
counsel for the petitioners has also stated
that any order condoning the delay in filing
appeal could not have been interferred with
by the revisional court in exercise of its
revisonal jurisdiction under Section 48 of
the Act.

7. In support of his contention, Shri
B.L.Mishra,
learned
counsel
for
the
petitioners has placed reliance on the cases
of Chikhuri Versus Joint Director of
Consolidation and others reported in
2006(101) RD 69, Abdul Karim Versus
Deputy Director Consolidation, Basti and
others reported in 2003(94) RD 186,
Mulajim and others Versus Deputy
Director of Consolidation, Deoria and
others, reported in 2001(92) RD 596,
N.Balakrishnan Versus M.Krishnamurthy
reported in 1998 (89) RD 607 (SC) and
State
of
Bihar
and
others
Versus
Kameshwar Prasad Singh and another
with
other
connected
Civil
Appeals
reported in (2000) 9 SCC 94.

8. On the other hand, learned counsel
for the respondents, Shri B.R.Singh, in his
valiant attempt to convince the Court about
the lawfulness of the judgment and order
dated 17.02.2006 passed by the Deputy
Director of Consolidation, submitted that
the course adopted by the appellate court
while deciding the appeal on merit and
condoning the delay simultaneously is
legally not tenable. He has further submitted
that the application for condonation of delay
ought to have been decided first by the
learned appellate court and thereafter, the
matter should have been listed for its
disposal on merit. In support of his
contention,
learned
counsel
for
the
respondents has placed reliance on the
judgment of this Court in the case of Girja
Shanker and another Versus Deputy
Director of Consolidation Bhadoi, Camp
at Gyanpur and others reported in
1996(87) RD 465, He submitted that this
Court in the said case of Girja Shanker
and another Versus Deputy Director of
Consolidation Bhadoi, Camp at Gyanpur
and others (Supra) has categorically held
that the matter relating to Section 5 of the
Limitation Act is to be disposed of first and
further if, the application under Section 5 of
Limitation Act is allowed, the appeal is to
be listed for disposal on merit and in case,
the
application
under Section
5
of
Limitation Act is rejected, the appeal shall
also be dismissed as barred by time.
Learned counsel for the respondents has
further argued that there can not be a
composite order allowing the application
moved for condonation of delay in
preferring appeal and deciding the appeal
on merit. He also placed reliance in support
of his contention on another judgment of
this Court in the case of Bhagwat and
others
Versus
Deputy
Director
of
Consolidation and others reported in 1990
RD 162.

9. I have considered the rival
submissions made by learned counsels
appearing for the parties and have also gone
through the material available on record.

10. The argument on behalf of learned
counsel for the petitioners primarily is that
the judgment of the Deputy Director of
Consolidation is based on absolutely
incorrect appreciation of the finding
available on record, in as much as though
the Deputy Director of Consolidation has
recorded a finding that the appellate court
810 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
allowed the appeal without condoning the
delay but in fact the delay was condoned
and the appeal was allowed.

11. Per contra, the submission of the
learned
counsel
appearing
for
the
respondents centres around the judgment of
this Court in the case of Girja Shanker and
another
Versus
Deputy
Director
of
Consolidation Bhadoi, Camp at Gyanpur
and others (Supra). On the basis of the said
judgment, as noted above, it has been
submitted on behalf of the respondents that
after disposal of the application moved by
the petitioner under Section 5 of Limitation
Act, the appellate authority ought to have
given an opportunity to argue the case and
not by doing so, the appellate authority has
not
followed
the
established
legal
procedure.

12. While taking into consideration
the aforesaid arguments made by the
learned counsels for the parties , it is to be
noted that condonation of delay is, in fact, a
matter of discretion of the Court and once
the explanation submitted by a litigant for
moving the Court after some time, is found
sufficient by the court concerned, it is the
result of the positive exercise of discretion
which should normally not be disturbed by
a superior court. Regard can be had to the
observations made by the Hon'ble Supreme
Court in the case of N.Balakrishnan Versus
M.Krishnamurthy (Supra) in this regard,
which has been relied upon by learned
counsel for the petitioners. The relevant
extract of the said judgment in respect of
exercise of discretion by the court while
considering an application for condonation
of delay in the case of N.Balakrishnan
Versus M.Krishnamurthy (Supra) runs 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."

13. It is also to be noticed that the
Deputy Director of Consolidation while
passing the impugned order has clearly
recorded a wrong finding that the appellate
court has decided the appeal on merit
without condoning the delay. A perusal of
the appellate order clearly reveals that the
appeal was allowed after condoning the
delay by the appellate court. As regards the
emphasis of the learned counsel appearing
for the respondents on the argument that the
application for condoning the delay ought to
have been decided first and thereafter the
appeal should have been fixed further for
hearing on merits, reference may be made
to a judgment of this Court reported in the
case of Abdul Karim Versus Deputy
Director Consolidation, Basti and others
(Supra) wherein it has been held that there
does not appear to be any harm if the
appellate authority is permitted to hear
arguments on both aspects together i.e. the
question of limitation as well as merits. The
judgment in the case of Abdul Karim
Versus Deputy Director Consolidation,
Basti and others (Supra) is by Hon'ble
Single Judge and the judgment being relied
upon in the case of Girja Shanker and
another
Versus
Deputy
Director
of
Consolidation Bhadoi, Camp at Gyanpur
and others (Supra) by the learned counsel
for the respondents is also by Hon'ble
Single Judge. However, it is noticeable that
the judgment in the case of Abdul Karim
Versus Deputy Director Consolidation,
Basti and others (Supra) has been rendered
2 All] Laxman and 9 others V. D.D.C., Gonda & 6 others
811
at a later point of time, as such, as per
settled law of precedence, the later
judgment of a Co-ordinate Bench is to be
followed. Accordingly, I am in agreement
with the law laid down by the Hon'ble
Single Judge in the case of Abdul Karim
Versus Deputy Director Consolidation,
Basti and others (Supra) . In this view, the
contention of the learned counsel for the
opposite parties does not merit acceptance
and hence, the same is rejected.

14. Further, it is to be noticed that the
alleged compromise , a copy of which has
been annexed as Annexure no.2 to the writ
petition, does not contain either thumb
impression or the signatures of all the
persons who were parties before the
Consolidation Officer. The order of the
Consolidation Officer is also transcribed on
the said compromise itself where no
satisfaction of the Consolidation Officer has
been recorded that the parties of the case are
signatories to the compromise.

15. The Assistant Settlement Officer,
Consolidation has gone into the evidence
and material available on record while
passing order dated 23.11.2005 and has
recorded the finding that the order by the
Consolidation Officer on the basis of the
compromise was passed on 11.11.1979,
which being a Sunday, was a Holiday and
further that on the said Sunday no Lok
Adalat was organized. After discussing the
material available on record at length, the
order by the appellate authority was passed
on 23.11.2005 whereby the matter has been
remanded to the trial court for decision of
the case afresh after affording opportunity
to the parties concerned to lead their
evidence and thereafter, to give opportunity
of hearing. However, learned Deputy
Director of Consolidation, without making
any comment or without upsetting the
finding recorded by the learned Assistant
Settlement Officer, Consolidation in the
appellate order, has only observed in the
impugned order dated 17.02.2006 that the
appeal was decided by the appellate court
without condoning the delay.

16. As observed above, the aforesaid
finding recorded by the Deputy Director of
Consolidation is against the record which is
explicit from a bare perusal of the order
passed by the Assistant Settlement Officer
Consolidation, Gonda. The order by the
appellate court, in the instant, case was
passed while condoning the delay in
moving the appeal and as such in view of
the law laid down by this Court in the case
of Chikhuri Versus Joint Director of
Consolidation and others (Supra), this
Court, in the instant case, is of the view that
the Deputy Director of Consolidation,
Gonda ought not have interferred with the
order passed by the Assistant Settlement
Officer, Consolidation, Gonda.

17. So far as the power to condone the
delay conferred to the courts is concerned,
regard may be had to the judgment of the
Hon'ble Supreme Court in the case of State
of Bihar and others Versus Kameshwar
Prasad Singh and another with other
connected Civil Appeals (Supra) wherein, it
has inter-alia been observed that the power
to condone the delay in approaching the
court has been conferred to do substantial
justice to the parties by disposing the matter
on merits.

18.

Looking
into
over
all
circumstances of the case and the general
legal principles regarding condonation of
delay laid down by the Hon'ble Apex Court
in the case of State of Bihar and others
Versus Kameshwar Prasad Singh and
another with other connected Civil Appeals
812 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
(Supra)
and
also
in
the
case
of
N.Balakrishnan Versus M.Krishnamurthy
(Supra), this Court is of the definite view
that the order passed by the Assistant
Settlement Officer Consolidation, Gonda
could not have been interferred with by the
learned Deputy Director of Consolidation,
Gonda.

19.

Learned
counsel
for
the
respondents has also placed reliance on the
judgments reported in (2003)SCC 257,
Jamal Uddin Ahmad Versus Abu Saleh
Najmuddin and another and (2002) 1 SCC
633,
Commissioner
of
Income
Tax,
Mumbai Versus Anjum M.H.Ghaswala and
others. The said judgments do not come to
the rescue of the respondents as the case of
Jamal Uddin Ahmad (Supra) pertains to
Representation of People Act, 1951 and
discusses the principles of Exercise of
Statutory Power in a manner prescribed by
the Statute. As regards the case of Anjum
M.H.Ghaswala (Supra) it may be noted that
the said case also only lays emphasis on the
well accepted legal principle that where a
statute vests certain power in an authority to
be exercised in a particular manner, that
power has to be exercised only in that
manner. In view of the Court, these
judgments, thus have no application to the
present case.

20. In view of above, the writ petition
is allowed and the judgment and order dated
17.02.2006 passed by the Deputy Director
of Consolidation, Gonda in Revision
No.911
(Madhao
and
others
Versus
Luxman and others), under Section 48 of
the U.P.Consolidation of Holdings Act,
pertaining to Village Tulsipur Manjha,
Pargana
Nawabganj,
Tehsil-Tarabganj,
District Gonda is hereby, quashed. The
Consolidation Officer, Gonda shall decide
the matter afresh as per terms of remand
order dated 23.11.2005 passed by the
Assistant Settlement Officer Consolidation,
Gonda. The matter by the Consolidation
Officer,
Gonda
shall
be
decided
expeditiously, say within a period of six
months from the date of production of a
certified copy of this order before him.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.07.2012

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.

Misc. Bench No. 397 of 2012

Smt. Manju

 ...Petitioner
Versus
State of U.P. Through Prin. Secy. Urban
Development Deptt. L ...Respondents

Counsel for the Petitioner:
Sri Sharad Pathak

Counsel for the Respondents:
C.S.C.
Sri Hemant Kumar Mishra
Sri Ram Kumar Singh

Constitution of India. Article 243-E (243-4)
tenure of chairperson of Nagar panchayatfirst date of meeting-administrating oath
of Chairperson-can not be treated starting
point
for
the
period
of
tenure-but
subsequent adjourned date for want of
Quorum-shall be taken into considerationas such the period of 5 years-expire on
15.01.2012-any suggestion apart from
that-held misconceived.

Held: Para 19

In the instant case, admittedly a meeting
was held on 17.11.2006 and in the said
meeting only the oath was administered to
the members and the Chairperson of the
Nagar Panchayat. As has been held by the