HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Case :- WRIT - B No. - 41017 of 2013 Petitioner :- [ENTITY] And 3 Others Respondent :- [ENTITY] And 2 Others Counsel for Petitioner :- [ENTITY] Counsel for Respondent :- [ENTITY], [ENTITY], [ENTITY] Hon'ble [ENTITY] (Maurya),J.
1. Heard Sri [ENTITY], counsel for the petitioner and Sri [ENTITY], counsel for the respondents.
2. The writ petition has been filed for quashing the order of Consolidation Officer (respondent-2) dated 10.04.2013 passed in title proceeding under [ACT] (hereinafter referred to as the Act) and for issue of writ of prohibition, prohibiting the Consolidation Officer (respondent-2) from proceeding with [CASE NUMBER] [ENTITY] and others Vs. [ENTITY], pending before him.
3. The dispute relates to the land recorded in khata 39 (consisting plots 1774, 1775, 1776, 1777, 1778, 1856, 1847, 1858, 1859, 1860, 1861, 1862, 1863, 1865, 1770, 1771, 1772, 1764 and 1794) of village Madho Nagar, tappa Banki, pargana Haveli, district Gorakhpur (now Mahrajganj). In basic consolidation year, the land in dispute was recorded in the name of [ENTITY] (respondent-3). [ENTITY] son of [ENTITY] and Smt. [ENTITY] wife of [ENTITY] (now represented by the petitioners) filed an objection (registered as [CASE NUMBER]) under [SECTION] of the Act, claiming their sirdari rights over the land in dispute, on basis their possession for more than statutory period of limitation. It is alleged that a written compromise dated 04.02.1992 signed by all the parties was filed before the Consolidation Officer, who on the basis of the compromise, by order dated 04.02.1992, allowed the objection, giving 1/2 share to the petitioners in disputed land.
4. [ENTITY] (respondent-3) filed an application on 15.02.1992 before the Consolidation Officer (respondent-2) for recall of the orders dated 05.01.1991 and 04.02.1992 passed in the aforesaid case. It has been stated by respondent-3 that he was bhumidhar of the land in dispute and his name was recorded in basic consolidation record. No objection has been filed during consolidation, as such his name continued in the final consolidation record and village was notified under [SECTION] of the Act. After notification under [SECTION], an objection has been filed before Consolidation Officer, Deewan Bazar, Gorakhpur and a fabricated compromise was filed, forging his signatures on it and the order dated 04.02.1992 has been secured on it. It was alleged that village in question was never within the jurisdiction of Consolidation Officer Deewan Bazar. Entire proceedings has been fabricated and order passed in it, was without jurisdiction. The application of respondent-3 has been allowed by the Consolidation Officer on the same day on 15.02.1992 and the order dated 04.02.1992 has been recalled and 15.03.1992 has been fixed for hearing.
5. [ENTITY] filed a revision (registered as [CASE NUMBER]) from the aforesaid order. Deputy Director of Consolidation, Gorakhpur heard the revision and by the order dated 28.07.2000 held that the recall application was allowed on the same day without giving any opportunity of hearing to parties. On this finding, the revision was allowed and order dated 15.02.1992 was set aside and the matter was remanded to the Consolidation Officer to decide the recall application afresh after hearing the parties. Respondent-3 filed a writ petition (registered as [CASE NUMBER]) against the aforesaid order. It has been stated that in the meantime [ENTITY] died on 20.07.2002 and Smt. [ENTITY] died on 3.3.2005 and their heirs were substituted in the writ petition on 8.4.2007.
6. It appears that after dismissal of the aforesaid writ petition, the proceedings before the Consolidation Officer was started, in pursuance of the order of Deputy Director of Consolidation dated 28.07.2000. The petitioners appeared before the Consolidation Officer and filed an application dated 11.11.2011 for dismissing the recall application as abated on the ground that no application for substitution has been filed for substituting the heirs of [ENTITY] (died on 20.07.2002) and Smt. [ENTITY] (died on 03.03.2005). When no order has been passed on this application, the petitioners filed a writ petition (registered as [CASE NUMBER]) before this Court, which has been disposed of by order dated 04.02.2013, directing the Consolidation Officer to decide the application of the petitioners. The Consolidation Officer thereafter heard the application of the petitioners and by his order dated 10.04.2013 held that on the death of [ENTITY], his widow Smt. [ENTITY] was substituted by the order dated 21.12.2002. However no application for substituting the heirs of Smt. [ENTITY] has been filed. He further held that recall application is not abated. As such respondent-3 was directed to file substitution application in respect of deceased parties. Thereafter respondent-3 has filed an application dated 01.05.2013 for substituting the heirs of Smt. [ENTITY] and Smt. [ENTITY]. The petitioners have filed an objection on 29.05.2013 to the aforesaid substitution application, which is still pending. The petitioners have filed this writ petition on the ground that the proceeding of the recall application has been abated as such, the Consolidation Officer be prohibited from proceeding with the hearing of the recall application filed in [CASE NUMBER] [ENTITY] and others Vs. [ENTITY] and for quashing the order of Consolidation Officer dated 10.04.2013.
7. The counsel for the petitioner submitted that [SECTION] of the [ACT], provides 90 days limitation for filing the substitution application. If the substitution application is not filed within the said period, the proceeding abates against the deceased party under [SECTION] [ACT] [SECTION] of the [ACT], provides 60 days limitation for filing an application for setting aside abatement under [SECTION] [ACT] In the present case, [ENTITY] died on 20.07.2002, Smt. [ENTITY] died on 03.03.2005 and Smt. [ENTITY] died on 19.04.2008. Respondent-3 had knowledge of the death of aforesaid persons but has not filed any application for substituting their heirs within time. No application has been filed for setting aside abatement. [ENTITY] and Smt. [ENTITY] were only contesting party. The proceeding of recall application filed by respondent-3 in [CASE NUMBER] [ENTITY] and others Vs. [ENTITY] has been abated and liable to be dismissed. The recall application has been abated and writ of prohibition is liable to be issued prohibiting the Consolidation Officer from proceeding with the case. He relied upon the judgment of Supreme Court in [PRECEDENT]. Relying upon the judgment of this Court in [PRECEDENT], he submitted that provisions of [SECTION] [ACT] are applicable to the proceedings before the Consolidation Courts.
8. In reply to the aforesaid arguments, the counsel for respondent-3 submitted that [ACT] is a special Act. For regulating the various proceedings under the Act, separate procedures have been prescribed under the Act and the Rules framed in it. By virtue of [SECTION] of the Act, provisions of [SECTION] of [ACT] has been applied. However the provisions of [ACT] have not been applied as held by this Court in [PRECEDENT], [PRECEDENT], [PRECEDENT] and [PRECEDENT]. As such no question of abatement arises at all. He further submitted that the heirs of the deceased parties have already been substituted in [CASE NUMBER], arising out of the same proceeding between the same parties. At that time also, the recall application was pending before the Consolidation Officer as such even if it is held that [ACT] is applicable then also there will be no abatement, as the heirs of deceased parties have been substituted at one stage of the proceedings and respondent-3 has filed a formal application for bringing the heirs of the deceased parties on record before the Consolidation Officer. The writ petition is misconceived.
9. I have considered the arguments of the counsel for the parties and examined the record. The first point argued by the counsel for the petitioner is that the consolidation authorities are courts of judicial proceedings, as such, provision of [ACT] ([ACT]) are applicable for conducting the proceedings before the consolidation authorities. In support of his argument, he has relied upon the judgment in the case of [PRECEDENT]. In paragraph 10 of the aforesaid judgment, the court held that [SECTION] of the [ACT] provides that proceedings before the consolidation courts are judicial proceedings and the provisions of [SECTION] of [ACT] are also applicable, meaning thereby that the proceedings before the consolidation courts are judicial proceedings and as such, the provisions of [ACT] are squarely applicable. For arriving to the conclusion that the proceedings before consolidation courts are judicial proceedings and the provisions of [ACT] are applicable, the court relied upon [SECTION] of the Act which is quoted below: -
"40. Proceeding before Settlement Officer, Consolidation, Consolidation Officer and Assistant Consolidation Officer to be judicial proceedings - A proceeding before a [Director of Consolidation, Deputy Director, Consolidation], Settlement Officer, Consolidation, Consolidation Officer and Assistant Consolidation Officer shall be deemed to be a judicial proceeding within the meaning of [SECTION] and [SECTION] and for purposes of [SECTION] of the [ACT]."
A bare perusal of [SECTION] shows that it is for the purposes of [SECTION] of [ACT] ([ACT] within the meaning of [SECTION] and [SECTION] [ACT], the proceedings before the consolidation authorities shall be deemed to be judicial proceedings. [SECTION] [ACT] makes a provision for punishment for false evidence in any judicial proceeding given by the parties. [SECTION] [ACT] makes a provision for punishment to the person who issues or signs any certificate required by law to be given or signed or relating to any fact of which such certificate is by law admissible in evidence, knowing or believing that such certificate is false in any material point, while [SECTION] [ACT] deals with intentional insult or interruption to public servants sitting in judicial proceeding. Thus, the legal fiction given u/[SECTION] is only for taking a penal action against a person intentionally giving false evidence, issuing or signing false certificate and insulting or interrupting the public servants sitting in judicial proceeding. The legal fiction has noting to do with the proposition that the consolidation authorities are the courts within the meaning of [ACT].
10. Civil Courts are constituted under [SECTION] of the [ACT] and [ACT]. [SECTION] of the Act categorizes the civil court as (i) District Judge, (ii) Additional District Judge, (iii) Civil Judge (Sr. Division), and (iv) Civil Judge (Jr. Division) (as amended in U.P.). Thus, the consolidation authorities are not coming in any of the aforesaid categories. Similar matter has been considered by the Full Bench of Patna High Court in [PRECEDENT], in which it has been held that the Deputy Collector and Collector while trying cases or hearing appeals under [ACT] are Revenue Courts and not Civil Courts, although they may be trying suits or proceedings of civil nature. This issue again came up for consideration before the Full Bench of this Court in [PRECEDENT]. Paragraphs 32 and 35 of the judgment are relevant, which are quoted below: -
"32. It may now be seen as to whether the various authorities constituted under the Act are governed by the [ACT] in the matter of procedure. On an examination of the various provisions of the Act it would appear that all the provisions of the [ACT] have not been made applicable to the proceedings under the Act. Some limited powers have been specifically given under [SECTION] and enlarged by [SECTION], which have been again supplemented by [SECTION], which says that the provisions of [SECTION] of the [ACT], shall apply to all proceedings under the Act. On a perusal of the provisions of [SECTION] and [SECTION] it would appear that they make a mention of the application of only some provisions of the [ACT]. In the same way the provisions in [SECTION] of the [ACT] show that all the provisions of the [ACT] have not been made applicable to the proceedings under that Act also. As such, it could not be held that all the provisions of the [ACT] have been made applicable to the proceedings under the Act. Had the intention of the legislature been to make all the provisions of the [ACT] applicable to the proceedings under the Act, it could have said so just in one sentence.
35. It would thus appear that the various authorities constituted under the Act can neither be held to be Courts of civil jurisdiction nor governed by the [ACT] in the matter of procedure. It follows, therefore, that the petitioners cannot verify the affidavits to be filed before the various authorities constituted under the [ACT]."
Thus, it has been authoritatively held by this Court that the various authorities constituted under the Act can neither be held as courts of civil jurisdiction nor governed by [ACT]. In view of the law laid down by the Full Bench, the contrary view taken by the Single Judge without taking any notice to the Full Bench decision is per incurium and is not binding. Supreme Court in [PRECEDENT], held that [SECTION] of the [ACT] provides that in the absence of any special provision to the contrary, the provisions of the Code does not limit or affect any special or local law. The provisions of [ACT] have not been applied and in case principles of [SECTION] and [SECTION] are imported to the proceedings before the consolidation authorities, then it will certainly limit and affect the provision of the [ACT].
11. [SECTION] [ACT] saves the jurisdiction of the Special Court while [SECTION] [ACT] excludes the application of the provisions of the Code to the Revenue Courts. [SECTION] provides that the Consolidation Officer shall dispose of the cases in the manner prescribed. The manner/procedure has been prescribed under [SECTION] of [ACT], in which hearing of the parties, framing of issues on the points in dispute, taking evidence, both oral and documentary and deciding the objection are the requirements. In discharging the aforesaid functions, [SECTION] of the Act confers jurisdiction upon the consolidation authorities to enforce attendance of the witnesses. Thus, there is only requirement of providing opportunity of hearing to the parties.
12. In such circumstances, the provisions of [SECTION] and [SECTION] [ACT] which provides for abatement of the suit and proceeding for not filing the substitution application within 90 days of the death of the parties will not automatically apply to the proceeding before the consolidation authorities and in view of [SECTION] [ACT], the special provisions regulating the proceedings before the consolidation authorities will have overriding effect and the provisions of [ACT] will not be imported to the proceeding in the consolidation. The case law relied by counsel for the respondents in the cases of [PRECEDENT], [PRECEDENT], [PRECEDENT] and [PRECEDENT] as well as the Full Bench judgment of this Court in [PRECEDENT] squarely cover the controversy. In such circumstances, the argument of counsel for the petitioner is not liable to be accepted.
13. Even if in the proceedings before the Civil Court, it has been held by the Privy Council in [PRECEDENT] that substitution of deceased party's legal representative in the appeal arising out of interlocutory order would enure for the benefit of the suit and no separate application for substitution is necessary thereafter in the suit.
14. The aforesaid judgment of Privy Council has been followed by Orissa High in [PRECEDENT] and Kerala High Court in [PRECEDENT]. In this case, the heirs of deceased parties have already been substituted in [CASE NUMBER] arising out of the same proceeding between the parties. During pendency of the writ petition, the proceeding before the Consolidation Officer was pending, as such, there will be no abatement and substitution of the heirs in the writ petition is sufficient and enure for the benefits of the objection and recall application filed in it. Formal application filed by respondent-3 for correcting the array of the parties, substituting the heirs of deceased parties is sufficient compliance.
15. In view of the aforesaid discussion, I do not find any illegality in the order of the Consolidation Officer. The proceedings of recall application filed by respondent-3 in [CASE NUMBER] [ENTITY] and Others v. [ENTITY], pending before the Consolidation Officer, has not been abated. Writ of prohibition cannot be issued, prohibiting the Consolidation Officer to proceed with the hearing of the recall application. The writ petition has no merit and is dismissed.
Order Date :- 19.08.2013 mt