(Oral)
1. Heard Sri Anoop Srivastava, learned counsel for the petitioners, Sri Upendra Singh, learned standing counsel and Sri Dilip Kumar, learned counsel appearing on behalf of the Gaon Sabha.
2. This petition has been filed challenging the order dated 13.01.2021 passed by the Deputy Director of Consolidation, Nighasan, Lakhimpur Kheri, in Revision No.2627 under Section 48(3) of the Consolidation of Holdings Act on an application made by one Muneem Singh dated 07.06.2012, wherein the DDC has found on consideration of all documentary evidence that a fraudulent entry had been made in C.H. Form 45 with regard to the land of Gata No.1054 ad-measuring 7.70 acres which had continued to be recorded for the past several years as Naveen Parti land and on which the Gaon Sabha, Land Management Committee had granted pattas to several persons including the applicant Muneem Singh.
3. The Land Management Committee Village Teliyar had made proposal on 17.10.2007 to the Sub Divisional Officer Nighasan, which was approved on 13.10.2007 for grant of patta to the applicants Muneem Singh and others of 0.202 hectares each. When the Revenue Officials of the Tehsil concerned tried to hand over possession of the land given on patta, the father of petitioners herein Shiv Prasad stopped them from delivering such possession saying that the land was recorded in his name as Bhumidhar with transferable rights.
4. At the time of grant of leases/ pattas, the land had been recorded in Naveen Parti Khata of Gaon Sabha but due to connivance of officials of the Revenue Department, the land was recorded in the name of the petitioner as his Bhumidhari.
5. The petitioners' case is that the order which has been set aside by the DDC was passed on 10.08.1987 in Revision No.2627 under Section 48(3) in a case filed by Shiv Prasad s/o Balkhera, the father of the petitioners, with regard to Gata No.1054 M area 1.70 and Gata No.1026 M area 1.00. The application for recall was filed by the respondent nos.2 to 5 after 25 years in 2012 and Shiv Prasad after being served notice had also appeared and his counsel had filed his power. The application was dismissed for non-prosecution on one occasion and thereafter its restoration was allowed by the DDC without issuing any fresh notice to Shiv Prasad, as a result whereof he could not appear to plead his case.
6. It has also been submitted by learned counsel for the petitioners that in the meantime the father of the petitioners, namely, Shiv Prasad, the erstwhile tenure holder, died on 20.10.2020 and the order has been passed against a dead person and is thus a nullity in law in view of the observations made by Hon'ble Supreme Court in Jadu Nandan Ram Vs. Parsotam Ginning Co. Ltd; AIR 1930 ALL 636, which has been relied upon by the Co-ordinate Bench of this Court in the case of Ajeet Gupta Vs. Mukteshwari Nigam; 1985 (3) LCD 68.
7. Learned counsel for the petitioners has placed before this Court paragraph-15 of the judgment rendered by the Co-ordinate Bench in Ajeet Gupta (supra), to say that since the order impugned has been passed by the DDC without noticing the fact that Shiv Prasad, the recorded tenure holder was dead, such order cannot be said to have been legally passed and ought to be set aside by this Court.
8. This Court on perusal of the order impugned finds that the applicants therein, the respondent nos.2 to 5 on being granted patta had approached the Revenue Officials for delivery of possession but when delivery of possession was attempted, the petitioners' predecessor-in-interest had stopped them from taking possession. Thereafter, when the revenue records were examined, it was found that since past several years, the land in question had been recorded as Naveen Parti land but in the Khatauni of 1403 to 1408 Fasli, the name of Shiv Prasad was recorded as Bhumidhar with transferable rights. It came into the knowledge of the applicant that it was on the basis of a entry made in C.H. Form 45. A restoration application was filed praying for recall of order dated 10.08.1987 without further delay. The predecessor-in-interest Shiv Prasad had appeared on service of notice through registered post and had filed his Advocate's power also and when the case was taken up, an objection was filed on 25.04.2015 saying that in a Revision made earlier bearing No.2627, the order of the DDC had been passed and after 25 years, no application for restoration/ recall of such order can be entertained. It was also stated by father of the petitioners that the objections regarding limitation/ delay should be considered first before proceeding on the merits of the case by the DDC.
9. The DDC therefore, looked into the delay and the merits of the case simultaneously while passing the order impugned. In the order impugned, the DDC after examining documentary evidence has come to the conclusion that C.H. Form 45 on which the entry of the petitioners' father was alleged to have been made was not deposited along with other records relating to consolidation operations in the Revenue Record Room. The report of the Revenue Record Keeper dated 29.11.2014 stated clearly that neither any case of the number as referred to hereinabove i.e. Revision No.2627 under Section 48(3) was ever filed nor it was registered nor there was any evidence of it having been ever heard, or such order having been passed by the DDC. Moreover, Shiv Prasad, the father of the petitioners also not produced the certified copy of the order allegedly made on C.H. Form 45.
10. It was also found by the DDC on examination of the copy of the order dated 10.08.1987 produced before him by Shiv Prasad that going against the settled practice of scoring out blank spaces of C.H. Form 45 to prevent fraudulent entries; in the case of the father of the petitioners, the line that was diagonally drawn to score out the empty space was somehow managed in such a manner that the entry came to be recorded in the empty space just before the diagonal line. It was apparently a fraudulent entry.
11. This Court has perused annexure-2, which is a copy of C.H. Form 45, and does not find any infirmity in the observations made by the DDC with regard to the entry being fraudulent as it is apparent to the naked eye that it has been managed to be transcribed in such a manner that it fits into the empty space of the diagonal line drawn scoring out the page.
12. The DDC has also referred to the judgment of this Court and of the Board of Revenue, namely, 2010 (110) R.D. 736 Daharilal and others Vs. DDC and others, and 2007 (102) RD 564 Hiralal Vs. Shambhu Prasad and others, wherein it was observed that an order obtained by playing fraud can be set aside and as such there is no embargo of limitation for setting aside such an order, and also that the person playing fraud should not be benefited in the garb of the intricacies and technicalities of law.
13. The DDC in the order impugned has also referred to the judgment rendered by Hon'ble Supreme Court in Gama Vs. Board of Revenue; 2015 (126) R.D. 334, wherein the Supreme Court has observed that limitation starts running from the date when the fraud is discovered for the first time by the aggrieved person. Admittedly, the fraud was discovered only after the respondent nos.2 to 5 were granted patta by the Land Management Committee and an attempt was made by the revenue officials to deliver possession of land in question to the allottees.
14. The DDC has also referred to the provisions of Consolidation of Holdings Act wherein Section 48(3) provides for a Reference to be made and a Revision is entertained only under Section 48(1). There was no Reference ever made by any Subordinate consolidation court under Section 48(3) of the Act. The order impugned does not suffer from any illegality or infirmity.
15. This Court now comes to the objection taken by learned counsel for the petitioners that the order impugned was passed against a dead person as Shiv Prasad had died on 20.10.2020 and the order was passed on 13.01.2021.
16. It is apparent that after 2015 when the petitioners' father had filed his objection to the application for recall/ restoration, he had not appeared nor did his counsel appear before the DDC during hearing of the case.
17. The Supreme Court in Puran Singh vs State of Punjab, (1996) 2 SCC 205, was considering the appeal against an order passed by the High Court dismissing the writ petition arising out of consolidation proceedings on the ground that the legal heirs and representatives of one Bir Singh who was the beneficiary of the order impugned and had died during the pendency of the writ petition, had not been substituted. The Supreme Court placed reliance upon judgement rendered in Girijanandini Devi versus Bijendra Narain Choudhary 1967 (1) SCR 93 and observed in paragraph-4:- "Personal action dies with the death of the person on the maxim action personalis moritur cum persona. But this operates only in a limited class of actions Ex delicto, such as action for damages for defamation, assault or other personal injuries not causing the death of the parties, and in other cases where after the death of the party the granting of the relief would be nugatory (Girijanandini Devi vs Bijendra Narain Choudhary), but there are other cases where the right to sue survives in spite of the death of the person against whom the proceeding had been initiated and such right continues to exist against the legal representatives of the deceased who was a party to the proceedings. Order 22 of the Code deals with this aspect of the matter. Rule 1 of Order 22 says that the death of a plaintiff or defendant shall not cause the suit to abate as the right to sue survives. That is why whenever a party to a suit dies, the first question which is to be decided is as to whether the right to sue survives or not. If the right is held to be a personal right which is extinguished with the death of the person concerned and does not devolve on the legal representatives or successors, then it is an end of the suit. Such suit therefore cannot be continued. But if the right to sue survives against the legal representatives of the original defendant, then procedures have been prescribed in order 22 to bring the legal representative on record within the time prescribed....". The Court went on to observe that with regard to proceedings under Article 226 and 227 of the Constitution, an Explanation has been added by way of amendment in 1976 to Section 141 of the C.P.C. clarifying that Section 141 shall not be applicable to proceedings under Article 226 of the Constitution of India.
18. Section 141 of the Civil Procedure Code provides that the "procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction." However, the Supreme Court considered the question in greater detail and observed that it cannot be said that the High Court can pass an order without hearing the legal representatives of such deceased respondent even in cases where the right to sue survives against the legal representatives of such deceased respondent. If such legal representative is not brought on record, any order passed against the original respondent after his death shall not be binding on them because they have not been heard. The order of the High Court shall be deemed to have been passed against a dead person. If the right of the petitioner to pursue the remedy survives even after the death of the original respondent to the writ petition, then on the same principle even the right to contest that claim survives on the part of the legal representative of the deceased respondent. In such a situation, after the death of the respondent if the right to sue survives against the legal representatives of such a respondent, then the petitioner has to substitute the legal representative of such respondent before the writ petition can proceed and can be heard and disposed of. The petitioner has to take steps for substitution of legal representative within a reasonable time.......". The Court dismissed the appeal filed by the writ petitioners on this ground alone that they failed to substitute the respondent tenant by his legal heirs.
19. The Supreme Court considered the applicability of Section 141 again in Sardar Amarjeet Singh Kalra (Dead) by L.R. and others Vs Pramod Gupta (Dead) by L.R. and others, (2003) 3 SCC 272. The Constitution Bench of the Supreme Court observed that even in cases where Order 22 of C.P.C. is applicable, also assuming that the decree appealed against or challenged is joint and inseverable, as and when it is found necessary to interfere with the judgement and decree challenged before it, the Court can always declare the legal position in general and restrict the ultimate relief to be granted by confining it to those before the Court only, rather than denying the relief to one and all on account of a procedural lapse or action or inaction of one of the other parties before it. As far as possible, the Court must always aim to preserve and protect the rights of the parties and extend help to enforce them rather than denying the relief, and thereby render the rights themselves otiose, ''Ubi Jus Ibi Remedium', where there is a right there is a remedy being the basic principles of jurisprudence. Such a course would be more conducive and better conform to a fair reasonable and proper administration of justice. "Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizens under personal, property and other laws. Procedure has always been viewed as a handmaiden of justice and meant to hamper the cause of justice or lead to miscarriage of justice." The Supreme Court further observed that the "interest of justice would have been better served had the High Court adopted a positive and constructive approach then merely scuttled the whole process to foreclose adjudication of the claims of others on merits. The rejection by the High Court of the application to set aside abatement, condonation and bringing on record the legal representatives did not appear to be a just a reasonable exercise of the Court's power or in conformity with the object of the court to do real, effective and substantial justice. With the march and progress of law the new horizons explored and modalities discerned and the fact that the procedural laws must be liberally construed to really serve as a handmaiden, make it workable and advance the ends of justice, technical objections which tend to be the stumbling blocks to defeat and deny substantial and effective justice should be strictly viewed for being discouraged, except where the mandate of the law inevitably necessitates it."
20. Observations made by the Supreme Court in the case of Puran Singh (supra) and Sardar Amarjeet Singh Kalra (supra) were made in respect of applicability of Code of Civil Procedure in Jurisdiction exercised by the High Court under Article 226 & 227.
21. However this Court has specifically considered the applicability of section 139 to 141 of the the Civil Procedure, to proceedings under the Consolidation of Holdings Act. In Ram Bharose Lal vs Deputy Director of Consolidation UP Fatehpur, 1964 RD 441, a Division Bench of this Court considered the question whether proceedings before the Consolidation Officer can be termed to be "Court Proceedings". The Division Bench observed in paragraph 5 of the report that "it is not disputed that authorities under the consolidation of holdings act as tribunals for the purpose of deciding controversies arising under the Act. All Tribunals however, are not Courts and the question which has fallen for our consideration is whether these authorities are courts. For finding this out an examination of the provisions of the Act which may furnish clues one way or the other appears to be essential."
22. The Division Bench thereafter referred to the provisions of the Act and also to the judgements of the Supreme Court which refer to Courts "as those Tribunal which are set up in an organised state for the administration of justice. "By administration of justice is meant the exercise of judicial power of the State to maintain and uphold and to punish wrongs, whenever there is an infringement of a right or an injury, the Courts are there to restore the Vinculum Juris which is disturbed". After examining English Case Law also the Division Bench came to the conclusion that even if section 40 of the Consolidation of Holdings Act provides that proceedings before the Settlement Officer Consolidation, Consolidation Officer and Assistant Consolidation Officer shall be deemed to be judicial proceedings within the meaning of Sections 193 and 228 for the purposes of Section 196 of the Indian Penal Code, and Section 41 provides that the provisions of Chapter IX and X of the U.P. Land Revenue Act 1901 shall apply to all proceedings under the Act, the Consolidation Authorities cannot be said to be Courts although they may possess some of the "trappings of a Court" while hearing and deciding matters related to title on land. The observations made by the Division Bench in Ram Bharose Lal (supra) were affirmed by a Full Bench of this Court in Sita and others vs. State of U.P. and others; 1968 ALJ 144, and were reconsidered in another Full Bench decision of this court in Bijai Narain Singh vs. State of U.P. reported in 1969 ALJ 862. In the decision rendered by the Full Bench in Bijai Narain Singh (supra), the Full Bench of this Court considered the Consolidation of Holdings Act after amendments were carried out in the Act and the Rules in 1963 and in the light of subsequent observations made by the Supreme Court in a judgement rendered in Thakur Jugal Kishore Sinha vs. Sitamarhi Central Cooperative bank Ltd, AIR 1967 SC 1494; it nevertheless came to the conclusion that even if the consolidation authorities exercised some judicial functions also, they could not be said to possess all the attributes of a Court and could not therefore be considered to be Courts and the Code of Civil Procedure was also inapplicable to the Consolidation Authorities in deciding objections, appeals and revisions.
23. This Court also finds from the order impugned that it has been passed against the record and not against a person. The order impugned only finds the entry to be fraudulent and has therefore directed for its deletion from the records, and even in the case cited by learned counsel for the petitioners in Ajeet Gupta (supra), the Court had observed that it appeared that the Court had been kept in dark about the death of the predecessor-in-interest of the petitioners in the pending proceeding, and that is why the mistake crept in.
24. It is the duty of all Consolidation Courts to look after the interest of the Gaon Sabha and the State or local authority under Section 11 (c) of the Act, even though no objection has been filed by such authorities. If the DDC on examination of documentary evidence had found that the entry made out in favour of the father of the petitioners was a fraudulent entry made to the detriment of the Gaon Sabha, he was duty bound to direct for its deletion under the provisions of the Act.
25. Moreover, this Court is convinced that in such a case where illegality and the fraudulent entry is apparent to the naked eye, the extraordinary writ jurisdiction under Article 226 of the Constitution cannot be exercised in favour of such a litigant for setting aside the order dated 13.01.2021, which would revive a fraudulent entry dated 10.08.1987 in favour of the father of the petitioners.
26. This petition stands dismissed.
27. No order as to Costs.
Order Date :- 9.2.2021 Rahul