JUDGMENT S.K. Singh, J.
1. By means of this writ petition, petitioners have challenged the judgment of the Deputy Director of Consolidation, Banda dated 21.12.2004.
2. Learned counsel for the petitioners and learned State Counsel have been heard.
3. Facts in brief, will be sufficient to dispose of this writ petition.
4. Proceedings are under Section 9-A(2) of UPCH Act (hereinafter referred to as the Act) which is in respect to adjudication of dispute in respect to the title of parties. It is claimed that the grand father of the petitioners filed objection under Section 9-A(2) of the Act which was allowed by the Consolidation Officer by order dated 4.7. 1997. After about four years, respondent No. 4 filed a time barred appeal under Section 11(1) of the Act along with an application under Section 5 of Limitation Act. The petitioners filed objection to appeal and an application was moved that as the appellant has also filed Restoration Application before the Consolidation Officer, appeal is not maintainable and it is otherwise barred by time and therefore, the question of maintainability and the delay may be decided first. The appellate authority after hearing learned counsel for the parties, disposed of application/objection of the opposite party by giving a direction that the appeal will be heard on the question of delay, maintainability and on merits together on the next date. The order of appellate authority was affirmed by the revisional court by order dated 21.12.2004 and thus the petitioners are before this Court.
5. Submission of learned counsel for the petitioners is that as the respondent has already filed restoration application before the Consolidation Officer and otherwise also, the appeal was barred by time, objections were liable to be decided first before deciding the appeal on merits. It is submitted that the respondent having availed remedy of filing appeal, he cannot be permitted to avail two remedies so as to cause harassment to the petitioners.
6. In view of aforesaid submission, three questions arises for consideration of this Court.
i) If the order of Assistant Consolidation Officer /Consolidation Officer is said to he ex parte, then against that order whether appeal under Section 11(1) of the Act is maintainable or not ?
ii) If the appeal is filed by a party against the order of Assistant Consolidation Officer /Consolidation Officer and at the same time, he files restoration application what is the course to be adopted by the courts concerned ?
iii) If the appeal is to be decided by the Settlement Officer Consolidation which is barred by time and the opposite party objects the decision of appeal on merits and press for disposal of question of maintainability and delay then whether in each and appellate Court is required to decide the question of maintainability and delay as preliminary issue or the question of maintainability, delay and merits, all can be decided simultaneously.
7. All the three questions stated above as posed by this Court on its answer may have far reaching consequences as in most of the cases at all level of consolidation courts, they generally arise and therefore, this Court has given serious thought over the matter.
8. So far as the first question is concerned, the argument that against the order of Assistant Consolidation Officer /Consolidation Officer, if it is said to be ex parte, appeal is not maintainable, it appears to be based on some misconception. Needless to say that the appeal is creature of statute. Appeal is provided under Section 11 of the Act which will be useful to be quoted here.
"Any parry to the proceedings under Section 9-A aggrieved by an order of the Assistant Consolidation Officer or the Consolidation Officer under that section, may within 21 days of the date of the order, file an appeal before the Settlement Officer, Consolidation, who shall, after affording opportunity of being heard to the parties concerned, give his decision thereon which, except as otherwise provided by or under this Act, shall be final and not be questioned in any court of law."
9. A perusal of Section 11 quoted above, permits any party to the proceeding under Section 9-A(2) of the Act aggrieved by an order of the Assistant Consolidation Officer /Consolidation Officer under that section, to file an appeal. Thus, right has been given to every party to the proceeding under Section 9-A(2) of the Act to file appeal. The right conferred on a party to file appeal, has not been restricted to the party if he takes the ground that the order is ex parte. Thus, where the party who is filing appeal even if takes ground that the order is ex parte or the order is otherwise bad on merit, in both situation, he can file appeal. In view of aforesaid, submission that if the order of the Assistant Consolidation Officer /Consolidation Officer is said to be ex parte, the appeal will not be maintainable, deserves rejection and it is held that against the order of Assistant Consolidation Officer /Consolidation Officer passed in proceedings under Section 9-A(2) of the Act, in both class of cases, appeal would be maintainable.
10. So far as second question that if appeal has been filed by a party and at the same time, he has filed Restoration Application before the Consolidation Officer, then how the courts are to proceed, that needs more serious attention of this Court as that relates to, two simultaneous proceedings for same relief before two courts. Needless to say both courts are competent to grant the relief . It can not be doubted that if the order against which a party files appeal or wants to file appeal, is claimed to be ex parte then he has remedy to file recall application also before that very court on the ground that he was either not party or not served or he could not have an opportunity of hearing. It is not to be emphasized that this Court in a Full Bench Decision given in the case of Shivraji 1970 RD 562 has clearly held that consolidation authorities have got the power to recall an order on the ground of same being ex parte. Otherwise also, the provisions of Land Revenue Act are clear on issue. Thus the question is that on filing recall application before that very court and at the same time, on filing appeal which is also maintainable, what is the course open to the courts. There cannot be any dispute about the fact that against the order of Assistant Consolidation Officer /Consolidation Officer, relief can be given to the aggrieved party by both courts i.e. by Consolidation Officer in the recall application and also by the appellate authority in appeal. Thus, the aggrieved party can get relief from either of the courts. It is also not to be emphasized that if recall application filed by the party is rejected then still he has remedy to pursue the appeal and against the order rejecting recall application, he can take up the matter to appeal/revision but at the same time if appeal against the order of Assistant Consolidation Officer /Consolidation Officer is dismissed then probably the consolidation officer may not grant any relief against his earlier order as the same stood approved by the appellate order. Thus, it can be the concern and option of the aggrieved party to choose that he is to pursue which remedy first i.e. to pursue recall application or to pursue appeal. To restrict the action of the party to one court, there is reason behind it. If the concerned party is permitted to proceed, in both courts for getting the same relief then it may amount harassment to other side in various ways besides taking of the court's precious time. The opposite party will have to engage counsel in both courts to get learned advocate prepared on each and every date, probably to pay fee also on every date and needless to say that as the proceedings in lower courts goes on for long i.e. dates after dates are fixed and thus the move of aggrieved party against the order against which he has filed recall application and at the same time, appeal, if permitted to be pursued in two courts simultaneously that will cause hardship and injury to other side and in fact, that may not be in the interest of the applicant as well. In view of aforesaid, as and when aforesaid situation arises, on moving application/objection by the opposite party before either of the courts, it will be the concern of that court to ask the applicant that which proceeding he wants to pursue first i.e. before the Consolidation Officer or before the Settlement Officer Consolidation so that one proceeding may proceed and other may be kept in abeyance. Of course, it may be left open at the discretion and wisdom of the applicant who is to be permitted to choose his remedy in that respect. Thus, it is held that both remedies if aggrieved party has availed against the order of Assistant Consolidation Officer /Consolidation Officer, or at the same time, against the order of appellate authority before the revisional court, then he may be asked to get one proceeding stayed and thus both proceedings/remedies cannot be permitted to continue simultaneously.
11. So far as last question that if appeal filed by a party is barred by time or it is said to be not maintainable then whether these questions are to be dealt with as preliminary issue or all the questions including merits are to be dealt with simultaneously. Similarly there may be situation where there is a revision by a party which is also said to be barred by time and not maintainable and there may be case where objection itself under Section 9-A(2) of the Act is barred by time and that may be said to be not maintainable also and thus in all the three classes of cases, how the courts are to proceed in respect to the question of maintainability, limitation and merit is to be seen. For the reasons indicated class of cases covered by appeal and revision can be said to be one class and so far cases at the stage of Consolidation Officer, that may be of another class. So far as cases covered by appeal and revision is concerned, if they are barred by time and they are said to be not maintainable then all the question i.e. question of maintainability, limitation and merit are to be dealt with simultaneously as normally before appellate authority and the revisional court either of the party is not required to lead any evidence. Before these courts only arguments are to be advanced. If we permit the argument only on the question of limitation/maintainability then on decision either way, either of party, is to take up the matter to the revisional court in case of decision in appeal and in case of decision in revision to this Court upon which it is to take lot of time in attainting its finality. At the same time, if all the aspects are permitted to be dealt together all the questions in issue will stand finalised at one and same time which will save both sides of any harassment. Needless to say that unless the concerned court condones delay and takes a view that appeal/revision is maintainable, he cannot decide the matter on merits and thus, if technical objections are answered in favour of opposite party, matter ends there and if finding comes against the opposite party on preliminary issue, then judgment comes on merits also about claim of parties. By aforesaid process, none of the party can be said to have suffered in any manner and court's precious time is also saved. Against the decision of the court on all three issues together, a party feeling aggrieved by that decision has remedy to challenge the findings on each count before the higher forum. Take a case that if appeal filed by 'A' was wrongly held to be maintainable or delay was wrongly condoned and appeal was allowed on merit, then the opposite party while taking up the matter to revisional court can challenge that judgment on the ground that appeal was wrongly held to be maintainable and delay was wrongly condoned and thus in no way the opposite party by simultaneous decision on all counts can be said to have suffered. The only thing which has been said in the past and which is often argued in support of the plea that question of maintainability and delay is to be decided as preliminary issue is that unless court holds that the appeal /revision is maintainable and delay is to be condoned, the court has no jurisdiction to proceed on merits. This court is also not saying that unless the aforesaid things are answered in favour of appellant/revisionist, the courts have jurisdiction to proceed on merits. Nobody can say that unless delay in filing the appeal/revision is condoned and proceedings are held to be maintainable appeal/revision can proceed on merits. Thus, this Court is of the considered view that all the questions of maintainability, condonation of delay and merits are to be dealt together.
12. So far the class of cases, where the matter is at the stage of Consolidation Officer same procedure cannot be adopted. Disposal of objection on merits by Consolidation Officer has to take long time and lengthy procedure is there i.e. to say, filing of pleadings, framing of issue, leading of oral and documentary evidence. If all this takes place and then it is held that objection is not maintainable or delay in filing objection is not to be condoned then it will be too harsh for everybody and precious time of court will also be vested. Thus where objection is barred by time or it is said to be not maintainable, Consolidation Officer has to decide the same first as preliminary issue and then to proceed on merits. If hurdle of limitation and maintainability is over then parties are to be called upon to proceed for trial on merits. Thus, this Court is of the view that in the matters of appeal/revision, all the question of maintainability, delay and merits are to be dealt with together and in the matter before Consolidation Officer, preliminary objections are to be decided first before proceeding with the case on merits.
13. So far as case in hand is concerned, as the objection is that appeal is barred by time if the appellate authority has directed the parties to advance their arguments on question of maintainability, delay and merits together, in the light of view as has been taken by this Court, the order cannot be said to be faulty and thus the same has been rightly confirmed by revisional Court. So far the submission of learned counsel that restoration application has been also filed by the opposite party before the Consolidation Officer which is pending, suffice to say it is open for the petitioners to move application before either of the courts i.e. before the Consolidation Officer or the Settlement Officer Consolidation with a prayer that the applicant may be called upon to choose the form which he is to pursue first, upon which the opposite party will be called upon to give his option, so that one proceeding will proceed and other will be kept in abeyance.
14. For the reasons recorded above, this Court finds no infirmity in the impugned orders and thus writ petition is dismissed at the admission stage.