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Sita Ram Singh And Others v. State Of U.P And Others
Judgment Summary — S.N. Singh, J.
Factual and Procedural Background
This writ petition under Article 226 arises from consolidation proceedings in which chaks were carved out under Sec. 20 of the U.P. Consolidation of Holdings Act. Publication of proposals was made on 30 November 1963. On 29 June 1964 the petitioners filed an objection to the chaks, alleging they had not been served with the requisite C.H. Form 23 notice and that service and related entries were fraudulently handled because the Assistant Consolidation Officer and the Lekhpal were residing in the house of the contesting respondent, Radhey Shyam.
The Consolidation Officer, after receiving a report about non-service, condoned delay and directed that the matter be fixed for final disposal. Opposite party No. 5 (Radhey Shyam) appealed; the Settlement Officer (Consolidation) allowed the appeal, holding that service on one co-tenureholder (Sheo Nath) sufficed and that petitioners had not shown sufficient cause under Sec. 5, Limitation Act. A revision was preferred to the Deputy Director of Consolidation, who found manipulation in the consolidation records and concluded that service purportedly on Sheo Nath appeared to have been on Sheo Balak. The Deputy Director maintained the Settlement Officer's order but recommended action against colluding staff. The petitioners then filed the present writ challenging the Settlement Officer's and Deputy Director's orders.
At the outset the court noted and corrected a factual misapprehension: a statement that Sheo Balak was dead was withdrawn because Sheo Balak was in fact alive, a fact accepted by the respondents' counsel.
Legal Issues Presented
- Whether the petitioners' objections to the chak adjustment were barred by limitation, i.e., whether the limitation period began from service of notice on the tenure-holders and whether service on one co-tenureholder could constitute sufficient service for all co-tenureholders.
- Whether there was collusion or manipulation by consolidation staff in the service of notices, rendering the service irregular or suspicious and affecting the validity of subsequent orders.
- Whether the amended Act (Act No. VIII of 1963) or the earlier Act (Act No. XXXVIII of 1958) applied to the proceedings, given the date of publication (30 November 1963), and the consequences of that choice on jurisdiction to entertain appeals or revisions.
- Whether the orders of the Settlement Officer (Consolidation) and the Deputy Director of Consolidation should be quashed and the matter remitted to the Consolidation Officer for hearing on merits.
Arguments of the Parties
Petitioners' Arguments
- The objection filed on 29 June 1964 was not time-barred because limitation runs from the date of receipt of notice by the tenure-holders; the service purportedly relied on would have been on Sheo Balak alone (one co-tenureholder) and not on the petitioners or the other co-tenureholders (Sita Ram and Satya Narain), so limitation could not be invoked against petitioners Nos. 1 and 2.
- The Consolidation Officer correctly condoned the delay and ordered the case to be heard on merits.
- Authorities cited in support included Sheo Prasad v. Chhotey Lal (1966 R.D. 375) and Chandrika v. Deputy Director of Consolidation (1967 R.D. 125) to show that service on one co-tenant or the presence of another brother/counsel is not sufficient to deny an unheard co-tenant an opportunity to be heard.
Opposite Party No. 5's Arguments
- Petitioner No. 1 was the Pradhani of the village and had signed the document showing exchange of possession in pursuance of final allotment of chaks on 29 February 1964; given this, it was difficult to accept that the petitioners had no knowledge of the proceedings.
- Having regard to the Deputy Director's finding about service, this Court should not interfere under Article 226 with the factual conclusions reached by the consolidation authorities.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sheo Prasad v. Chhotey Lal — 1966 R.D. 375 | Where a petitioner has not been served personally, service on another co-petitioner (who has been doing pairvi) is not a substitute; each party must be given an opportunity to be heard. | The court relied on this authority to support the proposition that service on one co-tenureholder is insufficient to deny another co-tenureholder his right to be served and heard; used to justify quashing orders where a co-tenureholder was not served. |
| Lautavan v. Deputy Director of Consolidation — 1966 R.D. 89 | A person cannot be deemed to have notice of consolidation proceedings merely because his brothers had notice and appeared; failure to give notice to a person is a violation of principles of natural justice. | The court invoked this principle to conclude that absence of notice to some co-tenureholders violated natural justice and supported setting aside the impugned orders. |
| Chandrika v. Deputy Director of Consolidation — 1967 R.D. 125 | If circumstances indicate that a party and his counsel were not heard in revision, the revision order is liable to be set aside and the matter restored for hearing after giving an opportunity to be heard. | The court applied this principle to hold that where the probabilities suggest the party/counsel were not heard, the revisional orders should be quashed and the matter remitted for fresh consideration with opportunity to be heard. |
Court's Reasoning and Analysis
The court conducted a multi-part analysis grounded in the facts of service, principles of natural justice, cited case law, and statutory construction concerning which consolidation Act applied.
First, the court corrected a factual misstatement recorded earlier (a statement that Sheo Balak was dead) since Sheo Balak was alive; this eliminated any need to bring heirs of Sheo Balak on record.
Second, on the facts of service and the consolidation record, the court observed competing findings: the Settlement Officer had treated service on Sheo Nath as sufficient; the Deputy Director found manipulation suggesting service had been on Sheo Balak. The petitioners alleged collusion by consolidation staff (Assistant Consolidation Officer and Lekhpal) who resided with the contesting opposite party; while the opposite party denied collusion, he did not deny that the Assistant Consolidation Officer resided in his house. The court found these circumstances made it difficult to accept that the petitioners had actual knowledge of the carving out of chaks and that they would have failed to object if they had known.
Third, the court applied authorities on notice and natural justice (Lautavan; Sheo Prasad; Chandrika) to the effect that notice to one co-tenureholder or the presence of another who represented the family is not automatically notice to all, and an order made without giving a co-tenant an effective opportunity to be heard violates natural justice and is liable to be set aside. The court treated the suspicious character of service as a further reason favoring relief.
Fourth, the court addressed the statutory question of which consolidation Act applied. Publication occurred on 30 November 1963. The court held that Sec. 47(1) of Act No. VIII of 1963 applies, so the amended Act of 1963 governs these proceedings rather than the 1958 Act. The court noted, however, that if the old Act were held to apply the petitioners would be in a better position and the impugned orders could be quashed as without jurisdiction.
Fifth, the court analysed jurisdictional consequences: the Consolidation Officer had condoned delay and directed rehearing; such an order is not appealable under either Act, rendering the Settlement Officer's appeal decision without jurisdiction. The Deputy Director's revisional order would be within jurisdiction under the amended Act (1963), but would have been without jurisdiction under the 1958 Act (where revision lay only against a second appellate order). On these grounds the court concluded that the impugned orders should be quashed and the matter remanded for fresh decision on merits.
Finally, the court made clear that it expressed no opinion on the merits of the underlying consolidation dispute; once the orders are quashed the Consolidation Officer must decide the matter afresh on equities and merits without being influenced by the court's observations in this writ petition.
Holding and Implications
HOLDING: The petition is allowed; the orders of the Deputy Director of Consolidation dated 20 January 1966 and of the Settlement Officer (Consolidation) dated 29 January 1965 (annexures ‘C’ and ‘B’ respectively) are quashed.
Direct consequences:
- The matter is remitted to the Consolidation Officer to be heard and decided on merits after affording parties an opportunity to be heard.
- The court declined to express any view on the substantive merits of the consolidation dispute; the authority concerned must decide afresh and unhampered by the court's comments in the writ petition.
- The court determined that Act No. VIII of 1963 applies (publication dated 30 November 1963), a point affecting the applicable limitation and jurisdictional framework; the court noted that if the earlier Act applied petitioners' position would be even stronger on jurisdictional grounds.
No new legal principle was announced beyond the application of established authorities on notice, service and natural justice; the immediate effect is the quashing of the impugned orders and remand for rehearing.
Disposition: Petition allowed.
S.N Singh, J.:— Mr. Ram Surat Singh made a statement before me that under some misapprehension of fact he had earlier made a statement that Sheo Balak Singh was dead. As a matter of fact Sheo Balak Singh is alive and this fact has been accepted by Sri R.S Misra, learned counsel for the respondents. As such there is no necessity of bringing the heirs of Sheo Balak Singh on the record.
2. This petition under Art. 226 of the Constitution arises out of consolidation proceedings. It appears that chaks were carved out under Sec. 20 of the U.P Consolidation of-Holdings Act and necessary notices were issued. Necessary publication was also made on 30th November 1963. On 29th June, 1964 the petitioners filed an objection to the chaks already carved out by the Consolidation officer. The grievance of the petitioners was that they were not serve ed with any notice of C.H Form 23 and that every tiding was done in a fraudulent manner because the Assistant Consolidation officer and the Lekhpal were residing in the house of the contesting respondent, Radhey Shyam. The Consolidation officer called for a report and after having received the report about non-service on the petitioners condoned the delay and directed a date to be fixed for the final disposal of the case. Against the order of the Consolidation officer an appeal was preferred by the opposite party No. 5, Radhey Shyam. The appeal was allowed. The Settlement officer (Consolidation) was of the opinion that notice issued for the tenureholders was served on one Sheo Nath who was a co-tenureholder along with the petitioners. In view this was sufficient service and since no sufficient cause had been shown the petitioners were not entitled to the benefit of Sec. 5 Limitation Act. Accordingly, he set aside the order of the Consolidation officer and dismissed the objection filed by the petitioners.
3. A revision was preferred against the decision of the Settlement officer (Consolidation) and the Deputy Director of Consolidation was of the opinion that there was some manipulation done in the records of the consolidation authorities and that the notice showed that it was served not on Sheo Nath but really it appears to have been served on Sheo Balak. Having arrived at this conclusion, he maintained the order of the Settlement officer (Consolidation) but he was of the opinion that steps should be taken against the staff of the consolidation department who had colluded with one party or the other in the matter of service of the summonses. Against the orders of the Settlement officer (Consolidation) and the Deputy Director of Consolidation the present writ petition has been filed.
4. It has been contended on behalf of the petitioners that their objection was wrongly rejected by the Deputy Director of Consolidation and the Settlement officer (Consolidation) as barred by time. The contention is that the period of limitation for filing the objection started from the date of the service of the notice on the tenure-holder. In the instant case it is submitted that even accepting what the Deputy Director of Consolidation and the Settlement officer (Consolidation) have held, is correct, the service would be sufficient only on Sheo Balak, one of the co-tenureholders. The other two co-tenureholders Sita Ram and Satya Narain have not been proved to have been served with notice. Consequently, there was no question of limitation involved in the present case. The Consolidation officer in the circumstances of the case had rightly condoned the delay and directed the case to be heard on merits. The learned counsel supported his submission by citing the cases of Sheo Prasad v. Chhotey Lal 1966 R.D 375. and Chandrika v. Deputy Director of Consolidation 1967 R.D 125.. As against this submission it was pointed out by the learned counsel for the opposite party No. 5 that the petitioner no. 1 is a Pradhani of the village and actual exchange of possession in pursuance of the final allotment of chaks was done on 29th February 1964 and he had signed the document showing the exchange of possession over the chaks allotted to different tenureholders. It is contended that in such circumstances it is difficult to believe that the petitioners had no knowledge about it. Further it is submitted that on the finding recorded by the Deputy Director of Consolidation about service, this Court should not interfere under Art. 226 of the Constitution.
5. I have considered the respective submissions of the learned counsel for the parties. I am of the opinion that on the facts of the present case this is a fit case which should be allowed. There is allegation in the writ petition that the Assistant Consolidation officer and the Lekhpal were residing in the house of the contesting opposite party and these officials designedly concealed everything from the petitioners and sided with the opposite party no. 5. It is denied by the opposite party No. 5 that there was any collusion between the Assistant Consolidation officer and the opposite party no. 5 but the fact that Assistant Consolidation officer concerned was residing in his house was not denied. It is also admitted fact that there is a rice mill of the petitioners which is close to the disputed plot. It is difficult to believe that if these petitioners had knowledge about the carving out of the chaks, they would not have filed an objection. No reason has been shown as to why these persons did not file any, objection in spite of the knowledge of the carving out of the chaks to their detriment. Sec. 20(2) of the Consolidation of Holdings Act which is relevant for the purpose of this case provides 15 days limitation from the date of the receipt of the notice. This would mean that the notice should be served on the tenure holders concerned. In the instant case on the finding of the Settlement officer (Consolidation) one Sheo Nath was served with a notice who is said to be a co-tenure holder of the petitioners. According to the finding of the Deputy Director of Consolidation one of the co-tenure holders only was served. Thus in the case of the petitioners Nos. 1 and 2 there was no question of limitation. In Lautavan v. Deputy Director of Consolidation 1966 R.D 89., it was held that “a person cannot be deemed to have had notice of the proceedings for the adjustment of the chak of the third person merely because he is the brother of the remaining two petitioners who had notice of the proceedings and had appeared and had not objected to the adjustment proposed by the Consolidation officer. It is not improbable that the two brothers might have acted on their own. There is nothing on record to show that of the two brothers one is the manager of a joint family consisting of three brothers. It is not said that they constitute a joint family. As the third brother was not given notice of the proceedings the order of the Deputy Director of Consolidation is in violation of the principles of natural justice.”
6. In Sheo Prasad v. Chhotey Lal a learned Single Judge of this Court held that “where the revision was allowed but the order was passed without any notice on petitioner No. 1, the fact that petitioner No. 2 who had throughout been doing Pairvi on behalf of all the brothers was served was present and was heard cannot be accepted as sufficient. Petitioner No. 1 had to be served and an opportunity given to him to appear in person, of through counsel.”
7. In Chandrika v. Deputy Director of Consolidation it was held that if the circumstances and the probabilities of the case indicate that the counsel of a party was not heard and the party himself was also not present, the order passed in revision is liable to be set aside and the revision application restored to its original number to be heard and disposed of in accordance with law after giving an opportunity to the counsel of the party.”
8. Service according to the Deputy Director of Consolidation also appeared to be suspicious. In this view of the matter justice demanded that the order of the Consolidation officer who had only directed the case to be decided on merits should have been maintained. If the case is not decided on merits, there is every likelihood of grave injustice being done to the petitioner. After the orders of the Settlement officer (Consolidation) and the Deputy Director of Consolidation are quashed, it will be open to the parties to put forth their cases before the authority concerned, and the officer concerned will decide the matter afresh after looking into equities between the parties. Mr. R.S Misra, apprehends that once the order is quashed, his client's interest will be prejudiced. This is made clear that this Court has expressed no opinion on the merits of the case the authority concerned will decide the case on merits unhampered by the observations of this Court made in deciding this writ petition.
9. Before I close the judgment this has to be mentioned that after I had dictated the judgment it was pointed out by Mr. R.S Misra that this Court has dictated the judgment on the assumption that the new Act as amended by Act No. VIII of 1963 applies to the facts of this case. He contended that since consolidation had started when Act No. XXXVIII of 1958 was in force it is the old Act of 1958 which will apply and in that eventuality the limitation would start from the date of publication and no question of notice do the petitioners will arise.
10. Having heard learned counsel for the parties on this point I am of opinion that it is the new Act that applies to the facts of the case. In this case publication of proposals was made on the 30th November 1963, Sec. 47 of Act No. VIII of 1963 sub-Clause (1) applies and in view of Sec. 47 sub-Clause (1) of Act No. VIII of 1963 I am of the opinion that the present case will be governed by the new Act of 1963 and not by the old Act of 1958.
11. If the contention of Sri R.S Misra is accepted that the old Act of 1958 applied the petitioners will be in a better position and the impugned orders can safely be quashed as without jurisdiction.
12. In the instant case the Consolidation officer had condoned the delay and directed the rehearing of the case. Such an order is not appealable in any of the two Acts with the result that the order of the Settlement officer (Consolidation) is without jurisdiction. The order of the Deputy Director would be within jurisdiction in the amended Act VIII of 1963 but it the Act of 1958 is held to be applicable the revisional order will be without jurisdiction for under the 1958 Act revision could be entertained against second appellate order only. Thus on the argument of Sri Misra that the old Act of 1958 applied the impugned orders are liable to be quashed on the ground of lack of jurisdiction. In the result, this petition is allowed and the orders of the Deputy Director of Consolidation dated 20th January 1966 and that of the Settlement officer (Consolidation) dated 29th January 1965 (annexure ‘C’ and ‘B’ respectively) are hereby quashed. The case will be decided by the Consolidation officer on merits.
13. Petition allowed.
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