RAM SEWAK Vs. DEPUTY DIRECTOR OF CONSOLIDATION DEORIA

JUDGEMENT

(1.) WHILE admitting this petition directed against orders of consolidation authorities brother K. P. Singh, J. expressed doubt about the ratio laid down in Smt. Longshri v. Deputy Director of Consolidation, 1978 RD 133= 1978 AWC (SOC) 32 and directed the papers to be laid before Hon'ble the Chief Justice, obviously under proviso (b) to rule 2 of Chapter V of Rules of Court, for constituting a larger bench to decide the controversy whether this court can interfere with interlocutory orders in exercise of its extraordinary jurisdiction under Article 226 of Constitution of India. And Hon'ble the Chief Justice in exercise of his prerogative power under rule 6 of the same Chapter to list cases, before appropriate bench, passed the necessary order on the administrative side. That is how the petition came before us.

(2.) DURING arguments it was suggested that the facts as they emerge after filing of counter affidavit to which we shall advert, later on, it was not necessary to decide the specific question and the petition be referred back to learned Single Judge on the bench being seized of the entire petition it may be decided on merits. We must confess our inability to appreciate this submission. So long the order passed on administrative side by Hon'ble the Chief Justice is not set aside or rendered academic, due to change in law etc. the bench hearing the reference, is in our opinion bound to decide the question referred to it. Even otherwise it would be contrary to judicial comity to return the reference on such pretext that the question does not arise, or the learned single Judge may frame appropriate question. In our opinion the Division Bench so constituted do not enjoy any superior or higher power. The binding effect of a decision given by larger number of Judges is based on principle of stare decisis and not on superiority of power or hierarchy of courts. In R. Vishwanath v. Rukutul Mulk, AIR 1963 SC at page 29 it was observed "whatever may have been the historical reasons in England and whatever may be the technical view as to the constitution of a bench in which one of more judges sit after they have expressed their opinion not tentative but final the practice which permits Judge......... ..........to sit in case in which he had opportunity of making up his mind and to express his conclusion on merits has little to commend itself for acceptance."

(3.) BEFORE parting with this case it is necessary however to observe that the decision in Smt. Longshri case (supra) turned on the facts of the case. It cannot be urged as a matter of law that in every case where a suit for cancellation of sale deed or gift deed is pending no suit for specific performance has been filed the consolidation authorities should stay their hands. Facts of a particular case may justify that order. Finalisation of consolidation proceedings do not effect the suit for cancellation or specific performance etc. In case consolidation proceedings are finalised in favour of 'A' on strength of sale deed but the same is cancelled or suit for specific performance is decreed in favour of 'B' no difficulty can arise and the name of 'B' can be substituted in place of *A' and possession be delivered under rules. Normally therefore proceeding before consolidation authorities should not be stayed. It is inequitable as well because an unscrupulous litigant may file a frivolous suit in civil court as in this case which may take ten years or even more in appeal and second appeal causing serious prejudice to other side.