BACCHA RAI Vs. STATE OF U. P.

JUDGEMENT

(1.) Heard Sri Rishabh Kumar Pandey, learned counsel for the petitioner and Sri Hari Mohan Srivastava, learned Addl. C.S.C. for the state-respondents.

(2.) Brief facts of the case are that in proceeding under Sec. 9-A(2) of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as "U.P. C.H. Act"), orders dtd. 6/10/1972, 23/8/1973 and 24/8/1973 were passed by the Assistant Consolidation Officer in respect to plot situated in village-Mirzapur, Chaktulan and Chak Kalandar. Against the aforementioned orders passed by the Assistant Consolidation Officer in the proceeding under Sec. 9-A(2) of the U.P. C.H. Act, three appeals under Sec. 11(1) of the U.P.C.H. Act were filed by the petitioner along with prayer for condonation of delay of 30 years, which were registered as Appeal Nos. 505, 506 and 507. During pendency of the aforementioned title appeal, Writ B No. 1444/2023 was filed by respondent No. 7 before this Court against the order passed by the Deputy Director of Consolidation dtd. 9/1/2023, which was allowed vide order dtd. 1/5/2023, setting aside the revisional order dtd. 9/1/2023 and the appellate court was directed to decide the appeal in pursuance of the appellate order dtd. 22/2/2007, within a period of 3 months, after notice/opportunity to both the parties. In pursuance of the order of this Court dtd. 1/5/2023, appellate court heard the delay condonation matter in the aforementioned appeals under Sec. 11(1) of the U.P. C.H. Act and vide order dtd. 21/11/2023 granted benefit of Sec. 5 of the Limitation Act and fixed the appeal for arguments on merit. Against the order dtd. 21/11/2023, respondent No-7 filed three revisions under Sec. 48 of the U.P. C.H. Act before the Deputy Director of Consolidation which were registered as Revision Nos. 1053, 1054 and 1055. In the aforementioned revision, the prayer was made for summoning the lower court records. On behalf of the petitioner, an application was filed that unless the revision is found maintainable, the record of the proceeding of appellate court may not be summoned as this Court had directed for deciding the appeal within a period of three months. The Deputy Director of Consolidation vide order dtd. 21/3/2024 summoned the record of the appellate court and fixed 3/4/2024 for disposal of the revision, hence, this writ petition on behalf of the petitioner, challenging the order dtd. 21/3/2024.

(3.) Counsel for the petitioner submitted that in title appeals filed by the petitioner along with prayer for condonation of delay, the appellate court has granted benefit of Sec. 5 of the Limitation Act in filing the appeal and fixed the appeal for disposal on merit, as such, the revision under Sec. 48 of the U.P. C.H. Act filed by respondent No. 7 is not maintainable. He further submitted that the revisional court has passed the impugned order, summoning the appellate court record after preponing the date fixed in the revision, as such, the impugned order is ex-parte against the petitioner. He further submitted that unless the revision is found maintainable, the record of the proceeding of the appellate court should not be summoned, so that the proceeding of the appellate court may not be held up. He submitted that the appeal along with an application under Sec. 5 of the Limitation Act was filed in the year 2003 in which the delay in filing the appeal has been condoned in 2023, as such, the appeal should be decided expeditiously on merit. He further submitted that the petitioner has filed application before the revisional court, stating specifically that record of the appellate court may not be summoned unless the revision is found maintainable but the revisional court has not examined the issues in proper manner and passed the impugned order without hearing the question relating to maintainability of the revision under Sec. 48 of the U.P. C.H. Act. He further placed Annexure No. 14 of the writ petition which is a circular issued by the Consolidation Commissioner for entertaining the revision against the interlocutory orders, in order to demonstrate that the revisional court should examine the maintainability issue in proper manner before summoning the lower court records so that the proceeding may not be held up before the revisional court without any basis. He further placed the circular issued by the Registry of Hon'ble Apex Court in reference to the case of Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation wherein it has been held that if the court is summoning the record of the proceeding of the trial court/appellate court/ revisional court and the matter is pending before the trial court/appellate court/ revisional court then the court where the proceeding is pending, can retain the scanned/digitized copy of the proceeding and remit the original record to the court where the main proceedings are pending. He submitted that the revisional court should afford proper opportunity to the petitioner so that he may place the entire facts and circumstances before the revisional court.