GOPAL Vs. DEPUTY DIRECTOR OF CONSOLIDATION VARANASI AND

JUDGEMENT

(1.) THIS writ petition arises out of Consolidation Proceedings and the petitioner has prayed that the order of the Deputy Director of Consolidation dated 2-6-1975 passed in a revision filed by respondents nos. 2 and 3 under section 48 of the U. P. Consolidation of Holdings Act (hereinafter referred to as the Act) be quashed. The case raises a question of law of some importance inasmuch as it involves a consideration of the propriety or the circumstances in which an order setting aside another order condoning the delay in filing the objections should be interfered with by this court in exercise of its jurisdiction under Article 226 of the Constitution.

(2.) IN a nutshell the facts of the case are that according to the averments made in the writ petition the petitioner filed objection under section 9 of the Act in respect of Khatas Nos. 39, 227, 166 and 625 before the Assistant Consolidation Officer and that he also filed another set of objections in respect of Khatas Nos. 230 and 231. The controversy between the parties is, however, now confined to Khata No. 231. It appears that when the matter was taken up by the Consolidation Officer the contesting respondents Nos. 2 and 3 made an application that the two sets of objections could not be consolidated in law and should be considered separately. This application was, however, dismissed by the Consolidation Officer by his order dated 3-12-1974. A revision was preferred against the aforesaid order by respondents Nos. 2 and 3 and the same was allowed by the order of the Deputy Director of Consolidation dated 25-1-1975 and the Consolidation Officer was directed to dispose of the objections in accordance with law. It was, however, observed in the said order that there was no reference by the Assistant Consolidation Officer in respect of Khata No. 231. When the matter went back, the petitioner filed afresh objection with respect to Khata No. 231 along with an affidavit stating that he had already filed an objection with respect to the said plot but the Assistant Consolidation Officer had omitted to include the same in his order of reference, of which fact the petitioner was ignorant until the order dated 25-1-1975 was passed by the Deputy Director of Consolidation and consequently by way of abundant caution fresh objections were being filed and a prayer was made for condonation of the delay. Respondents Nos. 2 and 3 objected to this prayer of the petitioner and by means of an affidavit they said that the petitioner had no rights with respect to the said Khata and the objections them being filed beyond the period of limitation were liable to be dismissed and no ground for condonation of delay had been made out. The Consolidation Officer by his order dated 3-4-1975 condoned the delay and entertained the fresh objections subject to payment of Rs. 25.00 as costs. This order was challenged by respondents Nos. 2 and 3 in revision. The Deputy Director of Consolidation allowed the revision by his order dated 2-6-1975 and set aside the order of the Consolidation Officer which had condoned the delay, [t is in these circumstances that this writ petition has been filed against the order of the Deputy Director of Consolidation and the question of -law which has been posed in the opening part of the judgment has been canyassed before me. Before dealing with the legal problem I would, however, like to make it clear that the Deputy Director of Consolidation in substance had arrived at a finding in his impugned order that the two objections had been initially filed in Khata No. 231 and, therefore, the only point which falls for decision is as to whether in the circumstances the order of the Deputy Director of Consolidation, which had thj effect of refusing to condone the delay notwithstanding a contrary discretion having been exercised by the lower authority in favour of the petitioner, was erroneous in law so as to merit interference by this court.

(3.) IT has been strongly urged before me by the learned counsel for the petitioner that the first authority, namely, the Consolidation Officer, having allowed the petitioner's application under section 5, Limitation Act, the revisional authority misdirected itself in interfering with that discretion and substituting its own discretion and thus denying the petitioner the benefit of section 5 Limitation Act. The broad proposition canyassed by the learned counsel for the petitioner cannot be accepted without reservation. As I have already indicated, I would be ordinarily most reluctant to quash any order which upsets the discretion exercised in the petitioner's favour by giving him the benefit of section 5 Limitation Act. It is an unpleasant task, seldom justified on grouuds of equity that a party having once successfully invoked the discretion of an authority should still come to grief because the superior authority chooses to exercise its discretion in a different manner. Nevertheless there are certain perils inherent in accepting the extreme proposition urged on behalf of the petitioner. If an absolute rule is adopted inhibiting the power of a superior authority in matters where the discretion about the condonation of delay has been once exercised by the inferior authority in favour of a party, the rule is apt to be abused by the inferior authority and manifestly absurd or capricious orders may endure with impunity. It is in order to guard against such alarming possibility that the rule must be formulated with caution so that as far as possible it may not leave the door open for any miscarriage of justice. Therefore, the situation does not admit of any absolute rule being formulated. Each case will have to be decided on it own facts and discretion exercised judicially. I can indicate only some of the common grounds on which the superior authority would be justified in setting aside an order passed by the lower authority in exercise of its discretion in favour of the petitioner praying for extension of time under section 5 Limitation Act. Such cases apparently would be in the nature of exceptions. It is obyious that a judicial order, if passed without application of mind, cannot be sustained. It is implicit in judical order that it must be passed after proper application of mind. Therefore, where orders are passed summarily or mechanically rejecting an application under section 5, Limitation Act, a phenomenon not entirely uncommon, it becomes the duty of the superior authority to rectify the error by using its own discretion. Likewise, where an order condoning the delay has been passed arbitrarily i.e. in flagrant disregard of settled principles of justice and equity, such order should also be amenable to correction by the superior court or authority. In other words, if a discretion, though exercised in favour of a petitioner invoking the benefit of section 5, Limitation Act, is manifestly capricious, such order also needs to be corrected. To take an instance, if an order does not assign any valid or plausible reason for condoning the delay and is passed on the mere asKing by the petitioner or is passed on the whim of the authority dealing with the matter, such case would also brook interference by the revisional authority. These, are some of the broad categories which form exceptions to the general rule that orders depending purely on the exercise of discretion by an inferior authority should not be disturbed by the superior authority. These broad categories can assume infinite permutations and combinations depending on the circumstances of each individual case. Learned counsel for the petitioner relied on the Division Bench case of this Court refei red to above in support of his contention. On the other hand, learned counsel for the respondents referred to two single Judges decisions of this Court in support of his submissions. In my opinion there is really no conflict between two sets of decisions. The case of Hanuman Dass (supra) contemplates certain exceptions to the general rule inasmuch as in the passage extracted above Agarwala, J. referred to perverse or absurd orders or such orders in which the court below travels beyond the limits within which discretion may be reasonably exercised. The ruling gives judicial recognition to the fact that the rule of expediency that the superior court should not interfere normally with orders of condonation of delay or other discretionary orders of like nature, is subject to certain notable exceptions. The same principle underlies the two single Judge decisions on which reliance has been placed by the learned counsel for the respondents. In Raj Kumar v. Dy, Director (1969) U.P. Revenue Cases Reports Vol. VI, page 41 the facts were that the Assistant Settlement Officer, Consolidation allowed an application under section 5 Limitation Act and condoned the delay. In the revision the Deputy Director of Consolidation set aside that order and said that no sufficient caure had been shown for condoning the delay. It may be noted that the Assistant Settlement Officer, Consolidation had condoned the delay without recording any finding that sufficient cause had been made out for condoning the delay. In the writ petition filed against the order of the Deputy Director of Consolidation the High Court refused to interfere and dismissed the same. Satish Chandra, J. observed;