B.L.Yadav - (1.) BY the present petition under Article 226 of the constitution of India, the order dated 22-1-91 passed by the Assistant Director of Consolidation in Revision under section 48 of the U. P. Consolidation of Holdings Act, 1953 (for short the Act), holding the appeal before the Settlement Officer consolidation to be maintainable against the order passed by the Consolidation Officer dated 5-12-89 rejecting the objection and also the application under Section 5 of the Limitation Act, is sought to be quashed by issuing a writ of Certiorari.
(2.) AN objection under Section 20 of the Act was filed by Ram Raj, respondent no. 2 along with an application for condonation of delay under section 5 of the Limitation Act, which was rejected by the Consolidation Officer by his order dated 12-9-89 (ANnexure 1 to the petition), as there was no justification for condonation of dealy, and the objection was also rejected. Against that order an appeal was preferred, but the same was dismissed as not maintainable. Against that order revision was filed which was allowed by the impugned order dated 21-1-91 holding that the appeal was maintainable. Learned counsel for the petitioner urged that as the objection under section 20-A of the Act was time barred, hence the appeal was not maintainable and in any case the Assitant Director of Consolidation must have condoned the delay under section 5 and thereafter he could have remanded the case. The appeal was not maintainable, hence the order of remand was manifestly erroneous. Reliance was placed on Saheb Singh v. Rametshwar, 1971 AWR 7S5 and Ram Autar v. Ram Ratan, 1981 ALJ 672. In Ram Autar v. Ram Ratan, (supra) a belated objection under section 20 of the Act accompained by an application to condone the delay was filed. The consolidation officer rejected the objection as time barred. The petitioner filed an appeal which was allowed and Chaks were modified. The respondent preferred a revision, but the Assistant Director of Consolidation held that the Settlement Officer Consolidation has no jurisdiction to entertain the appeal just against an order rejecting the application under section 5 of the Limitation Act. This court dismissed the writ petition.
(3.) IN Samharoo v. State of U. P., 1967 ALJ 463, 1967 RD 201 a Division Bench of this court held that where an application under section 5 of the Limitation Act was allowed, that would not become an order under section 9, 9-A or 10 of the Act, hence it was not appealable under section 11 of the Act. The reason was that an application under section 5 precedes the objection, in case it was allowed, objection can be decided on merits. Simply by allowing the application under section 5 of the Limitation Act no appeal would lie, unless the objection itself was either rejected or allowed, the conclusion that where an objection has also been dismissed along with the application, against that order rejecting the objection the appeal would certainly lie. IN the case of Ram Autar v. Ramratan (supra), this court declined to issue the writ prayed for as in that the consolidation officer rejected the application under section 5 of limitation act as no sufficient cause was made out, hence the appeal was certainly not maintainable before the Settlement Officer consolidation and that was the view taken by the Asstt. Director of Consolidation which was maintained. In Saheb Singh v. Rameshwar (supra), it was held that where an objection under section 9-A of the U. P. Consolidation of Holdings Act along with an application under section 5 of the Limitation Act for condonation of delay was dismissed on two grounds (1) that the objection was filed much after expiry of the period of limitation prescribed for filing an objection and (2) also on the ground that there is no merit in the objection, such an order would be an order falling within the purview of section 9-A (2) of the U. P. Consolidation of Holdings act and that appeal would be maintainable. Consequently the cases relied upon by the learned counsel for the petitioner do not help him. Similarly in Ram Autar v. Ram Ratan (supra), it was held that where only application under section 5 of the Limitation act was rejected no appeal would be maintainable.;