B.L.Yadav - (1.) BY the present petition under Article 226 of the Constitution of India, the petitioners have prayed for issuance of a writ of Certiorari quashing the order dated 9-1-81 passed by the Deputy Director of Consolidation (Annexure 11 to the petition), allowing the revision under section 48 of the U. P. Consolidation of Holdings Act, (for short the Act), and setting aside the order of the Settlement Officer (Consoldiation) dated 28-1-79 (Annexure 6 to the petition) dismissing the appeal filed by respondent Nos. 2 and 3 as time barred, who were admittedly minors when consolidation proceedings started in the village.
(2.) THERE are a number of plots in dispute contained in Khata Nos. 175, 225, 520, 529 and 544. In the basic year Khatauni these plots, according to the case of petitioners, were entered in the names of respondent nos. 2 and 3, sons of Kapildeo along with other co-tenure holders. The case was that they were also co-tenure holders of these plots. Respondent no. 2 was aged about 14 years and respondent no. 3 was aged about 11 years. Even though the mother of the minors was alive, but Gajraj, their uncle, appears to have been appointed as guardian as stated in para 4 of the writ petition. But this statement of fact has been denied in para 6 of the counter affidavit filed by Sharda Prasad Singh, and it was stated that Gajraj was never appointed as guardian as the mother of the minors Smt. Swarnmati was still alive. The Asstt. Consolidation Officer passed an order of conciliation on 4-6-67 and Gajraj signed the conciliation on behalf of the minors respondent nos. 2 and 3. As a consequence thereof, the names of minors were expunged and the names of present petitioners were entered in their place. The record was missing, consequently, after a considerable delay the appeal was filed, but the same was dismissed as time barred. The appeal as stated above, filed on behalf of the minors was dismissed by order dated 28-1-79 (Annexure-6 to the petition), as time barred. But their revisions succeeded and the orders of Settlement Officer Consolidation and Assistant Consolidation Officer were set aside. In the operative portion, however, nothing was stated as to what shall happen to basic year entries and to the entries in the names of petitioners made in pursuance of the order of the Assistant Consolidation Officer. About the delay in appeal also no mention was made. Learned counsel for the petitioner urged that the order of Deputy Director of Consolidation was manifestly erroneous. Reliance was placed on a Division Bench decision of this Court in Teerath v. Joint Director of Consolidation, 1985 AWC 347, Udai Bhan Singh v. Board of Revenue, 1974 AWR 41 and Ramesh v. Gendalal Motilal Patni, AIR 1965 SC 1446. Learned counsel for the respondents, on the other hand, urged that under the circumstances of the case even though no specific order was passed about the condonation of delay in appeal by the Deputy Director of Consolidation, but nevertheless on merits, when the Consolidation proceedings commenced, respondent nos. 2 and 3 were minors, no proper guardian was appointed while their mother was alive, the uncle was not the proper guardian, further it was not proved by the petitioners that the interest of uncle was not adverse to that of the minors and in any view of the matter, it was urged that in case the question of limitation was assumed to be decisive, but as respondent nos. 2 and 3 were minors on the relevant date and no proper guardian was appointed, there was sufficient cause for condonation of delay and the matter instead of remanding to the Settlement Officer Consolidation, may be remanded to the Consolidation Officer so that the controversy between the parties about the basic year entries and respective legal rights might be adjudicated upon on merits.
(3.) HAVING heard the learned counsel for the parties, the basic question for determination is whether the Deputy Director of Consolidation could allow the revision without considering the question of delay in preferring the appeal. This point is covered by a Division Bench decision of this Court in Teerath v. Joint Director of Consolidation, (supra) and I am bound by that decision. There is no denying the fact that the Deputy Director of Consolidation before deciding the revision on merits, must have considered the question of delay first. The controversy between the parties appears to be slightly different. Even though the question of delay was there, but the delay was caused by the persons who were minor (i.e. respondent nos. 2 and 3), on the relevant date and no proper guardian was appointed. There is no evidence on record that under Rule 14 steps were taken to appoint a proper guardian. Consequently, if the delay has been caused by some minors without there being a guardian, in such matters minors need not be blamed. It would be just an exercise in futile if the matter is remanded to be disposed of on merits before the Settlement Officer Consolidation. Every court and tribunal is supposed to be the guardian of minors and consequently their interest has to be supervised with great vigilance. Unless a person becomes major, he has no legal capacity to understand the proceedings in a court of law. It would not be appreciable if the matter is remanded to the appellate court to decide this question of delay which has been caused by minors. In the case of Udai Bhan Singh v. Board of Revenue, (supra) a reference has been made to Ramesh v. Gendalal Motilal Patni, (supra). In that case controversy was as to what is the scope or nature of writ proceedings and whether the writ petition or special appeals relating to rights in agricultural land after the commencement of consolidation operations must be stayed under Section 5 (2-A) of the Act. In that connection a number of other decisions of the Supreme Court including the case of Ramesh v. Gendalal Motilal Patni, (supra) was referred. The relevant observations under para 16 of the above case are set out below : "We are concerned here with the exercise of extraordinary original civil jurisdiction under Article 226 of the Constitution. Under that jurisdiction the High Court does not hear an appeal or revision. The High Court is moved to intervene and to bring before itself, the record of a case decided by or pending before a Court or tribunal or any authority within the High Court's jurisdiction. A petition to the High Court invoking this jurisdiction is a proceeding quite independent of the original controversy. The controversy in the High Court, in proceedings arising under Article 226 ordinarily is whether a decision of or a proceeding before a Court or tribunal or authority, should be allowed to stand or should be quashed, for want of jurisdiction or on account of errors of law apparent on the face of the record. A decision in the exercise of this jurisdiction, whether interfering with the proceedings impugned or dealing to do so, is a final decision so far as the High Court is concerned because it terminates finally the special proceedings before it." ;