SHANKAR AND OTHERS Vs. DY. DIRECTOR OF CONSOLIDATION, U.P. LUCKNOW AND OTHERS

JUDGEMENT

(1.) JUDGEMENT This special appeal is directed against the order dated 6-7-1966 by which our brother Jagdish Sahai dismissed the appellants petition under Article 226 of the Constitution.

(2.) THE appellants preferred an objection under Section 9 U.P. Consolidation of Holdings Act which was decided in their favour by the Consolidation Officer by his order dated 15-5-1964. Respondents Nos. 3 to 5 preferred an appeal from that order of the Consolidation Officer and the same was dismissed on 20-6-1964 by an Assistant Settlement Officer (Consolidation). Even though the provisions of the Act as it stood prior to its amendment by U.P. Act VIII of 1963 applied to the case and as such a second appeal should have been preferred from the order dated 20-6-1964, respondents Nos. 3 to 6 preferred a revision and the same was allowed by a Deputy Director Aggrieved by the order passed in revision the appellants approached this court by a petition under Article 226 praying for the quashing of the order dated 5-1-1965 passed by respondent No. 1 mainly on the ground that it was passed without jurisdiction.

(3.) WE have heard the learned counsel for the parties at some length. The main contention of the learned counsel for the appellants is that the learned Single Judge erred in holding that a plea, even though it went to the root of the matter on the basis of the lack of jurisdiction could not be taken for the first time in a petition under Article 226 of the Constitution if not taken before the authority concerned. A perusal of the judgement under appeal shows that the learned Single Judge did not attempt to lay down any such broad proposition of law. What he says is that the fact that the appellants did not raise the plea of want of jurisdiction before the Deputy Director is admitted and as such he is not prepared to hear the appellants in respect of that point in the writ petition. In support of his stand he places reliance on M/s. Pannalal Binjraj v. Union of India, AIR 1957 SC 397 and Kailash Nath v. Registrar Co-operative Society, U.P., 1960 All LJ 20 : (AIR 1960 All 294). So the real point to be seen is if or not the learned Single Judge exercised his discretion in the matter properly by not allowing the appellants to raise the pies of want of jurisdiction in the writ petition because of their having failed to raise it before the Deputy Director. However, before coming to that question cases cited by the learned counsel for the appellants may be examined.