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1968 DIGILAW 6 (ALL)

Dev Kunwar v. Joint Director of Consolidation

1968-01-03

D.S.MATHUR

body1968
ORDER D.S. Mathur, J. - This a petition Under Article 226 of the Constitution of India by Smt. Dev Kunwar for the issue of a writ of certiorari to quash the order, Annexure D of the affidavit, whereby the order of the Deputy Director of Consolidation in second appeal was set aside and the objection preferred by the Petitioner was dismissed. 2. The facts of the case are simple. Smt. Dev Kunwar, widow of Pyare Lal, was originally recorded as a co-tenure holder, but on the report of the village Lekhpal, her name was expunged on 31-7-1958, on the ground that she had died. The name of Bhajji, son of Gopal Das, was then entered in her place. 3. After the village was brought under consolidation, steps for preparation of the revised records were taken. The name of Smt. Dev Kunwar did not exist in the village papers and no objection was filed at that stage. The result was that her name did not exist in the revised records published u/s 11-B of the UP Consolidation of Holdings Act (to be referred hereinafter as the Act) as in force in 1963. Thereafter some of the recorded tenure-holders applied u/s 12-B for the partition of the joint holding. It was at this stage that Smt. Dev Kunwar, Petitioner, filed an objection u/s 9 of the Act, along with an application u/s 5 of the Limitation Act, for the correction of the record. The Consolidation Officer, condoned the delay, but on merits dismissed the objection holding that the Petitioner was not the wife of Pyare Lal, who had already died. This order was confirmed by the Settlement Officer (Consolidation), but the Deputy Director of Consolidation hearing the second appeal took a different view on merits. The objection was, therefore, allowed and she was ordered to be recorded as a co-tenure holder. The Respondents preferred a revision u/s 48 of the Act which was heard by the Joint Director of Consolidation. The Joint Director was of the opinion that no objection u/s 9 of the Act could be entertained, even on the application of Section 5 of the Limitation Act, at the stage of the partition of the holding u/s 12-B. 4. The Respondents preferred a revision u/s 48 of the Act which was heard by the Joint Director of Consolidation. The Joint Director was of the opinion that no objection u/s 9 of the Act could be entertained, even on the application of Section 5 of the Limitation Act, at the stage of the partition of the holding u/s 12-B. 4. Even though the High Court is reluctant to exercise the extraordinary jurisdiction Under Article 226 of the Constitution of India, it can interfere where there is some error in the exercise of jurisdiction or there exists an error apparent on the face of the record. Consequently, if on the basis of the provisions of the Act only one view was possible and the joint Director took a different view, this Court can quash the order to enable him to pass a suitable order in the revision. 5. Section 5 of the Limitation Act was made applicable u/s 53-B of the Act. The provisions of this section are general and unrestricted. Consequently, the delay in filing in objection u/s 9 can be condoned at any stage unless some bar has been imposed by or under some provision of the Act. 6. Section 11-A of the Act merely provides that no question in respect of land lying in a consolidated area, which might and ought to have been raised u/s 9, but has not been raised, shall be raised or heard at any future stage of the consolidation proceeding. The bar is to the raising of the objection at a later stage, but not to the raising of the objection u/s 9 of the Act. Consequently, an aggrieved party has the right to make at any stage an objection u/s 9 of the Act along with an application u/s 5 of the Limitation Act for condonation of delay. If the delay is condoned, the objection shall be deemed to have been made u/s 9 of the Act and such an objection shall have to be disposed of in accordance with the law. 7. In this connection it may also be observed that Section 11B of the Act does not lay down that the revised record so prepared and published shall be final, and the accuracy of the revised record cannot be challenged after the publication thereof. 7. In this connection it may also be observed that Section 11B of the Act does not lay down that the revised record so prepared and published shall be final, and the accuracy of the revised record cannot be challenged after the publication thereof. Consequently, an objection u/s 9 of the Act can be entertained even after the publication of the revised record. In this view of the matter, the objection could be entertained even when partition proceedings u/s 12-B were pending. 8. The writ petition is hereby allowed with costs and the impugned order of the Joint Director of Consolidation is quashed. The revision u/s 48 shall be registered afresh and disposed of in accordance with the law.