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1994 DIGILAW 948 (ALL)

RAM CHARAN v. ZILADHIKARI

1994-12-16

S.N.AGARWAL

body1994
SUDHIR NARAIN, J. The petitioner has challenged the order of the Assistant Settlement Officer (Consolidation), dated 3. 9. 1990 whereby he condoned the delay in filing the appeal by respondents No. 4 and 5 and the order of Deputy Director of Consolidation Banda, dated 7. 1. 1992, affirming the said order in revision. 2. The facts in brief are that plot No. 588 area 1 bigha 9 biswas situate in village Palhari, Tehsil and district Banda, was recorded in the name of the petitioner and Puchuva in the basic year Khatauni. Smt Parvati, mother of opposite parties 4 and 5 was entered in class IX as trespasser. Smt. Parvati filed an objection under Section 9-A of U. P. Consolidation of Holdings Act on the allegation that she had become sirdar by virtue of adverse possession. The petitioner filed an ap plication for cross-examination of wit nesses. The application was rejected by the Consolidation Officer on 3. 9. 1977. The petitioner filed revision against the said order. The revision was allowed by the Deputy Director of Consolidation vide order dated 8. 10. 1985 and remanded the case to the Consolidation Officer, Banda to decide the case in accordance with law. After remand the notices were sent to respondents No. 4 and 5 as by the time Smt. Parvati Devi had died and respon dents No. 4 and 5 were substituted. The notices were also published in the newspaper. As respondents No. 4 and 5 did not appear, the Consolidation Officer proceeded ex parte and dismissed the objection on 30. 7. 1986 which was filed by Smt Parvati Devi, mother of respondents No. 4 and 5. 3. After the order was passed on 30. 7. 1986 the petitioner filed an applica tion for compliance of the order. The Assistant Consolidation Officer Banda submitted a report under Rule 109 of U. P. Consolidation of Holdings Rules for compliance of the order. This report was accepted by the Consolidation Officer vide his order dated 12. 2. 1988. Respondents filed appeal No. 3017 under Rule 109 (c) of the Rules framed under the U. P. Consolidation of Holdings Act before the Settlement Officer (Consolida tion) Banda on 6. 8. 1988. Against the order dated 30. 7. 1986 and 12. 2. 1988 they filed an application under Section 5 of the Limitation Act to condone the delay in filing the appeal. 8. 1988. Against the order dated 30. 7. 1986 and 12. 2. 1988 they filed an application under Section 5 of the Limitation Act to condone the delay in filing the appeal. The application was accompanied with affidavit of Rajendra Kumar, respondent no. 4 on the allegation that they had no knowledge of the proceedings before the consolidation Of ficer after the remand of the case by the Deputy Director of Consolidation on 8. 10. 1985. The petitioner filed a counter affidavit controverting the facts stated by respondents. Respondents also filed a separate appeal under section 11 (1) of U. P. Consolidation of Holdings Act against the order dated 30-7-1986. 4. The application was allowed by order dated 3-9-1990. The revision against the said order was dismissed by respon dent No. 1 on 7-1-1992. The petitioner has challenged these orders in the present writ petition. 5. I have heard Sri R. R. Shivhare, learned counsel for the petitioner and Sri S. D. Pathak, learned counsel for the respondents. 6. Learned counsel for the petitioner urged that the respondents were served with notice by registered post as well as the publication and their allegation that they had knowledge of the consolidation proceedings after the case was remanded by the Deputy Director of Consolidation, was totally false. The Assistant Consolida tion Officer has not recorded any specific finding with regard to the service of notice on the respondents after the remand of the case by the Deputy Director of Consolidation on 8. 10. 1985. He has, how ever, held that the grounds for condoning the delay in filing the appeal on 12. 12. 1988. and the facts stated by the respondents were concocted and the respondents had full knowledge regarding the proceedings when they filed appeal under Rule 109 on 16-8-1988. He, however, took the view that in the interest of justice the delay should be condoned so that the rights of the parties may be finally decided other wise the respondents will be debarred from agitating the rights in any Court under Section 49 of U. P. Consolidation of Holdings Act. The Deputy Director of Consolidation has affirmed the order on the ground that the delay has been con doned by the Settlement Officer (Con solidation) which was the matter within his discretion and the order does not require any interference in revision. 7. The Deputy Director of Consolidation has affirmed the order on the ground that the delay has been con doned by the Settlement Officer (Con solidation) which was the matter within his discretion and the order does not require any interference in revision. 7. Learned counsel for the petitioner urged that the Court can condone the delay in flung the appeal only when sufficient cause is shown and the conduct of the applicant is bonafide. He placed reliance upon Vinod Behari Singh v. Union of India, 1993 ACJ 772, wherein then-Lordships of the Supreme Court tool^ the view that the Limitation Act is statue of reopose and bar of a cause of action in a Court of law which is otherwise lawful and valid because of undesirable lapse of time as continued in the Limitation Act, has been made on a well accepted prin ciple of jurisprudence and public policy. 8. In Gopal v. Deputy Director of Consolidation, Varanasi and others, 1976 (2) ALR 770, it was held that where the authorities, in the exercise of their dis cretion, have travelled beyond the limits of their jurisdiction or exercised it ar bitrarily or unreasonably or have failed to apply their minds to the merit of the application under section 5 of the Limita tion Act, the Court can interfere in such orders. The Authorities have no jurisdic tion to condone the delay without applica tion of mind, e. g. on the ipsi dixit of the petitioner and without any reasonable explanation being offered or without any reasonable explanation being offered or without any finding or sufficient cause. 9. Similar view was expressed in Chatnba Singh v. State of U. P. and others, AIR 1973 All 552 . 10. In the present case respondent No. 2 has not recorded any specific finding with regard to service of notice by registered post or by publication. He has, however, took the view that when the respondents No. 4 and 5 filed another appeal on 12-12-1988, they had knowledge of the proceedings and their allegations for not filing the appeal on 16th August 1988 appear to be concocted. He, how ever, condoned the delay taking the view that in the interest of justice the rights of the parties may be determined. 11. He, how ever, condoned the delay taking the view that in the interest of justice the rights of the parties may be determined. 11. The mere fact that rights of the parties are to be determined in the consolidation proceedings and if such right are not decided the parties shall be affected as their rights cannot be deter mined again in any Court of law as they will be barred by Section 49 of the U. P. Consolidation of Holdings Act, is itself not a ground to allow every application which is filed under Section 5 of the Limitation Act. The authorities have to consider the explanation offered by the applicant and the evidence which such party leads in support of his application. 12. In the present case, however, looking into the facts of the case it would not be appropriate to remand the case for deciding the application under Section 5 of the Limitation Act. The proceedings are pending since the year 1976. The objection filed by respondents was dismissed on 30-7-1986. The conten tion of the respondents is that the parties have entered into compromise. The Court is slow in interfering with the orders condoning the delay under Article 226 of the Constitution of India. 13. In Smt. Ram Thakur v. Deputy Director of Consolidation and others, 1975 RD 271, it was held that the High Court should not interfere, under Article 226 of the Constitution of India, in the exercise of discretion in condoning the delay by the Consolidation Authorities. Similar view was expressed in Prem Chand and another v. Deputy Director of Consolidation and others, 1984 RD 258. 14. Considering the facts and cir cumstances of the present case the writ petition is disposed of with the direction that respondents No. 4 and 5 shall deposit Rs. 3,000 with the Consolidation Officer, Banda, which may be taken by the petitioner as costs for allowing the ap plication. Respondents No. 4 and 5 shall deposit the amount within two months from today and only when such deposit is made their objection under Section 9-A shall be considered in accordance with law by the Consolidation Officer, respon dent No. 3. 15. Respondent No. 3 is further directed to decide the matter within six months from the date of production of a certified copy of this order by any of the parties. 16. 15. Respondent No. 3 is further directed to decide the matter within six months from the date of production of a certified copy of this order by any of the parties. 16. The writ petition is partly allowed with the directions made above. 17. The parties shall, however, bear their own costs. Petition partly allowed. .