BECHAN ALI v. DEPUTY DIRECTOR OF CONSOLIDATION ADDALIAS DISTRICT MAGISTRATE SIDDARTHNAGAR
2001-02-01
S.N.AGARWAL
body2001
DigiLaw.ai
SUDHIR NARAIN, J. The petitioner seeks to quash the order dated 31-1-2001 passed by the Deputy Director of Con solidation, respondent No. 1 whereby the revisions have been allowed and the delay in filing the objections has been condoned. 2. Briefly, stated the facts, are that the village Sonari, district Siddharth Nagar was notified under Section 4 of U. P. Con solidation of Holdings Act, 1953 (in short the Act ). In the basic year Khatauni, the names of Gopal Krishna Bansikar, respon dent No. 3, Anant Bansikar sons of Ram Narain and Sukhdeo Prasad son of Ram Dayal, respondent No. 2 over the disputed plots were recorded. 3. The version of the petitioner is that he was in possession over the disputed plots. He filed objection under Section 9-Aof the Act. The Consolidation Officer, fide order dated 28-1-1971 allowed the objection and passed an order to delete the names of the contesting respondents. This order, however, was not given effect to. The petitioner is alleged to have filed an application under Rule 109 of the U. P. Consolidation Officer on 28-1-1971. The Consolidation Officer allowed the ap plication vide order dated 15-9-1994 directing to make the entries in accord ance with the order passed by the then Consolidation Officer dated 28-1-1971. 4. Respondent Nos. 2 to 4 filed Ap peal No. 1870 of 1998-99 on 25- 11-1998 against the order of the Consolidation Of ficer dated 28-12-1971 along with an ap plication to condone the delay in filing the appeal before the Settlement Officer of Consolidation. Another Appeal No. 1869 of 1998-99 was filed against the order dated 15-9-1994 before the Settlement Of ficer of Consolidation. Both these appeals were dismissed by the Settlement Officer of Consolidation on 31-12-1999. Respon dent Nos. 2 to 4 filed two separate revisions against the orders passed by the Settle ment Officer of Consolidation. The petitioner filed an application on 27-12-2000 to decide the question of limitation first. Respondent No. 1 by the impugned order dated 31-1-2001 rejected the ap plication of the petitioner and directed that the revisions be heard on merits. This order has been challenged in the present writ petition. 5. I have heard Sri H. P. Mishra, learned counsel for the petitioner and Sri R. K. Chitra Gupta, learned counsel for the contesting respondents. 6.
This order has been challenged in the present writ petition. 5. I have heard Sri H. P. Mishra, learned counsel for the petitioner and Sri R. K. Chitra Gupta, learned counsel for the contesting respondents. 6. Learned counsel for the petitioner contended that the appeals and the revisions filed by the contesting respon dents were not maintainable. It is urged that the village was de-notified under Sec tion 52 of the Act vide Notification dated 3-3-1979 and after the said date neither any appeal nor any revision against any order passed by the consolidation authorities was maintainable. Admittedly Section 5 of the Limitation Act will be applicable to any appeal or revision filed before the consolida tion authorities. Section 53-B of the Act provides that Section 5 of the Indian Limitation Act, 1963 shall apply to the applications, appeals or revisions under the proceedings under the Act or the Rules made thereunder. The question as to whether even after de-notification the ap plications, appeals or revision can be filed along with an application to condone the delay under Section 5 of the Limitation Act. 7. In Bhagwati v. Deputy Director of Consolidation and others, 1983 ALJ 1250, it was held that an appeal or revision can be filed even after de-notification against an order which was passed prior to the date of the de-notification although the limita tion for filing the appeal or revision has already expired. In Mathani Singh v. Asstt. Director of Consolidation, Ghazipur, 1990 RD 258, it was held that a restoration application can be filed to set aside the ex-pane, order even after de-notification of the village under Section 52 of the Act. In Radhey Shyam and another v. The Deputy Director of Consolidation, Bhadohi and others, 1996 RD 231, an order passed by the Deputy Director of Consolidation was sought to be recalled on the ground that it was ex-parte even after the de-notification of the village. The Court held that even after de-notification, the Deputy Director of Consolidation had jurisdiction to recall the order if the order was passed without giving opportunity to the other side. Various decisions were considered by me in Ram Rati v. Deputy Director of Consolidation, Banda and others, 1998 RD 204 wherein the view taken by earlier decisions was followed holding that even after de-notification an appeal or revision is maintainable if the delay is explained by the applicant.
Various decisions were considered by me in Ram Rati v. Deputy Director of Consolidation, Banda and others, 1998 RD 204 wherein the view taken by earlier decisions was followed holding that even after de-notification an appeal or revision is maintainable if the delay is explained by the applicant. 8. Learned counsel for the petitioner has placed reliance upon the decision in Writ Petition No. 5809 of 1985 (Ram Briksh v. Deputy Director of Consolidation, Gorakhpur and others) wherein it was held that an objection purporting to be under Section 9-A (2) can be filed only after the notification under Section 4 of the Act has been issued and before issuance of a notification under Section 52 (1) of the Act. It was a case where the objection itself was to be filed before the de-notification under Section 52 of the Act. The Court itself made the observation that in case the objections were filed before de- notifica tion under Section 52 of the Act, the posi tion would be different. It was not a case where an appeal or revision was filed after de-notification, along with an application to condone the delay in filing such appeal or revision. In Raja Ram and others v. Deputy Director of Consolidation, U. P. Lucknow and others, 1982 RD 387, it was held that a person cannot approach the consolidation authorities to give effect of an order under Rule 109-A read with Sec tion 52 of the Act. In Nanki v. Deputy Director of Consolidation, Pratapgarh and others, 1995 RD 264, it was held that if the village has been de-notified by issuance of notification under Section 52 (1) of the Act, an application to make the correction is not applicable. These cases have no ap plication to the facts of the present case. 9. In the present case admittedly in the basic year Khatauni, the names of the contesting respondents were recorded. The petitioner is alleged to have filed ap plication for expunging their names and to record his name as the sole tenure holder on the basis of adverse possession. The contention of the petitioner is that in fact no proceedings were taken by the petitioner under Section 9- A of the Act and the Consolidation Officer had not passed any order on 28-1-1971. The entire proceedings are fraudulent and secondly he was not given any notice of such proceedings.
The contention of the petitioner is that in fact no proceedings were taken by the petitioner under Section 9- A of the Act and the Consolidation Officer had not passed any order on 28-1-1971. The entire proceedings are fraudulent and secondly he was not given any notice of such proceedings. Thirdly, it may be noted that the Consolidation Officer is alleged to have passed the order on 28-1-1971 ex punging the names of the contesting respondents from the revenue record and directing the name of the petitioner to be recorded as sole tenure holder. This entry was not given effect to and the petitioner is alleged to have filed an application on 20-9-1992 to give the order passed on 28-1-1971 and in pursuance to the application, the entries are alleged to have been made in favour of the petitioner on 15-9-1994. The Deputy Director of Consolidation having found that there was justification to condone the delay and to hear the revisions on merits. I do not find that it is a fit case for interference under Article 226 of the Constitution. The matter will be decided on merits by the Deputy Director of Consolidation. 11. The writ petition is, accordingly, dismissed. Petition dismissed. .