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2009 DIGILAW 3434 (ALL)

Tulsi Ram v. D. D. C.

2009-11-06

Y.K.SANGAL

body2009
JUDGMENT Y. K. Sangal, J.—This writ petition has been filed to quash the order dated 27.10.2005, passed by Deputy Director, Consolidation, Gonda in Revision No. 1655/482, under Section 48 of the Consolidation of Holdings Act and order dated 18.9.2003, passed by Settlement Officer, Consolidation, Gonda in Appeal No. 992 under Section 21 (2)-of the U. P. Consolidation and Holding Act and order dated 4.4.2003, passed by Consolidation Officer, Rampur in Case No. 489 + 443, under Section 20 of the above Act. Petitioner has also prayed for issuing mandamus commanding the opposite parties not to disturb his peaceful possession over the property in dispute. 2. As per petitioner’s case, he was having single original holding Gata No. 270 measuring 2.28 acre which falls on the road side and before the consolidation operation his chak was in squire shape but under the pressure of opposite party No. 5, Assistant Consolidation Officer has proposed the land of the petitioner as udan chak. He filed objection before the Consolidation Officer but Consolidation Officer has not considered his grievance and passed the order and allotted to him the chak at Gata Nos. 230-231-232 and 270. Aggrieved by the order, an appeal was filed before the Settlement Officer, Consolidation and a request was made that adjacent to the original holding of the petitioner’s house was there and in the sahan of the house a boaring is already there which is being used by him for irrigation purposes of his field and market value of the land is more to the udan chak land allotted to him and barren land situated at the side of the pond which was less fertile land, allotted to him, but opposite party No. 2, Settlement Officer, Consolidation also has not considered his grievance and not allotted land to the petitioner as per his case. 3. Aggrieved by the order of Settlement Officer, Consolidation, he filed revision before the Deputy Director, Consolidation and his prayer was not considered by the Deputy Director, Consolidation. 4. Aggrieved by the above three orders, this writ petition has been filed. 5. The respondents No. 1 to 3 were represented by standing counsel and respondents No. 4 and 5 have put in their appearance through counsel. Counter-affidavit have been filed on their behalf. Petitioner also filed rejoinder-affidavit. 6. Heard the counsel for the parties and perused the record. 7. Aggrieved by the above three orders, this writ petition has been filed. 5. The respondents No. 1 to 3 were represented by standing counsel and respondents No. 4 and 5 have put in their appearance through counsel. Counter-affidavit have been filed on their behalf. Petitioner also filed rejoinder-affidavit. 6. Heard the counsel for the parties and perused the record. 7. In revision, order was passed by the Deputy Director, Consolidation on 27.10.2005. It is nowhere said on behalf of the petitioner that this order was not passed on this date and he was not having the knowledge of this order on the date. This writ petition has been filed on 8.12.2006, i.e., after inordinate delay of about one year. Explanation of this delay was given in para 10 of the writ petition that petitioner is a poor person. Due to his poverty, in July, 2006 he met counsel Sri R. P. Pandey and provided all the certified copies of the orders etc. for perusal including his fee but the counsel has not filed the writ petition till November, 2006.When he again met with him, he made demand of total fee but he failed to arrange the same then he met with the present counsel who inspected the record inquired in the matter. Sri R. P. Pandey also expired till that time. File was collected by the petitioner from his elder son and writ petition was prepared and filed. These causes of delay were replied on behalf of the respondents No. 4 and 5 in counter-affidavit and denied the correctness of the same. They also annexed with counter-affidavit three papers showing that after the final order of the Deputy Director, Consolidation, when it was found that no further proceedings was pending in any superior Court, they applied for taking further action before the Settlement Officer, Consolidation. In compliance of the order of the Deputy Director, Consolidation further proceedings have taken place and possession was delivered to them. Petitioner could not dare to deny the correctness of these facts given in the papers annexed with the counter-affidavit. He has simply stated that opposite party No. 5 is a practicing advocate and under his pressure consolidation authorities have taken such action in the matter. 8. Un-disputedly Deputy Director, Consolidation passed the order in October, 2005 in the revision case. Petitioner could not dare to deny the correctness of these facts given in the papers annexed with the counter-affidavit. He has simply stated that opposite party No. 5 is a practicing advocate and under his pressure consolidation authorities have taken such action in the matter. 8. Un-disputedly Deputy Director, Consolidation passed the order in October, 2005 in the revision case. Respondents have informed the Settlement Officer, Consolidation that no further proceedings against the order of Deputy Director, Consolidation are pending in any Court and no stay order is in force. Even than petitioner has not taken steps to file writ petition before this Court without delay. No sufficient explanation in this regard was given except showing his poverty. What business or profession he was doing, nowhere it is explained. Learned counsel for respondent argued that no believable explanation of this inordinate delay has been given on behalf of the petitioner. No corroborative evidence of the ground taken in para 10 of the writ petition has been filed. It was further argued that the petitioner has not dared to file his affidavit in support of the facts given in para 10 of the writ petition. Last two pages of the writ petition were even not signed by the petitioner. My attention was drawn on the pages of the Writ Petition Nos. 1 to 6 saying that on the blank sheet signatures of the petitioner were obtained on the side of pages and later on the writ petition was got typed. This all means that no sufficient ground has not been shown on behalf of the petitioner to explain the inordinate delay in filing of this writ petition. 9. Record shows that in compliance of the order of Deputy Director, Consolidation, possession has already been delivered to the opposite parties No. 4 and 5. At the time of final argument in the writ petition, learned counsel for petitioner has not challenged the correctness of these facts. 10. Parties should pursue their right and remedy promptly and not sleeping over their rights, it is established law. Delay of day-to-day must be explained and even if there is sufficient cause, discretion lies with the Court to condone the delay or not. It is not a matter of right. The relevant consideration in such matter is that the right which accrued to the other side due to delay should not be disturbed lightly. Delay of day-to-day must be explained and even if there is sufficient cause, discretion lies with the Court to condone the delay or not. It is not a matter of right. The relevant consideration in such matter is that the right which accrued to the other side due to delay should not be disturbed lightly. A right accrued to the other side due to delay of other side, Court ought not to be light hearted so to disturb this legal right, it is also established law. From the record it reveals that after considering the objection of the petitioner available, Consolidation Officer after inspecting the spot had passed the order and allotted the chaks to the petitioner. His grievance was also considered by the appellate court and further by revisional court and they passed the orders in appeal and revision, what they deemed proper in the circumstances of case. It is not probable or natural, under pressure of respondent No. 5, who is an advocate only, all three courts below will not do justice with petitioner. This court under Articles 226 and 227 of the Constitution not required to act as appellate court on the orders of three courts below. There is inordinate delay in approaching the Court. Already order passed by Deputy Director, Consolidation has been executed by the authorities. 11. No interference by this Court required in the matter under Article 226/227 of the Constitution of India. The writ petition is accordingly dismissed.