Research › Search › Judgment

Allahabad High Court · body

2012 DIGILAW 233 (ALL)

AMRAWATI v. DEPUTY DIRECTOR OF CONSOLIDATION

2012-01-25

A.P.SAHI

body2012
JUDGMENT Hon’ble A.P. Sahi, J.—Heard learned counsel for the petitioner. The petitioner claimed rights on the basis of a lease and filed an objection under Section 9-A (2), which is said to have been allowed by the Consolidation Officer on 1.8.2001. 2. Nineteen days thereafter, another application came to filed by the Gaon SAbha, which was registered as Case No. 236, said to have been moved under Section 21 (1) of the Uttar Pradesh Consolidation of Holdings Act, 1953. This application was allowed on 20.8.2011 and the name of the petitioner was directed to be expunged and that of the Gaon Sabha was to be restored. The petitioner filed an appeal against the same, which was dismissed on 17.12.2005. A revision preferred against the same was also dismissed and these orders came to be challenged by the petitioner in Writ Petition No. 60533 of 2010. 3. The writ petition was allowed on 4.10.2010 and the order passed in favour of the Gaon Sabha on 20.8.2001 was set aside. The judgment dated 4.10.2010 passed in Writ Petition No. 60533 of 2010 is extracted hereunder : “Supplementary affidavit filed today is taken on record. Heard the learned counsel for the petitioner, the learned standing counsel representing the respondent Nos. 1 to 3 and Sri Mahesh Narain Singh, Advocate representing the land management committee, respondent No. 4. The objections filed by the petitioner were allowed by the Consolidation Officer by the order dated 1.8.2001. It appears that an application was filed on behalf of the Gaon Sabha / State for recalling the order dated 1.8.2001 and for rejecting the objections of the petitioner. On the said application the Consolidation Officer passed an exparte order dated 20.8.2001 recalling the order dated 1.8.2001 and again directing for recording the name of the Gaon Sabha. As the petitioner had no knowledge of the order dated 20.8.2001, having come to know about the same, she filed an appeal which had been dismissed on the ground of limitation and thereafter the revision filed by the petitioner has also been dismissed on the ground of limitation. The argument advanced on behalf of the petitioner is that once the order dated 20.8.2001 was an exparte order, the appeal of the petitioner ought to have been entertained after condoning the delay. The argument advanced on behalf of the petitioner is that once the order dated 20.8.2001 was an exparte order, the appeal of the petitioner ought to have been entertained after condoning the delay. Secondly it is well settled that cases should not be decided on technicalities and the rights of the parties should be adjudicated on merits. In that view of the matter it has been submitted that the Appellate and the Revisional Courts committed illegality in rejecting the claim of the petitioner. From a perusal of the orders passed by the Consolidation Courts, I do not find that any of the Courts have considered the case of the petitioner on merits after affording due opportunity of hearing to the petitioner. In the circumstances the orders passed by the Consolidation Courts are liable to be set aside. The restoration application filed by the Gaon Sabha / State before the Consolidation Officer would be heard on its merits after affording due opportunity of hearing to the parties concerned. The Consolidation Officer shall make an endeavour to decide the said application within period of four months from the date of production of a certified copy of this order. Petition is allowed as above. The impugned orders dated 6.6.2010, 17.12.2005 and 20.8.2001 are hereby set aside.” The operative part of the judgment categorically recites that the restoration application filed by the Gaon Sabha before the Consolidation Officer shall be heard on merits after affording opportunity to the petitioner and the parties concerned. 4. The contention raised by the learned counsel for the petitioner is two fold. Firstly, that there was no restoration application in the case filed by the petitioner, which was registered as Case No. 1682. Secondly, the file of the case was not traceable in which Gaon Sabha had moved the application which was captioned as a restoration application and in the absence of the said records, the matter could not have proceeded any further. 5. The petitioner, therefore, is contesting the stand of the Gaon Sabha on the aforesaid two grounds and thirdly that one Sri Kuldeep - respondent No. 4, who filed a separate restoration application, has no locus to maintain the same and, as such, the consolidation authority has committed an error in taking notice of the same and allowing the restoration application. 6. 6. Having heard learned counsel for the petitioner, it would be worth to quote Section 11-C of the Uttar Pradesh Consolidation of Holdings Act, 1953, reproduced hereunder : “11-C. In the course of hearing of an objection under Section 9-A or an appeal under Section 11, or in proceedings under Section 48, the Consolidation Officer, the Settlement Officer (Consolidation) or the Director of Consolidation, as the case may be, may direct that any land which vests in the State Government or the Gaon Sabha or any other local body or authority may be recorded in its name, even though no objection, appeal or revision has been filed by such Government, Gaon Sabha, body or authority.” The aforesaid provision was incorporated by the Legislature in order to empower the Consolidation Authorities to take action for protection of the property of Gaon Sabha even if no objections had been filed. The aforesaid provision is widely worded and it obligates the Consolidation Authorities to take appropriate action and pass orders whenever they find that the property of the Gaon Sabha is being jeopardized. In the instant case, the application was moved by the Goan Sabha immediately after 19 days of passing of the order in favour of the petitioner. A wrong mentioning of the Section or an incorrect procedure should not allow the rights of the Gaon Sabha to be defeated keeping in view the aforesaid provision of Section 11-C of the 1953 Act. 7. In my opinion, even if there is a wrong section mentioned on the application, the same may be treated as a restoration in the original file of the petitioner where the petitioner has been favoured by the order dated 1.8.2001. It is undisputed that the prayer made in the application moved by the Gaon Sabha, which was registered as a different case, was only to set aside the order dated 1.8.2001. Thus, it is the substance and not the form of the application which is important. Procedure is the handmade of justice and it is for this reason that the High Court, while allowing the writ petition filed by the petitioner on 4.10.2010, treated the application filed by the Gaon Sabha to be a restoration application. Thus, there was a clear intention expressed in the judgment of the High Court that the application filed by the Gaon Sabha should be treated as a restoration application. Thus, there was a clear intention expressed in the judgment of the High Court that the application filed by the Gaon Sabha should be treated as a restoration application. The Consolidation Officer, therefore, in my opinion, has not committed any error in proceeding to take into account the aforesaid facts and in view of the provisions of Section 11-C, the Consolidation Officer even otherwise was under an obligation to hear the Gaon Sabha and then pass orders. The Consolidation Officer, therefore, after giving an opportunity to the petitioner has allowed the restoration application and has then directed the matter to be heard on merits. The Deputy Director of Consolidation has not committed any error in dismissing the revision filed by the petitioner. The petitioner still has an opportunity to contest the claim on merits before the Consolidation Officer. Accordingly, the Consolidation Officer shall now proceed to decide the case after giving an opportunity of hearing to the parties expeditiously. With the aforesaid observations, the writ petition is disposed of.