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2014 DIGILAW 510 (ALL)

Shyam Singh v. Deputy Director of Consolidation and others

2014-02-13

RAM SURAT RAM (MAURYA)

body2014
Ram Surat Ram (Maurya),J. Heard Sri V.K. Singh for the petitioner. 2. The writ petition has been filed against the order of Consolidation Officer, dated 20.05.2013, condoning the delay in filing the objection under Section 9-A of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as 'the Act') and the order of Deputy Director of Consolidation, dated 18.12.2013, dismissing the revision of the petitioner, filed against the aforesaid order. 3. Sopal Singh (respondent-6) filed an objection under Section 9A of the Act before the Consolidation Officer, on 04.10.2012, along with delay condonation application. It has been stated by Sopal Singh that he was an advocate and practicing at Muzaffarnagar and used to reside there. Padam Singh used to look after the cases of in consolidation, on his behalf. He could never know that no objection regarding partition of the joint family property has been filed on his behalf within time. It is only on 03.10.2012, during talks with Lal Singh, he came to know about the fact that no objection for partition of joint family property has been filed. Thereafter he filed the objection on 04.10.2012, along with delay condonation application. 4. The petitioner contested the delay condonation application and filed counter affidavit, in which he has been stated that the cases in respect of correction of area as well as correction of the names over the disputed khata itself have been referred to the Consolidation Officer, on the objection being raised by Sopal Singh and the matter was decided by Consolidation Officer, by order dated 18.11.2010. An objection against the determination of valuation has also been filed on behalf of Sopal Singh. Sopal Singh, being an advocate, had knowledge of the notification of the village under Section 9 of the Act, which took place on 07.06.2010 and there is no ground for condoning the delay. The delay condonation application was heard by Consolidation Officer, who by order dated 20.05.2013, held that as the proceeding relating to consolidation in the village is still going on and the consolidation is final settlement of the record, as such, in the interest of justice, the delay was liable to be condoned. On this finding, the delay has been condoned. The petitioner filed a revision (registered as Revision No. 146) against the aforesaid order. On this finding, the delay has been condoned. The petitioner filed a revision (registered as Revision No. 146) against the aforesaid order. The revision was heard by Deputy Director of Consolidation, who by order dated 18.12.2013, held that the order condoning the delay is an interlocutory order, as such, the revision is not maintainable. Otherwise also, there is no merit in the revision. Accordingly, the revision was dismissed. Hence,this writ petition has been filed. 5. The counsel for the petitioner submits that this Court in Rampat v. DDC, 2013 (121) RD 554 relying upon the judgment of Division Bench in Faujdar v. DDC, 2006 (100) RD 462 (D.B.) held that the revision against the order of Consolidation Offier can be directly filed before Deputy Director of Consolidation. He further submits that the issue relating to condonation of delay is related to the jurisdiction, as such, the order deciding delay condonation application does not amount to an interlocutory order as in case the objection of the petitioner is upheld, then the matter would be finally decided. Deputy Director of Consolidation has illegally held that the order condoning the delay is an interlocutory order. He further submits that Sopal Singh, being a practicing advocate, was litigating his several cases before the same consolidation authorities in respect of the land in dispute, as such, the allegations made by him that he could not know about the fact that no objection has been filed on his behalf relating to partition of the joint family holding, is a false allegation and has been illegally believed by the Consolidation Officer. He submits that on the false explanation, the delay was not liable to be condoned as the false explanation does not amount to 'sufficient cause'. He submits that Supreme Court in Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corporation, 2010 (110) RD 27 (SC) held that delay can only be condoned after showing sufficient cause. He submits that the partition had already taken place in the year 1984 through family settlement which has already been given effect to in the revenue record by the order of Tahsildar dated 21.05.1984. Since then, the parties were living separately and the various khatas in dispute have been recorded separately in their names, as such, the objection for fresh partition is a malafide and has been filed only to harass the petitioner. Since then, the parties were living separately and the various khatas in dispute have been recorded separately in their names, as such, the objection for fresh partition is a malafide and has been filed only to harass the petitioner. In the circumstances, the orders passed by the consolidation authorities are illegal and liable to be set aside. 6. I have considered the arguments of counsel for the petitioner and examined the record. 7. Sopal Singh took plea for condoning the delay was that he used to practice before the Civil Court, Muzaffarnagar and used to reside there and on his behalf the cases in consolidation were conducted by Padam Singh and he could never know that no objection has been filed for partition of joint family holding. This allegation that he was practicing before the Civil Court, Muzaffarnagar and usually residing there is not denied. Further, the allegation that Padam Singh used to conduct the cases before the consolidation authorities on behalf of Sopal Singh, is also not denied. In such circumstances, the statement that he could not know about the fact that no objection had been filed on his behalf for partion of joint holding in consolidation was not liable to be disbelieved. 8. So far as the cases decided by the Consolidation Officer on 18.11.2010 is concerned, it appears that dispute was raised during partal and noted in CH Form-4. The case was registered as State v. Sopal Singh and was decided by the order of Consolidation Officer dated 18.11.2010. A perusal of the order (a photostat certified copy whereof filed at page 115 of the writ petition) shows that it does not bear the signature of Sopal Singh, rather it bears the signature of Bangal Singh (Pradhan) and a member of Consolidation Committee. Therefore, the allegation of the petitioner that Sopal Singh used to appear before the consolidation authorities, is not correct. 9. So far as the allegation that the joint family property has already been partitioned in the year 1984 by way of family settlement is concerned, the family settlement is being denied by Sopal Singh as such it is still requires to be proved. So far as the order of Tahsildar is concerned, the Tahsildar had no jurisdiction to decide the partition dispute under Section 176 of U.P. Act No. 1 of 1951, as such his order does not operate as res-judicata. 10. So far as the order of Tahsildar is concerned, the Tahsildar had no jurisdiction to decide the partition dispute under Section 176 of U.P. Act No. 1 of 1951, as such his order does not operate as res-judicata. 10. In any case, by the impugned order, the delay in filing the objection under Section 9 has been condoned and the petitioner has full opportunity to contest the matter on merit. It does not cause any material prejudice to the petitioner. In such circumstances, although the revision has been illegally dismissed as not maintainable, no interference is required by this Court. 11. The writ petition is dismissed. _______________