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2015 DIGILAW 320 (ALL)

Mata Saran v. Dy. Director of Consolidation, Allahabad

2015-02-18

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri A.P.N. Giri, for the petitioner and Sri Rajeshwar Yadav, for respondents. The writ petition has been filed against the order of Deputy Director of Consolidation dated 14.11.2014, passed in chak allotment proceedings under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 2. Shiv Pal (father of respondent-2) filed a revision (registered as Revision No. 109/1054/91 of 1990) against the orders of Consolidation Officer dated 10.9.1989 and Settlement Officer Consolidation dated 27.12.1989 passed in chak allotment proceeding. The revision was dismissed in default on 13.10.1995. Shiv Pal filed an application for recall of the aforesaid order, on 27.2.1996 along with delay condonation application, supported with his affidavit. In the affidavit, it has been stated that his son fell ill on 10.10.1995. When he went for treatment of his son, Doctor informed that major operation was required immediately. Thereafter, operation was done, in which Shiv Pal and his other family members had become busy and he could attend the case on the date fixed. Thereafter, jaundice was detected to his son due to which he was engaged in his looking after. In February 1996, he came to Court, then he got know that his revision was dismissed in default. Thereafter, the application was filed for recall of the order. The petitioner filed objection and counter affidavit and has stated that son of Shiv Pal never fell ill on 10.10.1995 or thereafter. False explanation was given for condonation of delay. 3. Aforesaid recall application was also dismissed in default on 2.9.1996, however order was recalled on the same day on the application of Shiv Pal. Then recall application was again dismissed in default on 14.12.1996. Shiv Pal moved an application for recall of the order dated 14.12.1996 on 30.12.1996, which was dismissed in default on 7.2.2006. 4. Thereafter, respondent-2 and his mother moved an application for recall of the order dated 7.2.2006, on the same day, in which he had stated that although he was present and went to call his Advocate, when the case was called up but in the meantime recall application was dismissed in default. Deputy Director of Consolidation, by impugned order dated 14.11.2014, recalled the orders dated 7.2.2006, 14.12.1996 and 10.10.1995 and restored the revision to its original number. Hence this writ petition has been filed. 5. Deputy Director of Consolidation, by impugned order dated 14.11.2014, recalled the orders dated 7.2.2006, 14.12.1996 and 10.10.1995 and restored the revision to its original number. Hence this writ petition has been filed. 5. The Counsel for the petitioner submitted that Deputy Director of Consolidation has neither considered the grounds for default nor cause of delay in filing the restoration application and without considering any thing, he recalled various orders by a composite order dated 14.11.2014 and restored the revision to its original number. The recall application filed on 27.2.1996 was barred by limitation of about four months. False explanation was given for default as well as condonation of delay in filing the recall application. The petitioner has filed counter affidavit and objection and denied the allegations that son of Shiv Pal had ever fell ill. Deputy Director of Consolidation was required to decide the controversy after considering the allegations and counter affidavit. But he has neither considered the affidavit and counter affidavit nor recorded any findings and condoned the delay and also restored the revision. The application dated 30.12.1996 was also time barred but no application has been filed for condonation of delay. During pendency of restoration application, the revisionist died and the substitution application was allowed on 3.1.2006. In pursuance of the order dated 3.1.2006, memorandum of revision was amended. Thereafter wife of revisionist also died on 7.7.2014 and substitution application filed on 29.9.2014 was allowed on 30.10.2014 and her name was deleted from the memorandum of revision although revision was not restored. The procedure adopted in this respect was illegal. The recall application was liable to be rejected as time barred but it has been illegally allowed. He relied upon the judgment of Supreme Court in Lanka Venkateshwarlu v. State of Andra Pradesh, (2011) 4 SCC 363 in which it has been held that liberal view is required to be taken while deciding delay condonation application. 6. I have considered the arguments of the Counsel for the parties and examined the record. So far as recall application dated 7.2.2006, is concerned, reason for default was shown that although the revisionist was present and went to call his Advocate, when the case was called up but in the meantime recall application was dismissed in default. The application was filed on the same day. Deputy Director of Consolidation found the reason of default as sufficient. 7. The application was filed on the same day. Deputy Director of Consolidation found the reason of default as sufficient. 7. So far as recall application dated 30.12.1996 is concerned, according to section 201 of U.P. Land Revenue Act, 1901, 15 days limitation has been provided. 29.12.1996 was Sunday as such it was filed on 30.12.1996. Thus the application was within time. The cause of default has been mentioned that 14.12.1996 was a public holiday. Shiv Pal was informed that a general date 30.12.1996 was fixed in the cases of that day. 14.12.1996 was a second Saturday. Ground of default was found to be sufficient by Deputy Director of Consolidation. In paragraph-3 of the counter affidavit filed on 12.10.1999, it has been admitted that order dated 2.9.1996 was recalled on that day itself. 8. So far as recall application dated 27.2.1996 is concerned, in the affidavit, filed by Shiv Pal in support of delay condonation application, it has been stated that his son fell ill on 10.10.1995. When he went for treatment of his son, Doctor informed that major operation was required immediately. Thereafter, operation was done, in which Shiv Pal and his other family members had become busy and he could not attend the case on the date fixed. Thereafter, jaundice was detected to his son due to which he was engaged in his looking after. In February 1996, he came to Court, then he got know that his revision was dismissed in default. Thereafter, the application was filed for recall of the order. Although the petitioner has filed counter affidavit and objection but Deputy Director of Consolidation has accepted the reason for default as well as delay in filing the recall application. Supreme Court in Shanti Prasad Gupta v. Deputy Director of Consolidation, 1984 RD 382 (SC) held that condonation of delay is a matter of discretion and vest in the original Court. In case, discretion has been exercised in condoning the delay, for doing justice, the High Court in exercise of writ jurisdiction has no jurisdiction to interfere with the discretion. 9. In case, discretion has been exercised in condoning the delay, for doing justice, the High Court in exercise of writ jurisdiction has no jurisdiction to interfere with the discretion. 9. So far as the grounds raised by the Counsel for the petitioner that without restoring the revision, orders relating to substitution have been incorporated in memorandum of revision, is concerned, this Court in Writ B No. 41017 of 2013 Anand Narain v. Deputy Director of Consolidation and others (decided on 19.8.2013) has held that substitution of legal heirs of a deceased party at one stage inures for the benefit of all the stages. Substitution application was allowed in the restoration application and heirs were incorporated in memorandum of revision as substitution in restoration application was sufficient. In any case no prejudice has been cause to the petitioner. Deputy Director of Consolidation has merely restored the revision to its original number, setting aside order of dismissal in default. The petitioner has opportunity to argue the revision on merit. However, it may be noticed that the revision was filed in 1990 and is still pending. Deputy Director of Consolidation shall make effort to decide the revision on merit expeditiously after hearing the parties, preferably within a period of three months. In view of aforesaid discussions, order of respondent-1 does not suffer from any illegality. The writ petition has no merit and is dismissed.