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2015 DIGILAW 870 (ALL)

Ram Das v. D. D. C.

2015-04-17

SUDHIR AGARWAL

body2015
JUDGMENT Sudhir Agarwal, J. 1. Heard Sri Mohd. Arif Khan, Senior Advocate, assisted by Sri Mohiuddin Khan, learned counsel for the petitioners. 2. This writ petition filed under Article 226 of the Constitution has arisen from orders passed by Consolidation Authorities. The Consolidation Officer passed an order dated 19th July, 1982 (Annexure 1 to the writ petition) in Consolidation Case No.948/523/26 under Section 9-A(2) rejecting application of the petitioner for setting aside ex parte order dated 13th March, 1969 whereagainst petitioners preferred appeal before Settlement Officer (Consolidation), who rejected the same vide order dated 25.11.1982 (Annexure 2 to the writ petition). The revision before Deputy Director of Consolidation, Faizabad (hereinafter referred to as "DDC") also failed having been rejected vide order dated 8th March, 1984 (Annexure 3 to the writ petition). This writ petition has come up against the aforesaid orders. 3. As per report dated 18th January, 1993, notices were issued to respondents 4 to 12 but no service report was placed on record. In the circumstances, vide order dated 14.8.2014, this Court directed petitioners to take fresh steps for service within three days. The office report dated 22.8.2014 shows that no such steps were taken. In the circumstances, this writ petition is liable to be dismissed for want of prosecution so far as respondents no.4 to 12 are concerned. 4. However, since the matter is pending for the last 30 years, therefore, in order to satisfy myself so that any substantial issue may not remain unadjudicated, I granted an opportunity to the learned counsel for the petitioner to address the Court on merits also. 5. The facts, in brief, as borne out from the record, read as under: 6. The dispute relates to the land being Khata No.73 situate in Village Barauli, Pargana Khandasa, Tahsil Bikapur, District Faizabad. There was a dispute between co-tenure holders regarding share in the aforesaid land. On the basis of settlement, Assistant Consolidation Officer disposed of the matter vide order dated 25.10.1966. Thereagainst some persons namely Ram Piyare and others preferred an appeal wherein the Appellate Authority vide order dated 19.12.1968, set aside the order dated 25.10.1966 passed by Assistant Consolidation Officer and remanded the matter for deciding on merits. 7. After remand, Consolidation Officer decided the dispute vide order dated 13.3.1969. Thereagainst some persons namely Ram Piyare and others preferred an appeal wherein the Appellate Authority vide order dated 19.12.1968, set aside the order dated 25.10.1966 passed by Assistant Consolidation Officer and remanded the matter for deciding on merits. 7. After remand, Consolidation Officer decided the dispute vide order dated 13.3.1969. Claiming that aforesaid order was an ex parte, Ram Das and others i.e. petitioners filed an application for setting aside the order dated 13.3.1969, on 1st June, 1976. This application was rejected by Consolidation Officer vide order dated 19.7.1982 and thereagainst appeal and revision have also been rejected. 8. Sri M.A.Khan, learned Senior Advocate stated that there was a wrong service report placed on record on account whereof order dated 13.3.1969 is liable to be treated ex parte. He submitted that petitioner no.4 Ram Dutta, S/o Triloki was serving in Army and at that time posted at Meerut. Further petitioner no.5 Ram Naresh, S/o Triloki was also in Army posted at Ladakh. Har Deo (petitioner no.7), Bhagwan Das (petitioner no.2) were living at Bulandshahr and Indore. Sheo Magan Swami Nath and Bishambhar son of Ram Asre were minor and no guardian was appointed by Consolidation Officer for looking after their interest. This fact that aforesaid petitioners were not staying in the village was never brought to the notice before Consolidation Officer though correct address of petitioners were in the knowledge of contesting respondents and therefore, the order dated 13.3.1969 was patently illegal being ex parte and in violation of principles of natural justice. It is said that respondents have taken away substantial share fraudulently causing material injury to the petitioners. 9. The record shows that before passing order dated 13.3.1969, a notice was also published in newspaper. It has not been stated anywhere as to why they could move application after seven years and in what manner, if they were not earlier aware of the proceedings, came to the knowledge of above proceedings. The pleadings in this regard are extremely vague. 10. Learned Senior Advocate, however, has placed reliance on Sections 4, 6 and 7 of the Indian Soldiers (Litigation) Act, 1925 (hereinafter referred to as "Act, 1925") to submit that it was incumbent upon opposite parties to declare that some of the parties were serving in Indian National Army so that notice could have been issued to them. 11. 10. Learned Senior Advocate, however, has placed reliance on Sections 4, 6 and 7 of the Indian Soldiers (Litigation) Act, 1925 (hereinafter referred to as "Act, 1925") to submit that it was incumbent upon opposite parties to declare that some of the parties were serving in Indian National Army so that notice could have been issued to them. 11. However, I find that nothing has been shown from the aforesaid Act so as to apply in the case in hand. The aforesaid Act is applicable in the circumstances when an Indian Soldiers is serving under special condition or war conditions or overseas. Section 3 clarify as to when these circumstances would be existing, which reads as under : "Circumstances in which an Indian soldier shall be deemed to be serving under special conditions.- For the purposes of this Act, an Indian soldier shall be deemed to be or, as the case may be, to have been serving - (a) under special conditions (when he is or has been serving under war conditions), or overseas, or at any place beyond India, or any such place within India as may be specified by the Central Government by notification in Official Gazette; (b) under war conditions - when he is or has been, at any time during the continuance of any hostilities declared by the Central Government by notification in the Official Gazette to constitute a state of war for the purposes of this Act or at any time during a period of six months thereafter,- (i) serving out of India, (ii) under orders to proceed on field service, (iii) serving with any unit which is for the time being mobilised, or (iv) serving under conditions which, in the opinion of the prescribed authority, preclude him from obtaining leave of absence to enable him to attend a Court as a party to any proceeding or when he is or has been at any other time serving under conditions service under which has been declared by the Central Government by notification in the Official Gazette to be service under war conditions; and (c) overseas - when he is or has been serving in any place outside India (other than Ceylon) the journey between which and India is ordinarily undertaken wholly or in part by sea. Explanation.- For the purposes of this section and with effect from the 3rd day of September, 1939, a soldier who is or has been a prisoner of war shall be deemed to be or to have been serving under war conditions." 12. There is nothing to show that any of the petitioners, who was serving in Army, satisfy the requirement of Section 3. Therefore, in my view, the aforesaid Act has no application in the case in hand. The mere fact that some of the parties were serving in Indian Army would not attract the mandate of Sections 4 and 6 of Act, 1925 unless conditions precedent that member of Army is serving in special conditions or in war condition or overseas are satisfied. 13. No justification has come up as to why some of the petitioners, who are/were residing in the village, did not appear. Moreover, even this has not been clarified as to why application was filed after seven years. In all, it appears that there is an attempt on the part of petitioners to pull on the proceedings on one or the other way on various pretexts. In my view, the petitioners have not approached this Court, bona fide. 14. Even otherwise, I do not find any merit in the writ petition, as already observed. The petitioners are also liable to be non suited for failing to take steps for service of notice upon respondents no.4 to 12 before this Court also. 15. In totality of the circumstances, petitioners are not entitled to any relief. The petition is bound to fail and is hereby dismissed without there being any order as to costs.