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2016 DIGILAW 379 (ALL)

Maqsood Ahmad v. D. D. C.

2016-01-29

ANJANI KUMAR MISHRA

body2016
JUDGMENT Anjani Kumar Mishra, J. – Heard Sri H.M. Srivastava, learned counsel for the petitioners and Sri Umesh Vats, who has filed caveat on behalf of respondents 6 and 8 to 11. 2. The petitioner has filed this writ petition seeking a writ of certiorari for quashing the order dated 30.09.2015, passed by the opposite party no. 1 and the order dated 24.01.2014, passed by the respondent no. 2. 3. The opposite party no. 2 has by the order dated 24.01.2014, allowed restoration applications dated 28.01.1995 and 16.02.2004 and has set aside the orders dated 24.05.1992 and 07.02.1974. 4. Against this order, allowing the restoration application, the petitioners preferred a revision which has been dismissed vide order dated 30.09.2015. 5. The application dated 28.01.1995, had been filed by the respondents for recalling an order dated 24.05.1992, whereby an application filed by them for summoning the original file of appeal no. 2034 and deciding it on its merit, was dismissed for default. 6. The application dated 16.02.2004, was filed by the respondents for setting aside the order dated 07.02.1974, whereby the said appeal no. 2034, had been dismissed for default. 7. Brief facts of the case are that the dispute between the parties pertains to three khatas of village Haidarpur, Pargana Rari, Tehsil Sadar, District Jaunpur. An objection under Section 10(2) of the U.P. Consolidation of Holdings Act, (old Act) was filed by the Kulsum Bibi, the predecessor-in-interest of the petitioners, seeking co-tenancy in the disputed khatas. 8. This objection was allowed on 17.02.1963 and Kulsum Bibi was held to be a co-tenure holder in the disputed khatas. She thereafter, filed an objection under Section 12-B of the Act for determination of the extent of co-tenancy. 9. The Consolidation Officer by his order dated 05.11.1963, held Kulsum Bibi to be a co-tenant to the extent of 1/2 in the disputed khatas. 10. Thereafter, the respondents predecessor-in-interest filed appeal no. 2034. It is the case of the petitioners that this appeal was filed against the order under Section 10(2) of the Act and that no appeal was preferred against the order under Section 12-B. 11. The appeal no. 2034, is stated to have been dismissed for default on 29.05.1964. However, it was restored vide order dated 22.06.1964. 12. Against the order allowing the restoration application, Kulsum Bibi, is stated to have preferred a revision being revision no. 1774. The appeal no. 2034, is stated to have been dismissed for default on 29.05.1964. However, it was restored vide order dated 22.06.1964. 12. Against the order allowing the restoration application, Kulsum Bibi, is stated to have preferred a revision being revision no. 1774. Kulsum Bibi died during the pendency of this revision. Upon her death, the issue of her heir-ship arose. Both the parties claimed heir-ship upon her death. 13. In view of the above, the issue of heir-ship was referred to the Consolidation Officer and by an order dated 21.01.1965, proceedings in revision no. 1774 was stayed. 14. The Consolidation Officer by an order passed on 04.02.1966, held the petitioners to be the heirs of Kulsum Bibi. 15. Against this order the predecessor of the respondents namely Dhani Khan, filed appeal no. 74. He also filed a restoration application against the order dated 04.02.1966, which was dismissed. The order dismissing the restoration application, was challenged by another appeal no. 76 by Kulsum Bibi. Both the appeals were dismissed on 09.02.1963. 16. Consequently, two revisions were filed challenging the appellate orders which were both dismissed on 23.02.1968. 17. On 25.04.1973, the petitioners appear to have filed an application for abatement of appeal no. 2034 on the ground that Kulsum Bibi had not been substituted therein. The contesting respondents thereafter, filed a substitution application in the appeal. 18. The Settlement Officer Consolidation vide order dated 27.04.1973, dismissed the abatement application while allowing the substitution application. 19. The petitioners filed a revision against this order dated 27.04.1973, which was dismissed on 30.01.1974 directing the parties to appear before the appellate Court on 07.02.1974. 20. The petitioners thereafter, preferred writ petition no. 2985 of 1974, challenging the order dated 30.01.1974. This writ petition came to be dismissed on 30.09.1986. 21. In the meantime the appeal no. 2034, was dismissed for default on 07.02.1974, the date fixed in the order passed by the Deputy Director of Consolidation, dismissing the revision of the petitioners. 22. After the dismissal of the writ petition filed by the petitioners, an application was filed on 12.01.1988 before the respondent no. 2 for summoning the record of appeal no. 2034 and for deciding it on merits. 23.This application is stated to have been considered as a restoration application by the respondent no. 2 and the same came to be dismissed for default on 24.05.1972. 2 for summoning the record of appeal no. 2034 and for deciding it on merits. 23.This application is stated to have been considered as a restoration application by the respondent no. 2 and the same came to be dismissed for default on 24.05.1972. An application dated 21.01.1975, was filed for recall of this order passed on 24.05.1992. It further appears that dates were being fixed regularly on this restoration application, without the record of the appeal no. 2034 being tagged thereto. 24. On 22/23.01.2004, the petitioners appear to have filed an application that the appeal itself had been dismissed for default on 07.02.1974. It is thereafter, that the restoration application dated 16.02.2004, was filed by the respondents for recall of the order dated 07.02.1974. 25. The aforesaid two restoration applications, were allowed by the Settlement Officer Consolidation and the consequential revision was dismissed. The petitioners thereafter, filed a writ petition no. 58677 of 2006. This writ petition was allowed vide order dated 30.08.2011, and the matter was remanded back to the Settlement Officer Consolidation to pass appropriate orders on the restoration applications, in the light of the observations made therein. 26. Consequent to the aforesaid order of remand passed by the writ Court, the Settlement Officer Consolidation again allowed the restoration applications, which order has been affirmed in revision. Hence this writ petition. 27. The contention of Sri H.M. Srivastava, learned counsel for the petitioners is that the restoration application filed in the year 2004, was for recall of an order passed in the year 1974. It was therefore, belated by 30 years and this delay has been condoned without due consideration of the relevant facts and circumstances of the case and in a cursory manner. He further submits that the Settlement Officer Consolidation, has passed the order without complying with the directions contained in the order of remand passed by the writ Court. 28. He further submits that the Deputy Director of Consolidation, had directed the parties to appear before the Settlement Officer Consolidation on 07.02.1974. This order having been passed in the presence of the contesting respondents, the same was well within their knowledge but they chose not to appear and, therefore, there is no satisfactory explanation for the inordinate delay of 30 years, which has wrongly been condoned by the impugned order. 29. This order having been passed in the presence of the contesting respondents, the same was well within their knowledge but they chose not to appear and, therefore, there is no satisfactory explanation for the inordinate delay of 30 years, which has wrongly been condoned by the impugned order. 29. He has also submitted that the orders passed by the Consolidation Officer in favour of the petitioners predecessor-in-interest have attained finality, as the same were implemented in the revenue records, the chaks were carved out in the name of Kulsum Bibi and the petitioners are in possession over the land in question ever since. 30. Sri H.M. Srivastava, has next submitted that the Deputy Director of Consolidation, has dismissed the revision holding it to be directed against an interlocutory order. This view being contrary to the decision of the Division Bench of this Court, the revisional order is therefore, vitiated and deserves to be set aside. 31. Sri Umesh Vats, learned counsel for the caveator/respondents has submitted that the parties have been litigating since 1960. The appeal no. 2034, filed in the year 1963, has not been heard and decided its merits till date because of the dilatory tactics adopted by the petitioners. The respondents or their predecessor-in-interest were not aware of the dismissal for default of the appeal on 07.02.1974. They were, continuously, contesting the matter at every stage, including before this Court in writ petition no. 2985 of 1974. The application for reopening the appeal no. 2034 was filed after dismissal of the writ petition of 2985 of 1974 filed by the petitioners. It is submitted that the conduct of the respondents has been bona fide. The petitioners want to deprive the respondents of their statutory right of appeal on mere technicalities. 32. I have considered the submission made by learned counsel for the parties and have perused the record. 33. From a bare reading of the appellate order, which is very detailed it emerges that the Settlement Officer Consolidation, has referred to the entire history of the litigation between the parties. He has duly considered the question of the inordinate delay of about 30 years in filing the restoration application. 34. 33. From a bare reading of the appellate order, which is very detailed it emerges that the Settlement Officer Consolidation, has referred to the entire history of the litigation between the parties. He has duly considered the question of the inordinate delay of about 30 years in filing the restoration application. 34. Upon such consideration, it has found the explanation for the delay to be sufficient and, has therefore condoned it and allowed the restoration application, I do not see any illegality or error in the said order or in the approach of the Settlement Officer Consolidation. 35. In so far as the submission of learned counsel for the petitioners that the order dismissing the revision holding it to be not maintainable as it was directed against the interlocutory order is concerned, the same in my considered opinion is misconceived. The Deputy Director of Consolidation, while dismissing the revision has nowhere held that the revision was not maintainable. He has only observed that the revision is in admissible as an appeal which has been dismissed for default had been restored. He has further observed that no order has been passed on merits or which effects the rights of the parties. Such a decision on merits is yet to be taken by the appellate authority. 36. I do not find any illegality in the reasoning or the approach of the revisional Court also. 37. It is equally true that the right of appeal is a statutory right. The appeal was filed in the year 1963 and the same has not been decided on merits till date. I am therefore, of the considered opinion that this appeal must necessarily be heard and decided on its merits and the statutory right of an appeal against the order passed by the Consolidation Officer in title proceedings should not be take away on technicalities.? 38. I, therefore, refuse to exercise my equity jurisdiction under Article 226 of the Constitution of India for interfering with the impugned orders and for this reason also, the writ petition is liable to be dismissed. 39. Since, the submissions made by learned counsel for the petitioners have been found to be without substance, therefore and in view of the above discussion, this writ petition is dismissed. Petition Dismissed.