Balihari v. Deputy Director of Consolidation, Azamgarh
2016-11-30
MANOJ KUMAR GUPTA
body2016
DigiLaw.ai
JUDGMENT Manoj Kumar Gupta, J. – The instant writ petition is directed against the order dated 23.10.2002 passed by Consolidation Officer rejecting the application filed by the Dukhai, predecessor in interest of the petitioners dated 2.9.2002 challenging the maintainability of the restoration application filed by the contesting respondents. The petitioners have also assailed the validity of the order dated 10.8.2016 passed by the Deputy Director of Consolidation dismissing the revision. 2. In proceedings under Section 9A(2) of the Act, an order dated 19.6.1998 was passed by the Consolidation Officer allowing the objections filed by Dukhai. Respondents 3 to 9 filed an application on 4.5.2000 seeking setting aside of the order dated 19.6.1998. Dukhai filed objections against the said application on 2.9.2002 contending that the restoration application at the instance of the private respondents is not maintainable inasmuch as they have no right, title and interest over the land in dispute. It was further contended that the restoration application had been filed with gross delay and it deserves to be rejected as such. By an order dated 23.10.2002, the Consolidation Officer rejected the objection dated 2.9.2002 and fixed 11.11.2002 for arguments on the restoration application. The Consolidation Officer rejected the plea of the petitioners that the delay condonation application and the restoration application cannot be decided simultaneously. The Consolidation Officer has taken the view that while the two applications can be decided simultaneously but the restoration application cannot be allowed without the delay being condoned. Aggrieved by the said order, the petitioners filed a revision, which has been dismissed by the impugned order dated 10.8.2016. 3. Counsel for the petitioners has made two fold submissions: - (i) the view taken by the authorities that both the applications, namely, the delay condonation application and restoration application can be decided simultaneously, is not correct. In this regard he has placed reliance on the decision of this Court in case of Jais Lal v. Deputy Director of Consolidation Jaunpur and another 2014(1) ADJ 248 ; and (ii) that objections filed by the petitioners dated 2.9.2002 also challenges the locus of the private respondents to maintain a restoration application and consequently the objection could not have been dismissed without going into the said plea. 4.
4. In Jais Lal (supra), the contention raised before the Court was that the revisional authority is proceeding to decide the revision on merits without condoning the delay in filing the revision. While dealing with the said contention, the Court held that while "both the things can be done simultaneously, but one thing is settled that unless the delay is condoned, the appeal/revision/suit will not be competent and the same cannot be decided on merits." 5. In the instant case, it is clear that the application which has been filed by the contesting respondents is for setting aside an ex-parte order. Along with the said application, another application seeking condonation of delay has been filed. In the opinion of the Court, the Consolidation Officer was justified in taking the view that both the delay condonation and the restoration application can be heard simultaneously but the restoration application could not be allowed without the delay being condoned. As such, the contention of learned counsel for the petitioners that the delay condonation application and the restoration application cannot be heard simultaneously, cannot be accepted. 6. Coming to the next submission of learned counsel for the petitioner, it is noticeable that the objections which the petitioners have preferred against the restoration application also raises a plea that the contesting respondents do not have the locus to maintain the restoration application. The said plea is to be gone into while deciding the restoration application. In such view of the matter, there appears sufficient force in the submission of learned counsel for the petitioners that the objection filed by the petitioners on 2.9.2002 should not have been dismissed as a whole. 7. Since, only a clarification in that regard is required to be made and therefore, this Court is of the opinion that no useful purpose would be served in issuing notice to respondent nos. 3 and 4 and keeping the matter pending. 8. Accordingly, this writ petition is disposed of by clarifying that while deciding the delay condonation application and the restoration application, the Consolidation Officer shall duly consider the plea of the petitioners raised in their objections dated 2.9.2002 regarding the locus of the private respondents to maintain the restoration application. Petition Disposed of.