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2016 DIGILAW 3860 (ALL)

Virendra Prakash v. State of U. P.

2016-11-30

MANOJ KUMAR GUPTA

body2016
JUDGMENT Manoj Kumar Gupta, J. – The instant writ petition is directed against the order dated 23 June 2016 passed by the Settlement Officer (Consolidation), Camp Kannauj, allowing the restoration application filed by the fourth respondent. As a result of the said order, the order dated 19 June 1989 dismissing the appeal in default has been set-aside and the appeal has been restored and has been directed to be heard on merits. The order passed by the respondent No. 2 dated 14 October 2016 dismissing the revision filed by the petitioners is also subject matter of challenge. 2. It transpires from the facts stated in the writ petition that in proceedings under section 9A (2) of the U.P. Consolidation of Holdings Act, 1953, the objections filed by the father of the petitioners was allowed by the Consolidation Officer by order dated 4 February 1985. Aggrieved by the said order, Smt. Rajeshwari Devi acting as guardian of her three minor sons namely Ram Pal, Ramanand and Ram Prakash filed appeal under section 11(1) of the Act before the Settlement Officer (Consolidation). The appeal came to be dismissed in default on 19 June 1989. However, no restoration application was filed by Smt. Rajeshwari Devi and ultimately, she died on 13 October 1996. The fourth respondent filed restoration application on 31 May 2013 along with an application seeking condonation of delay. In the application, the fourth respondent stated that the appeal was filed when he was a minor. It was dismissed in default in the absence of Rajeshwari Devi, his guardian. A day prior to the filing of the restoration application, effort was made to dispossess him. Thereafter, the records were got inspected and then he came to know of the order dated 4 February 1985 and about dismissal of appeal in default. The restoration application was opposed by the petitioners by filing objections contending that the two other brothers of the fourth respondent had attained majority long back but they did not file any restoration application. The restoration application was highly delayed and deserves to be rejected. The Settlement Officer (Consolidation) by impugned order dated 23 June 2016 allowed the restoration application and restored the appeal to its original number. The revision filed by the petitioners has been dismissed by impugned order dated 14 October 2016. 3. Learned counsel for the petitioners submitted that the restoration application was filed with gross delay. The Settlement Officer (Consolidation) by impugned order dated 23 June 2016 allowed the restoration application and restored the appeal to its original number. The revision filed by the petitioners has been dismissed by impugned order dated 14 October 2016. 3. Learned counsel for the petitioners submitted that the restoration application was filed with gross delay. It is urged that Ramanand, brother of the fourth respondent died in the year 2002 and Ram Prakash, in the year 2000. They had attained majority long back, but they did not file any restoration application, though they were aware of the dismissal of the appeal. It is submitted that a specific objection in that regard was raised by the petitioners, but the same has not been taken into consideration. 4. The Deputy Director of Consolidation while dismissing the revision has entered a specific finding that for mutation of the order passed by the Consolidation Officer dated 4 February 1985, an application was filed by the petitioners in the year 2012 i.e. after 23 years. On the said application, an order was passed under Rule 109 A on 10 April 2013 and in pursuance thereof, the amaldamarad in the revenue records was carried out on 25 April 2013. Thereafter, the Lekhpal went on the spot to deliver the possession. The fourth respondent thus, came to know of the order dismissing the appeal and filed the restoration application. Having regard to these facts, the revisional Court has held that the Settlement Officer (Consolidation) was justified in allowing the restoration application by extending the benefit of section 5 of the Limitation Act. 5. Concededly, the order of the Consolidation Officer dated 4 February 1985 was passed in proceedings under section 9A(2) of the Act. The fourth respondent and his brothers claimed ½ share in the disputed land whereas, by the order passed by the Consolidation Officer, their share was determined as ¼th. Thus, valuable rights of the fourth respondent and his brothers were involved in the appeal, which was filed under section 11(1) of the Act. The orders passed during the consolidation operations have been given finality by virtuue of section 49 of the Act. 6. Thus, valuable rights of the fourth respondent and his brothers were involved in the appeal, which was filed under section 11(1) of the Act. The orders passed during the consolidation operations have been given finality by virtuue of section 49 of the Act. 6. Although, it is true that the brothers of the fourth respondent had not filed the restoration application during their life time, but it is not disputed before this Court that on 19 June 1989, when the appeal was dismissed in default, the fourth respondent as well as his other brothers were all minor. The appeal was filed on their behalf by their guardian Smt. Rajeshwari Devi, who had died on 13 October 1996. The findings recorded by the Deputy Director of Consolidation in the impugned order establishes that the amaldamarad of the order passed by the Consolidation Officer on 4 February 1985 was carried out in the year 2013 and in course of proceedings for delivery of possession, the fourth respondent having come to know of the order of the Consolidation Officer and about the dismissal of the appeal in default had filed the restoration application soon thereafter. In such view of the matter, this Court does not find any reason to interfere with the impugned orders, the effect whereof is that the dispute between the parties would now be heard and decided on merits. 7. In the end, learned counsel for the petitioners submitted that the third respondent be directed to decide the appeal within a fixed time frame and till then, the parties be directed to maintain status quo. 8. In view of the said submission, this Court while refusing to interfere with the impugned orders, disposes of the writ petition by directing the third respondent to make all endeavour to decide the appeal on merits, in accordance with law, expeditiously and preferably within a period of three months from the date of production of a certified copy of the order. It is further provided that until the appeal is decided, status quo as on date shall be maintained. Petition Disposed of.