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2017 DIGILAW 2654 (ALL)

PAWAN KUMAR SINGHAL v. DY. DIRECTOR OF CONSOLIDATION

2017-11-16

MANOJ MISRA

body2017
JUDGMENT : Manoj Misra, J. Heard learned counsel for the petitioner; learned Standing Counsel for respondent nos.1 and 2 and Sri A.K. Mehrotra for respondent no.3. 2. The present petition has been filed challenging the orders dated 4th August, 2017 and 11th June, 2015, passed by Deputy Director of Consolidation, Gautam Buddh Nagar and Consolidation Officer, Dadri, district Gautam Buddh Nagar, respectively. 3. The case of the petitioner is that in respect of allotment made in favour of the petitioner, a time barred objection was filed by the third respondent, which was dismissed on merits by the Consolidation Officer, Gautam Buddh Nagar by order dated 3rd June, 2014, which was passed after hearing both sides, therefore, against the said order only an appeal or a revision could have been filed but the third respondent, whose objection was dismissed, chose to file restoration application, which was not maintainable in view of a Full Bench decision of this Court in the case of Shivraji v. Deputy Director of Consolidation Allahabad 1997 (88) RD 562. 4. It has been submitted that despite the fact that the application was not maintainable, the Consolidation Officer proceeded to recall the order dated 3rd June, 2014 by impugned order dated 11th June, 2015 and restored the proceeding to its original number. 5. It has been submitted that since the order dated 11th June, 2015 was completely without jurisdiction, the petitioner challenged the same before the Deputy Director of Consolidation, who, vide its order dated 4th August, 2017 dismissed the revision on irrelevant consideration by observing that such an order is interlocutory in nature against which no revision would lie. It is thus the prayer of the petitioner that the orders dated 11th June, 2015 and 4th August, 2017 passed by Consolidation Officer, Dadri and Deputy Director of Consolidation, Gautam Buddh Nagar be set aside. 6. Sri A.K. Mehrotra, who appears for respondent no.3, submits that the order dated 12th January, 2009, which is at page 44 of the paper book, reveals that delay in filing the objection taken by the respondent no.3 was condoned, yet the Consolidation Officer, by his order dated 3rd June, 2014, dismissed the objection by observing that the same was barred by limitation and has no merit. 7. 7. It has been submitted that the order dated 3rd June, 2014, passed by Consolidation Officer is cryptic in nature and does not deal with the submissions raised on behalf of respondent no.3, and it was just a paper work on the part of the officer concerned to complete the formality; and the error was apparent on the face of record in as much as there was an observation that the objection was highly barred by limitation when, in fact, delay in filing the objection had already been condoned. 8. It is further the case of the third respondent that in the restoration application full facts were given to disclose that the order dated 3rd June, 2014 was ex-parte and after being satisfied that the said order was an ex-parte order, the Consolidation Officer recalled the order vide its order dated 11th June, 2015. Under the circumstances as the order serves the ends of justice, thereby giving opportunity of hearing to both sides to address on merits of the case which was not at all considered, it is not a case where the constitutional power of this Court should be exercised to set aside the order to perpetuate illegality. 9. In response to the argument advanced on behalf of third respondent, learned counsel for the petitioner submitted that although the Consolidation Officer while passing the order dated 11th June, 2015 has observed that the order dated 3rd June, 2014 was an ex-parte order but he has not recorded any reasoning as to how and in what manner the order dated 3rd June, 2014 was an ex-parte order when the order dated 3rd June, 2014 recites that both parties were heard. 10. I have given thoughtful consideration to the rival submissions and have perused the record. 11. The contention of learned counsel for the petitioner that the Consolidation Officer has not recorded any finding that as to how the order dated 3rd June, 2014 was an ex-parte order appears to be correct but that by itself is not a ground on which constitutional power of judicial review should be exercised to set aside an order the result of which would be to revive an order which on the face of it appears unsustainable. A perusal of the record would reveal that on 12th January, 2009 the Consolidation Officer had condoned the delay in filing the objection of other side. A perusal of the record would reveal that on 12th January, 2009 the Consolidation Officer had condoned the delay in filing the objection of other side. The order dated 3rd June, 2014 proceeds to reject the objection in a cursory manner by addressing it to be hopelessly barred by limitation. Neither the submission nor the case of the parties has been noticed and discussed. How could an objection be discarded as barred by limitation when earlier, by order dated 12th January, 2009, the delay condonation application has been allowed and the delay was condoned. 12. Under the circumstances, if the order dated 3rd June, 2014 is allowed to stay on record with the seal of approval of this Court, grave injustice would be caused, particularly, when the order has been recalled by recording satisfaction that the earlier order dated 3rd June, 2014 was an ex-parte order. Though the order dated 11th June, 2015 does not in so many words states that how and why the order dated 3rd June, 2014 was an ex-parte but the substance of the satisfaction that the said order was an ex-parte order is nevertheless there, which is corroborated by the fact that the order dated 3rd June, 2014 does not at all discuss and notice the submissions of the parties and wrongly calls the objection as hopelessly barred by limitation when earlier the delay had already been condoned. Accordingly, this Court finds no good reason to exercise constitutional powers to set aside the order only on technical ground, particularly when the order serves the ends of justice. 13. The petition is dismissed.