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2022 DIGILAW 1091 (ALL)

Bhagwan Das alias Ram Das v. State of U. P.

2022-07-14

CHANDRA KUMAR RAI

body2022
JUDGMENT : CHANDRA KUMAR RAI, J. 1. Heard Sri Krishna Kumar Chaurasia, learned counsel for the petitioner, learned Standing Counsel for respondent nos. 1 to 4, Sri Pradeep Singh, learned counsel for respondent no. 5 and Sri Ashutosh Tripathi, learned counsel for respondent nos. 6 and 7. 2. The instant petition has been filed for quashing the impugned order dated 9.5.2022 passed by the Deputy Director of Consolidation/A.D.M. Namamigange, Mirzapur as well as the order dated 27.12.2019 passed by the Settlement Officer of Consolidation, Mirzapur and order dated 4.7.2019 passed by the Consolidation Officer in the proceeding arising out of Section 9A (2) of the U.P. Consolidation of Holdings Act. 3. Brief facts of the case are that in the basic year of the consolidation operation, one Somaroo was recorded over Gata No. 73/2 and 411/2 of Khata No. 255. A time barred objection under Section 9A (2) of U.P.C.H. Act was filed on 3.12.1998 by Basedeo (petitioner's father) and Laldeo (respondent no. 7) impleading Laldeo and others for cotenancy right, the case was registered as Case No. 1698. Somaroo had died during pendency of the objection before Consolidation Officer. A compromise was entered into in the aforementioned Case No. 1698 between petitioner and respondent no. 7 (natural father and guardian of respondent no. 6) by compromise deed dated 25.11.1999, which was verified by their counsel. Accordingly, Consolidation Officer by order dated 4.4.2001 allowed the objection on the basis of compromise after condoning the delay in filing the objection by separate order and ordered to record the name of petitioner's father Basedeo over Plot Nos. 73/2 and 411/2. Notification under Section 52 of U.P.C.H. Act took place on 16.9.2006 in the village in question. Respondent no. 6, Panna Lal filed an application before Consolidation Officer on 18.8.2017 against the order dated 4.4.2001 passed by Consolidation Officer stating that he (Panna Lal) was minor during the period of consolidation and came to know about the order dated 4.4.2001 on 6.8.2017 when the interference was made with possession of the petitioner. The basis of claim of respondent no. 6 is registered adoption deed alleged to be executed on 20.11.1998 by Somaroo in favour of respondent no. 6 (Panna Lal). Petitioner filed an objection to the restoration application and delay condonation application filed by respondent no. 6. The basis of claim of respondent no. 6 is registered adoption deed alleged to be executed on 20.11.1998 by Somaroo in favour of respondent no. 6 (Panna Lal). Petitioner filed an objection to the restoration application and delay condonation application filed by respondent no. 6. Consolidation Officer by order dated 4.7.2009 allowed the restoration application giving benefit of Section 5 of Limitation Act and set aside the earlier order dated 4.4.2001 fixing a date 18.7.2019 for further proceedings. Against the order dated 4.7.2019 petitioner filed an appeal under Section 11 of the U.P.C.H. Act before the Settlement Officer of Consolidation which was dismissed by the Settlement Officer of Consolidation vide order dated 27.12.2019. The revision under Section 48 of U.P.C.H. Act filed by the petitioner against the order of the Consolidation Officer as well as the Settlement Officer of Consolidation was dismissed by the impugned order dated 9.5.2022, hence this writ petition. 4. Learned counsel for the petitioner submitted that objection under Section 9A-2 of the U.P.C.H. Act filed by the parties were decided on the basis of compromise. The result of which, petitioner's father was ordered to be recorded expunging the name of Somaroo but respondent no. 6 on the basis of manipulated gift deed, has setup his claim through belated restoration application after 16 years and the Consolidation Officer without giving cogent reason has allowed the restoration application. He further submitted that application for recall filed by respondent no. 6 on 18.8.2017 was not maintainable as notification under Section 52 of the U.P.C.H. Act had already taken place on 16.9.2006. He placed reliance upon, Hari Ram vs. D.D.C. Azamgarh, 1989 R.D. 281, on the point of Section 52 of the U.P.C.H. Act. He next submitted that even no condition has been imposed for allowing the restoration application which was belated by 16 years. He also submitted that the petitioner is in possession of the disputed plots and respondents have initiated the proceeding by way of restoration/recall in order to harass the petitioner, hence writ petition be allowed and the impugned orders are liable to be set aside. 5. On the other hand, learned counsel for respondent no. 6 and 7 submitted that fraud has taken place before the Consolidation Officer in obtaining the order on the basis of compromise. He further submitted that respondent no. 5. On the other hand, learned counsel for respondent no. 6 and 7 submitted that fraud has taken place before the Consolidation Officer in obtaining the order on the basis of compromise. He further submitted that respondent no. 6 was minor at the time when the proceeding were pending and compromise has taken place, as such, the order passed on the basis of compromise was rightly set aside by the Consolidation Officer while allowing the restoration application. He next submitted that appeal and revision etc. can be filed against the order of consolidation authorities even after notification under Section 52 of U.P.C.H. Act. He placed reliance upon Sharda Prasad Tiwari vs. State of U.P. and Others, 2015 (127) R.D. 702 . He also submitted that the case has been restored on its original number by the Consolidation Officer so petitioner can take whatever objection he want before the Consolidation Officer, hence he prays for dismissal of the writ petition. 6. I have considered the submissions advanced on behalf of the learned counsel for the parties and perused the record. There is no dispute about the fact that objection under Section 9A (2) of the U.P.C.H. Act has been decided on the basis of compromise by which the name recorded tenure holder was expunged from whom respondent no. 6 is claiming right, accordingly, restoration application filed by respondent no. 6 was allowed by the Consolidation Officer for deciding the case on merit but no condition has been imposed upon respondent no. 6 for filing the application with inordinate delay. 7. In Smt. Thaker vs. Deputy Director of Consolidation and Others, 1975 R.D. 271, it has been held that the High Court should not interfere under Article 226 of the Constitution of India, in exercise of discretion in condoning the delay by consolidation authorities. In Ram Chand and Another vs. Deputy Director of Consolidation and Others, 1984 R.D. 258, it has been held that order of condonation of delay raises no question of jurisdiction so as to call for interference by the Court in exercise of powers under Article 226 of the Constitution of India. 8. On the point of Section 52 of the U.P.C.H. Act, Para No. 11 in the case of Sharda Prasad Tiwari (supra) will be relevant which is as follows: “11. 8. On the point of Section 52 of the U.P.C.H. Act, Para No. 11 in the case of Sharda Prasad Tiwari (supra) will be relevant which is as follows: “11. The other argument that the consolidation operation was closed in the village by notification under Section 52 of the Act, on 30.4.1990 and the appeal was filed on 13.4.2002, as such, it was not maintainable has also no force. Section 6 of the General Clauses Act authorizes for filing of the appeal after repeal of the Act. Supreme Court in Gurucharan Singh Baldev Singh vs. Yashwant Singh, (1992) 1 SCC 428 and Glaxo Smith Kline PLC vs. Controller of Patents and Designs, AIR 2009 SC 1147 held that pre-existing right of appeal under the old law continues to exist and not destroyed by necessary implications after repeal of the law, in the absence of contrary intention in the repealing law. Division Benches of this Court in Gopi Singh vs. D.D.C. and Others, 1967 R.D. 214, Ram Bahadur vs. D.D.C. and Others, 1974 R.D. 627 and Siddh Narain vs. D.D.C. and Others, 2007 (103) R.D. 627 have held that appeal and revision etc. can be filed against the orders passed by consolidation authorities even after the notification under Section 52 of the Act.” 9. Considering the entire facts and circumstances as well as the ratio of law laid down by the Court on the point in issue no interference is required against the impugned orders except that since no condition has been imposed by the Consolidation Officer while allowing the restoration application of respondent no. 6, as such, the impugned orders are modified to the extent that respondent no. 6 will pay cost for allowing the restoration application to the sum of Rs. 10,000/- to the petitioner on the date fixed before the Consolidation Officer. 10. The writ petition is finally disposed of with the following directions: (i) The parties will appear before the Consolidation Officer on 22nd August, 2022. (ii) The respondent no. 6 will pay cost of Rs. 10,000/- to the petitioner on the date fixed i.e. 22.8.2022 before the Consolidation Officer and the Consolidation Officer shall mention the same in the order sheet. 11. (ii) The respondent no. 6 will pay cost of Rs. 10,000/- to the petitioner on the date fixed i.e. 22.8.2022 before the Consolidation Officer and the Consolidation Officer shall mention the same in the order sheet. 11. Since, the case is very old, as such, the Consolidation Officer is directed to decide the case expeditiously preferably within a period of six months after affording opportunity of hearing to the parties from the date of production of certified copy of this order before him.