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2024 DIGILAW 1164 (ALL)

Ganesh Prasad v. Assistant D. C.

2024-04-30

CHANDRA KUMAR RAI

body2024
JUDGMENT : Chandra Kumar Rai, J. Heard Mr Zeeshan Khan holding brief of Mr Mohd Aadil, learned Counsel for the petitioner, Mr. Prem Chandra Maurya, holding brief of Mr. Swapnil Kumar, learned counsel for the respondent No. 3/3 and Mr B.N.Pathak, learned Standing Counsel for the State. 2. Brief facts of the case are that Khata No- 306, 307, 49 situated in village Jai Singh Pura, Pargana-Mathura, District-Mathura was recorded in the name of respondent No-3 Triloki Nath and respondent No. 5 Kalicharan. The village in question was notified under Section 4 of U.P. Consolidation of Holdings Act 1953 herein after referred to as U.P.C.H. Act in the year 1975. Petitioner filed a time barred objection under Section-9A(2) of the U.P.C.H. Act on 10.1.1983 alongwith prayer of condonation of delay of about 7 year which was registered as Case No. 86 before Consolidation Officer, Baldeo, Mathura. The delay condonation matter in the aforementioned objection was heard and Consolidation Officer vide order dated 9.9.1983 granted benefit of Section 5 of Indian Limitation Act in filing objection Under Section 9-A (2) of U.P.C.H. Act on Cost of Rs 30 and fixed 17.9. 1983 for framing of issues and evidence. Respondent Nos. 3 and 5 filed a revision under Section 48 of U.P.C.H. Act before revisional Court against the order dated 9.9.1983 granting benefit of Section-5 of Indian Limitation Act which was registered as Revision No- 460/579 before Assistant Director of Consolidation Mathura. The aforementioned revision was heard finally by Assistant Director of Consolidation who vide order dated dated 29.11.1984 allowed the revision, setting aside the order dated 9.9.1983 and sent the matter back before consolidation officer to decide the delay condonation matter afresh. Hence this writ petition on behalf of petitioner challenging the revisional order dated 29.11.1984 passed by respondent No. 1/Assistant director of Consolidation Mathura 3. This Count vide order dated 30.1.1985 admitted the writ petition, issued notice to respondents and stayed the further proceedings before the consolidation officer, in pursuance of the impugned order of the Assistant Director of Consolidation dated 29.11.1984 4. On behalf of respondent No. 3/3 a counter-affidavit dated 3.3.2024 has been filed to the writ petition on 8.4.2024. 5. Petitioner has also filed a supplementary-affidavit dated 5.4.2024 on 8.4.2024. 6. On behalf of respondent No. 3/3 a counter-affidavit dated 3.3.2024 has been filed to the writ petition on 8.4.2024. 5. Petitioner has also filed a supplementary-affidavit dated 5.4.2024 on 8.4.2024. 6. Learned Counsel for the petitioners submitted that delay in filling title objection has been rightly condoned by consolidation officer vide order dated 9.9.1983 and date was fixed for evidence but revisional count has illegally set aside the order condoning delay in filing title objection under the impugned order dated 29.11.1984 and sent the matter back before Consolidation Officer for fresh consideration of delay condonation matter, which is abuse of process of law. He further submitted on the date of filing of time barred objection under Section 9-A (2) of U.P.C.H. Act the village was not notified under Section 52 of U.P.C.H. Act as such there was no illegality in the order of Consolidation Officer dated 9.9. 1983 granting benefit of Section 5 of Indian Limitation Act. He further submitted that parties are contesting civil litigation also in respect to plot in question as such title objections filed by petitioners is to be decided on merit in accordance with law considering the judgment and decree passed by Civil Court. He further submitted that order of Condonation of delay should not be interfered with by higher Courts in order to advance the justice between the parties. He further submitted impugned revisional order dated 29.11.1984 be set aside and Consolidation Officer be directed to decide the title objection on merit expeditiously. 7. On the other hand, learned Counsel appearing for respondent No. 3/3 submitted that respondent No- 3/2 Om Prakash has expired on 1.11.2021 and respondent No. 5 Kalicharan has expired in the year 1987 but no steps for substitution of legal heirs has been taken by petitioners as such writ-petition is liable to be dismissed. He further submitted that Suit No- 27 of 1953 for declaration as Sebait of Mandir as well as for damage filed by Virajman Mandir and petitioner-Ganesh Prasad against Ram Chandar (father of respondent No 3 to 5) was decreed for Sebaitship but dismissed for damages as defendant Ram Chandra was found in possession. He further submitted that judgment of trial Court was maintained by this Court vide judgment dated 8.11. 1982. He further submitted that another Civil Suit No-25 of 1958 filed by petitioner-Ganesh Prasad for permanent injunction was dismissed vide Judgment dated 28.1.1960. He further submitted that judgment of trial Court was maintained by this Court vide judgment dated 8.11. 1982. He further submitted that another Civil Suit No-25 of 1958 filed by petitioner-Ganesh Prasad for permanent injunction was dismissed vide Judgment dated 28.1.1960. He further Submitted that Misc Case No- 62 of 1989 filed by petitioner-Ganesh Prasad in Civil Suit 27 of 1953 for 1/2 share in the offering collected in the temple was ultimately dismissed by dismissal of S.L.P. No. 35827 of 2011 by Hon'ble Apex Court vide order dated 20.7.2015. He further Submitted that in Civil Suit No- 992 of 1995 filed by petitioner-Ganesh Prasad a Counter claim filed by respondent N0.3 Triloki Nath for Muttwalli of the temple was decreed as such petitioner has no right and title in the matter. He further submitted that village in question was notified under Section 4 of U.P.C.H. Act in 1975 but objection under Section 9-A(2) of U.P.C.H. Act has been filed by petitioner in the year 1982 when the village was at the verge of denotification under Section 52 of U.P.C.H. Act as such the objection under Section 9-A (2) of U.P.C.H. Act filed by petitioners is liable to be rejected on the ground of limitation. He further submitted that petitioner was contesting Civil Litigation from trial Count upto Hon'ble Apex Court as such he cannot say that he was not aware about the consolidation operation or basic your entry of the plot in question. He finally submitted that writ petition filed by petitioner is liable to be dismissed with Cost and basic year entry of the plot in question be maintained. 8. In reply Counsel for the petitioner submitted that in Civil Suit No- 27 of 1953 right of petitioner was recognized as Sebait and decree was maintained by dismissal of SLP No - 4597 of 1983 filed by Ram Chandra (dead) by Lrs as such petitioner was entitled to be recorded as co-tenure holder of 1/2 share during consolidation operation and the title objection under Section-9A (2) of U.P.C.H. Act filed by petitioner is to be decided on merit 9. I have considered the argument advanced by learned Counsel for the parties and perused the record 10. I have considered the argument advanced by learned Counsel for the parties and perused the record 10. There is no dispute about the fact that Village in question was notified under Section 4 of U.P.CH Act in the year 1975 and time barred title objection under Section 9-A (2) of U.P.C.H. Act was filed by petitioner in the year 1982. There is also no dispute about the fact that Consolidation Officer has granted benefit of Section 5 of Indian Limitation Act in filing title objection vide order dated 9.9.1983 and fixed the title objection for issues and evidence but in revision the order dated 9.9.1983 was set aside by Assistant Director of Consolidation vide order dated 29.11.1984 and the matter was remanded back before Consolidation Officer for fresh consideration of delay Condonation matter. There is also no dispute about the fact that further proceeding in pursuance of revisional order dated 29.11.1984 has been stayed by this count vide interim order dated 30.11.1985 passed by this Count in the instant petition. 11. In order to appreciate the controversy involved in the matter the perusal of Section-9 of UP.CH Act will be relevant which is as under: [9 Issue of extracts from records and statements and publication of records mentioned in Sections 8 and 8-A and the issue of notices for inviting objections. 11. In order to appreciate the controversy involved in the matter the perusal of Section-9 of UP.CH Act will be relevant which is as under: [9 Issue of extracts from records and statements and publication of records mentioned in Sections 8 and 8-A and the issue of notices for inviting objections. - (1) Upon the preparation of the records and the statements mentioned in Sections 8 and 8-A, the Assistant Consolidation Officer shall (a) correct the clerical mistakes, if any, and send, or cause to be sent, to the tenure-holders concerned and other persons interested, notices containing relevant extracts from the current annual register and such other records as may be prescribed showing - (i) their rights in the liabilities in relation to the land; (ii) mistakes 54undisputed cases of succession and disputes discovered under Section 8 in respect thereof; (iii) specific shares of individual tenure-holders in joint holdings for the purpose of effecting partitions, where necessary, to ensure proper consolidation; (iv) valuation of the plots; and (v) valuation of trees, wells and other improvements for calculating compensation therefor and its apportionment amongst owners, if there be more owners than one; (b) publish in the unit the current khasra and the current annual register, the khasra chakbandi, the Statement of Principles prepared under Section 8-A, and any other records that may be prescribed to show, inter alia, the particulars referred to in clause (a). (2) Any person to whom a notice under sub-section (1) has been sent, or any other person interested may, within 21 days of the receipt of notice, or of the publication under sub-section (1), as the case may be, file before the Assistant Consolidation Officer, objections in respect thereof disputing the correctness or nature of the entries in the records or in the extracts furnished therefrom, or in the Statement of Principles, or the need for partition. 12. 12. The perusal of Section 9-A(2) of U.P.C.H. Act as quoted above demonstrate that title objection should be filed within 21 days from the date of a notice or of the publication under Section 9 (1) of U.P.CH.Act but in the instant matter the title objection has been filed after about 7 year from the date of notification inspite of the fact that petitioner was contesting civil proceeding pending between the parties as such it cannot be said that petitioner was not aware about the consolidation operation or basic year entry. 13. Under U.P.C.H. Act full procedure has been prescribed for filing title objection/ chak objection, title appeal/ chak appeal, title revision/ chak revision within limitation prescribed under the Act with check and balance as such filing of title objection under under Section 9-A (2) of UP.C.H. Act after 7 years from the date of notification specially when the village was at the verge of denotification under Section 52 of U.P.C.H. Act will be abuse of process of law and should not be entertained. 14. In the instant matter, the petitioner was actively prosecuting the civil proceeding between the parties as such he cannot say that he was not aware about the consolidation operation in the village in question or about the basic year entry of the plot in question. The initiation of proceeding during consolidation operation is not the wish of the tenure holder concern that at any time proceeding can be initiated rather the proceeding is to be initiated within limitation prescribed for the same under U.P.C.H. Act otherwise finality will be attached for not initiating the proceeding of objection/appeal/revision. 15. Under Section 53-B of U.P.C.H. Act provisions of Section 5 of Indian Limitation Act 1963 has been made applicable to the applications, appeals, revisions and other proceeding under the act and rules made thereunder but its benefit can be extended only when sufficient cause is shown. In the name of liberal view in the delay condonation matter the delay of 7 years in filing the title objection under Section 9-A(2) of U.P.C.H. Act cannot be condoned specially when the village was at the verge of denotification under Section 52 of U.P.C.H. Act as well as petitioner was actively prosecuting the civil proceeding between the parties at the relevant point of time. 16. 16. It is also material that contesting respondent No. 3/2 and respondent No. 5 have expired but no steps has been taken to substitute the legal heirs of deceased-respondents. 17. Considering the entire facts and circumstances of the case the proceeding under Section 9-A (2) of U.P.C.H. Act cannot be permitted to continue before Consolidation Officer in respect to the basic year entry of 1969 for further consideration of time barred title objection under Section 9-A(2) of U.P.C.H. Act rather the basic year entry of the plot in question is to be maintained accordingly, the impugned order dated 29.11.1984 passed by respondent No. 1/ Assistant Director of Consolidation Mathura is modified to the extant that time barred title objection under Section 9-A (2) of U.P.C.H. Act filed by petitioner is hereby rejected as time barred and basic year Entry of the plot in question is maintained. 18. The writ petition is accordingly, disposed of finally. 19. No order as to cost.