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2024 DIGILAW 1881 (ALL)

Hafizullah v. Deputy Director Of Consolidation

2024-08-12

DINESH PATHAK

body2024
JUDGMENT : Dinesh Pathak, J. 1. Heard learned counsel for the petitioners, learned counsel for private respondents no.3 as well as learned Standing Counsel for the State-respondents no.1 & 2. 2. In view of the peculiar facts and circumstances of the present case and the order proposed to be passed hereunder, this Court proceeds to decide the instant writ petition finally, with the consent of learned counsel for the parties who are present in the Court, without calling for their respective affidavits. Respondent no.4 has no interest in the property in question inasmuch as he has executed a sale deed qua his share in favour of respondent no.3 who is already represented through her counsel. 3. The petitioners have shown their grievance against the order dated 15.04.2024 passed by the Deputy Director of Consolidation (in brevity 'D.D.C.') whereby the petitioners have been directed to resort to an alternative remedy to file restoration application against the alleged ex parte order dated 15.12.2000 passed by the Consolidation Officer. 4. Facts culled out from the record are that in proceeding under Section 9-A(2) of U.P.C.H. Act share of the parties has been determined by order dated 01.10.2019 passed by the Consolidation Officer in Case No.03 if 2019-20, as such, Ashiya Bibi (predecessor-in-interest of the petitioners) has been accorded 2/3rd share and Usman (substituted by respondent no.4) has been accorded 1/3rd share. During pendency of the case, Ishtiyaq (respondent no.4) has executed a registered sale deed in favour of respondent no.3. At later stage, respondent no.3 has filed restoration application dated 13.06.2020 against the order dated 01.10.2019, which has been allowed vide order dated 15.12.2020. Having been aggrieved with the said order, Ashiya Bibi has preferred revision. The D.D.C. has dismissed the revision on the ground of availability of alternative remedy to file restoration application against the order dated 15.12.2020, which is under challenge before this Court. 5. Having considered the rival submissions advanced by learned counsel for the parties and perusal of record, it is manifested that the Consolidation Officer, vide order dated 15.12.2020, has allowed the time barred restoration application dated 13.06.2020 without assigning any cogent reason and without discussing sufficiency of cause for the delay in filing the restoration application. 5. Having considered the rival submissions advanced by learned counsel for the parties and perusal of record, it is manifested that the Consolidation Officer, vide order dated 15.12.2020, has allowed the time barred restoration application dated 13.06.2020 without assigning any cogent reason and without discussing sufficiency of cause for the delay in filing the restoration application. He has simply adopted the liberal approach, however, failed to consider that vendor of restoration applicant (respondent no.3 herein) was already present in the proceeding under Section 9-A(2) of the U.P.C.H. Act and in his presence order dated 15.12.2020 has been passed determining his 1/3rd share. There is nothing on the record to demonstrate as to when respondent no.4 has executed a registered sale deed in favour of respondent no.3. It is also not clarified as to whether Ishtiyaq (respondent no.4) has executed a registered sale deed with respect to his 1/3rd share as decided by the Consolidation Officer vide order dated 01.10.2019 or more than 1/3rd share. It is a matter of thoughtful consideration that in case Ishtiyaq has executed a registered sale deed to the extent of his 1/3rd share, no prejudice would be encompassed the respondent no.3 inasmuch as the vendor has already conferred 1/3rd share in the property in question and there is no dispute in this regard. However, on the flip side, if sale deed has been executed more than 1/3rd share then position would be different. Prima facie, it evince that the order dated 15.12.2020 has been passed ex parte against Ashiya Bibi (predecessor-in-interest of the petitioners). The D.D.C., while passing the order dated 15.04.2024, has failed to exercise its jurisdiction so vested in it by law. Under Section 48(3) of U.P.C.H. Act, the D.D.C. is vested with vast power to examine the correctness, legality or propriety of the order passed by the courts subordinate to him, however, he has failed to examine the order dated 15.12.2020 passed by the Consolidation Officer. It appears that he has anyhow averted his responsibilities on the pretext of availability of alternative remedy to file restoration application. 6. After due deliberations at length, counsel for the contesting respondent no.3 has consented to remit the matter before the Consolidation Officer to decide the restoration application dated 13.06.2020 filed on behalf of respondent no.3 afresh. 7. It appears that he has anyhow averted his responsibilities on the pretext of availability of alternative remedy to file restoration application. 6. After due deliberations at length, counsel for the contesting respondent no.3 has consented to remit the matter before the Consolidation Officer to decide the restoration application dated 13.06.2020 filed on behalf of respondent no.3 afresh. 7. In this conspectus as above and also in view of the consent given by counsel for contesting respondent no.3, in my considered opinion, no fruitful purpose would be served to keep the instant writ petition pending, therefore, it would be appropriate to relegate the parties before the Consolidation Officer to get the restoration application dated 13.06.2020 decided afresh, after giving opportunity of hearing to the parties concerned. It is ordered accordingly. Resultantly, instant writ petition succeeds and is allowed. Order impugned dated 15.04.2024 passed by the D.D.C. and the order dated 15.12.2020 passed by the Consolidation Officer is hereby quashed. The restoration application dated 13.06.2020 filed by respondent no.3 is restored to its original number and the Consolidation Officer is expected to decide the said restoration application filed on behalf of respondent no.3 afresh, in accordance with law, after giving opportunity of hearing to the parties concerned, preferably within a period of three months from the date of production of certified copy of this order.