Heard Sri Mazhar Abbas Zaidi, learned counsel for the petitioner, who has appeared through video conferencing. Learned Standing Counsel for the respondent nos.1 to 3 and Sri Shiv Dayal Tiwari, learned counsel for the respondent nos.4 to 7, at admission stage.
Petitioners have filed the present writ petition challenging the impugned order dated 07.01.2021 passed by the Additional District Magistrate, Basti (respondent no.1) exercising his power under Section 48 of the U.P. Consolidation of Holdings Act, 1953 (in brevity "U.P.C.H. Act") in Revision No.459 of 2020 (Computerized No.D-202017140001798) (Suit No.01798 of 2020) (Ambika Prasad and Others vs. Smt. Savitri Devi and Others) and order dated 09.01.20215 passed by the Settlement Officer of Consolidation, Basti (in brevity "S.O.C.")(respondent no.3) in Appeal No.120 under Section 11 (1) of the U.P.C.H. Act.
Present writ petition is arising out of proceeding under section 12 of UPCH Act. Dispute relates to property belongs to one Hari Prasad. Plot in question i.e. Khata No.407 situated in village Shankarpur was recorded in the name of Hari Prasad. After his death name of Ramsuresh @ Ramduresh (predecessor in interest of the petitioners) was ordered to be recorded in the revenue record vide order dated 30.01.1982 passed by the Assistant Consolidation Officer (in brevity "A.C.O."). After lapse of 29 years, Smt. Savitri Devi (predecessor in interest of respondent nos.4 to 7) had filed an appeal dated 16.07.20210 (annexure no.2) under Section 11 (1) of the U.P.C.H. Act, challenging the order dated 30.01.1982 on the ground that it was ex-parte order passed behind her back without giving her any opportunity of hearing. In appeal she had prayed condonation of delay in filing the appeal. Vide order dated 09.01.2015(annexure no.5), the S.O.C. has allowed the prayer for condonation of delay and fixed date for hearing on the merits of the appeal. Feeling aggrieved, present petitioners have preferred a revision before the Deputy Director of Consolidation (in brevity "D.D.C.") (respondent no.2), which has been dismissed vide order dated 07.01.2021 (Annexure-8), with an observation that there is no force in the revision, which is in fact not maintainable against an interlocutory order.
Learned counsel for the petitioners submits that the D.D.C. has illegally dismissed the revision on the ground of maintainability, whereas the order passed, allowing the prayer for condonation of delay, is revisable and same should be examined by the D.D.C. in exercise of revisional jurisdiction under Section 48 of the U.P.C.H. Act. He has also assailed the order of the S.O.C. on the ground that delay has illegally been allowed only on the basis of litigation which is going on between the parties with respect to the property of Hari Prasad situated in other villages namely Sarbhanaga and Majhauwa. In support of his submissions learned counsel for the petitioners has cited the case of Parash Nath Vs. DDC and others, reported in 2008 (104) RD 516 and the case of Smt. Urmila Vs. Amit Kumar Agrawal & Others, reported in 2013 (118) RD 180.
Per contra, learned counsel for the respondent nos.4 to 7 contended that the S.O.C. has rightly allowed the prayer for condonation of delay in positive exercise of jurisdiction and the same is not amenable to the higher court. He has further contended that the revision filed by the present petitioners has rightly been rejected by the D.D.C. with an observation that there is no force in the revision filed by the revisionists as well as on the ground of maintainability. He submits that the D.D.C. has discussed the merits, for condonation of delay, at length and dismissed the revision. Mere making an observation with respect to the maintainability of revision, would not effect the judgment passed by the D.D.C. In support of his case, learned counsel for the respondents has cited Jeet Narain and Another vs. Govind Prasad and Others, 2010 (3) ADJ 470 (SC) and Mukesh and another vs. Additional District Magistrate (Finance and Revenue), Mathura and others, 2015 (8) ADJ 73. Learned counsel for the respondents has also submitted that with respect to the property of deceased Hari Prasad situated in another village, lis is pending before this High Court bearing Writ B No.11154 of 1982. In the aforesaid matter, restoration application is still pending.
Perused the record on board and considered the submissions of learned counsels for the parties.
Dispute relates to the property belongs to Hari Prasad. Genealogical tree as shown in the memo of appeal filed by Smt. Savitri Devi(predecessor in the interest of respondent nos.4 to 7) reveals that Hari Prasad and Hardeo were collateral descendants from common ancestral Vinda. Smt Savitri Devi is claiming her right and title over the property in question on the basis of registered will deed dated 24.12.1983 executed by Hari Prasad. She is grand daughter of Hari Prasad. She came with the case that Hanshraji(mother of Smt. Savitri), daughter of Hari Prasad, was blind lady, therefore, Hari Prasad had executed a registered will deed in her(Smt. Savitri Devi) favour, being pleased with her services. Second set of person namely Ramsuresh @ Ramduresh (predecessor in the interest of petitioners) was claiming his right and title over the property of Hari Prasad being a survivor. It appears that property of Hari Prasad is situated in three villages namely Shankarpur, Sarbhanga and Majhauwa. With respect to the property of Sarbhanga and Majhauwa it is averred that she has got her name mutated vide order dated 15.02.1988. So far as the property situated in village Shankarpur is concerned, Ramsuresh @ Ramduresh has got his name mutated vide order dated 30.09.1982.
For the condonation of delay in filing the appeal dated 16.07.2010 against the order of C.O. Dated 30.09.1982, Smt. Savatri Devi (appellant before SOC) came with the plea that on the basis of registered will deed she has got her name mutated, vide order dated 15.02.1988, over the property situated in village Sarbhanga and Majhauwa, but she could not get her name mutated over the property situated in village Shankarpur, inasmuch as she did not come to know about consolidation proceedings went on in village. When the respondent (in appeal before SOC) threatened to her for taking the possession, she obtained extract of khatauni on 24.06.2010 and came to know about the endorsement of order dated 30.09.1982 passed by ACO. On inquiry, no such record was found relating to the order dated 30.09.1982.
Settlement Officer of Consolidation has discussed the matter in detail in deciding the condonation of delay in filing the appeal and, came to the conclusion that in the property in question i.e. khata no.407 situated in village Shankarpur interest of the appellant is also involved, therefore, gave finding that it would not be appropriate to dismissed the appeal on the ground of maintainability and the laches.
In support of his finding SOC has discussed the pendency of lis between the parties with respect to property situated in village Sarbhanga and Majhauwa, where initially name of the Smt. Savitri was recorded, but subsequently, vide order dated 13.03.2001, name of the present petitioners were mutated. Against order dated 13.01.2001 passed by C.O. restoration application is still pending before the court concerned.
I am not satisfied with the arguments advanced by counsel for the petitioners that revision was dismissed only on the ground of maintainability. Order dated 07.01.2021 passed by DDC reveals that it has discussed the merits of the condonation of delay and affirmed the finding recorded by S.O.C. Though in operative portion D.D.C. has made an observation to dismiss the revision on the ground of maintainability, in the body of the judgement it has discussed the merits of the delay condonation in detailed and affirmed the finding of SOC.
Case cited by the petitioners reported in 2013 (118) RD 180 is not applicable in the present matter, inasmuch as it relates to the temporary injunction which was modified to some extent in appeal. Another cited case reported in 2008 (104) RD 516, is applicable to some extent in the present matter, wherein revision was held maintainable against allowing or rejecting the condonation of delay passed by C.O. Preposition laid down by Co-ordinate Bench of this Court in the aforesaid case is also applicable in this matter, but unfortunately same would not come to the rescue of the petitioners. In the aforesaid matter this Court has relied upon the Supreme Court decision reported in 1984 RD 382, Sashi Prasad Gupta Vs. DDC wherein Hon'ble Supreme Court has expounded that higher court cannot lightly interfere with the direction of the C.O. unless the order sought to be revised is clearly erroneous and likely to cause gross miscarriage of justice. It is further observed in the aforesaid judgment that when order has been made under section 5 of Limitation Act by the lower court in exercise of its discretion allowing or refusing an application to the extent time, it cannot be interfered within revision, unless lower court has acted with material irregularity or contrary to law or has come to that conclusion on no evidence. Paragraph 12 of the case of Paras Nath (Supra) is quoted below:-
"The Supreme court in Shanti Prasad Gupta v. Deputy Director of Consolidation, camp at Meerut and other, considered the scope and power of Deputy Director of Consolidation under section 48 of U.P Consolidation of Holding Act, 1953. in the case before the supreme court objection under sector 9-A was filed with delay. The consolidation officer vide order dated 22ndjuly, 1975 condond the delay in filling the objection. A revision was filed before the Deputy Director of Consolidation challenging the order of Consolidation officer. The Deputy Director of Consolidation interfered with the order of Consolidation officer. The writ petition was filed in the High Court and thereafter matter was taken to the Apex Court, The Apex Court laid down that Deputy Director of Consolidation cannot lightly interfere with the discretion of the Consolidation Officer unless the order sought to be revised is clearly erroneous or is likely to cause gross miscarriage of justice . Following was laid down in paragraph 3 of the said judgment -
"3?.Whether or not there is sufficient cause for condonation of delay is a question of fact dependent upon the fact and circumstances of a particular case, and the proposition is well settled that when order has been made under section 5, Limitation Act by the lower Court in the exercise of its discretion allowing or refusing an application to extend time, it cannot be interfered with in revision, unless the lower Court has acted with material irregularity or contrary to law or has come to that conclusion on no evidence. We are aware that the power of the Director under sector 48 of the Act are wider than those mentioned in section 115 of the Code of Civil Procedure. Even so, the Director cannot lightly interfere with the discretion of Consolidation Officer, unless the order sought to be revised is clearly erroneous or is likely to cause gross miscarriage of justice. Such was not the case here. The Consolidation Officer had in condoning the delay exercised his discretion judicially on the basic of evidence produced before him by the parties. The Deputy Director of Consolidation (exercising the powers of Director )had without assigning any reason allowed the revision-petitioner to produce additional evidence (letter) before him, which the revision-petitioner could with due diligence, produce before the Consolidation Officer, but failed to do so. Then it is not apparent from the impugned order whether the appellant before us, was also given by the Deputy Director an opportunity to produce evidence in rebuttal of the additional evidence, although a bold mention is there that "the opposite party has not any documentary evidence in rebuttal of this."
Section 48 of UPCH Act vested vast power in DDC having supervisory jurisdiction over all the subordinate authorities, as such he may call for and examine the record of any case decided or proceeding taking by any subordinate court. In this conspectus, it cannot be said that DDC has got no jurisdiction to entertain any application under section 48 of UPCH Act against any order or proceeding which comes from the subordinate authority. So far as the decision on the condonation of delay is concerned, it cannot be said to be an interlocutory order as defined in the explanation-2 to section 48 of UPCH Act. Any decision on the delay condonation amounts termination of proceeding for condonation of delay. Therefore, order passed on the delay condonation application can be assailed before the higher court.
Division Bench of this Court in the matter of Mst. Kailashi Vs. DDC and others, reported in 1972 RD 80 has held that the revisional powers under section 48 of UPCH Act are very wide and can reach every order passed by sub-ordinate consolidation courts, even orders passed on delay condonation.
In the matter in hand, petitioners have failed to make out a case as to what prejudice will caused to them due to remand of matter before S.O.C. for considering the right and title of the parties. No material irregularity or the error have been pointed out by the counsel for the petitioners in the orders passed by SOC and DDC.
On the contrary learned counsel for the respondents has cited paragraph nos.7, 8 and 9 of the case of Mukesh (Supra) to substantiate his submissions that ordinary higher court should not interfere in positive exercise of the decision made by the subordinate court. Relevant paragraph nos.7 and 8 of the aforesaid judgment is quoted below:-
"7. It is settled that once the delay has been condoned meaning thereby the Court has exercised its discretion in a positive manner and unless there is no explanation or the explanation furnished is malafide, the higher Court should not interfere with such orders.
8. The Apex Court in State of Bihar and others v. Kameshwar Prasad Singh and another, JT 2000 (5) SC 389, has held that "once the Court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refuses to condone the delay. In such cases, the superior Court should be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammelled by the conclusion of the lower Court.
9. This view has constantly been followed by the Apex Court in numerous cases thereafter. Reference may be given in Apanshu Mohan Lodh v. Stae of Tripura, 2004 1 SCC 119, State (NCT of Delhi) vs. Ahmed Jaan, 2008 (10) JT 179, Indian Oil Corporation Ltd. v. Subrata Borah Chowlek, (2010) 262 ELT 3. In Jeet Narain and another v. Govind Prasad and others, 2010(3) adj 470 SC, the Apex Court has condoned the delay of 26 years considering the merit of the case in which the order was obtained by playing fraud."
Both the consolidation courts, SOC and DDC, in positive exercise of jurisdiction, have given opportunity of hearing to the contesting respondents after considering the bonafides of Smt. Savitri Devi, who is claiming her right and title over the property in question on the basis of registered will deed executed by her maternal grand father. Mere an endorsement relating to some case over the khatauni cannot confer any right and title in favour of the recorded person and said entry is always subject to scrutiny by the competent court. Therefore, on the ground of laches valuable right of any person, who is vitally interested in the property in question, cannot be negated.
In light of the discussion as made above, I do not find any justification in interfering the orders passed by SOC and DDC. Counsel for the petitioners fails to substantiate his submissions in assailing the orders passed by SOC and DDC. Opportunity of Smt. Savatri Devi, to be heard, cannot be denied on the pretext of technicalities, who has vested interest in the property in question being a legatee as well as grand daughter of recorded tenure holder. I do not find any illegally, perversity or error in the impugned orders passed by SOC and DDC to warrant the indulgence of this Court in exercising extraordinary jurisdiction under Article 226 of the Constitution of India.
Present writ petition is devoid on merits and is, accordingly, dismissed.
Order Date :- 30.7.2021 VKG