JUDGMENT Devi Prasad Singh, J.
1. Heard learned Counsel for the parties.
The controversy relates to certain plots of khata No. 4 situated in village Sakhera, Pargana Sandee, Tahsil Bilgram, district Hardoi. In the court of Consolidation Officer on 13.10.1980 a compromise was alleged to be filed by the parties for the plots in question. Thereafter the Consolidation Officer by impugned order dated 14.10.1980 had decided the controversy in terms of compromise. Petitioner had filed an appeal against the impugned order passed by the Consolidation Officer on 14.10.1980 in the month of June 1987 on the ground that neither he has signed any compromise nor he has engaged Sri R.P. Bajpai as counsel. Petitioner had also submitted that he has not signed any Vakalatnama to engage Sri R.P. Bajpai as counsel. He retired from army on 1.10.1986 and when he came back then he has come to know regarding the devolution of land in terms of compromise between the parties. Copy of the application filed by the petitioner under Section 5 of the Limitation Act while preferring the appeal, has been filed as Annexure-4 to the writ petition.
2. Learned appellate court had dismissed the appeal by impugned order dated 11.2.1988 on the ground that signature and thumb impression has been verified by the respective counsel and thereafter compromise has been confirmed by Consolidation Officer. The delay explained by the petitioner was not sufficient hence the appeal was dismissed by impugned order dated 11.2.1988. While dismissing the appeal the learned appellate court was impressed by the fact that the appeal was filed after almost lapse of seven years.
3. Feeling aggrieved, petitioner filed a revision. The revisional court retreated the order of appellate court and dismissed the revision by impugned order dated 6.2.1989, a copy of which has been filed as Annexure-5 to the writ petition. While assailing the impugned order learned Counsel for the petitioner submits that entire proceeding relating to alleged compromise was sham transaction and was an outcome of fraud committed by the respondents. According to the petitioner's counsel the compromise was not recorded and finalized in terms of Rule 25A of the Consolidation of Holdings Rules, 1954 (in short hereinafter referred as the Rules). The further submission of the petitioner's counsel is that in case there was any agreement between the parties for amicable settlement then the controversy should have been decided in terms of compromise by the Assistant Consolidation Officer in pursuance to provisions contained in Section 9A of U.P.C.H. Act, Only in the event of dispute between the parties and filing of objection the controversy should have been referred to Consolidation Officer for disposal in accordance to provisions contained in Section 9B of the U.P.C.H. Act. For convenience Section 9A of the U.P.C.H. Act is reproduced as under:
9A. Disposal of cases relating to claims to land and partition of joint holdings. - (1) The Assistant Consolidation Officer shall:
(i) where objections in respect of claims to land or partition of Joint holdings are filed, after hearing the parties concerned; and
(ii) where no objections are filed, making such enquiry as he may deem necessary;
settle the disputes, correct the mistakes and effect partition as far as may be by consolidation between the parties appearing before him and pass orders on the basis of conciliation:
Provided that where the Assistant Consolidation Officer, after making such enquiry as he may deem necessary, is satisfied that a case of succession is undisputed, he shall dispose of the case on the basis of such enquiry.
(2) All cases which are not disposed of by the Assistant Consolidation Officer under Sub-section (1), all cases relating to valuation of plots and all cases relating to valuation of trees, wells or other improvement, for calculating compensation therefore, and its appointment amongst co-owner, if there be more owners that one, shall be forwarded by the Assistant Consolidation Officer to the Consolidation Officer, who shall dispose of the same in the manner prescribed.
(3) The Assistant Consolidation Officer, while acting under Sub-section (1) and the Consolidation officer, while acting under Sub-section (2), shall be deemed to be a court of competent Jurisdiction, anything to the contrary contained in any other law for the time being in force notwithstanding.
4. Learned Counsel for the respondents admits that no objection was filed in pursuance to provisions contained in Section 9 of the U.P.C.H. Act then how the controversy was settled in terms of compromise by the Consolidation Officer, seems to be relevant question and requires for consideration apart from applicability of Rule 25A of the Rules. It has been admitted that no objection was pending for disposal before the Consolidation Officer.
5. The provisions contained in Sections 9 and 9A of the U.P.C.H. Act, at the face of record, indicate that jurisdiction of Consolidation Officer shall start in case some objections are filed and there is dispute of some nature which could not be adjudicated by the Assistant Consolidation Officer. Rule 25A of the Rules further provides that in deciding a dispute on the basis of conciliation in terms of Section 9A or 9B of the U.P.C.H. Act the term of conciliation shall be recorded in the presence of two members of Consolidation Committee who shall sign the conciliation memo. The Assistant Consolidation Officer thereafter shall decide and settle the conciliation specifying the entries made in record. Accordingly, in case parties entered into compromise at the stage of Consolidation Officer it shall always be incumbent that the conciliation should be recorded in terms of provisions contained in Rule 25A of the Rules.
6. In the present case no finding has been recorded by all the three courts below that provisions contained in Rule 25A of the Rules have been complied with. The certified copy of the conciliation memo filed with the present writ petition also does not indicate that rules have been followed. The judgment of Consolidation Officer dated 14.10.1980 is also silent relating to compliance of Rule 25A of the Rules. Neither the appellate court nor the revisional court had recorded a finding relating to applicability of Sections 9A and 9B of the U.P.C.H. Act read with Rule 25A of the Rules. For convenience Rule 25A of the U.P.C.H. Act is reproduced as under:
25A (See Sections 9A, 9B and 9C). - (1) The Assistant Consolidation Officer shall, as far as possible, deal with all the objections filed by a tenure-holder with regard to matters referred to in Clause (i) of Sub-section (1) of Section 9A and Sub-section (1) of Section 9B in the village itself. In deciding disputes on the basis of conciliation in the terms of Sub-section (1) of Section 9A, he shall record the terms of conciliation in the presence of at least two members of the Consolidation Committee of the village. These terms shall then be read to the parties concerned and their signatures or thumb impressions obtained. The members of the Consolidation Committee present shall also sign the terms of conciliation. The Assistant Consolidation Officer shall then pass the orders deciding the dispute in terms of conciliation specifying the precise entries to be made in the records. Details of the operative part of the orders passed by the Assistant Consolidation Officer shall be noted in the Misilband register. No ex parte order or orders in default shall be passed by the Assistant Consolidation Officer.
(2) In all cases in which the Assistant Consolidation Officer sends a report under the provisions of Sub-section (2) of Section 9A, or Sub-section (1) of Section 9B to the Consolidation Officer for disposal, he may fix a date and place for the disposal of the cases by the Consolidation Officer and communicate the same to the parties present before him and issue notices in C.H. Form 6A to the parties not so present. The report of the Assistant Consolidation Officer in such cases shall clearly bring out the points in dispute between the parties and the efforts made by him to reconcile them.
From the perusal of the impugned orders as well as evidence on record it appears that the provisions contained in Rule 25A of the Consolidation of Holdings Act have not been complied with while relying upon the compromise in question. Accordingly, the alleged compromise or conciliation proceeding suffers from substantial illegality.
7. So far as the question relating to application filed under Section 5 of the Limitation Act Is concerned, it appears that petitioner being army personnel was posted at Bangalore and when after retirement he came back he has come to know relating to outcome of the alleged compromise. Respondents' counsel submits that parties belong to same village though it has been denied by the petitioner's counsel. In the application filed under Section 5 of Limitation Act the petitioner has explained the delay in detail for not filing the appeal within stipulated time. Neither the appellate court nor the revisional court had recorded a finding after discussing the pleading on record relating to condonation of delay.
Whenever an application for condonation of delay is moved in the Courts then it shall be incumbent upon the Courts to discuss the pleadings on record raised by the parties for the purposes of condonation of delay. Moreover, in case the controversy relates to civil right or property then the Courts should be liberal while considering the application for condonation of delay so that a person may not be deprived from his property for all time to come. Otherwise also in case oh merit it appears that substantial ground exists for interference and the finding recorded by the trial court seems to suffer from substantial illegality or in case judgment or order appears to be outcome of fraud then also liberal approach should be adopted by the Courts while considering the application for condonation of delay. In the present case from the perusal of certified copy of the compromise filed as Annexure-1 to the writ petition, it appears that provisions contained in Rule 25A of the C.H. Act was not followed and compromise seems to be the outcome of unfair practice. The learned appellate court should have condoned the delay. Cause shown in the application moved under Section 5 of the Limitation Act seems to create a ground for condonation of delay.
8. According to case in Shakuntala Devi Jain v. Kuntal Kumari and Ors. , the Hon'ble Supreme Court held that the word "sufficient cause" should receive liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant. In another case in M.K. Prasad v. P. Arumugam , the Hon'ble Supreme Court held that while considering the application moved under Section 5 of the Limitation Act the Court has to keep in mind that the power has to be exercised to advance substantial justice. In other case in State of West Bengal v. Administrator, Howrah Municipality and Ors. , the Hon'ble Supreme Court held that while considering the sufficient cause for the purpose of condonation of delay the Court should receive liberal construction so as to advance substantial justice. Similar proposition of law has also been laid down in the case in Collector, Land Acquisition, Anantnag and Ors. v. Mst. Katyi and Ors. .
9. In view of above, the appellate court as well as revisional court had failed to exercise jurisdiction vested in them while dismissing the appeal as well as revision in pursuance to provisions contained in U.P.C.H. Act. It was incumbent upon the appellate court as well as the revisional court to record a finding on the basis of pleading raised by the petitioner while considering the application filed under Section 5 of the Limitation Act. The cause shown by the petitioner while moving the application under Section 5 of the Limitation Act seems sufficient for condonation of delay.
10. In view of above, writ petition deserves to be allowed and impugned orders are liable to be set aside.
11. Accordingly, writ petition is allowed. A writ in the nature of certiorari is issued quashing the impugned orders, dated 14.10.1980, 11.2.1988 and 6.2.1989 passed by Consolidation Officer, Settlement Officer of Consolidation and Deputy Director of Consolidation as contained in Annexures-2, 3 and 5 respectively to the writ petition with consequential benefits. The controversy is remanded back to the Consolidation Officer concerned, who shall decide the right of the parties after providing opportunity of hearing in accordance to law. The Consolidation Officer is further directed to decide the controversy in question expeditiously and preferably within a period of six months from the date of receipt of certified copy of this order after providing opportunity of hearing to the parties. Writ petition is allowed accordingly. No order as to costs.