Court No. - 17
Case :- WRIT - B No. - 11149 of 2006 Petitioner :- Beepat Respondent :- Dy. Director Of Consolidation, Siddharth Nagar & Others Counsel for Petitioner :- Ainkashi Sharma Counsel for Respondent :- C.S.C.,Ganesh Shankar Srivastava,Ghanshyam Yadav,N N Mishra,R.B.Singh,S.K. Tripathi,S.Wajid Ali
Hon'ble Rajiv Joshi,J.
Heard Ms. Ainkashi Sharma, learned counsel for the petitioner and Sri Ganesh Shanker Srivastava, learned counsel for the respondent. Perused the record.
This writ petition has been filed challenging the order dated 8.12.2005 passed by the Deputy Director of Consolidation, the order dated 21.4.2005 passed by the Settlement Officer Consolidation and the order dated 9.2.2005 passed by the Consolidation Officer.
The record reflects that after 31 years from the date of issuance of notification under Section 9 of Uttar Pradesh Consolidation of Holdings Act, (hereinafter referred to as the 'Act'), the respondents No. 4 and 5 filed objection under Section 9 -A (2) of the Act. No separate application for condonation of delay had been filed by the respondent Nos. 4 and 5 and only in paragraph No. 5 of their objection, averement was made to the effect that they were not aware about the consolidation proceedings, therefore, the delay may be condoned.
The petitioner on the other hand opposed the said objection of the contesting respondents on the ground that the delay cannot be condoned as no proper explanation for inordinate delay has been shown by the respondent Nos 4 and 5 and even no formal application under Section 5 as well as affidavit in support thereto has been filed for the purpose.
The Consolidation Officer, however, vide order dated 9.2.2005 condoned the delay by giving the benefit under Section 5 of the Limitation Act subject to payment of Rs. 200/- and registered the objection of the respondents No. 4 and 5.
Being aggrieved by the order condoning the delay, the petitioner filed an appeal before the Settlement Officer Consolidation which was dismissed as not maintainable vide order dated 21.4.2005. Revision filed by the petitioner challenging the order dated 21.4.2005 was too dismissed by the Deputy Director of Consolidation vide order dated 8.12.2005.
The contention of the petitioner is that even though no delay condonation application was moved and no sufficient explanation had been given for condoning the delay of about 31 years in filing the objection under Section 9 A (2) of the Act, yet the benefit of Section 5 of the Limitation Act was extended by the Consolidation Officer illegally and in an arbitrary manner.
It is further contended by the learned counsel for the petitioner that the explanation furnished by respondent No. 4 and 5 is totally vague as the village where the property situates, is under consolidation operation for more than 30 years and the chaks have been already carved out and even possession had also been delivered to the chak holders, therefore, in such circumstances, the order is bad in law.
It is further contended by the learned counsel for the petitioner that the appeal against the order of Consolidation Officer extending the benefit of Section 5 of the Limitation Act, is very well maintainable under Section 11 (1) of the Act before the Settlement Officer Consolidation, and the contrary view taken by the Settlement Officer Consolidation is not sustainable.
On the other hand, learned counsel for the respondents has supported the orders impugned and also the findings so recorded by the Consolidation Authorities.
I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record including the orders impugned.
It is admitted position that no separate application for condoning the delay had been filed, therefore, in its absence, the Consolidation Officer appears to have extended the benefit of Section 5 of the Limitation Act in an arbitrary manner condoning the inordinate delay of about 31 years, thereby frustrating the very object of the Limitation Act.
In so far as the question that appeal against the said order is maintainable or not, is concerned, it may be pointed out here that order passed by the Consolidation Officer was not an ex parte order, hence appeal against the said order would be maintainable in terms of Section 11 of the Act and the appellate authority has thus misdirected itself in holding that the appeal is not maintainable and the Revisional Authority also fell in error while affirming the order of Settlement Officer Consolidation on the same ground. In the facts and circumstances of the case, the orders passed by the Settlement Officer as well as Deputy Director of Consolidation are totally illegal and cannot be sustained.
Therefore, while setting aside the orders dated 8.12.2005 and 21.4.2005 of the Deputy Director of Consolidation Officer and Settlement Officer Consolidation respectively, the matter is remitted to the appellate authority i.e. Settlement Officer Consolidation to restore the appeal of the petitioner and decide the same on merits. Since the matter is old one, a direction is issued upon the respondent no. 2- Settlement Officer Consolidation to decide the appeal expeditiously preferably within a period of 6 months from the date of production of a certified copy of this order.
With the above direction, the writ petition is allowed. No order as to costs.
Order Date :- 31.7.2018 Akbar