1. Heard Sri Pradeep Chandra, learned counsel for the petitioner and the learned standing counsel for the State Respondents.
2. This writ petition has been filed challenging the order dated 26.7.2014 passed by the Additional Collector (F & R)/ Deputy Director of Consolidation, Jhansi (Respondent no. 1) as also the order dated 26.11.2011 passed by the Consolidation Officer, Final Records, Jhansi (Respondent no. 2) on the restoration application filed by the contesting respondent.
3. It is the case of the petitioner that respondent no. 2 passed an order in his favour on 10.3.1995. Against this order, a restoration application was filed by respondent no. 3 on 14.11.2011. This application was accompanied by section 5 application duly supported by an affidavit. The Consolidation Officer by order dated 26.11.2011 condoned the delay and allowed the restoration application, set aside the order dated 10.3.1995 and fixed the date for further hearing of the matter.
4. This order was subjected to challenge by means of a revision before respondent no. 1, which has been dismissed by the order impugned in the writ petition.
5. It has been submitted by the counsel for the petitioner that the order passed by the Consolidation Officer on recall/restoration application was an ex parte order passed without any notice or information to the petitioner and without hearing him. He has further contended that, in fact, no notices were issued on this restoration application.
6. The second submission made by the counsel for the petitioner is that the delay has been condoned by a single line order. Since there was an inordinate delay of about 16 years the Consolidation Officer should have considered the reasons of the delay in detail and the delay should have been condoned only on a finding that the cause shown for the same was sufficient should have been condoned only after affording opportunity of hearing to the petitioner.
7. The third submission of the counsel of the petitioner is that even the revisional court has failed to advert these aspects of the matter and has dismissed the revision considering only the case of the contesting respondents. Lastly the submission of the counsel for the petitioner is that the Consolidation Officer should have condoned the delay and only thereafter proceeded to consider the restoration application on merits and that he has committed manifest illegality in doing both these things simultaneously.
8. I have considered the submission made by the counsel for the petitioner that the learned standing counsel. In so far as the first ground taken by the counsel for the petitioner that the order of consolidation office is ex parte, this court is of the considered opinion that the ex parte order was subject to the revisional jurisdiction of the Deputy Director of Consolidation (the DDC). The DDC has dismissed the revision after hearing the petitioner. Therefore, the defect, if any, in the order of the Consolidation Officer has been cured because the petitioner has been given opportunity of hearing and to have his say, may be before the superior court, but none the less, he has been awarded opportunity to make his submission and therefore the order impugned cannot be faulted on this ground alone.
9. On the question of condonation of delay, the Consolidation Officer has recorded that all the notices to the respondents were alleged to have been served by affixation alone. He has further recorded that the report of the process server is also to the same effect and therefore, accepted the contention of the contesting respondent that they had no knowledge of the order of 10.3.1995 prior to the date mentioned in the restoration application as also delay contionation application.
10. The DDC has also recorded that all the notices were alleged to have been served by affixation. He has further recorded that the notice that was affixed did not bear the date fixed and therefore has held such notices to be invalid.
11. Under such circumstances, even if the delay has been condoned by the single line order, I refuse to entertain this writ petition on this ground alone. In any case, only the ex parte order has been recalled. and the application under section 42(A) filed by the petitioner has been revived. The Consolidation Officer as also the Revisional Court have fixed dates of appearance of the parties. It is open for the petitioner to canvass his claim before the Consolidation Officer both on facts and on law. In such contingency, the petitioner cannot be said to have suffered any irreparable injury.
12. As regards last submission that the question of delay and consideration on merits should have been resorted separately, it would suffice to state that until the delay in filing the application etc. has been condoned, this Court has no jurisdiction to enter into the merits of the application. In the instant case, the delay was condoned. There is no provision of law which provides that both these things cannot be done simultaneously and therefore, I do not find any illegality in the impugned order on this ground also.
13. Accordingly and for the reasons given above, I find no merit in the submission made by the counsel for the petitioner. Substantial justification has been done between the parties by the impugned order and in any case the petitioner still has every opportunity of pressing his application under section 42-A of the Act before the Consolidation Officer on merits, which merely stands revived by the orders impunged.
14. Accordingly the writ petition is dismissed.
Order Date :- 8.8.2014 SKS