Heard Shri B.L.Mishra, learned counsel for the petitioners and Shri B.R.Singh, learned counsel appearing for the respondents and have perused the record.
The facts of the case as culled from the pleadings available on record are that the land in dispute was recorded in the name of the predecessor-in-interest of the petitioners, Arjun in the basic year khatauni. On commencement of the consolidation operations by issuance of Notification under Section 4(2) of the U.P.Consolidation of Holdings Act (hereinafter to be referred as " Act" ), objections were filed by the respondents under Section 9 of the Act claiming their right over the land in dispute. The case under Section 9-A (2) of the Act was allegedly decided by the Consolidation Officer by means of order dated 11.11.1979. Against the aforesaid order dated 11.11.1979 passed by the Consolidation Officer, Gonda deciding the case on the basis of the alleged compromise, an appeal was preferred by the petitioners before the Assistant Settlement Officer Consolidation, Gonda. Taking therein various grounds, the petitioners assailed the order dated 11.11.1979 passed by the Consolidation Officer, Gonda. The appeal filed by the petitioners was delayed. It has been submitted by the learned counsel for the petitioners that the petitioners had never entered into compromise with the respondents and also that the petitioners did not have any information about the order dated 11.11.1979 passed on the basis of the alleged compromise by the Consolidation Officer, Gonda. The appeal was allowed by the Assistant Settlement Officer, Consolidation vide his order dated 23.11.2005 whereby while condoning the delay in filing the appeal, the case was remanded to the court of the Consolidation Officer, Gonda with a direction to give appropriate opportunity of leading evidence and hearing to both the parties and decide the matter on merits. The appellate court has set aside the dated 11.11.1979 passed by the Consolidation Officer, Gonda.
Feeling aggrieved by the aforesaid order 23.11.2005 passed by the Assistant Settlement Officer, Consolidation, Gonda, the respondents preferred a revision petition before the Deputy Director of Consolidation under Section 48 of the Act which was allowed by means of order dated 17.02.2006 whereby, the appellate order dated 23.11.2005 was set aside and the matter was remanded back to the appellate court for hearing the matter afresh.
It is the aforesaid order dated 17.02.2006 passed by the Deputy Director of Consolidation, Gonda which has been challenged by means of the instant writ petition.
Learned counsel for the petitioners, Shri B.L.Mishra has submitted that the alleged compromise on the basis of which the Consolidation Officer, Gonda passed the order dated 11.11.1979, on the face of it, is forged, that the same was not signed by all the parties in the case before the Consolidation Officer, Gonda and that the parties and their signatures/thumb impressions were not verified as required under law. He further states that a perusal of the compromise, which has been annexed as Annexure no.2 to the writ petition, itself shows that the order, on the basis of the said compromise, was not transcribed on a separate order sheet , neither was it transcribed on the running order sheet of the trial court. He further stated that the appellate court in it's order dated 30.11.2005 has elaborately discussed the issue and has rightly set aside the order passed by the Consolidation Officer, Gonda. He further stated that the order dated 11.11.1979 passed by the Consolidation Officer was passed on a Holiday (11.11.1979, being Sunday).
Learned counsel for the petitioners, Shri B.L.Mishra has further argued that the appeal was allowed by the appellate court condoning the delay in preferring the same and since the matter was remanded to the Consolidation Officer, Gonda to decide the same on merits, there was no illegality in the order of the appellate court which would have called for any interference by the learned Deputy Director of Consolidation. He has also stated that the finding recorded by the Deputy Director of Consolidation in his order that the appellate court had decided the appeal on merit without condoning the delay is factually wrong and the fact that the appeal was decided on merit while the delay in preferring the appeal was condoned, can be gathered from a bare perusal of the order dated 30.11.2005 passed by the appellate court. Learned counsel for the petitioners has also stated that any order condoning the delay in filing appeal could not have been interferred with by the revisional court in exercise of its revisonal jurisdiction under Section 48 of the Act.
In support of his contention, Shri B.L.Mishra, learned counsel for the petitioners has placed reliance on the cases of Chikhuri Versus Joint Director of Consolidation and others reported in 2006(101) RD 69, Abdul Karim Versus Deputy Director Consolidation, Basti and others reported in 2003(94) RD 186, Mulajim and others Versus Deputy Director of Consolidation, Deoria and others, reported in 2001(92) RD 596, N.Balakrishnan Versus M.Krishnamurthy reported in 1998 (89) RD 607 (SC) and State of Bihar and others Versus Kameshwar Prasad Singh and another with other connected Civil Appeals reported in (2000) 9 SCC 94.
On the other hand, learned counsel for the respondents, Shri B.R.Singh, in his valiant attempt to convince the Court about the lawfulness of the judgment and order dated 17.02.2006 passed by the Deputy Director of Consolidation, submitted that the course adopted by the appellate court while deciding the appeal on merit and condoning the delay simultaneously is legally not tenable. He has further submitted that the application for condonation of delay ought to have been decided first by the learned appellate court and thereafter, the matter should have been listed for its disposal on merit. In support of his contention, learned counsel for the respondents has placed reliance on the judgment of this Court in the case of Girja Shanker and another Versus Deputy Director of Consolidation Bhadoi, Camp at Gyanpur and others reported in 1996(87) RD 465, He submitted that this Court in the said case of Girja Shanker and another Versus Deputy Director of Consolidation Bhadoi, Camp at Gyanpur and others (Supra) has categorically held that the matter relating to Section 5 of the Limitation Act is to be disposed of first and further if, the application under Section 5 of Limitation Act is allowed, the appeal is to be listed for disposal on merit and in case, the application under Section 5 of Limitation Act is rejected, the appeal shall also be dismissed as barred by time. Learned counsel for the respondents has further argued that there can not be a composite order allowing the application moved for condonation of delay in preferring appeal and deciding the appeal on merit. He also placed reliance in support of his contention on another judgment of this Court in the case of Bhagwat and others Versus Deputy Director of Consolidation and others reported in 1990 RD 162.
I have considered the rival submissions made by learned counsels appearing for the parties and have also gone through the material available on record.
The argument on behalf of learned counsel for the petitioners primarily is that the judgment of the Deputy Director of Consolidation is based on absolutely incorrect appreciation of the finding available on record, in as much as though the Deputy Director of Consolidation has recorded a finding that the appellate court allowed the appeal without condoning the delay but in fact the delay was condoned and the appeal was allowed.
Per contra, the submission of the learned counsel appearing for the respondents centres around the judgment of this Court in the case of Girja Shanker and another Versus Deputy Director of Consolidation Bhadoi, Camp at Gyanpur and others (Supra). On the basis of the said judgment, as noted above, it has been submitted on behalf of the respondents that after disposal of the application moved by the petitioner under Section 5 of Limitation Act, the appellate authority ought to have given an opportunity to argue the case and not by doing so, the appellate authority has not followed the established legal procedure.
While taking into consideration the aforesaid arguments made by the learned counsels for the parties , it is to be noted that condonation of delay is, in fact, a matter of discretion of the Court and once the explanation submitted by a litigant for moving the Court after some time, is found sufficient by the court concerned, it is the result of the positive exercise of discretion which should normally not be disturbed by a superior court. Regard can be had to the observations made by the Hon'ble Supreme Court in the case of N.Balakrishnan Versus M.Krishnamurthy (Supra) in this regard, which has been relied upon by learned counsel for the petitioners. The relevant extract of the said judgment in respect of exercise of discretion by the court while considering an application for condonation of delay in the case of N.Balakrishnan Versus M.Krishnamurthy (Supra) runs as under :-
"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."
It is also to be noticed that the Deputy Director of Consolidation while passing the impugned order has clearly recorded a wrong finding that the appellate court has decided the appeal on merit without condoning the delay. A perusal of the appellate order clearly reveals that the appeal was allowed after condoning the delay by the appellate court. As regards the emphasis of the learned counsel appearing for the respondents on the argument that the application for condoning the delay ought to have been decided first and thereafter the appeal should have been fixed further for hearing on merits, reference may be made to a judgment of this Court reported in the case of Abdul Karim Versus Deputy Director Consolidation, Basti and others (Supra) wherein it has been held that there does not appear to be any harm if the appellate authority is permitted to hear arguments on both aspects together i.e. the question of limitation as well as merits. The judgment in the case of Abdul Karim Versus Deputy Director Consolidation, Basti and others (Supra) is by Hon'ble Single Judge and the judgment being relied upon in the case of Girja Shanker and another Versus Deputy Director of Consolidation Bhadoi, Camp at Gyanpur and others (Supra) by the learned counsel for the respondents is also by Hon'ble Single Judge. However, it is noticeable that the judgment in the case of Abdul Karim Versus Deputy Director Consolidation, Basti and others (Supra) has been rendered at a later point of time, as such, as per settled law of precedence, the later judgment of a Co-ordinate Bench is to be followed. Accordingly, I am in agreement with the law laid down by the Hon'ble Single Judge in the case of Abdul Karim Versus Deputy Director Consolidation, Basti and others (Supra) . In this view, the contention of the learned counsel for the opposite parties does not merit acceptance and hence, the same is rejected.
Further, it is to be noticed that the alleged compromise , a copy of which has been annexed as Annexure no.2 to the writ petition, does not contain either thumb impression or the signatures of all the persons who were parties before the Consolidation Officer. The order of the Consolidation Officer is also transcribed on the said compromise itself where no satisfaction of the Consolidation Officer has been recorded that the parties of the case are signatories to the compromise.
The Assistant Settlement Officer, Consolidation has gone into the evidence and material available on record while passing order dated 23.11.2005 and has recorded the finding that the order by the Consolidation Officer on the basis of the compromise was passed on 11.11.1979, which being a Sunday, was a Holiday and further that on the said Sunday no Lok Adalat was organized. After discussing the material available on record at length, the order by the appellate authority was passed on 23.11.2005 whereby the matter has been remanded to the trial court for decision of the case afresh after affording opportunity to the parties concerned to lead their evidence and thereafter, to give opportunity of hearing. However, learned Deputy Director of Consolidation, without making any comment or without upsetting the finding recorded by the learned Assistant Settlement Officer, Consolidation in the appellate order, has only observed in the impugned order dated 17.02.2006 that the appeal was decided by the appellate court without condoning the delay.
As observed above, the aforesaid finding recorded by the Deputy Director of Consolidation is against the record which is explicit from a bare perusal of the order passed by the Assistant Settlement Officer Consolidation, Gonda. The order by the appellate court, in the instant, case was passed while condoning the delay in moving the appeal and as such in view of the law laid down by this Court in the case of Chikhuri Versus Joint Director of Consolidation and others (Supra), this Court, in the instant case, is of the view that the Deputy Director of Consolidation, Gonda ought not have interferred with the order passed by the Assistant Settlement Officer, Consolidation, Gonda.
So far as the power to condone the delay conferred to the courts is concerned, regard may be had to the judgment of the Hon'ble Supreme Court in the case of State of Bihar and others Versus Kameshwar Prasad Singh and another with other connected Civil Appeals (Supra) wherein, it has inter-alia been observed that the power to condone the delay in approaching the court has been conferred to do substantial justice to the parties by disposing the matter on merits.
Looking into over all circumstances of the case and the general legal principles regarding condonation of delay laid down by the Hon'ble Apex Court in the case of State of Bihar and others Versus Kameshwar Prasad Singh and another with other connected Civil Appeals (Supra) and also in the case of N.Balakrishnan Versus M.Krishnamurthy (Supra), this Court is of the definite view that the order passed by the Assistant Settlement Officer Consolidation, Gonda could not have been interferred with by the learned Deputy Director of Consolidation, Gonda.
Learned counsel for the respondents has also placed reliance on the judgments reported in (2003)SCC 257, Jamal Uddin Ahmad Versus Abu Saleh Najmuddin and another and (2002) 1 SCC 633, Commissioner of Income Tax, Mumbai Versus Anjum M.H.Ghaswala and others. The said judgments do not come to the rescue of the respondents as the case of Jamal Uddin Ahmad (Supra) pertains to Representation of People Act, 1951 and discusses the principles of Exercise of Statutory Power in a manner prescribed by the Statute. As regards the case of Anjum M.H.Ghaswala (Supra) it may be noted that the said case also only lays emphasis on the well accepted legal principle that where a statute vests certain power in an authority to be exercised in a particular manner, that power has to be exercised only in that manner. In view of the Court, these judgments, thus have no application to the present case.
In view of above, the writ petition is allowed and the judgment and order dated 17.02.2006 passed by the Deputy Director of Consolidation, Gonda in Revision No.911 (Madhao and others Versus Luxman and others), under Section 48 of the U.P.Consolidation of Holdings Act, pertaining to Village Tulsipur Manjha, Pargana Nawabganj, Tehsil-Tarabganj, District Gonda is hereby, quashed. The Consolidation Officer, Gonda shall decide the matter afresh as per terms of remand order dated 23.11.2005 passed by the Assistant Settlement Officer Consolidation, Gonda. The matter by the Consolidation Officer, Gonda shall be decided expeditiously, say within a period of six months from the date of production of a certified copy of this order before him.
Order Date :- 9.7.2012 RK/*