Court No. - 44
Case :- WRIT - B No. - 1010 of 2019 Petitioner :- Subash Rai Respondent :- Additional District Magistrate And 19 Others Counsel for Petitioner :- Rahul Singh,Abhishek Rai Counsel for Respondent :- C.S.C.
Hon'ble Rajiv Joshi,J.
Heard Sri Abhishek Rai, counsel for the petitioner and learned standing counsel appearing for the State respondents.
This writ petition has been filed challenging the order dated 15.2.2019 passed by the Deputy Director of Consolidation, Azamgarh as well as the order dated 29.5.2017 passed by the Settlement Officer Consolidation, Azamgarh.
Record reflects that against order dated 8.2.1989 passed in the proceedings under section 9-A(2) of the U.P. Consolidation of Holdings Act (hereinafter referred to as the Act), a belated appeal was filed by the respondent no. 3 to 5 on 7.2.2009. The explanation for delay as furnished by the respondents in the appeal was that they were the subsequent purchasers of the property having right and interest in the property and since they were neither parties nor heard in the original proceedings under section 9-A(2) of the Act, they were not aware of the order passed by the Consolidation Officer. The application moved by the respondents for condonation of delay was allowed subject to payment of costs of Rs. 700/- by the Settlement Officer Consolidation, vide impugned order dated 29.5.2017 and while admitting the appeal, 12.6.2017 was fixed for hearing of the appeal. Against this order of the Settlement Officer Consolidation, a revision was preferred by the petitioner, which has been dismissed by the Deputy Director of Consolidation vide impugned order dated 15.2.2019. It is against these two orders that the present petition has been filed.
Contention of the learned counsel for petitioner is that the respondent no. 3 to
5(second set) were the subsequent purchasers and they have no locus standi to file appeal challenging the order of the Consolidation Officer dated 8.2.1989 and the appeal could be filed only by their predecessor-in-interest, and in this view of the matter the Settlement Officer Consolidation has committed illegality while condoning the delay. It is further submitted by the learned counsel that the Deputy Director of Consolidation has also erroneously dismissed the revision filed by him as not maintainable while revision is maintainable against the order allowing section 5 application. In support of his submission, learned counsel for the petitioner has relied upon a decision of this Court in Raj Kishore Vs. Deputy Director of Consolidation and others, reported in 2002(2) AWC -1326.
It is lastly contended that the respondents (second set) were not aggrieved by the order of the Consolidation Officer, therefore, appeal at their instance is not maintainable.
I have considered the submissions so raised by the counsel for petitioner, perused the record as well as the decision cited.
The Settlement Officer Consolidation after relying on a decision of the Apex Court in N. Balakrishnan Vs, M. Krishnamurthy, reported in RD 1998, page 607(SC), has only condoned the delay in filing the appeal subject to payment of Rs. 700/- as costs and directed the appeal to be heard on merits, vide order impugned dated 29.5.2017.
Admittedly, the respondents (second set) are the subsequent purchasers and they were not party to the proceedings under section 9-A(2) before the Consolidation Officer. It is well settled that matter should be preferred to be heard on merits and mere on the basis of technicalities any affected person should not be deprived of the benefit of hearing regarding his claim so as to do substantial justice between the parties. Therefore, the appellate authority does not appear to have committed any illegality in condoning the delay and directing the appeal to be heard on merits in the facts and circumstances of the case.
As regards the second submission, perusal of the impugned order dated 15.2.2019 shows that Deputy Director of Consolidation has decided the revision on merits and not dismissed it only on the ground that since the revision was preferred against an interlocutory order, it was not maintainable. In this regard, relevant portion of operative part of the order of the Deputy Director of Consolidation is reproduced hereinunder:
**mijksDr foospuk ls Li"V gS fd fuxjkuhdrkZx.k dks v/khuLFk U;k;ky; esa rdZ ,oa lk{; izLrqr djus dk i;kZIr volj izkIr gSA ek= rduhdh vk/kkj ij fdlh dks lquokbZ ls ;k mldh vewY; fof/kd vf/kdkj ls oafpr ugha fd;k tk ldrk gSA v/khuLFk U;k;ky; n~okjk ikfjr vkns'k fnukad 29-05-2017 mfpr gS] ftlesa fdlh gLr{ksi dh vko';drk ugha gSA ;gka ;g Hkh mYys[kuh; gS fd mRrj izns'k tksr pdcUnh vf/kfu;e 1953 dh /kkjk 48 esa Li"V fo/kku dj fn;k x;k gS fd v/khuLFk U;k;ky; n~okjk ikfjr vUrofrZr vkns'k ds fo:) nkf[ky fd;k x;k iqujh{k.k iks"k.kh; ugha gksxkA ,slh fLFkfr fuxjkuhdrkZx.k n~okjk izLrqr fuxjkuh cyghu gk su s ds dkj.k fujLr fd;s tkus ;ksX; gSA vr% fuxjkuhdrkZx.k n~okjk izLrqr fuxjkuh cyghu gk su s d s dkj.k fujLr fd;k tkrk gS A voj U;k;ky; dh ewy i=koyh vkns'k dh ,d izekf.kr izfr ds lkFk vko';d dk;Zokgh gsrq okil Hksth tk;A ckn vko';d dk;Zokgh bl U;k;ky; dh i=koyh nkf[ky n¶rj dh tk;A** In so far as the last submission urged by the learned counsel for petitioner is concerned, suffice it to say that by the order impugned only delay has been condoned and the appeal is yet to be decided on merits. Therefore, if any plea is raised by the petitioner regarding maintainability of the appeal, the same may also be considered by the appellate authority in accordance with law.
In view of the above discussion, I do not find any force in the submissions so raised by the counsel for petitioner.
In the result, the petition is devoid of merit and is accordingly dismissed with the above observation. No order as to costs.
Order Date :- 26.4.2019 SNT/