Allahabad High Court
Rakesh And 5 Others vs State Of U.P. And 5 Others on 11 January, 2023
Author: Dinesh Pathak
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 5 Case :- WRIT - B No. - 3401 of 2022 Petitioner :- Rakesh And 5 Others Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Rahul Kumar Tyagi,Avadh Pratap Singh Shishodia Counsel for Respondent :- C.S.C.,Raj Kumar Dhama,Sunil Kumar Singh Hon'ble Dinesh Pathak,J.
Instant writ petition has been, inter alia, has been filed for the following relief:
"(i) Issue an appropriate writ, order or direction in the nature of Certiorari for quashing the impugned Judgment and order dated 22.09.2022 passed by Respondent No. 2 in Revision No. 0007 of 2022, Computer case No. 2022531108000007; Rakesh and others Vs. Jagroshan, as well as the impugned judgment and order dated 28.12.2021 passed by respondent No. 3 in appeal no. 123; Jagroshan Vs. Subhash and others arising out of the proceedings of 9A-1 of Uttar Pradesh Consolidation of Holdings Act, 1953. (Annexure No. 6 & 4 to the writ petition)."
While entertaining the instant writ petition, following order dated 6.12.2022 has been passed by this Court:
"Heard learned counsel for the petitioners, learned Standing Counsel for respondent nos. 1, 2 and 3, Sri Sunil Kumar Singh, counsel for the respondent no. 4, gaon sabha and Sri R.K. Dhama, counsel for the respondent no. 5 who claims himself to be contesting respondent.
Counsel for the petitioners is aggrieved by the order dated 28.12.2021 passed by the Settlement Officer Consolidation, Baghpat and the order dated 22.09.2022 passed by the Deputy Director of Consolidation in Revision No. 0007 of 2022, Computer Case No. 2022531108000007; Rakesh and others vs. Jagroshan, as well as the impugned judgment and order dated 28.12.2021 passed by respondent no. 3 in appeal no. 123; Jagroshan vs. Subhash and others, under Section 9-A-1 of U.P. Consolidation of Holdings Act, 1953.
His contention is that the appeal preferred by the other side against the order dated 06.02.1994 was filed in the year 1997 and by the order dated 28.12.2021 the Settlement Officer Consolidation has allowed the same without condoning the delay. The revision preferred against the same before the Deputy Director of Consolidation, Baghpat has been dismissed affirming the same without recording any finding regarding the confirmation of delay.
Counsel for the respondent no. 5 has stated that the petitioner is raising technical ground when by the order of the S.O.C., the matter has only been remanded to the Consolidation Officer, Baghpat to decide the dispute between the parties regarding their title and share in ancestral property and no prejudice shall be caused to the rights of the petitioners in case the orders impugned are allowed to stand.
After hearing the rival submissions, this court finds that the Settlement Officer Consolidation, Baghpat has not condoned the delay before allowing the appeal of the respondent no. 5 and D.D.C has also not considered the aforesaid aspect in violation of judgment of Division Bench of this Court in Consolidation No. 6574 of 2016, Ram Prakash vs. D.D.C, Hardoi and others dated 03.02.2022.
The Settlement Officer Consolidation, Baghpat will decide the issue of limitation, before passing the order on appeal. Even in the absence of application, delay can be condoned by the court on oral request as held by the Apex Court in the case of Naik Mahabir Singh vs. Chief of Army Staff, 1990 (Suppl.) SCC 89(1) and judgment of this court in Phool Chandra and others vs. D.D.C, Azamgarh and others, 2004 (96) RD 41.
In view of the above, the order passed by S.O.C and D.D.C are hereby set aside.
The Settlement Officer Consolidation, Baghpat is directed to decide the Appeal No. 123 of the petitioner within period of one month positively and file the copy of the order before this Court on the next date by means of his personal affidavit.
Put up this case as a fresh case on 05.01.2023.
In case no personal affidavit is filed, the S.O.C aforesaid shall be present before this court personally at 10:00 am on the next date fixed."
Learned standing counsel has informed that in pursuance of the order dated 6.12.2022 passed by this Court, fresh order dated 22.12.2022 has been passed by the Settlement Officer of Consolidation deciding the delay condonation application. He has further submitted that in the light of the order dated 22.12.2022, the instant writ petition has become infructuous inasmuch as cause of action for filing the present writ petition fails.
Learned counsel for the petitioner has admitted that the order dated 22.12.2022 is passed by the Settlement Officer of Consolidation.
In view of the submissions as made by the learned standing counsel, the instant writ petition is dismissed as infructuous.
Order Date :- 11.1.2023 vinay