Allahabad High Court
Bechan Lal vs Deputy Director Of Consolidation, ... on 5 February, 2020
Author: Rajnish Kumar
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 7 Case :- CONSOLIDATION No. - 3117 of 1981 Petitioner :- Bechan Lal Respondent :- Deputy Director Of Consolidation, Bahraich And Others Counsel for Petitioner :- Z.Zilani,Z.Jilani Counsel for Respondent :- A.S.Chaudhary,C.S.C,Prabhakar Vardhan Chaudhary Hon'ble Rajnish Kumar,J.
1. Heard learned counsel for the parties.
2. This petition has been filed challenging the orders dated 28.03.1981,24.09.1980 and 02.06.1975 passed by the Deputy Director of Consolidation, Settlement Officer Consolidation and Assistant Consolidation officer respectively.
3. By means of the order dated 02.06.1975, on the basis of compromise, the name of the opposite party no.4 was recorded as co-tenure holder on half portion of Khata No.394/3. The petitioner had challenged the said order by filing belated appeal No.1921 under section 11(1) of the U.P. Consolidation of Holdings Rules 1954 (hereinafter referred to as the 'Rules of 1954') which was dismissed by means of the order dated 24.09.1980. The said order was challenged in Revision No.726 under Section 48 of the Rules of 1954 before the Deputy Director of Consolidation and the same was also dismissed by means of the order dated 28.03.1981. Hence the present writ petition has been filed challenging the aforesaid orders.
4. Submission of learned counsel for the petitioner is that the order dated 02.06.1975 was passed on the back of the petitioner and the petitioner had no knowledge of the said order. When the petitioner obtained a copy of the Khatauni from the Lekhpal on 08.07.1980 then he came to know about the order dated 02.06.1975. Therefore he had filed the appeal alongwith application for condonation of delay on 09.07.1980 but the appellate authority has rejected the appeal without considering the grounds raised by the petitioner. Thereafter the petitioner had filed a revision before the Deputy Director of Consolidation, in which he had filed an affidavit of the Gram Pradhan of the concerned village, who was a member of the Consolidation Committee, to show that no such order was passed but the same has not been considered and the revision has also been dismissed. He further submitted that the land in dispute was recorded in the name of the petitioner on the basis of an order passed under Section 229-B of the U.P. Z.A. & L.R. Act by the judicial officer on 16.05.1972. Therefore there was no question of entering into any compromise for recording the name of the opposite party no.4 on the half portion of the said land.
5. On the basis of above, learned counsel for the petitioner submitted that the orders passed by the opposite party nos. 1 to 3 are liable to be quashed and the writ petition is liable to be allowed with costs.
6. On the other hand, learned counsel for the respondents submitted that the order dated 02.06.1975 was passed by the Assistant Consolidation Officer on the basis of conciliation and a duly signed compromise under Rule 25-A of the Rules of 1954. The said compromise was also signed by two members of the consolidation committee. Therefore the compromise was in accordance with Rule 25-A. He further submitted that petitioner had knowledge of the order because it was passed after conciliation and a duly signed compromise by him. It is also clear from the fact that the name of the opposite party no.4 was recorded during consolidation operations and the possession was also transferred on 31.03.1979 in the name of the petitioner and the opposite party no.4 on the same day, in regard to which a questionnaire has been filed by the opposite party no.4 alongwith supplementary counter affidavit but the petitioner had filed a belated appeal in the year 1980 with a false plea, which was not tenable. The appellate court after considering the pleadings and going through the record had dismissed the appeal being time barred and accordingly the revision filed by the petitioner has also been dismissed. In regard to plea of of order passed under Section 229-B it has been stated that the respondents have no knowledge of any such case or order. Therefore there is no illegality or error in the orders passed by the opposite party nos. 1 to 3 and the writ petition is liable to be dismissed.
7. I have considered the submissions of learned counsel for the parties and perused the records.
8. It appears that the name of the petitioner was recorded on Khata No.394/3. During enquiry in consolidation operations an objection was raised by the opposite party no.4 therefore the same was considered and decided by the Assistant Consolidation Officer under Rule 25-A of the Rules of 1954. The order dated 02.06.1975 was passed on the basis of conciliation and duly signed compromise by the parties and two members of the consolidation committee and the officer concerned. It appears that the belated appeal was filed stating therein that the petitioner had come to know about the order dated 08.08.1980 when he got the copy of the Khatauni from the concerned Lekhpal. While the order was passed after conciliation and on the basis of compromise duly signed by the parties and the possession was also transferred on 31.03.1979. The alleged affidavit which was subsequently filed before the D.D.C. in revision was neither filed nor any such plea was taken before the Appellate Authority. The appeal was dismissed after considering the pleading and material on record.
9. Being aggrieved by the appellate order, revision was filed. It appears that during pendency of revision an affidavit of the Gram Pradhan of the concerned village was filed in which he has stated that before him no compromise was made between the parties and on two plain papers his signatures were obtained by the Peshkar being Chairman of the Consolidation Committee. But no such plea was taken before the appellate authority. The learned D.D.C. has dismissed the revision as no proper explanation of delay has been given.
10. It is also apparent from the questionnaire filed by the opposite party no.4 that the possession was delivered to the petitioner as well as opposite party no.4 on 31.03.1979 and it has not been disputed by the petitioner by filing any supplementary rejoinder affidavit or by learned counsel for the petitioner during arguments. Therefore it is apparent that the petitioner had knowledge of the order dated 02.06.1975 as it was passed with the consent of the petitioner on the basis of a duly signed compromise. But the belated appeal was filed setting up a concocted story without sufficient cause.
11. The plea of the petitioner in regard to the order dated 16.05.1972 passed under Section 229 B of the U.P. Z.A. & L.R. Act by which the name of the petitioner was said to be recorded has been denied by the respondent stating that he has no knowledge of such order. Even then neither the order has been filed nor the number of case has been given.
12. The Hon'ble Apex Court in the case of Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai; (2012) 5 SCC 157, has held in paragraph 23 and 24 as under:-
"23.What needs to be emphasised is that even though a liberal and justice-oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost.
24.What colour the expression "sufficient cause" would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay."
13. In view of above this court is of the considered opinion that a highly time barred appeal was filed by the petitioner without sufficient cause and the explanation given by the petitioner is concocted and not bona fide. Therefore this Court does not find any illegality or error in the orders passed by the opposite party nos. 1 to 3 challenged in the present writ petition.
14. The writ petition is misconceived and lacks merit. It is accordingly dismissed.
15. No order as to costs.
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.............................................(Rajnish Kumar,J.) Order Date :- 5.2.2020 Akanksha