ZAMIL Vs. DEPUTY DIRECTOR

JUDGEMENT

(1.) HEARD Sri R.K.Yadav learned counsel for the petitioner and Sri Ashok Trivedi who is for the contesting respondent no.2. This matter is being disposed of finally at this stage with the consent of the learned counsel for the parties and learned standing counsel as well as? the learned counsel who has put in appearance on behalf of the respondent nos. 4,5,6 and 9. The other respondents need not be heard at this stage inasmuch as the short issue involved in this petition is about a 26 year time barred objection? under section 9A(2) of the U.P.c.H.Act, 1953 filed by the respondent no.2 Rafiqan represented by Sri Trivedi. The short facts given rise to this writ petition are that the respondent no.2 was not even recorded in the basic year when the consolidation operations commenced. It was the name of the petitioner that was recorded in the basic year record and was ultimately maintained as such in his favour. However, before the village could be denotified under Section 52 of the U.P.C.H.Act,1953 the respondent no.2 filed an objection under Section 9-A-2 alleging that the name of her father Rakha ought to be recorded as per the pedigree admitted to her and indicated in her objection in para 7 thereof. She alleged that she is the married daughter of late Rakha and her name should be substituted in his place.This objection along with a delay application under Section 5 of the Limitation Act was filed on 4.3.2005.

(2.) THE village had been notified for consolidation operation in the year 1979. The objection therefore was after 26 years. The objection was rejected as being time barred and also recording a finding on merit that since 1359 fasli the name of the petitioner's father Fateh Mohammad was recorded. as the sole tenure holder. The respondent no.2 alleged that this was an out come of a fraud and therefore objections should be allowed. She also alleged that she came to know that the petitioner ,who is the son of Fateh Mohammad started disposing of the property. The Consolidation Officer disbelieved the said plea of delay, and also on merit rejected? her objections. She filed a revision straight away under Section 48 of the U.P.C.H.Act without filing any appeal before the Settlement Officer Consolidation. The said revision was entertained and the Deputy Director of Consolidation after having discussed the entire claim of the respondent no.2 on merits allowed her revision observing that since consolidation proceedings are still proceeding , the rights of the parties would stand finalised for all times to come and therefore it would be appropriate to condone the delay of 26 year. The revision was allowed and directions were issued to the Consolidation Officer to decide the case on merits.

(3.) SRI Trivedi contends that the delay has been rightly condoned inasmuch as the order of the? Consolidation Officer if allowed? to stand would raise a bar under Section 49? that would operate as soon as the Village is denotified and in such circumstances the answering respondent will be unable? to assert? any her rights for all times to come. Having heard learned counsel for the parties and having considered the aforesaid submissions, there is no doubt that the application was filed along with the objection for condoning the delay after 26 years of the notification of the Village for consolidation operation. The limitation prescribed under Section 9-A to file an objection is 21 days from the date of notification as provided for under the U.P.C.H.Act, 1953. In such circumstances there has to be some cogent reason for the purpose of condoning the delay and entertaining the application. The respondent no.2 is a resident of the same Village and it cannot be inferred that consolidation operations having commenced, she had no knowledge about the notification as well as others processes that are carried out including distributing of CH Form 5 in the Village. The explanation is to be from the stage carrying out of the survey of the holding? and distributing of the forms. The answering respondent in her section 5 application has not indicated f any such cause of action for condoning the delay.