RADHEY SHYAM Vs. DEPUTY DIRECTOR OF CONSOLIDATION BAREILLY

JUDGEMENT

(1.) S. N. Srivastava, J. The dispute in the instant petition arose in the year 1989 and curtain fell upon the matter in the year 1992 by a decision of Consolidation Officer. The parties then in the array seemed to have, acquiesced to the determination by the consolidation authorities inasmuch as the matter was not taken in challenge any further but the old dispute which stood buried was reopened by Sunil Kumar designation from Raja Ram by means of restoration application in the year 2002.

(2.) THE dispute in the instant case revolves round the land situated in villages Piparia Ehatmal, Guladia and Satuiya Patti in District Bareilly owned by one Ram Lal. Ram Lal died and his widow namely, Sundar Devi inherited the property after her death. Subsequently, she also breathed her last. On publication of record under Section 9 of the U. P. Consolidation of Holdings Act, the dispute cropped up in the form of two sets of objection one filed by Raja Ram, husband of daughter's daughter of Ram Lal which had its basis on gift deed executed by Smt. Sunder Devi widow of Ram Lal in relation to land situated in some of the villages and in so far as land in village Satuiya Patti is concerned, he claimed rights on the basis of inheritance and another by Radhey Shyam on the basis of inheritance being son of the sister of Ram Lal deceased. THE Consolidation Officer by means of order dated 25-7-1989, pronounced decision declaring Bhumidhari rights of Raja Ram and Radhey Shyam in the land situated in village Piparia Ehtamal to the extent of one half and also declaring that Radhey Shyam was the only heir of land of Ram Lal situated in village Satuiya Patti and in so far as land situated in village Guldaiya was concerned, the Consolidation Officer declared Bhumidhari rights to the extent of 2/3 in favour of Radhey Shyam and 1/3rd in favour of Raja Ram. From a perusal of the record, it transpires that one Omkar, son of Raja Ram took the matter in appeal before the Settlement Officer Consolidation which culminated in being dismissed for default on 12-2-1992 and thereafter, it would further appear from the record, no restoration application was preferred by Omkar. One Sunil Kumar (contesting Opp. Party in the instant case) son of Omkar filed a restoration application on 29-7-2000 for recall of the order dated 12-2-1992 after a lapse of approximately 10 years. THE said application was allowed by the Settlement Officer Consolidation and in revision before the Deputy Director of Consolidation the order passed by the Settlement Officer Consolidation was maintained and in consequence, revision was dismissed. It is in the backdrop of the above facts, that the present petition under Article 226 has come to be instituted.

(3.) IN connection with the above propositions, it would be apt to have acquaintance with the provisions of Section 41 of the U. P. Consolidation of Holdings Act and Section 201 of the U. P. Land Revenue Act. Section 21 of the U. P. Consolidation of Holdings Act is abstracted below: "41. Application of U. P. Land Revenue Act, 1901. Unless otherwise expressly provided under this Act, the provisions of Chapter IX and X of the U. P. Land Revenue Act, 1901, shall apply to all proceedings including appeal and applications under this Act. " Relevant part of Section 201 of the U. P. Land Revenue Act being germane to the point involved in this petition is also abstracted below: "re-hearing on proof of good cause for non-appearance. But in all such cases, if the party against whom judgment has been given appears either in person or by agent (if a plaintiff, within fifteen days from the date of such order, and if a defendant, within fifteen days after such order has been communicated to him or after any process for enforcing the judgment has been executed or at any earlier period), and show good cause for his non-appearance and satisfied the officer making the order that there has been a failure of justice such officer may, upon such terms as to costs or otherwise as he thinks proper, revive the case and alter or rescind the order according to the justice of the case. " A punctilious reading of Section 41 of the U. P. Consolidation of Holdings Act together with Section 201 of the U. P. Land Revenue Act would manifest that the officer seized of the matter should take into reckoning two requirements, firstly, good cause to the satisfaction of the officer and the other than it does not result in failure of justice. IN the light of the above, I feel called to look into the aspect whether there was any good cause and in case the order allowing restoration application is discountenanced, would it be fraught with the consequence of failure of justice to the party concerned. A glance through the decision of the Settlement Officer Consolidation would reveal that the authority concerned disbelieved the ground set up for explaining the delay in filing restoration application after a lapse of 10 years that Omkar having died in year 1992, the application for restoration could not be made within the time while on the contrary, it has been found by the Settlement Officer Consolidation that Omkar breathed his last on 21-12-1998 and still the authority concerned took the view leaning in favour of the Opp. Party by allowing his application and directing hearing on merit. I have searched the entire finding to find out as to what good cause prevailed with the authority to take the view despite disbelieving the case of the Opp. Party. The order does not enumerate any reason save saying that it would be in the interest of justice. The authority has not enlarged upon reason how it would be detrimental to the interest of justice in case restoration application is disallowed. Yet another aspect to be taken into reckoning is whether the contesting Opp. Party had any interest in the land in question qua the provisions of Section 171 of the U. P. Z. A. & L. R. Act. It should also be borne in mind that the Courts enjoy wide equity jurisdiction. IN equity jurisdiction, the legal powers should not be allowed to be used by Courts to exploit others' misfortunes and miseries and all powers should be exercised honestly and reasonably. The Courts are required to uphold only claims prosecuted in good faith and where legal actions are tainted by the unfair desire to cause underserving suffering to others Courts should suppress such legal actions and should not support them. Seeking to reopen matter after a lapse of more than 10 years ostensibly without any valid justification cannot be said to be one founded on good cause and likewise, refusal to entertain claims on merit would not be one be one fraught with consequence of occasioning failure of justice. The failure of justice, according to its legal meaning, means the defeat of a particular right and it is colloquially applied to the miscarriage of justice which occurs when the result of a trial is so palpably wrong as to shock the moral sense (See Black's Law Dictionary ). IN the instant case, as discussed above, the petitioner had no interest in the property except the interest as held by the Consolidation Officer vis-a-vis the provisions of Section 171 of the UPZA & L. R. Act. IN the circumstances, the plea of failure of justice is not available to the learned Counsel. Besides, what were the considerations, which weighed with the authority, cannot be ascertained from mere use of expression 'in the interest of justice' employed in its order by the Settlement Officer Consolidation. As a matter of fact, the grand-father of contesting Opp. Party being husband of daughter's daughter of Ram Lal could not be entitled to any interest in the land except as held by the Consolidation Officer in its decision and in the circumstances, it would be sheer abuse of the process of Court to reopen the matter all over again which would sub-serve no other fruitful purpose except to poach on valuable public time of the Court. The expression 'interest of justice' is not a panacea of all situations to operate and it has to be employed in right perspective and not in a situation like the one obtaining in the present case. The Settlement Officer Consolidation did not delve deeper and passed the impugned order without taking into reckoning that by reopening the matter after a lapse of 10 years without any valid justification would be sheer abuse of the judicial process. I am constrained to observe as aforestated when the very underlying purpose of the U. P. Consolidation of Holdings Act is to curtail delay and to expedite resolving of dispute under the Consolidation Scheme. It seems to me that the Settlement Officer Consolidation was swayed by consideration less relevant in the matter. The learned Counsel for the Opp. Parties has not drawn attention of the Court to anything substantial from which it may be implicit that the contesting Opp. Parties have been wrongfully deprived of right being claimed through Raja Ram nor has he been able to fish out anything which may lead to the belief that approach of the authority below was anywhere near rendering the finding perverted. It is borne out without repudiation that after dismissal of the appeal in the year 1992, no restoration application was filed till the death of Omkar in the year 1998. The grounds urged for explaining the delay no where close to explaining the delay satisfactorily nor does it appear that the Opp. Party was able to show good cause and refusal to restore the case would result in failure of justice. It is thus explicit that the Settlement Officer Consolidation erred in law in allowing the restoration application without there being any valid foundation or basis for the same or any materials on record and in revision, the Deputy Director Consolidation fell in the self-same error.