SAVITRI DEVI Vs. D D C

JUDGEMENT

(1.) HEARD Sri Satyendra Nath Tiwari, counsel for the petitioner and Sri Arun Kumar, counsel for the respondents.

(2.) THE writ petition has been filed against the order of the Settlement Officer, Consolidation dated 6.9.2010 by which the appeal filed against the order of Assistant Consolidation Officer dated 31.10.1983 has been set aside and the matter has been remanded to the Consolidation Officer to decide the dispute between the parties after giving opportunity of hearing to the petitioner and the order of the Deputy Director of Consolidation dated 30.8.2013 dismissing the revision of the petitioner against the aforesaid order. Chak no.450 was carved out in the name of Ban Bihari son of Lakhan. The petitioner as well as respondent no.3 are the daughters of Ban Bihari. It is alleged that on the death of Ban Bihari the petitioner filed an application under Section 12 of U.P. Consolidation of Holdings Act, 1953(hereinafter referred to as "the Act")( registered as Case no.820) and on the basis of a compromise the name of the petitioner was directed to be recorded over the land in dispute by order dated 31.10.1983. Against the order dated 31.10.1983 respondent no.3 filed an appeal in the year 2007. In the appeal it has been stated that the order dated 31.10.1983 was an ex parte order and the petitioner, who is the real daughter as well as one of the heirs of Ban Bihari, never appeared before the Assistant Consolidation Officer nor and had not entered into a compromise. It is only when she obtained CH Form 23 on 3.7.2007 then she came to know about the endorsement of order of Assistant Consolidation Officer dated 31.10.1983 in it. Immediately thereafter an appeal was filed on 5.7.2007. The petitioner contested the appeaSection 12 Section 12 Section 12 Section 12 l and after hearing the parties the Settlement Officer, Consolidation by order dated 6.9.2010 found that in the fact of the case there was allegation that no notice was issued by the Assistant Consolidation Officer nor respondent no.3 ever appeared before the Assistant Consolidation Officer nor signed the compromise, therefore, the delay was liable to be condoned. Accordingly the delay was condoned. It was found that alleged record of Assistant Consolidation Officer was already weeded out and there was no trace of it. In such circumstances it was found appropriate that the order of the Assistant Consolidation Officer which was an ex parte order was to be set aside and the matter was to be remanded to the Consolidation Officer for decision on merit. On this finding the appeal was allowed and the order of the Assistant Consolidation Officer dated 31.10.1983 was set aside and the matter was remanded to the Consolidation Officer for deciding the case on merit. The revision filed by the petitioner against the aforesaid order has been dismissed by order dated 30.8.2008. Hence this writ petition has been filed.

(3.) SO far as the arguments of the counsel for the petitioner that the delay has been wrongly condoned is concerned, in this respect it is stated that the Settlement Officer, Consolidation in his order dated 6.9.2010 has specifically condoned the delay. The delay could be condoned even on the oral request as held by the Supreme Court in L/Naik Mahabir Singh vs. Chief of Army Staff, 1990 (Suppl.) SCC 89. In the circumstances that respondent no.3 had not been issued any notice and she did not enter into the compromise before the Assistant Consolidation Officer, the order being ex parte, the delay has rightly been condoned. In any case it is not expected from the Court having supervisory jurisdiction to interfere with the discretion of the court below in condoning the delay. So far as the compromise as well as the order passed by the Assistant Consolidation Officer dated 31.10.1983 is concerned since the original record has been weeded out and the petitioner could not produce any certified copy of the alleged compromise before the court below, in such circumstances there being neither any certified copy of the original record nor any sign of the compromise, the order dated 31.10.1983 has rightly been set aside. In any case the petitioner is permitted to contest the matter on merit. The writ petition is dismissed.