VIJAY NARAYAN Vs. DEPUTY DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) Heard Mr. Anand Kumar Srivastava, Counsel for the petitioner, Mr. Ashutosh Pandey, Counsel for respondent no. 3, learned Standing Counsel for the State-respondents and Mr. Pankaj Kumar Gupta, Counsel for respondent no. 7, Gaon Sabha.

(2.) Brief facts of the case are that name of the petitioner was ordered to be recorded in the revenue records vide order dtd. 4/9/1976 passed by the Assistant Consolidation Officer in case No. 425 under Sec. 12 of the U.P.C.H. Act in respect to plot No. 60, New Nos. 176, 177, 302, 303 and 304 situated in Village Marvat Tappa Puraina Pargana Amroha, Tehsil Harraiya, District-Basti. On the basis of the order dtd. 4/9/1976, the name of the petitioner was recorded in revenue records. C.H. Form 45 has been annexed along with the writ petition as Annexure No. 1. Petitioner remained in possession of the plot in dispute on the basis of the order dtd. 4/9/1976. Notification under Sec. 52 of U.P.C.H. Act took place on 8/2/1978 in respect to Village in question. Against the order dtd. 4/9/1976, private- respondent nos. 3 to 5 filed an appeal under Sec. 11(1) of the U.P.C.H. Act along with the delay condonation application. The appeal was registered as appeal No. 512 on 26/4/2017. Petitioner filed his objection dtd. 18/12/2017 in aforementioned appeal No. 512 stating specifically that Village has been denotified under Sec. 52 of the U.P.C.H. Act on 8/2/1978. Therefore the appeal is liable to be rejected on the ground of limitation, the ground has also been taken in the objection that respondent nos. 3 to 5 have no locus to file an appeal against the order dtd. 4/9/1976. Settlement Officer Consolidation vide order dtd. 19/9/2019 allowed the delay condonation application vide order dtd. 19/9/2019 and fixed the appeal for disposal on merit. Against the order dtd. 19/9/2019, petitioner filed a revision under Sec. 48 of the U.P.C.H. Act which was dismissed vide order dtd. 12/10/2021 on the ground of maintainability. Against the order dtd. 12/10/2021, petitioner filed a restoration application which was also dismissed on 21/12/2021. Hence this writ petition. Counsel for the petitioner submitted that appeal filed under Sec. 11(1) of the U.P.C.H. Act along with application under Sec. 5 of Limitation Act after 41 years on behalf of respondent nos. 3,4 and 5 who has no locus to file the application has been illegally entertained by Settlement Officer Consolidation. He further submitted that delay of 41 years has been arbitrarily condoned by the Settlement Officer Consolidation. He further submitted that Village has also been denotified long back, as such, the appeal filed by respondent nos. 3 to 5 under Sec. 11(1) of the U.P.C.H. Act was not maintainable before the Consolidation Court. He further submitted that respondent nos. 3 to 5 have no locus to file the appeal against the order dtd. 4/9/1976 but the Settlement Officer Consolidation has illegally granted benefit of Sec. 5 of Limitation Act in filing appeal which was delayed by 41 years. He further submitted that Revisional Court has dismissed the revision as well as the restoration application in arbitrary manner on the ground that revision is no maintainable against the order passed condoning the delay in filing the appeal. He submitted that impugned orders be set aside as the filing of appeal after 41 years by the respondent nos. 3,4 and 5 is a abuse of process of law.

(3.) On the other hand, Mr. Ashutosh Pandey appearing for respondent nos. 3,4 and 5 submitted that respondent nos. 3,4 and 5 are residents of Village Maravat and Village Maravat is within the Gram Panchayat Gobhiya. He further submitted that petitioner Vijay Narayan was posted as Lekhpal in the year 1975-1976 and he misused his position. He further submitted that the order dtd. 4/9/1976 is the fraudulent act of the petitioner, Vijay Narayan. He further submitted that no lease was executed by the Land Management Committee in respect to the plot in dispute in favour of the petitioner, Vijay Narayan and land in dispute was a bachat land of the Gaon Sabha accordingly, the appeal under Sec. 11(1) of the U.P.C.H. Act was rightly filed against the order of Assistant Consolidation Officer dtd. 4/9/1976 along with the prayer for condonation of delay. He further submitted that by the impugned order only delay in filing the appeal has been condoned, as such, no interference is required against the impugned order passed by Appellate Court condoning the delay in filing the appeal. He further submitted that appeal will be decided on merit in accordance with law and petitioner can appear before the Appellate Court for decision of appeal under Sec. 11(1) of the U.P.C.H. Act filed by the respondent nos. 3,4 and 5. He further submitted that Revisional Court has rightly decided the revision in accordance with law by placing the certified copy of the orders of Revisional Court dtd. 4/11/2020, 7/9/2011 and 14/9/2021 in order to demonstrate that proper opportunity of hearing was afforded to the parties before deciding the revision under Sec. 48 of the U.P.C.H. Act by the petitioner. Counsel for the respondent nos. 3 to 5 placed reliance upon the judgment of this Court reported in 2014 (125) RD 333 Dodram vs. Collector Peelibheet, 2006 Volume 1 AWC 205 Tripal Singh s/o Sone Lal Vs. State of U.P. and Others, 2014 (124) RD 2019 Ram Jiavan and Additional Commissioner Vindhyachal Mandal Mirzapur and Others in order to demonstrate that matter should be decided on merit rather on technical grounds.