FATEH SINGH Vs. DEPUTY DIRECTOR OF CONSOLIDATION MATHURA

JUDGEMENT

(1.) -The facts of this case lie in a narrow compass. Plot No. 991 was recorded as banjar land of the Gaon Sabha. Brijendra Singh the petitioner's father filed an application before the Consolidation Officer alleging that this plot lies in the midst of his plots and therefore after determining its valuation it may be allotted in his chak. The Consolidation Officer accepted his prayer and made the allotment on 16.4.1989. According to the respondent No. 4 the Gram Sabha and the respondent No. 5, Badley Singh, the inhabitants of the village had a right of passage over the said plot No. 991 but the petitioner's father who happened to be the Pradhan of the village and also the Chairman of the Consolidation Committee misused his position and got the valuation of this plot of the Gaon Sabha fixed at 40 paisa only in contrast to the valuation of 100 paisa of the adjoining plots. He then obtained its allotment to himself. This fraud was not noticed by the inhabitants until the petitioner recently started making constructions over the plot, blocking the passage. The respondent No. 5 Badley Singh then rushed to the Consolidation Officer and filed objections under Section 20 of the U. P. Consolidation of Holdings Act on 28.2.2001 claiming a right of passage of the inhabitants of the village over the plot. In the circumstances, the objections were delayed. The Consolidation Officer by his order, dated 30.5.2002 condoned the delay. On merits the objections are still pending adjudication before the Consolidation Officer. The appeal before the Settlement Officer, Consolidation by the petitioner was dismissed on 25.11.2002 and the revision too was dismissed by the Deputy Director of Consolidation on 16.1.2003 giving rise to Writ Petition No. 5083 of 2003. In addition to the objections, the respondent No. 5 also preferred an appeal before the Settlement Officer of Consolidation directly against the order of the Consolidation Officer dated 16.4.1989. In the appeal too a prayer for condoning the delay was made. The appeals were allowed by the Settlement Officer, Consolidation by his order dated 25.11.2002. Revision by the petitioner was unsuccessful and was dismissed by the Deputy Director of Consolidation on 16.1.2003. These orders are the subject matter of challenge in Writ Petition No. 5082 of 2003. Both the writ petitions raise common questions of law and facts and are being decided by a common judgment.

(2.) I have heard Sri G. N. Verma, counsel for the petitioner and Sri S. N. Singh counsel for the respondents.

(3.) THE maintainability of the appeal of respondent No. 5 was questioned on yet another ground that it was filed after the publication of the notification under Section 52 of the U. P. Consolidation of Holdings Act and therefore, not maintainable. THE learned counsel placed reliance upon the language employed in that section and contended that only pending cases are saved. Section 53B of the Act makes applicable the provisions of Section 5 of the Limitation Act to consolidation proceedings. In Shyam Narain Rai v. Director of Consolidation, 1981 RD 307, it was held relying on a large number of cases that an application for restoration with an application under Section 5, Limitation Act can be filed after the issuance of a notification under Section 52. In Hans Raj v. Deputy Director of Consolidation, 1975 RD 5, which was relied upon in Shyam Narain Rai (supra), it was held that if an appeal or revision is filed after the notification under Section 52 along with an application under Section 5, Limitation Act consolidation authorities would have jurisdiction.