Ambika Prasad vs Additional District Magistrate

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(All) 1587

IN THE HIGH COURT OF ALLAHABAD
Dinesh Pathak, J.
Ambika Prasad And Others - Petitioner
Vs.
Additional District Magistrate And Others - Respondent
WRIT - B No. - 525 of 2021
Decided On : 30-07-2021

Advocates:
Advocate Appeared:
For the Petitioner: Mazhar Abbas Zaidi,Sunil Kumar Yadav
For the Respondent: C.S.C.,Shiv Dayal Tiwari

Headnote:
Decided On : Constitution of India,1950 - Article 226 - U.P. Consolidation of Holdings Act, 1953 - Sections 48, 11 (1) and 12 - Limitation Act section 5 - Code of Civil Procedure,1908 - section 115 - Threatened to her for taking the possession - - Mutated over the property situated in village - Death name of Ramsuresh was ordered to be recorded in the revenue record vide order passed by the Assistant Consolidation Officer (had filed an appeal under Section 11 (1) order ground that it was ex-parte order passed behind her back without giving her any opportunity of hearing. In appeal she had prayed condonation of delay in filing the appeal S.O.C. has allowed the prayer for condonation of delay and fixed date for hearing on the merits of the appeal - Feeling aggrieved, present petitioners have preferred a revision before Deputy Director of Consolidation – Held, Positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless exercise of discretion was on wholly untenable grounds or arbitrary or perverse - But it is a different matter when first Court refuses to condone the delay. In such cases, the superior Court should be free to consider the cause shown for delay afresh and it is open to such superior Court to come to its own finding even untrammelled by the conclusion of the lower Court - consolidation courts, SOC and DDC, in positive exercise of jurisdiction, have given opportunity of hearing to the contesting respondents after considering the bonafides is claiming her right and title over the property in question on basis of registered will deed executed by her maternal grand father - Mere an endorsement relating to some case over the khatauni cannot confer any right and title in favour of recorded person and said entry is always subject to scrutiny by the competent court. Therefore, on the ground of laches valuable right of any person, who is vitally interested in the property in question, cannot be negated - consolidation courts, SOC and DDC, in positive exercise of jurisdiction, have given opportunity of hearing to the contesting respondents after considering the bonafides of Smt. Savitri Devi, who is claiming her right and title over the property in question on the basis of registered will deed executed by her maternal grand father - Mere an endorsement relating to some case over the khatauni cannot confer any right and title in favour of the recorded person and said entry is always subject to scrutiny by the competent court - Ground of laches valuable right of any person, who is vitally interested in the property in question, cannot be negated- Court do not find any justification in interfering orders passed by SOC and DDC. Counsel for the petitioners fails to substantiate his submissions in assailing the orders passed by SOC and DDC. Opportunity be heard, cannot be denied on pretext of technicalities, who has vested interest in the property in question being a legatee as well as grand daughter of recorded tenure holder - Court do not find any illegally, perversity or error in the impugned orders passed by SOC and DDC to warrant the indulgence of this Court in exercising extraordinary jurisdiction under Article 226 of Constitution of India - Writ petition is dismissed.

JUDGMENT :

Dinesh Pathak, J.

Heard Sri Mazhar Abbas Zaidi, learned counsel for the petitioner, who has appeared through video conferencing. Learned Standing Counsel for the respondent nos.1 to 3 and Sri Shiv Dayal Tiwari, learned counsel for the respondent nos.4 to 7, at admission stage.

2. Petitioners have filed the present writ petition challenging the impugned order dated 07.01.2021 passed by the Additional District Magistrate, Basti (respondent no.1) exercising his power under Section 48 of the U.P. Consolidation of Holdings Act, 1953 (in brevity "U.P.C.H. Act") in Revision No.459 of 2020 (Computerized No.D-202017140001798) (Suit No.01798 of 2020) (Ambika Prasad and Others vs. Smt. Savitri Devi and Others) and order dated 09.01.20215 passed by the Settlement Officer of Consolidation, Basti (in brevity "S.O.C.")(respondent no.3) in Appeal No.120 under Section 11 (1) of the U.P.C.H. Act.

3. Present writ petition is arising out of proceeding under section 12 of UPCH Act. Dispute relates to property belongs to one Hari Prasad. Plot in question i.e. Khata No.407 situated in village Shankarpur was recorded in the name of Hari Prasad. After his death name of Ramsuresh @ Ramduresh (predecessor in interest of the petitioners) was ordered to be recorded in the revenue record vide order dated 30.01.1982 passed by the Assistant Consolidation Officer (in brevity "A.C.O."). After lapse of 29 years, Smt. Savitri Devi (predecessor in interest of respondent nos.4 to 7) had filed an appeal dated 16.07.20210 (annexure no.2) under Section 11 (1) of the U.P.C.H. Act, challenging the order dated 30.01.1982 on the ground that it was ex-parte order passed behind her back without giving her any opportunity of hearing. In appeal she had prayed condonation of delay in filing the appeal. Vide order dated 09.01.2015(annexure no.5), the S.O.C. has allowed the prayer for condonation of delay and fixed date for hearing on the merits of the appeal. Feeling aggrieved, present petitioners have preferred a revision before the Deputy Director of Consolidation (in brevity "D.D.C.") (respondent no.2), which has been dismissed vide order dated 07.01.2021 (Annexure-8), with an observation that there is no force in the revision, which is in fact not maintainable against an interlocutory order.

4. Learned counsel for the petitioners submits that the D.D.C. has illegally dismissed the revision on the ground of maintainability, whereas the order passed, allowing the prayer for condonation of delay, is revisable and same should be examined by the D.D.C. in exercise of revisional jurisdiction under Section 48 of the U.P.C.H. Act. He has also assailed the order of the S.O.C. on the ground that delay has illegally been allowed only on the basis of litigation which is going on between the parties with respect to the property of Hari Prasad situated in other villages namely Sarbhanaga and Majhauwa. In support of his submissions learned counsel for the petitioners has cited the case of Parash Nath Vs. DDC and others, reported in 2008 (104) RD 516 and the case of Smt. Urmila Vs. Amit Kumar Agrawal & Others, reported in 2013 (118) RD 180.

5. Per contra, learned counsel for the respondent nos.4 to 7 contended that the S.O.C. has rightly allowed the prayer for condonation of delay in positive exercise of jurisdiction and the same is not amenable to the higher court. He has further contended that the revision filed by the present petitioners has rightly been rejected by the D.D.C. with an observation that there is no force in the revision filed by the revisionists as well as on the ground of maintainability. He submits that the D.D.C. has discussed the merits, for condonation of delay, at length and dismissed the revision. Mere making an observation with respect to the maintainability of revision, would not effect the judgment passed by the D.D.C. In support of his case, learned counsel for the respondents has cited Jeet Narain and Another vs. Govind Prasad and Others, 2010 (3) ADJ 47