The Deputy Director of Consolidation must address condonation of delay before considering case merits, as established in precedent.

JUDGMENT :

SAURABH LAVANIA, J.

1. Shri Mohd. Aslam Khan, Advocate has filed his Vakalatnama in Court today on behalf of respondents no. 2 to 6, which is taken on record.

2. Heard Shri Ram Pheran Dwivedi, learned counsel for the petitioners, Shri Hemant Kumar Pandey, learned Standing Counsel for State-respondent and Shri Mohd. Arif Khan, learned Senior Advocate assisted by Mohd. Shadab Khan Khan and Shri Mohd. Aslam Khan, learned counsel for the respondents no. 2 to 6.

3. This Court after hearing the counsel for the petitioners and Shri Ashish Mishra, Advocate for respondent no. 2 (inadvertently indicated as opposite party no. 3 in the order dated 21.12.2023) entertained the instant petition on 21.12.2023 and also protected the interest of the petitioners and thereafter, on 03.01.2024, this Court directed to issue notice to respondents no. 3 to 6. As per Office Report dated 03.02.2024, service upon respondents no. 3 to 6 is sufficient.

4. At the outset, on being asked whether the respondents wish to file counter affidavit, Mohd. Arif Khan, learned Senior Advocate assisted by learned counsel for the respondents no. 2 to 6 (in short “private respondents”) stated that in the instant case, counter affidavit is not required.

5. Taking note of the aforesaid, the instant petition is being decided finally at admission stage.

6. By means of the present petition, a challenge has been made to order dated 20.11.2023, whereby the opposite party no. 1-Deputy Director of Consolidation, Bahraich (in short “DDC”) allowed the application dated 07.07.2017, which was filed by the private respondents for restoration of the case and recalled the order dated 27.02.1999 passed in reference no. 328 under Section 48 of U.P. Consolidation of Holdings Act, 1953 (in short “Act of 1953”) along with an application for condonation of delay of about more than eighteen years.

7. Assailing the impugned order dated 20.11.2023, Shri Ram Pheran Dwivedi, learned counsel for the petitioners stated that an application for recall of order dated 27.02.1999 and restoration of case was preferred along with an application for condonation of delay by private respondents. From the application for condonation of delay, it appears that with regard to the knowledge of order dated 27.02.1999 and filing of application for restoration, the present respondent in the application have stated that on 06.06.2017 when the Varakat Ali and Roz Ali (petitioners) came to land in their possession for the purposes of demarcation, they came to know about the order in issue obtained by the father of the petitioners and thereafter, through an Advocate, the records were inspected and thereafter, they came to know about the order in issue and thereafter, they took advise from the said Advocate, who in response advised to file restoration application in relation to ex-parte order dated 27.02.1999. The relevant portion of application for condonation of delay is extracted herein-under:

8. He further submitted that the records of the case must have been weeded out and as such the assertion in the application for condonation of delay that records were inspected is completely false. Reference has been made to Consolidation Manual. The fact that file of Reference No. 328 was not available is also apparent from the impugned order, wherein DDC himself has mentioned that file could not be traced out. In this view of the matter what has been written in the application for condonation of delay is completely misconceived and false. Moreover, no document was placed before the authority concerned to establish the fact that the records were inspected.

9. He further submitted that in the entire impugned order, DDC has not recorded any finding based upon the reasons to condone the delay indicated in the application for condonation of delay.

10. It is also submitted that as per law laid down by Division Bench of this Court in the case of Ram Prakash v. Deputy Director of Consolidation and Others, 2022 SCC Online All 107, the i