Altaf Khan and Ors. vs Deputy Director of Consolidation,Bareilly & Ors.

Mrs. Poonam Srivastava, J.—The instant writ petition has been listed for admission, since counter and rejoinder affidavits have been exchanged, on the argument of the Counsels for the respective parties, the instant writ petition is heard and decided finally.

Heard Sri H.M.B. Sinha, learned Counsel for the petitioners and Sri V.K. Nagaich, learned Counsel for the contesting respondents.

The instant writ petition has been filed challenging the order dated 7102004 passed by the Consolidation Officer and order dated 662005 passed by the Deputy Director of Consolidation, Bareilly.

The dispute relates to Khata No. 704. The village was notified under Consolidation of Holdings Act (hereinafter referred to as the Act), name of Naseer Khan son of Abdul Mazir Khan, Musalmat Kalsumat widow of Baseer Khan were sought to be recorded. Objections were filed under Section 9 of the Act, that their names be struck off from the revenue record and entries in favour of Sagari Khan, Saleem Khan, Faheem Khan and Naim Khan sons of Jameen Khan and three brothers of Allauddin should be recorded. The Consolidation Officer vide order dated 1351993 allowed objections. The objections filed by Nathu Khan and Kudresean was dismissed in default as they had not appeared before the Consolidation Officer. A restoration application was filed on 1881993 for recalling the order of the Consolidation Officer. This application was allowed on 1351995, which was decided subsequently by the Consolidation Officer after hearing the parties on 17101997. Another restoration application was filed by respondent Mustaq Ali Khan on 1042002 with a prayer for recalling the orders dated 2731990, 19111992, 1351993, 1061997, 1591997, 17101997 and 2842000 on the ground that he was not heard before passing the order. The application was allowed by the Consolidation Officer vide order dated 7102004. The petitioners were aggrieved by the said order and preferred a revision No. 190 of 2004 before the Deputy Director of Consolidation on the ground that the Consolidation Officer has illegally recalled as many as seven orders without considering entire facts and evidence on record. Besides, according to the petitioners, contesting respondents were afforded appropriate opportunity and if they chose not to appear and contest the matter, it cannot be reopened. The Deputy Director of Consolidation vide order dated 662005 dismissed the revision, which is also impugned in the instant writ petition.

Submission on behalf of the petitioners is that the order passed by the Deputy Director of Consolidation and the Consolidation Officer are absolutely perverse and arbitrary and no reason has been assigned for recalling seven orders by means of a single order and, therefore, it has emphatically been argued that orders of the Deputy Director of Consolidation and the Consolidation Officer are liable to be set aside.

I have perused the orders impugned in the instant writ petition and gone through the record. It is admitted position that the orders, sought to be recalled at the instance of the contesting respondents were without any contest and it was passed in their absence. The application for recalling the orders was filed alongwith an application under Section 5 of Indian Limitation Act. The Deputy Director of Consolidation has given specific reasons for recalling the ex parte order and also taken into consideration various decisions Ram Dhani v. D.D.C. & Ors., 1995 R.D. page 34, Surendra Nath v. Commissioner Azamgarh Board of Revenue, 2003 R.D. page 141.

I have perused the restoration application, which has been brought on record by means of the counted affidavit. Admittedly, it has clearly been stated that it was accepted by the consolidation authorities that summons were issued in name of father, who was no more alive and, therefore, Vakalanama on behalf of the contesting respondents was forged and this precluded them to appear before the consolidation authorities. The order of the Consolidation Officer clearly shows that objections were dismissed for want of prosecution.

Considering entire facts and circumstances of the case, it is true that liberal view should be adopted and every effort should be made to ensure that there must be a decision on merit instead shutting out one of the parties. Law of equity also provides appropriate opportunity to both the parties. In the instant case, consolidation authorities have not committed any illegality whatsoever in recalling the ex parte Order and giving afresh opportunity to contest the case on merits. In the, circumstances, I do not find any illegality whatsoever in the orders impugned in the writ petition. The writ petition lacks merit and is, accordingly, dismissed.

The Consolidation Officer is directed to decide the case expeditiously on merit to avoid further delay, preferably within a period of four months from the date a certified copy of this order is produced before him. The appellate and revisional authorities shall also make every endeavour to complete the proceedings after the matter is heard by the Consolidation Officer in the event an appeal or revision is preferred by the aggrieved parties. The time frame fixed shall be adhered by all the authorities to avoid further delay.