Azad Khan vs Dy. Director of Consolidation

@DELETEUPPERDATA

Anjani Kumar Mishra, J.—Heard Shri Prabhakar Singh, learned Counsel for petitioner and Shri S.S. Sisodiya, who has filed a caveat on behalf of the respondent No. 3. The writ petition arises out of an objection under section 12 of the U.P. Consolidation of Holdings Act and is directed against the orders dated 21.8.2014 and the 17.7.2014. By the order dated 17.7.2014, a restoration application filed by the contesting respondent was allowed after condoning the delay. Consequential revision filed against the order has been dismissed by the Deputy Director of Consolidation vide order dated 21.8.2014 on the ground that it was directed against an interlocutory order.

It has been submitted by the learned Counsel for the petitioner that the appeal itself was highly belated, having been filed twelve years after the order passed by the Consolidation Officer. This appeal was dismissed for default on 17.10.2006. The appellant thereafter is said to have died on 25.3.2008. Almost five years after the death of the appellant, the respondent No. 2 filed a restoration application which was allowed on 17.7.2014 after condoning the delay in filing it.

The submission of the learned Counsel for the petitioner is that this inordinate delay of five years, has been condoned by a single line order. The Counsel for the petitioner has tried to submit that the appeal itself was not maintainable and, therefore, the restoration application could not have been allowed and in any case, the delay should have been condoned only by a speaking order and not otherwise. He has further submitted that the appeal itself was beyond time and the delay in filing the same had not been condoned and, therefore, the restoration application was not maintainable.

As regards the revisional order, it has been submitted that the revision was clearly maintainable in view of the Division Bench decision of this Court and in to the contrary, holding the Deputy Director of Consolidation has committed patent illegality.

Upon hearing the learned Counsel for the parties and upon perusal of the record, it is clear that the petitioner has filed this writ petition on pure technicalities. The Settlement. Officer, Consolidation has condoned the delay. It has repeatedly been held by the Apex Court that the question of condonation of delay in filing of an appeal etc. is a discretionary relief which should not be lightly interfered with by the superior Court.

In any case by restoration that has been allowed only an appeal was restored to its original number and no order has been passed which can be said to effect in rights of the petitioners who claim to be in possession over the property in question. There is no dispute that an objection was filed which objection was rejected. The right of appeal is statutory right provided under the Act and I see no good ground to sheet out this right of the petitioner on mere technicalities.

As regards, the merits of the case, all the submissions that have been raised by the learned Counsel for the petitioner can be raised and can be considered by the Appellate Court himself where the appeal is pending pursuance to the order dated 17.7.2014. In my considered opinion the Counsel for the petitioner is trying to delay the disposal of the dispute between the parties on its merits and, therefore, I am not inclined to exercise my discretion in favour of the petitioner in exercise of my powers in equity jurisdiction under Article 226 of the Constitution of India. The writ petition is, therefore, dismissed.