Ram Chandra vs D.D.C. and Others

Ram Surat Ram (Maurya), J.—Heard Sri A.K. Mishra for the petitioner and Sri Hardev Prajapati, for the respondents. The writ petition has been filed for quashing the orders of Consolidation Officer (respondent-3) dated 20.11.1984, Settlement Officer Consolidation (respondent-2) dated 2.6.1989 and Deputy Director of Consolidation (respondent-1) dated 14.9.1993, passed in title proceeding, under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act).

It is alleged that Smt. Dhanraji (respondent-4) executed a registered sale-deed dated 21.6.1975, by which she transferred her 1/9 share in plots 11/1 (area 0.595 hectare) and 75 (area 0.441 hectare) and 1/3 share in plots 63 (area 0.030 hectare) and 69/1 (area 0.170 hectare) of village Ibrahimpur, tappa Gujara, pargana Nizamabad, district Azamgarh to Ram Chandra (petitioner) and Birbal (respondent-5) who are real brothers. In consolidation, the petitioner and respondent-5 filed a time barred objection (registered as Case No. 1162/14904) u/s 9A of the Act, on 23.11.1982, for recording their names over the land in dispute, on the basis of the aforesaid sale-deed. The Consolidation Officer (respondent-3), by order dated 7.3.1983 condoned the delay in filing the objection. When the case was listed for evidence, respondent-5, who was doing pairavee in the case on his own behalf and on behalf of the petitioner (as the petitioner was in service and was posted in West Bengal at that time) failed to adduce any evidence as such his evidence was closed. However, on the application of respondent-5, Consolidation Officer, by his order dated 22.8.1984, gave one more opportunity for evidence, on costs. Even then he could not adduce any evidence and the objection was dismissed in default on 20.11.1984. Respondent-5 filed an application on 24.11.1984 for recall of the order dated 20.11.1984, but subsequently he did not pursue his application.

The petitioner alleged that respondent-5 did not inform him in respect of the proceedings taken by him, before the Consolidation Officer. In the meantime, notification u/s 52 of the Act, was made on 28.3.1987. The petitioner retired from service in the year 1987 and came to the village. He consulted the local Counsel for recording his name over the land in dispute on the basis of the aforesaid sale-deed. Since the consolidation operation was over, as such the Counsel moved an application u/s 34 of the U.P. Land Revenue Act, 1901. Tahsildar, by order dated 27.5.1987 directed for mutation of the name of the petitioner over the land in dispute. Respondent-4 filed an application for recall of the order dated 27.5.1987, in which she stated that the application of the petitioner was barred u/s 49 of the Act. It has also been stated that the petitioner and his brother filed an objection before Consolidation Officer but could not adduce any evidence and their objection was dismissed in default. Thereafter, the Counsel of the petitioner made inquiries on 17.9.1987 and came to know about the order of Consolidation Officer dated 20.11.1984. Then a time barred appeal (registered as Appeal No. 1317/1511) was filed along with delay condonation application on 18.9.1987 against order dated 20.11.1984.

Respondent-5 filed an objection to the delay condonation application. In the objection, she denied execution of the sale deed dated 21.6.1975 and stated that this sale-deed was a fabricated document. She stated that the petitioner and his brother filed an objection in the mutation case filed by her before Tahsildar in the year 1966. Subsequently, they fabricated the sale-deed dated 21.6.1975. On coming to know about the sale-deed dated 21.6.1975, she filed a Civil Suit No. 555 of 1975 for cancellation of the sale-deed dated 21.6.1975. In this suit, an expert report was submitted in which it had been reported that the sale-deed dated 21.6.1975 did not contain her thumb impressions. However in the meantime the village was placed in consolidation operation and the suit was abated. From the expert evidence adduced in the civil suit, respondent-5 realized his weakness and committed default before the Consolidation Officer. The interest of two brothers are joint and based upon same sale-deed as such the statement of the petitioner that he was not informed by his brother regarding the proceedings taken by him before the Consolidation Officer was false. The appeal has been mala fide filed with an inordinate delay. There was no ground for condonation of the delay.

The appeal was heard by Settlement Officer Consolidation (respondent-2), who by order dated 2.6.1989, held that village was notified u/s 9 of the Act on 30.10.1981 and the objection was filed on 23.11.1982. The Consolidation Officer by order dated 7.3.1983 condoned the delay on cost of Rs. 7/- but cost was not paid. The petitioner and his brother engaged Sri Subhash Chandra Chaubey and Sri Akhand Pratap Pandey, Advocates as such the statement of the petitioner that he had no knowledge of the proceedings before the Consolidation Officer was not correct. In spite of one more opportunity being given for adducing evidence by order dated 22.8.1984, neither evidence was adduced nor cost was deposited. Respondent-5 filed an application for recall of the order dated 20.11.1984, which was pending but the petitioner has taken proceeding for mutation of his name in the Revenue Court. On these findings delay in filing the appeal was not condoned and the appeal was dismissed as time barred by order dated 2.6.1989.

The petitioner filed a revision (registered as Revision No. 70) from the aforesaid order. The revision was heard by Deputy Director of Consolidation (respondent-1), who by his order dated 14.9.1993, held that the petitioner and his brother had contested the mutation proceedings before Tahsildar in the year 1966 filed by respondent-4. When they find that their case was week, they fabricated the sale-deed dated 21.6.1975. From the report an statement of Finger Print Expert recorded before the Civil Court it was proved that sale-deed dated 21.6.1975 did not contain thumb impressions of Smt. Dhanraji. When the petitioner did not succeed in Consolidation Court then they obtained a mutation order from Revenue Court and recall application filed by respondent-4 was allowed. The allegation that his brother did not give any information of the proceeding before the Consolidation Officer was not liable to be believed. The costs imposed by the Consolidation Officer by order dated 7.3.1983 and 22.8.1984 and Settlement Officer Consolidation by order dated 8.7.1987 were not paid by the petitioner which shows that the petitioner was avoiding to adduce his evidence and was interested in securing ex parte order from any Court against respondent-4. On these findings, the revision was dismissed. Hence this writ petition has been filed.

The Counsel for the petitioner submitted that the petitioner based his title on the registered sale-deed dated 21.6.1975 executed by Smt. Dhanraji (respondent-4). There could have no reason for the petitioner for not contesting the matter before the Consolidation Officer, in case he had knowledge of the proceeding. The brother of the petitioner filed an objection before the Consolidation Officer but later on he committed default and did not inform the petitioner, who at that time was posted in West Bengal and was not residing in the village. Immediately after retirement, when the petitioner came to the village, he consulted with an Advocate for mutating his name on the basis of the sale-deed dated 21.6.1975. At that time the consolidation proceedings in the village had become over as such mutation application was filed before the Tahsildar on the advice of the advocate. As soon as it was came to the knowledge of the petitioner that objection filed by his brother was dismissed in default, he filed the appeal along with delay condonation application. In the circumstances, the delay was liable to be condoned. It has been consistently held by this Court and Apex Court that liberal view is required to be taken in delay condonation matter.

In reply to the aforesaid arguments, the Counsel for the respondent submitted that the petitioner and his brother earlier filed an objection had contested the mutation proceedings before Tahsildar in the year 1966 filed by respondent-4. When they find that they had no case, they fabricated the sale-deed dated 21.6.1975 allegedly executed by Smt. Dhanraji. On coming to know about the aforesaid sale-deed, Smt. Dhanraji (respondent-4) filed Civil Suit No. 555 of 1975 for cancellation of the sale-deed dated 21.6.1975. In this suit, evidence was completed and from the report and statement of Finger Print Expert recorded by the Civil Court it was proved that sale-deed dated 21.6.1975 did not contain thumb impressions of Smt. Dhanraji. However, in the meantime the village was placed under consolidation operation due to which Civil Suit No. 555 of 1975 was abated. The petitioner and his brothers, who have joint interest and based their title on the same sale-deed jointly filed objection u/s 9A of the Act. They jointly engaged Sri Subhash Chandra Chaubey and Sri Akhand Pratap Pandey, Advocates before the Consolidation Officer. The statement of the petitioner that he had no knowledge of the proceedings before the Consolidation Officer was incorrect. In spite of one more opportunity being given for adducing evidence by order dated 22.8.1984 they failed to adduce any evidence. Ultimately they decided to get the objection dismissed in default and ultimately it was dismissed in default on 20.11.1984. Respondent-5 has filed an application for recall of the order dated 20.11.1984, which was pending but the petitioner has taken proceeding for mutation of his name in the Revenue Court. When the petitioner did not succeed in Consolidation Court then he obtained a mutation order from Revenue Court and recall application filed by respondent-4 was allowed on 3.2.1988. The allegation of the petitioner that his brother did not give any information of the proceeding before the Consolidation Officer was false and has been disbelieved. The costs imposed by the Consolidation Officer by order dated 7.3.1983 and 22.8.1984 and Settlement Officer Consolidation by order dated 8.7.1987 were not paid by the petitioner which shows that the petitioner was avoiding to adduce his evidence and was interested in securing ex parte order from any Court against respondent-4. In the circumstances of the case, the delay was rightly not condoned by respondents-1 and 2. No interference is required by this Court.

I have considered the arguments of Counsel for the parties and examined the records. Supreme Court in Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, , B. Madhuri Goud Vs. B. Damodar Reddy, and Judgment dated 13.9.2013 passed in Civil Appeal No. 8183-8184 of 2013, Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy, has held that liberal view is required to be taken in delay condonation matter. In Esha Bhattacharjee the Supreme Court has summarized the following principles:

(i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the Courts are not supposed to legalise injustice but are obliged to remove injustice.

(ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the Counsel or litigant is to be taken note of.

(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

(vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the Courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

(vii) The concept of liberal approach has to en-capsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

(viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

(ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the Courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

(x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the Courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

(xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

(xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

(xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

In this case, admittedly respondent-4 filed Civil Suit No. 555 of 1975 for cancellation of the sale-deed which was contested by the petitioner and his brothers which was ultimately abated u/s 5(2) of the Act. Thereafter, the petitioner and his brother filed an objection before the Consolidation Officer. The petitioner took the plea that at that time he was residing in West Bengal in connection with his employment and his brother who was doing pairavee before the Consolidation Officer committed default without any information to him. The petitioner is an illiterate man. On retirement in 1987, when he came to his village, he consulted with an advocate. As the village was notified u/s 52 of the Act, the Counsel advised for filing an application before Tahsildar u/s 34 of U.P. Land Revenue Act, 1901. It is only when respondents filed an application for recall of the order of Tahsildar dated 6.5.1987, in which she had mentioned about the objection filed before the Consolidation Officer then on inquiry, the petitioner came to know about the order dated 20.11.1984 and the appeal was filed immediately thereafter without any further delay. Thus the conduct of the petitioner shows that he was contesting the matter with due diligence. In case, he had any knowledge of the proceeding before the Consolidation Officer, there would have no reason for not contesting the matter. In the circumstances the delay in filing the appeal was liable to be condoned. There was no reason to disbelieve the statement of the petitioner that his brother had not given any information in respect of the proceeding before Consolidation Officer. In the result, the writ petition succeeds and is allowed. The orders of Consolidation Officer (respondent-3) dated 20.11.1984, Settlement Officer Consolidation (respondent-2) dated 2.6.1989 and Deputy Director of Consolidation (respondent-1) dated 14.9.1993 are set aside subject to the payment of costs of Rs. 5,000/- within three month from today. The cost shall be paid to respondent-4 and in case, she refused to accept it then a bank draft of the aforesaid amount in the name of respondent-4 shall be deposited before the Consolidation Officer (respondent-3). When the cost is paid/deposited, the Consolidation Officer shall give opportunity to the parties for adducing their evidence and proceed to decide the matter on merit. In case, the petitioner commits any default then the aforesaid liberty will stands withdrawn.