Smt. Hubba Devi and Another vs Deputy Director Consolidation and Others

Sanjay Misra, J.—Heard Sri P.N. Singh learned Counsel holding brief of Sri J.P. Tripathi learned Counsel for the petitioners learned Standing Counsel for the respondents No. 1, 2 and 3 and Sri A.P. Tiwari for respondent No. 4. With the consent of learned Counsel for the parties this matter is being decided finally today itself. The petitioner is aggrieved by the order dated 8.8.2003 passed by the Deputy Director of Consolidation, Gorakhpur (Annexure 18 to the writ petition) whereby the Deputy Director of Consolidation has allowed the revision of the respondent No. 4 and remanded the matter to the Settlement Officer Consolidation to decide the restoration application and if it is allowed then all the three appeals be connected together and decided on merits.

Learned Counsel for the petitioner has referred to the impugned order to submit that the Consolidation Officer had passed an order dated 9.10.1992 and respondent No. 4 Sukhdeo feeling aggrieved had filed an Appeal No. 1283 which appeal was dismissed on 29.2.1993 where against the respondent No. 4 Sukhdeo did not proceed any further and the matter attained finality.

The respondent No. 4 by concealing the said orders filed a time barred objection dated 25.9.1997 before the Consolidation Officer and the Consolidation Officer by his order dated 27.11.1997 allowed the objection and amended the chaks.

When the petitioner came to know of the order dated 27.11.1997 she filed an appeal on 23.6.1998. The respondent No. 4 also filed an another appeal on 14.8.2002 against the earlier order dated 19.10.1992 although his earlier appeal against the order dated 19.10.1992 had been rejected.

The Settlement Officer Consolidation by his judgment dated 7.5.2002 allowed the subsequent Appeal No. 2004 and 2005 of the petitioner and dismissed the Appeal No. 769/01-02 of respondent No. 4 Sukhdeo which appeal had been filed without disclosing that his earlier appeal had been dismissed.

Learned Counsel states that in the meantime the respondent No. 4 had filed a restoration application on 12.3.1999 in earlier Appeal No. 1283 which was also dismissed by the order dated 7.5.2002 of the Settlement Officer Consolidation. The respondent No. 4 then filed two Revisions No. 1192 and 1193 which have been allowed by the Deputy Director of Consolidation and he has remanded the matter to the Settlement Officer Consolidation to reconsider the appeals of the respondent No. 4 and the petitioner in case his restoration application is allowed and has set aside the order dated 7.5.2002 of the Settlement Officer Consolidation.

Learned Counsel has referred to the order dated 7.5.2002 passed by the Settlement Officer Consolidation and states that the Settlement Officer Consolidation had considered the plea of the respondent No. 4 in support of his restoration application dated 12.3.1999 and found that the earlier order dated 29.2.1993 was an exparte order and has proceeded to consider the restoration application on its merits. He has held that although the respondent No. 4 had complete knowledge of the earlier order dated 29.3.1993 passed on his own appeal therefore he had not made out any ground for condonation of delay to enable the Settlement Officer Consolidation to entertain a time barred restoration application in the appeal. Learned Counsel states that there was a clear finding on merits recorded by the Settlement Officer Consolidation on the restoration application of the respondent No. 4 therefore the Deputy Director of Consolidation could not have remanded the matter by recording that the restoration application of the respondent No. 4 was dismissed summarily by the Settlement Officer Consolidation.

Learned Counsel for the petitioner has further submitted that after the earlier order dated 9.10.1992 of the Consolidation Officer had attained finality in appeal by the order dated 22.9.1993 a second time barred objection dated 25.9.1997 in Case No. 151/25-9-97 could not have been maintained since the Consolidation Officer had no jurisdiction to review his order dated 9.10.1992. He states that by the impugned order the Deputy Director of Consolidation has wrongly conferred jurisdiction of review on the Settlement Officer Consolidation to consider the time barred application when the earlier proceeding had attained finality up to the appellate stage on merits.

Sri S.S. Tripathi learned Counsel for the respondent No. 4 has contested the submission and states that admittedly the Consolidation Officer had passed an order dated 9.10.1992 against the respondent No. 4 and therefore Settlement Officer Consolidation rightly passed the order dated 27.11.1997 which was wrongly set aside on a restoration application by the order dated 7.5.2002 of the Settlement Officer Consolidation. He states that his appeal and restoration application require re-consideration by the Settlement Officer Consolidation.

Having considered the submission of learned Counsel for the parties and perused the record the record indicates that the restoration application dated 12.3.1999 was rejected by the Settlement Officer Consolidation who has considered the earlier ex parte order and has recorded reasons for not allowing the appeal of the respondent No. 4 and has given reasons for rejecting his restoration application dated 12.3.1999. The reasoning given by the Settlement Officer Consolidation is quoted here under:

From the aforesaid reasoning it appears that the Settlement Officer Consolidation has considered the question of condonation of delay and has recorded that when the earlier order passed by the Consolidation-Officer had been challenged by the respondent No. 4 in an earlier appeal and that appeal was dismissed on 22.9.1993 he filed a second time barred objection which was allowed by the Consolidation Officer on 27.11.1997 but in appeal before the Settlement Officer Consolidation by his order dated 7.5.2002 dismissed the application dated 12.3.1999 of the respondent No. 4 and allowed the appeal of the petitioner. He did not condone the delay for reasons quoted here in above.

The second consideration, made by the Settlement Officer Consolidation was that once the earlier order of the Consolidation Officer had attained finality by the order dated 22.9.1993 of the Settlement Officer Consolidation the second time barred objection dated 25.9.1997 could not be entertained by the Consolidation Officer since it was beyond his jurisdiction to review his own earlier order for the reason that the order of the Settlement Officer Consolidation was never assailed. When the earlier appeal of the respondent No. 4 was decided on 22.9.1993 he refused to condone the delay since there was no sufficient explanation to condone the delay.

The Deputy Director of Consolidation has in the impugned order recorded that the Settlement Officer Consolidation has in a summary manner rejected the restoration application of the respondent No. 4. Such finding of the Deputy Director of Consolidation is clearly erroneous.

The Settlement Officer Consolidation has given reasons for rejecting the plea of the respondent No. 4 and for rejecting the restoration application dated 12.3.1999 filed by the respondent No. 4. He has given reasons as quoted herein above and it cannot be held that he has rejected the restoration application summarily. As such the order passed by the Deputy Director of Consolidation on that score cannot be maintained and is liable to be set aside since he has failed to consider or even notice the reasons given by the Settlement Officer Consolidation for rejecting the restoration application of the respondent No. 4.

On the second submission it appears that earlier the Consolidation Officer had decided the dispute raised by the respondent No. 4. The respondent No. 4 filed an appeal before the Settlement Officer Consolidation. The Settlement Officer Consolidation by his order dated 22.9.1993 dismissed the appeal of the respondent No. 4. The respondent No. 4 ''then kept silent and filed another time barred objection 25.9.1997 before Consolidation Officer and a restoration application before Settlement Officer Consolidation on 12.3.1999. Clearly when the earlier order of the Consolidation Officer had been affirmed in appeal and the appellate order was sought to be restored at the instance of the respondent No. 4 but it had attained finality then his grounds for condonation of delay were to be considered. The entertainment of such a time barred objection by the Consolidation Officer raising issues on merits was in effect for exercising a jurisdiction by the Consolidation Officer to review the order dated 22.2.1993 passed by the Settlement Officer Consolidation which the Consolidation Officer did not have.

Clearly the earlier appeal had been decided. It was a restoration application to set aside an ex parte order. The Settlement Officer Consolidation has rejected the application for condonation of delay in filing the time barred restoration application for valid reasons given in his order. The reasons given are in accordance with law. When the reasons to condone the delay were not sufficient the application was rightly rejected.

The respondent No. 4 had full knowledge of the dismissal of his earlier appeal on 22.2.1993. He played a fraud by not disclosing the earlier order and filed another objection on 25.9.1997 before the Consolidation Officer which was allowed on 27.11.1997. The petitioner''s appeal was allowed by the Settlement Officer Consolidation on 7.5.2002 the restoration application of the respondent No. 4 was dismissed. Consequently the conclusion arrived at by the Deputy Director of Consolidation to the contrary for restoring the application dated 12.3.1999 of the respondent No. 4 thereby also restoring the petitioners appeal by setting aside the order of the Settlement Officer Consolidation cannot be sustained. It is liable to be set aside.

For the aforesaid reasoning the impugned order dated 8.8.2003 passed in Revision No. 2741/1193 (Sukhdeo v. Smt. Hubba Devi and Others) and Revision No. 1192 (Sukhdeo v. Smt. Hubba Devi and Others) is set aside.

The writ petition is allowed. No order is passed as to costs.