Vijay Bahadur Singh vs Assistant Director of Consolidation Deorla and Another

B. Dikshit, J.—By this petition the petitioner has challenged order, dated 27681 passed by Assistant Director of Consolidation, Deoria whereby he allowed revision of respondent No. 2 Jangi Singh and reversed the order of Consolidation Officer .condoning the delay under section 5 of the Limitation Act in respect of a belated objection filed by petitioner under section 9A(2) of U.P. Consolidation of Holdings Act (in short Act''). By objection the petitioner claimed 1/2 share in plot No. 882 and 145 of village Lar, Tappa Balia, pargana Salempur Majhauli, district Deoria.

The facts relevant for the purpose of determining controversy are that objection under section 9A (2) of the Act was filed by petitioner in 1979 though publication under section 9 took place on 3191971. The petitioner filed an application under section 5 of Limitation Act to condone delay in filing objection which was belated. The reasons assigned in application, which was accompanied by an affidavit, was that petitioner and respondent No. 2 Jangi Singh, are members of a joint family and the petitioner was living outside the village in connection with his service. The petitioner alleged that respondent No. 3 is his uncle and as petitioner was living out in connection with his service, respondent No. 2 was looking after the cases on his behalf. The petitioner claimed that though he was a cotenure holder in the disputed Khatas, respondent No. 2 did not get the name of petitioner entered over disputed plots and deliberately left it out. The petitioner alleged that he came to know about the omission of his name on 2061979 when he got the papers inspected as he heard in the village that his name has been left out. According to petitioner he filed objection along with application under section 5 of Limitation Act under such circumstances. The claim of petitioner that he came to know about said entry on 2061979 was disputed by respondent No. 2. According to respondent No. 2 the petitioner had known about nonincorporation of his name. The Consolidation Officer accepted the petitioner''s explanation for delay and allowed the application filed by " petitioner for condoning the delay under section 5 of Limitation Act. Aggrieved, respondent No. 2 Jangi Singh preferred a revision. The revision was allowed and the application of petitioner for condoning the delay filed under section 5 of Limitation Act rejected. This writ petition arise out of said order whereby the Assistant Director of Consolidation rejected the application of petitioner for condoning delay.

The learned counsel for petitioner argued that the Consolidation Officer recorded finding of fact about there being sufficient cause for condoning the delay. He argued that the order of Consolidation Officer condoning the delay in filing objection could not have been interfered in exercise of revisional jurisdiction by Assistant Director of Consolidation and the Assistant Director of Consolidation exceeded his jurisdiction in doing so. On merits, he argued that the revisional authority erroneously considered that the petitioner''s case was that he came to know about the consolidation operation in village in 1979. He argued that the petitioner''s case was that he came to know about his name being not recorded over the disputed plots on 2061979 and not that he did not know about the consolidation operation while it was going on in the village and, therefore, the order of revisional authority is liable to be quashed.

None is present on behalf of respondents. The argument that the revisional authority did not have any power to interfere in an order condoning the delay under section 5 of the Limitation Act does not have any force. The revisional authority in exercise of power under Section 48 of the Act can interfere in an order after examining its correctness and properties. So far present case is concerned, the order passed by revisional authority is well within the scope of his power and cannot be interfered by this court on that ground.

So far the second argument of learned counsel for petitioner is concerned, he has rightly argued that the approach of the revisional authority has not been correct. It is not the case of the petitioner that he came to know about the consolidation operation for the first time in the year 1979. The petitioner''s case, is that he joined service and respondent No. 2, who is his uncle, was looking after the litigations. His case is that respondent No. 2 taking advantage of that position did not get the name of petitioner entered over disputed plots on which petitioner was a cotenure holder. The revisional authority misdirected itself in considering that petitioner''s case is that he came to know about consolidation operation in the year 1979. The approach has not been correct. The petitioner''s specific case is that he came to know about his name being not entered over disputed plots on 2061979 when he got the relevant records inspected on hearing in the village that his name has been left out. As the whole approach of the revisional authority is wrong, his judgment is liable to be quashed on this ground alone.

I am of the opinion that normally a case is to be sent back to revisional authority in case its judgment is quashed on the ground of wrong approach by that authority. This approach is not necessary in this case. Here, the only point pressed before revisional authority was that the petitioner knew about the consolidation proceeding in the year 1979. It is the sole ground on which the judgment of the Consolidation Officer has been set aside. As this was, he only aspect which was pressed by respondent No. 2 at revisional stage, which is unacceptable to me, it is not necessary to send the case back for reconsideration to revisional authority.

For aforesaid reason the writ petition is allowed, order, dated 2761981 passed by Assistant Director of Consolidation, Deoria is quashed and that of Consolidation Officer, Antim Abhilekh, R.O. Deoria Salempur in case No. 16434/89 of village Lar, tahsil Salempur : Vijay Bahadur v. Jangi, is restored and the Consolidation Officer is directed to dispose of the objection of petitioner under Section 9A(2) of the Act.

No order as to costs.