Dismissed

Mithai and Others v. D.D.C. Varanasi and Others

Allahabad HC11 Apr 2018WRIB/36033/2001

Case brief

AI extract

What is this about?

The High Court dismissed the writ petition challenging orders rejecting an inordinate delay application. The court found the lower authorities correctly observed that the petitioners filed an appeal in 1986 showing knowledge of the order; thus, the six-year delay was unsatisfactorily explained, rendering the case not maintainable.

What did the court decide?

The writ petition was held to lack merits and was dismissed; interim order vacated.

Mithai and Others Vs D.D.C. Varanasi and… — Civil Procedure and Limitation | Allahabad HC (2018)

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Court No. - 11

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Case :- WRIT - B No. - 36033 of 2001

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Petitioner :- Mithai And Others Respondent :- D.D.C., Varanasi And Others Counsel for Petitioner :- D.S.P.Singh Counsel for Respondent :- C.S.C.,Anuj Kumar,H.C.Dwivedi,K.N.Tripathi,Smt.Usha Singh,Usha Devi Singh,Usha Singh

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Hon'ble Salil Kumar Rai,J.

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Heard learned counsel for the parties.

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Against the order dated 30.1.1981, passed by the Assistant Consolidation Officer (hereinafter referred to as, 'A.C.O.') under Section 9-A of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act, 1953'), the petitioners filed Appeal under Section 11(1) of the Act, 1953 before Settlement Officer of Consolidation (hereinafter referred to as, 'S.O.C.') on 23.4.1987. The aforesaid appeal was time barred, and therefore, the petitioners also filed an application praying to condone the delay in filing the said appeal inter alia alleging that the delay in filing the said appeal under Section 11(1) of the Act, 1953 was due to the fact that they were wrongly advised by their counsel to file an appeal under Section 21 of the Act, 1953 and under the aforesaid wrong advice the petitioners were prosecuting their appeal filed under Section 21 of the Act, 1953, and therefore, could not file the present appeal within time. The substantive grounds raised by the petitioners in the memorandum of appeal filed against the order dated 30.1.1981 passed by the A.C.O. was that the petitioners were in possession of Plot No. 1460/5 i.e. the disputed plot, since before Abolition of Zamindari and as the said plot belongs to the Gaon Sabha, therefore under Section 112-B (4)(f) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as, 'Act, 1950') they were entitled to retain possession of the said plot as Bhumidhar with non-transferable right.

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The S.O.C. vide his judgement and order dated 3.7.1989 dismissed the aforesaid appeal filed by the petitioners on the ground that the appeal preferred by the petitioners under Section 21(1) of the Act, 1953 was filed by them on 11.9.1986 and thus by the said date, the petitioners had knowledge of the order dated 30.1.1981. Consequently, the S.O.C. recorded his opinion that the delay in filing the appeal was not satisfactorily explained by the appellants, and therefore, it was not a fit case where a delay of six years in fling the appeal should be condoned. Aggrieved by the judgement and order dated 3.7.1989 passed by the S.O.C., the petitioners filed a Revision under Section 48 of the Act, 1953 before the respondent No. 1-Deputy Director of Consolidation, Varanasi (hereinafter referred to as, 'D.D.C.'), which was also dismissed by the D.D.C. vide his order dated 6.8.2001, wherein the D.D.C. affirmed the findings of S.O.C. regarding failure of the petitioners to satisfactorily explain the delay in filing the appeal under Section 11(1) of the Act, 1953 and also held that the appeal as well as revision filed by the petitioners was not maintainable inasmuch as the petitioners had not produced any document or evidence to prove the ingredients required to establish their Rights under Section 112-B (4)(f) of the Act, 1950. The orders dated 3.7.1989 and 6.8.2001 passed by the D.D.C. and S.O.C. have been challenged in the present writ petition.

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It has been argued by Shri D.S.P. Singh, learned counsel for the petitioners that the S.O.C. and the D.D.C. had not properly appreciated the explanation given by the petitioners for the delay in filing their appeal and order dated 30.1.1981 passed by the A.C.O. was without jurisdiction, and therefore, it was a fit case where the delay in filing the appeal was liable to be condoned and the appeal should have been heard on merits. It was argued by learned counsel for the petitioners that in view of the Judgement of Hon'ble Supreme Court reported in Esha Bhattacharjee Vs. Managing Committee of

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Raghunathpur Nagar Academy and Others 2014 (2) AWC 1655 (SC) the S.O.C. and the D.D.C. should have adopted a liberal approach in deciding the delay condonation application filed by the petitioners but instead the aforesaid consolidation authorities have taken a very technical approach in rejecting the delay condonation application filed by the petitioners.

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I have considered the submission of the learned counsel for the petitioners and also perused the record.

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From a perusal of the records especially Annexure CA-5 annexed with the counter affidavit filed by respondents, it is evident that the petitioners had filed an Appeal under Section 21(1) of the Act, 1953 against an order dated 28.2.1984 passed by the Consolidation Officer and the said Appeal was filed by the petitioners on 11.9.1986. Thus, the findings in the order dated 3.7.1989 passed by the S.O.C., that the petitioners had knowledge of the order dated 30.1.1981 passed by the A.C.O. appears to be correct. In the circumstances the delay of six years on the part of the petitioners in filing the Appeal under Section 11(1) of the Act, 1953 was not satisfactorily explained by the petitioners and the findings recording the failure of the petitioners to explain the delay in filing the said Appeal have been recorded by the S.O.C. and the D.D.C. after considering the documents on record and there is no perversity or illegality in the same. The findings recorded by the D.D.C. and the S.O.C. are findings of fact not amenable to interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India.

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The contention of learned counsel for the petitioners that the order dated 30.1.1981 passed by the A.C.O., was without jurisdiction, and therefore, it was a fit case where delay in fling the appeal should have been condoned and the matter should have been heard on merits also lacks merit. The question of jurisdiction relates to the merits of

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the case which can be judged only if the delay in filing any appeal is satisfactorily explained by the party, who has a legal interest in the matter. The contention of the petitioners that they were entitled to be treated as Bhumidhar with non-transferable right of the disputed plot in view of Section 122-B (4)(f) of the Act, 1953 has been rejected by the D.D.C. vide his impugned order dated 6.8.2001 on the ground that the petitioners had not produced any document or evidence to prove the ingredients necessary for establishing their Right under Section 122-B (4)(f) of the Act, 1953. Thus, the second argument of counsel for the petitioners that the order dated 30.1.1981 passed by the A.C.O. was without jurisdiction, and therefore, the delay in filing the appeal should have been condoned and the appeal should have been heard on merits is also rejected.

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Counsel for the petitioners has further argued that in view of judgement reported in Esha Bhattacharjee (Supra) , the Consolidation Courts should have adopted a liberal approach in considering the prayer of the petitioners to condone the delay in filing the Appeal under Section 11(1) of the Act. Though, in the said judgement the Supreme Court has held that the Courts should adopt a liberal and justice oriented approach while dealing with condonation of delay, but at the same time, in the aforesaid judgement the Court also held that in case of inordinate delay the Court should take a strict approach while considering the prayer for condonation of delay. It has been further held by the Supreme Court in the said case that the conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration and the Courts were required to weigh the scale of balance of justice in respect of both parties and the said principle should not be given a total go by in the name of liberal approach. It was further held by the Supreme Court that the Court should be vigilant not to expose the other side unnecessarily to face harassment in

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a litigation on the basis of explanations in the delay condonation application which are concocted and fanciful.

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A perusal of the facts involved in the present writ petition show that the appeal was filed by the petitioners against the order passed by the A.C.O. in 1987 even though the petitioners had knowledge of the same when they had filed Appeal under Section 21(1) of the Act, 1953 for possession of the disputed plots and allotment of Chak in lieu of the same. It is further evident that the case of the petitioners rests on their alleged Right under Section 122-B (4)(f) of the Act, 1953 and as held by the D.D.C. in his impugned order dated 6.8.2001, the petitioners had not been able to prove any ingredients necessary to establish the same.

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For the aforesaid reason, I do not find any perversity or illegality in the orders dated 3.7.1989 and 6.8.2001 passed by the D.D.C. and S.O.C. The writ petition lacks merits, and is, accordingly dismissed.

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Interim order, if any, stands vacated.

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Order Date :- 11.4.2018 Anurag/-

Mithai and Others v. D.D.C. Varanasi and Others

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Mithai and Others v. D.D.C. Varanasi and Others

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