Dismissed

Sarvan @ Sharwan Kumar v. Deputy Director of Consolidation / Addl. District Magistrate (F/R), Lakhimpur Kheri and Others

Allahabad HC6 Dec 2024WRIB/1203/2024

Case brief

AI extract

What is this about?

The High Court of Judicature at Allahabad (Lucknow Bench) dismissed a writ petition challenging the condonation of delay in an appeal regarding land mutation. Holding that courts should generally not interfere with discretionary orders unless patent illegality is established and the matter remains open on merits, the court refused to entertain the petition at the admission stage.

What the court decided

AI extract

Sarvan @ Sharwan Kumar Vs Deputy… — Constitutional and Fundamental Rights | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:81951

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Court No. - 8

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Case :- WRIT - B No. - 1203 of 2024

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Petitioner :- Sarvan @ Sharwan Kumar Respondent :- Deputy Director Of Consolidation / Addl. District Magistrate (F/R), Lakhimpur Kheri And Others Counsel for Petitioner :- Nazim Ali Siddique Counsel for Respondent :- C.S.C.,Dilip Kumar Pandey,Satendra Nath Rai

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Hon'ble Jaspreet Singh,J.

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Heard learned counsel for the petitioner. Notice on behalf of respondent Nos.1, 2 and 8 has been accepted by the office of Chief Standing Counsel. Shri Dilip Kumar Pandey, learned counsel has accepted notice on behalf of respondent No.9 and Shri Satendra Nath Rai, learned counsel has put in appearance on caveat on behalf of respondent Nos.3 to 7.

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Under challenge is the order dated 30.07.2024 passed by the D.D.C., whereby the revision preferred by the petitioner was dismissed upholding the order passed by the S.O.C. dated 16.02.2024. As a consequence, the matter stood remanded to the Consolidation Officer to decide the matter afresh including after affording full opportunity of hearing to the parties concerned.

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A brief resume of the facts involved in the instant petition as evident from the record is that the property in question was initially leased out to the predecessor-in-interest of the petitioner and private respondent Nos.3 to 7, namely, Shri Bala son of Maadu. After the death of Shri Bala, he was survived by his widow Smt. Sukkhi, who also died issueless. The property thereafter reverted to the real brother of Bala, namely, Ramdeen. The petitioner and private respondent Nos.3 to 7 are real brothers and sons of Ramdeen. Upon the commencement of the consolidation operations in the village in question, the name

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of Smt. Sukkhi (the real aunt of the petitioner and private respondent Nos.3 to 7) continued to remain recorded. However, in the meantime, the present petitioner on 02.07.2000 on the basis of an alleged understanding/compromise got his name mutated in the revenue records. After the consolidation operations were concluded in the year 2003, another set of litigation commenced and the proceedings for mutation were filed before the Naib Tehsildar, Paliya, District- Kheri, wherein the said proceedings for the first time, the petitioner had referred to the order dated 02.07.2000, whereby he had got his named mutated.

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It is in the aforesaid context that private respondent Nos.3 to 7 filed a time barred appeal before the S.O.C. seeking condonation of delay and setting aside the order dated 02.07.2000. The S.O.C. by means of the order dated 16.02.2024 observed that the property in question had been given to Bala son of Maddu under the Government Grant Act, which primarily is a land vested with the State. It also noticed that apparently insofar as the relationship is concerned, there is no dispute between the parties and in this context either way the present petitioner could not get exclusive rights claiming to be the sole heir of Smt. Sukkhi. The S.O.C. further noticed that the fact that the petitioner had other brothers was also not disclosed and in such circumstances, it found that the order dated 02.07.2000 was not sustainable and set aside the same. This was challenged by the petitioner before the D.D.C. and the D.D.C. has echoed the same sentiments as expressed by the S.O.C.

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Learned counsel for the petitioner has primarily urged that while the proceedings were pending before the Naib Tehsildar, wherein the petitioner had referred to the order dated 02.07.2000 and the proceedings before the Naib Tehsildar was

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decided on 2nd September, 2013 then in such circumstances, the cause for delay as shown by the private respondents was not sufficient, rather it clearly indicated that they had knowledge and had not assailed the order, accordingly, the jurisdiction exercised by the S.O.C. in condoning the delay, allowing the appeal and remanding the matter to the C.O. was not appropriate and this error has been repeated by the D.D.C. concerned, as such, the impugned order can not stand.

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Learned counsel for private respondent Nos.3 to 7 has submitted that the order dated 02.07.2000 was clearly based on incorrect disclosure of facts by the petitioner. It is also urged that it has not been disputed by the petitioner that private respondent Nos.3 to 7 are his real brothers. Once this position has been admitted, the land could not have been transferred/mutated in the name of the petitioner alone. In such circumstances, where the petitioner had not disclosed the true and correct facts and let the matter go on without disclosure, hence, in such circumstances, the delay cannot come as an impediment before the private respondents, who have appropriately invoked the jurisdiction of the S.O.C. by filing an appeal along with an application under Section 5 of the Limitation Act, 1963. In such circumstances, where positive discretion has been exercised by the S.O.C. in condoning the delay and the same has been affirmed by the revisional court, hence, such an order is not amenable to writ jurisdiction, inasmuch as, the mater is still open to be contested on merits before the C.O. and thus it is urged that the instant petition may not be entertained.

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Having considered the aforesaid submissions and from perusal of the material on record, this Court finds that the issue regarding condonation of delay is discretionary and once the

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discretion has been exercised by the judicial authority, which has considered the grounds to be sufficient and even if another view is possible then this Court will not generally interfere unless patent illegality is established. In such circumstances, this Court is loathe to exercise jurisdiction under Article 226 of the Constitution of India to interfere with such orders.

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The Apex Court in the case of Ram Nath Sao Alias Ram Nath Sahu and others Vs. Gobardhan Sao and others reported in 2002 (3) SCC page 195 while considering the issue of condonation of delay has categorically held that any cause which prevents a person from approaching the court of law is sufficient cause and unless and until there are gross mala fides or laches, the explanation given in support of condonation of delay should be accepted as a rule and refusal should be an exception.

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Once again the Apex Court in the case of Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy & Ors., (2013) 12 SCC 649 had the occasion to consider the issue of condonation of delay and it also reviewed the earlier decisions on the aforesaid point and it was once again held that so far as possible, the lis between the parties should be decided on merits and the issue of limitation may not act as an embargo for the Court to exercise its jurisdiction, where it is required.

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It is with the aforesaid reasoning that both the S.O.C. and the D.D.C. have passed the order while the delay has been condoned. Where the matter is yet to be decided on merits, where both the parties would have adequate opportunity to lead evidence, accordingly, this Court is not inclined to entertain this petition against remand order.

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For the aforesaid reasons, this Court finds that there is no palpable error in the order passed by the D.D.C. as well as the S.O.C., which may persuade this Court to entertain the instant petition, which is dismissed at admission stage.

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Order Date :- 6.12.2024 Ashutosh

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Digitally signed by :- ASHUTOSH PANDEY High Court of Judicature at Allahabad, Lucknow Bench

Sarvan @ Sharwan Kumar v. Deputy Director of Consolidation / Addl. District Magistrate (F/R), Lakhimpur Kheri and Others

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Sarvan @ Sharwan Kumar v. Deputy Director of Consolidation / Addl. District Magistrate (F/R), Lakhimpur Kheri and Others

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