Priyambada vs Deputy Director Of Consolidation ...
2011 Latest Caselaw 3638 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R
 
Reserved
 

 
Court No. - 5
 

 
Case :- WRIT - B No. - 2606 of 2009
 

 
Petitioner :- Priyambada
 
Respondent :- Deputy Director Of Consolidation And Others
 
Petitioner Counsel :- Ajay Kumar Pandey,Anil Kumar Aditya
 
Respondent Counsel :- C.S.C.,Faujdar Rai,Shambhavi Nandan
 

 
Hon'ble Prakash Krishna,J.

Challenging the order dated 24.12.2008 passed by the Deputy Director of Consolidation whereby the Deputy Director of Consolidation set aside the orders passed by the authorities below to it and condoned the delay of about 29 years in filing the application to recall the order dated 15.3.1975 passed on the compromise application accepting the compromise, the present writ petition has been filed.

There were two brothers Sukhnandan Pathak and Kashi Nath Pathak. Smt. Sushila Devi, respondent no. 2 herein, is the daughter of Kashi Nath Pathak. Admittedly, Sukhnandan Pathak and Kashi Nath Pathak were living separately as their relations were not cordial since a very long time. The dispute relates to Khata No. 125. Admittedly, the said Khata No. 125 belonged to Sukhnandan Pathak. Sukhnandan was married with Vindhyachali. The petitioner is the daughter of the sister of Vindhyachali. The case of the petitioner is as Sukhnandan had no issue, the petitioner was brought up by Sukhnandan and she was living with him. During the consolidation operation in the Village, the petitioner filed an objection under section 9-A(2) of the Act, which was registered as case no. 12050. Sukhnandan appeared in response to the objection filed by the petitioner and he accepted the owner ship of the petitioner. The Consolidation Officer by his order dated 15.3.1975 sustained the objection of the petitioner and ordered that the aforesaid Khata be recorded in the name of the petitioner. After completion of consolidation proceedings, chaks were carved out and the village was de notified by issuing notification under section 52 of the Act on 11.7.1981.

Kashi Nath Pandey, brother of Sukhnandan was alive and he had full knowledge of everything i.e consented order dated 15.3.1975 regarding the recording of the petitioner's name in the revenue record but he never objected during or after the close of consolidation proceedings. Sukhnandan Pathak expired in the year 1996 and his brother Kashi Nath Pathak expired in the year 2003.

Smt. Sukhawanti, sister of Sukhnandan Pathak and Kashi Nath Pathak, instituted a suit no. 205 of 1989-1990 before the revenue court under section 229-B of U.P.Z.A. & L.R Act for declaration that she may be declared as Bhumidar of the plot in question. The said suit was dismissed. Her claim was that Sukhnandan Pathak had agreed that he will get her name mutated in the revenue record during consolidation operation.

It appears that the order dated 15.3.1975 was implemented by the order dated 19.12.1984 by the Consolidation Officer.

The contesting respondent herein filed two appeals in the month of May 2004 under section 21 of the Act along with an application under section 5 of the Limitation Act explaining the delay against the orders dated 15.3.1975 and 19.12.1984. This delay was about 29 and 20 years respectively. The application for condonation of delay was rejected as the delay was not explained, appeals were dismissed. The matter was carried in two revisions before the Deputy Director of Consolidation who by the impugned order dated 24.12.2008 allowed both the revisions condoned the delay and restored the matter back to the Settlement Officer of Consolidation for deciding the appeals on merits, hence the present writ petition.

Shri Anil Kumar Aditya, learned counsel for the petitioner submits that no case for condonation of delay on the facts of the case has been made out and the Deputy Director of Consolidation has committed illegality and acted arbitrarily in condoning the delay of about 29 years. It was submitted that property admittedly belonged to Sukhnandan Pathak. Admittedly, Sukhnandan Pathak and his brother Kashi Nath Pathak were living separately having no concern with each other. During the consolidation operation, the petitioner filed objection for recording of her name over the property of Sukhnandan Pathak who was alive, gave the consent and consequently the property in dispute was recorded in her favour by the order dated 15.3.1975. The said order has attained finality and it cannot be reopened at the instance of the daughter of Kashi Nath Pandey, the respondent no. 2 herein who has no locus in the matter. Kashi Nath Pandey never claimed the property of Sukhnandan Pathak during his life time. He also referred to a litigation which was initiated by the sister of these two brothers wherein the husband of the respondent no. 2 who is an Advocate by profession had filed his Vakalatnama on behalf of the sister of two brothers. Having failed to get any relief in the said proceedings, the present proceeding was set in motion just to harass the petitioner, a lady.

Shri Faujdar Rai, the learned counsel for the contesting respondent no. 2 on the other hand, submits that by the impugned order only delay in filing the appeals have been condoned and in such matters High Court should not interfere under Article 226 of the Constitution of India. The submission is that the order dated 15.3.1975 and subsequent order dated 19.12.1984 were obtained by playing fraud. It is a case of fraud. Reliance has been made on certain decisions which shall be referred to at the appropriate stage.

Considered the respective submissions of the learned counsel for the parties and perused the record.

The facts as disclosed in pleadings of the parties are not much in dispute . Sukhnandan and Kashi Nath Pathak, two brothers were living separately, the property in dispute belonged to Sukhnandan in whose life time, it was recorded during consolidation operation in the name of the petitioner as was ordered by the Consolidation Officer on 15.3.1975; Sukhnandan died in the year 1996 and Kashi Nath Pathak died in the year 2003 but non of them did raise any objection to the order dated 15.3.1975 of Consolidation Officer, and the respondent no. 2 came on the scene after the death of her father by filing belated appeals.

Copy of the plaint of suit no. 205 of 1989-90 instituted by the sister of the two brothers namely Sukhawanti Devi has been annexed as annexure-3 to the writ petition. The said suit was instituted against Sukhnandan, Kashi Nath Pathak, Priyambada Devi (the petitioner), Gaon Sabha and State of U.P. In the plaint, it has been stated that the cause of action arose on 15.3.1975 when Sukhnandan executed a gift deed in favour of defendant no. 3 (the petitioner herein) and on 3.10.1989 when she got a copy of Khatauni. A joint written statement controverting the plaint allegations was filed by Shri S.N.Pathak along with the defendant no. 3 therein(the petitioner). It is dated 3.9.1991. The said suit was instituted through Shri Vijay Shanker Pandey, Advocate who happens to be husband of respondent no. 2 herein. Attention of the Court was invited to these documents to show that everything was done by Shri Sukhnandan Pathak in his life time with his full knowledge and consent, voluntarily and willingly. Shri Sukhnandan Pathak who could be aggrieved by the order dated 15.3.1975, never felt aggrieved by the order and on the contrary, he stood by the said order. The submission of the petitioner is that in this view of the matter, it is too much to say that it is a case of fraud. The said submission has got sufficient force.

The respondent no. 2 claimed that she came to know about the two orders dated dated 15.3.1975 and 19.12.1984 from the averments made in the plaint of Suit No. 40 of 2003 and thereafter she was advised to file the appeals and thereafter the appeals were filed. The condonation of delay in filing the appeals of 20 years and 29 years has been sought for, on that basis. There is no denial of the fact that husband of the respondent no. 2 is an Advocate or through him Suit No. 205 of 1989-90 was instituted on behalf of the sister of the two brothers. It is too much to say that the contesting respondent came to know about the aforesaid two orders only through the aforesaid suit no. 240 of 2002. She is claiming the property of her uncle via her father. The father did not claim his brother's property during his life time. It is also common case that these two brothers were living separately since a very long time since the year 1962 in pursuance of partition decree passed under section 176 of the U.P.Z.A & L.R Act. Shri Sukhnandan Pathak was the exclusive owner of the property in question, therefore, he was free to deal with it in the manner he liked. He willingly opted to give it to the petitioner and the consequential order dated 15.3.1975 was passed by the Consolidation Officer.

In the background of above factual aspect, can it be said even for a while that it is a case of fraud. Obviously, the answer is no.

The Deputy Director of Consolidation without making any analysis of the facts has passed the impugned order on the supposition that the order dated 15th of March, 1975 was obtained by fraud. Question arises on whom the fraud was played. Whether it was played upon Sukhnandan or on Kashinath or on the present contesting respondents. So far as Sukhnandan who is owner of the property in question is concerned, he was aware of the order dated 15th of March, 1975 and there is no allegation in the application for condonation of delay that he was not aware of the said order. Obviously, there was no question of playing fraud upon him. So far as Kashinath Pathak is concerned, he came to know of the order dated 15th of March, 1975 through the suit which was instituted by his sister against him and Sukhnandan Pathak etc.. These two gentlemen never urged that the order dated 15th of March, 1975 was obtained by fraud or had no knowledge, therefore, it does not lie in the mouth of the contesting respondents to say that the order dated 15th of March, 1975 was obtained by playing fraud.

The plea of fraud is based on general allegations without setting out its particulars. Even if for the sake of arguments some fraud was played, it was played upon by Shri Sukhnandan Pathak who never felt defrauded during his life time nor his brother Kashi Nath Pathak felt any such thing during his life time who died in the year 2003. After his death, the contesting respondent no. 2 woke up and started saying that the orders dated 15.3.1975 and 19.12.1984 were obtained by the petitioner by playing fraud. Mere allegation of fraud is not sufficient. The orders dated 15.3.1973 and 15.12.1984 have attained finality and were not challenged by the effected persons namely Sukhnandan Pathak or Kashi Nath Pathak who could be aggrieved during their life time. They could have challenged it. The respondent no. 2 who is claiming the property through his father Kashi Nath Pathak and his uncle Shukhnandan Pathak can not challenge those orders. The Deputy Director of Consolidation has proceeded to condone the long delay of more than two decades on the footing, without there bring any basis that the orders were obtained by fraud and such order can be challenged at any time at any where. It is true that an order obtained by playing fraud can be challenged. But, as there is no material on the record to show that any fraud was committed, therefore, the principle that fraud vitiates everything is not applicable here.

The learned counsel for the contesting respondent has placed reliance upon Collector, Land Acquisition, Anantnag and another AIR 1987 SC 1353, wherein it has been held that the expression "Sufficient cause" employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which sub serves the ends.

The aforesaid decision has been followed in Rajpat Singh and others versus Veer Singh 2010 (109) RD 628. He has also relied upon Bhagmal & Others versus Kunwar Lal & Others JT 2010() SC 597 wherein it has been observed that procedure is after all handmaid of justice and High Court was not justified in taking a technical view while refusing to condone the delay in the absence of prayer for condonation of delay. There is no quarrel to the aforesaid proposition of law. It is one thing to say that in such matter Court should take a lenient view but it is equally true that delay cannot be condoned on mere asking of a party. If in a given case, the party has no right to the disputed property when the person through whom he or she is claiming that person had not claimed the property during his life time, Court should be more cautious in condoning the delay and permitting such party to open a stale issue, at whims and fancy of a party. A judicial proceeding must attain finality at some stage somewhere.

Lastly, a Full Bench decision of this Court in Ramakant Singh versus Deputy Director of Consolidation, U.P & others AIR 1975 Alld 126 was relied upon which is distinguishable on facts and has no application even remotely to the controversy on hand.

Section 49 of the U.P.C.H Act attaches finality to the declaration and adjudication of rights of tenure holders in respect of land in a consolidation area in respect of adjudication made by the consolidation authorities.

It bars the jurisdiction of the civil court and the revenue court to entertain any suit or proceeding with respect to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under the Act. The Apex Court in the case of Subha Singh versus Mahendra Singh and others AIR 1974 SC 1657 held that all entries in the record of rights prepared under sub section (1) of Section 27 shall be final and conclusive. The idea behind the enactment of the U.P.C.H. Act is to determine the rights of the parties finally and conclusively; and, if after determination, a party is permitted to wriggle out of the order of consolidation authority in the manner in which the respondent no.2 herein has sought for, that would frustrate the entire object and purpose of the U.P.C.H Act for which it was enacted.

The facts of the case as unfolded by the pleading of the parties as also in the arguments are indicative of the fact that the contesting respondent has nothing to do but is beating a bush.

Viewed as above, the impugned order of Deputy Director of Consolidation cannot be allowed to stand and there is sufficient force in the petitioner's contention that the Deputy Director of Consolidation has exercised his revisional jurisdiction under section 48 of U.P.C.H Act arbitrarily, as there was no illegality or impropriety in the order of subordinate authority i.e Settlement Officer of Consolidation, refusing to condone the delay.

In the result, the writ petition succeeds and is allowed. The impugned order 24.12.2008 is hereby set aside with cost of Rs.5000/-.

Order Date :- 9.8.2011

IB

(Prakash Krishna,J)