The State Of U.P. vs Deputy Director Of Consolidation ...
2022 Latest Caselaw 8802 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						       Court No. 30
 

 
				         WRIT - B No. - 5731 of 2018
 

 
Petitioner :- 			The State of U.P.
 
Respondent :- 			Deputy Director of Consolidation, 						Agra and Others
 
Counsel for Petitioner:- 	Laxmi Kant Tripathi
 
Counsel for Respondent :- 	C.S.C., Rishikesh Tripathi
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Sri Laxmi Kant Tripathi, learned Addl. Chief Standing Counsel for the petitioner and Sri Rishikesh Tripathi, learned counsel for respondent nos. 6 & 7.

2. Brief facts of the case are that by notification under Section 1054/14 dated 21.11.1923, an area 362.40 acre, situated in village Akbara, Tahsil Kirawali, District Agra has been reserved for forest and out of the area of 362.40 acre, an area of 121.20 acre was declared as reserved forest. Another notification dated 26.8.1950 was issued by which an area of 208 acre relating to village Akbara has been again declared as reserved forest in which disputed plot no.1869 (new plot no.1820) was also partly included and the remaining part of the aforesaid plot has been recorded in the name of respondent nos. 6 & 7 along with the other tenure holders. The copy of the notification dated 26.8.1950 issued by the State Government along with the map prepared in the year 1924-25, shows the situation of old plot no. 1869. Plot no. 1869/15M (area 0.3167 hectare) which belongs to respondent nos. 6 & 7 along with other tenure holders was located in the north west portion of plot no. 1869. Consolidation operation intervened in the village Akbara in the year 1979 through notification under Section 4 of the U.P. C.H. Act. At the time of the operation of the consolidation proceedings, an objection under Section 9-A(1) of the U.P. C.H. Act was filed by respondent no. 6 on 3.4.2002 for correcting the map, locating his plot no. 1820-Ka, area 0.3167 acre in the map. The State contested the proceedings under Section 9, initiated by respondent no. 6. The Consolidation Officer vide his order dated 10.1.2005 allowed the objection filed by respondent no. 6 and located the plot no.1869 in the map as prayed by respondent no.6. Against the order dated 10.1.2005, passed by the Consolidation Officer, petitioner (Forest Department) preferred an appeal before the Settlement Officer (Consolidation) under Section 11 of the U.P. C.H. Act and Assistant Settlement Officer (Consolidation) after hearing the counsel for the parties and perusing the evidence on record, dismissed the appeal filed by the Forest Department vide order dated 26.10.2006. Against the appellate order dated 26.10.2006, the Forest Department filed revision under Section 48 of the U.P. C.H. Act before revisional court - Deputy Director of Consolidation which was ultimately dismissed for non-prosecution on 8.1.2008, against which a restoration application was filed on 4.2.2008 by the Forest Department which was also dismissed for non-prosecution vide order dated 25.3.2011. Against the order dated 25.3.2011, again a restoration application was filed on 6.3.2013 which was dismissed by respondent no.1 as not maintainable vide order dated 10.10.2003. The Forest Department again filed restoration application dated 10.3.2016 for setting aside the orders dated 8.1.2008, 25.3.2011 and 11.10.2013, passed by respondent no.1, which was heard by respondent no.1 and the same was rejected by the impugned order dated 8.5.2018. Hence this writ petition.

3. Counsel for the petitioner submitted that orders impugned in the writ petition have been passed, without giving opportunity of hearing to the petitioner, as such, same is liable to be quashed. He further submitted that the disputed land (old no.1869, area 0.3167 hectare), (new plot no. 1820) is the part of old plot no. 1869 but in the present, new plot no. 1820 has not been shown in the khatauni but it has been included in the present map, which has not been considered by the Consolidation Officer as well as by the Assistant Settlement Officer (Consolidation) and the revision filed by the petitioner has been dismissed on the technical grounds. He also submitted that during consolidation operation, disputed plot i.e. old plot no.1869 has been divided in may sub-plots being as minzumla numbers of plot number 1869 (old), as such, in the map, plot no.1869 could be corrected and located in accordance with the possession of respondent nos. 6 & 7 but it could not be corrected at the spot. He also submitted that these aspects of the matter should be examined by revisional court while deciding the revision under Section 48 of the U.P. C.H. Act on merits but the revision filed by the petitioner has been dismissed on the technical grounds i.e. in default of the petitioner's counsel and no adjudication on merit has taken place in deciding the revision by respondent no. 2. He lastly submitted that provisions of the Consolidation of Holdings Act are not applicable in respect of the land which is reserved as a forest land, therefore, on this ground also, the impugned orders passed by the consolidation authorities are liable to be set aside.

4. On the other hand, counsel for the respondent nos. 6 & 7 submitted that the Consolidation Officer has rightly exercised the jurisdiction under Section 9-A(2) of the U.P. C.H. Act. He further submitted that the land in dispute is not examined by the notification dated 21.11.1993 and respondent nos. 6 & 7 are in possession of plot no. 1820-Ka, regarding which respondent no. 6 has initiated the proceedings under Section 9-A of the U.P. C.H. Act for demarcating the plot in final consolidation map as there is no demarcation of plot no.1820-ka which is a big plot and respondent nos. 6 & 7 are Bhuidhar of plot no.1820, area 0.367 hectare. He also submitted that notification dated 26.8.1950 declares only the portion of plot no.1869 (new no.1820) as reserved. He also submitted that confirmed Chak map did not show the land of the petitioner, therefore, objection under Section 9-A of the U.P. C.H. Act was initiated by the respondent nos. 6 & 7 to locate his plot in the final consolidation matter. He next submitted that Consolidation Officer and the Settlement Officer (Consolidation) have rightly exercised the jurisdiction vested in them and the petitioner has failed to pursue the remedy of revision diligently. The revision was dismissed for non-prosecution but the successive applications moved by the petitioner was also dismissed for non-prosecution, hence petitioner is not entitled to any relief before this Court as respondent nos. 6 & 7 are litigating the matter for the long time and petitioner (State) is only interested to linger on the proceedings which is the abuse of the process of law.

5. I have considered the arguments advanced by learned counsel for the parties and perused the records.

6. There is no dispute about the fact that proceedings under Section 9-A of the U.P. C.H. Act initiated by respondent nos. 6 & 7 was decided in favour of respondent nos. 6 & 7, after considering the entire facts on record and hearing the parties. The appeal under Section 11 of the U.P. C.H. Act filed by the Forest Department was also dismissed vide order dated 26.10.2006 against which revision was filed by the Forest Depart which was also dismissed for non-prosecution and the successive applications filed by the Forest Department were also rejected sometimes after hearing the Forest Department and sometimes for non-prosecution.

7. Considering the entire facts and circumstances facts remains that the revision under Section 48 of the U.P. C.H. Act filed by the Forest Department has not been adjudicated on merits and the interest of the Forest Department / State Government is involved. The fact whether the disputed land is forest land or it is the land of respondent nos. 6 & 7 and the provisions of the U.P. Consolidation of Holdings Act as argued by learned counsel for the petitioner, will apply or not these points, should be adjudicated on merits by the revisional court which is the last court of fact under U.P. C.H. Act.

8. The Apex Court in A.I.R. 1987 SC 1353 Collector, Land Acquisition Anantnag and another Vs. Mst Kantiji and others has held that in place of dismissing the matter on technical ground, matter should be decided on merits.

9. Para No.3 of the above mentioned Supreme Court judgment is as follows:

"The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-

"Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period."

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a stepmotherly treatment when the 'State' is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinary (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file pushing and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even handed justice on merits in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time barred, is therefore set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides."

10. Considering the entire facts and circumstances as well as ratio of law laid down by the Apex Court in Collector, Land Acquisition Anantnag and another (supra), the interest of justice will be served by setting aside the revisional order, passed by respondent no.1 and directing the revisional Court to decide the revision afresh on merit.

11. Accordingly, the writ petition is allowed in part. The impugned revisional orders dated 8.1.2008, 25.3.2011, 11.10.2013 & 8.5.2018 (Annexure nos. 14, 16, 18 & 20 to the petition), passed by respondent no.1 in Revision 181/2007-08 (Department of Forest vs. Vinod Kumar and Others) are set aside and the matter is remitted back to the revisional court to decide the revision afresh on merits, in accordance with law, after affording opportunity of hearing to both the parties, expeditiously, preferably within a period of 4 months from the date of production of the certified copy of the order, without granting unnecessary adjournments to either of the parties.

12. No order as to costs.

Order Date :- 2.8.2022

C.Prakash

(Chandra Kumar Rai, J.)