Allahabad High Court
Ashok And 2 Others vs State Of U.P. And 5 Others on 9 August, 2023
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:160312
Court No. - 48
Case :- WRIT - B No. - 2273 of 2023
Petitioner :- Ashok And 2 Others
Respondent :- State Of U.P. And 5 Others
Counsel for Petitioner :- Arun Kumar
Counsel for Respondent :- C.S.C.,Mohan Tiwari,Pradeep Kumar Rai,Prajyot Rai
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Arun Kumar, learned counsel for petitioners and Sri Pradeep Kumar Rai, learned counsel for respondents.
2. Petitioners before this Court have filed an appeal before Settlement Officer of Consolidation on 20.9.2013 to challenge the order dated 21.1.1970 passed by Consolidation Officer i.e. after a period of 43 years. It was contended before Appellate Court that an inquiry was setup in respect of land in dispute and it was found that land in dispute was sold despite vendors were only Sirdar
3. Learned counsel for petitioners submits that apparently it was a case of fraud, therefore, Appellate Court has rightly condoned the delay of 43 years and directed the parties to appear and force the appeal for hearing on merit.
4. Respondents being aggrieved by the aforesaid order, filed a revision petition which was allowed by the impugned order dated 29.4.2023 by the Deputy Director of Consolidation on the ground that Appellate Court has condoned the delay of 43 years not on basis of averments made in the memo of appeal in respect of condonation of delay, but being greatly influenced by the inquiry report. The Revisional Authority has made comments on the report also.
5. Above order is impugned before this Court at the instance of the petitioners/appellants.
6. Learned counsel for the petitioners submits that a specific averment was made in paragraph 21 of the memo of appeal that petitioners have approached the Appellate Court on the basis of report dated 13.3.2013 and since the Deputy Director of Consolidation has observed that without filing an appeal, no action can be taken upon the report.
7. Learned counsel for respondents submits that finding of the report are seriously under dispute and the Appellate Court has erroneously placed heavy reliance on it and returned a finding against the respondents and this error was rightly cured by the Revisional Court by allowing the revision petition that in order to condone the delay of 43 years, the Appellate Court ought to have considered the averments made in memo of appeal, without much going into the merits of case.
8. Heard learned counsel for parties and perused the records.
9. It is not in dispute that petitioners have approached the Appellate Court after about an extraordinary delay of 43 years.
10. There are certain averments made in the memo of appeal in respect of condonation of delay. However, it is apparent from the order of Appellate Court that authority was greatly influenced by the report. The approach of the Appellate Authority was contrary to the law which appears to be against consideration of condonation of delay, especially when there was an extraordinary delay of 43 years.
11. The Revisional Court also got influenced by the outcome of report though in the negative sense i.e. apparently disbelieved the report and also returned a finding that Appellate Court has not considered the application for condonation of delay on its own merit and in a cryptic manner has erroneously condoned huge delay.
12. Supreme Court in Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy & Ors, (2013) 12 SCC 649, has dealt with the issue of condonation of delay at length and held that in case of extraordinary delay, the approach to condone the delay which normally being lenient shall be strict and in such cases element of prejudice to other parties shall also be a relevant factor for consideration.
13. The Revisional Court has committed an error that in case the authority was in the opinion to condone delay of 43 years was not based on the averments made, correct approach ought to have remanded the matter back. However, since Authority was greatly influenced by outcome of the report, though in the negative sense has set-aside the order of condonation of delay on ground that huge delay of 43 years was condoned by a cryptic order. The correct approach ought to have to remit the case to Appellate Authority to decide the issue of delay afresh.
14. Therefore, according to the opinion of this Court, both Appellate Court as well as Revisional Court have committed an error by not considering the prayer to condone the delay of 43 years on the basis of averments made in the memo of appeal, therefore, orders dated 29.4.2023 passed by the Deputy Director of Consolidation, respondent no.2 and the order dated 15.11.2018 passed by Appellate Court are set-aside and the matter is remitted to the Appellate Court to decide the issue of delay afresh on basis of averments made in the memo of appeal and rival submissions and the Authority will also take note of the judgment passed in Esha Bhattacharjee (supra).
15. With the aforesaid direction, this writ petition is disposed of.
Order Date :- 9.8.2023
SB
