Allahabad High Court
Smt. Khaleeq Fatma vs State Of U.P. And 8 Others on 14 March, 2023
Bench: Chandra Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 18
Case :- WRIT - B No. - 490 of 2023
Petitioner :- Smt. Khaleeq Fatma
Respondent :- State Of U.P. And 8 Others
Counsel for Petitioner :- Ayub Khan
Counsel for Respondent :- C.S.C.
Hon'ble Chandra Kumar Rai,J.
1. Vakalatnama filed by Sri Santosh Kumar Rai, learned counsel for the contesting respondent nos. 4 to 9 is taken on record.
2. Heard Mr. Ayub Khan learned counsel for the petitioner and Mr. Santosh Kumar Rai, learned counsel for respondent nos. 3 to 9.
3. The brief facts of the case are that the objection filed under Section 9A(2) of U.P. Consolidation of Holdings Act in respect to plot of Khata No.15 an order has been passed in the Lok Adalat on 11.09.2021. The petitioner filed a restoration application against the order dated 11.09.2021 on the ground that petitioner has interest in the matter and without affording opportunity of hearing the objection under Section 9A(2) has been decided by the Lok Adalat. The application under Section 5 of Limitation Act was also separately filed along with the restoration application. The Consolidation Officer vide order dated 01.06.2022 allowed the restoration application granting benefit of Section 5 of Limitation Act and restored the case to its original number. Against the order dated 01.06.2022, contesting respondents filed revision under Section 48 of the U.P. Consolidation of Holdings Act, which has been allowed by Deputy Director of Consolidation vide order dated 24.11.2022 setting aside the order dated 01.06.2022. Hence, this writ petition.
4. Learned counsel for the petitioner submitted that the revision filed by the contesting respondents under Section 48 of the UP Consolidation of Holdings Act, against the order of Consolidation Officer allowing the restoration and delay condonation application was not maintainable. He further submitted that in the objection under Section 9A(2) of UP Consolidation of Holdings Act, the order has been passed in the Lok Adalat without any notice and opportunity of hearing to the petitioner. He further submitted that on behalf of petitioner a restoration application along with the delay condonation application was filed which was allowed and the matter was restored to its original number for deciding the objection afresh. He further submitted that the revisional Court has finally allowed the revision setting the order dated 01.06.2022 but the matter has not been remanded back for fresh consideration of the restoration application as such the impugned order is liable to be set aside and matter should be remanded back before Consolidation Officer for fresh consideration of the restoration application & delay condonation application.
5. On the other hand, Mr. Santosh Kumar Rai, learned counsel appearing for private respondents submitted that the order has been passed by Lok Adalat as such restoration application at the instance of the petitioner was not maintainable. He further submitted that the restoration application and delay condonation application has been allowed by the Consolidation Officer without affording opportunity of hearing to the contesting respondents as such revision filed by petitioner has been rightly allowed. He further submitted that no interference is required against the revisional order and the writ petition is liable to be dismissed.
6. I have considered the arguments advanced by learned counsel for the parties and perused the record.
7. There is no dispute about the fact that the objection under Section 9A(2) of U.P.C.H. Act has been decided by the Lok Adalat and against the order of Consolidation Officer, restoration application & delay condonation application filed by the petitioner has been allowed and the objection has been restored to its original number. There is also no dispute about the fact that revision filed by the contesting respondents against the order, restoring the objection under Section 9A(2) of U.P.C.H. Act has been allowed setting aside the order restoring the case to its original number.
8. Since the restoration application and the delay condonation application filed by the petitioner has been allowed by the Consolidation Officer without affording opportunity of hearing to the contesting respondents as such the revisional Court is right upto the extent of setting aside the order passed by the Consolidation Officer but the matter should be remanded back to the Consolidation Officer to decide the restoration application & delay condonation application filed by petitioner afresh after affording opportunity of hearing to the contesting respondent.
9. It is material that in the connected Writ-B No.518 of 2023 which is also between the same parties the revisional Court after setting aside the order dated 01.06.2022 remitted the matter before Consolidation Officer for deciding the restoration application & delay condonation application afresh as such the impugned revisional order in the instant petition be also modified so that petitioner's restoration & delay condonation matter may be examined afresh.
10. So far as the argument advanced by learned counsel for the petitioner that revision under Section 48 of U.P.C.H. Act is not maintainable against interlocutory order is concern the judgment of this Court reported in 1985 RD 71 Paras Nath Singh Vs. Deputy Director of Consolidation & others will be relevant in which it has been held that power under Article 226 of the Constitution of India will not be exercised to quash or set aside the order if quashing of the order results in bringing on record another illegal order. Paragraph No. 21 of the judgment rendered in Paras Nath Singh (Supra) is relevant which is as under:-
"21. It is, no doubt, correct to say that any order passed without jurisdiction is a nullity and deserves to be quashed. But if as a result of quashing that order another wrong and illegal order would be restored, this Court would refuse to interfere with the impugned order which appears to be quite proper equitable and just order. As mentioned above, the power under Article 226 of the Constitution is devised to advance justice and not to thwart it. To me it appears to be well settled that an order which is illegal cannot be quashed or set aside in writ jurisdiction if quashing of it results in bringing on record another illegal order."
11. In the instant case also quashing of the revisional order will revive the illegal order dated 01.06.2022 by which restoration & delay condonation application has been allowed without opportunity of hearing to the contesting respondents as such interest of justice requires that restoration application and delay condonation application be heard afresh after opportunity of hearing to both parties.
12. Considering the entire facts and circumstances the impugned revisional order dated 24.11.2022 is modified to the extent that the Consolidation Officer shall decide the petitioner's restoration application dated 27.05.2022 afresh on merit after affording opportunity of hearing to both parties. The Consolidation Officer shall pass order on the application under Section 5 of the Limitation Act in the light of judgment of Apex Court reported in AIR 1987 SC 1353, Collector, Land Acquisition Anantnag and Another Vs. Mst. Kantiji & others. It is further directed that Consolidation Officer after passing the order on the application under Section 5 of the Limitation Act, shall decide the restoration application filed by the petitioner, expeditiously preferably within a period of two months.
13. With the above observations, the instant writ petition is finally disposed of.
Order Date :- 14.3.2023
SP/-
