Ghanshyam vs State Of U.P. And 9 Others
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Allahabad High Court

Ghanshyam vs State Of U.P. And 9 Others on 21 March, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:42209
 
Court No. - 50
 

 
Case :- WRIT - B No. - 1056 of 2025
 

 
Petitioner :- Ghanshyam
 
Respondent :- State Of U.P. And 9 Others
 
Counsel for Petitioner :- Karuna Srivastava,Santosh Kumar Srivastava
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Chandra Kumar Rai,J.
 

1. Heard Sri Santosh Kumar Srivastava, learned counsel for the petitioner and Sri Tarun Gaur, learned Standing Counsel for the State.

2. Brief facts of the case are that against the order dated 25.07.2016 passed by Consolidation Officer in the proceeding under Section 9A(2) of the U.P.C.H. Act an appeal under Section 11(1) of the U.P.C.H. Act was filed by petitioner, which was registered as appeal no. 428 of 2016. In appeal no. 428 of 2016, Kunta Devi filed an impleadment application, which was allowed by Settlement Officer Consolidation. The aforementioned appeal was heard and decided vide order dated 23.02.2018 setting aside the order dated 25.07.2016 passed by Consolidation Officer and remitted the matter back for afresh adjudication of dispute by Consolidation Officer under Section 9A(2) of the U.P.C.H. Act. In pursuance of the order dated 23.02.2018 proceeding was started before the Consolidation Officer. Against the order dated 23.02.2018 a time barred revision has been filed by Smt. Kunta Devi on 02.11.2020 along with the prayer for condonation of delay. The aforementioned revision was registered as revision no. 107/001409/2020. During the pendency of revision revisionists Smt. Kunta Devi expired, accordingly substitution application has been filed by legal heirs to substitute them in the revision. Against the substitution application objection was filed on behalf of the petitioner stating that substitution application is not maintainable as application is time barred and there is no explanation for condonation of delay. Deputy Director of Consolidation vide order dated 24.06.2024 allowed the substitution application in respect to revisionists Smt. Kunti Devi. Against the order dated 24.06.2014 a restoration application was filed on behalf of the petitioner before the Deputy Director Consolidation who vide order dated 29.01.2025 rejected the recall application dated 23.10.2024 and fixed the revision for disposal. Hence, this writ petition for following reliefs:-

"i) Issue a writ of certiorari quashing the order dated 24.06.2024 passed by the Respondent no. 2 on the Substitution application and impugned order dated 29.01.2025 passed by Respondent No. 2 on the restoration application in Revision No. 1409 of 2020 (Computer Case No. 202054095500001409) "Smt. Kunta Devi Versus Ghanshyam and others" under Section 48(1) of U.P.C.H. Act, 1953.

ii) Issue a writ, order of direction in the nature of mandamus commanding the Respondent No. 2 to decide the Issue of limitation in filing of time barred revision and time barred Substitution of Respondent Nos. 3 to 7 thereafter to decide the Substitution application and revision in accordance with law.

iii) award the cost of the writ petition to the petitioner."

3. Learned counsel for the petitioner submitted that appeal under Section 11(1) of the U.P.C.H. Act filed by the petitioner was allowed and matter was remitted back before the Consolidation Officer to decide the title dispute in accordance with law. He further submitted that in pursuance of the remand order passed by appellate Court the proceeding was started before Consolidation Officer. He next submitted that a time barred revision has been filed by Smt. Kunta Devi knowing the fact that matter has been remanded back by appellate Court and proceeding has started before Consolidation Officer. He submitted that in the revision a time barred substitution application has been filed, which has been allowed without considering the facts that there was delay in filing the substitution application, but no proper consideration was made by the revisional Court while allowing the substitution application. He further submitted that petitioner has filed a recall application against the order allowing the substitution application, but recall application has been rejected in arbitrary manner. He next submitted that impugned order dated 29.01.2025 should be set aside and the substitution application filed in respect to deceased Smt. Kunta Devi should be rejected as time barred.

4. On the other hand, learned Standing Counsel for the State submitted that no interference is required against the order impugned passed by the Deputy Director of Consolidation during the pendency of revision. He further submitted that revision filed by predecessor-in-interest of contesting respondent is pending, as such the same shall be decided in accordance with law.

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

6. There is also no dispute about the facts that a time barred revision filed by predecessor-in-interest of contesting respondent nos. 4 to 7 is pending before respondent no. 2-Depty Director of Consolidation and under the impugned order the substitution application in respect to Smt. Kunta Devi has been allowed as well as the recall application filed by petitioner has been rejected.

7. Since, the time barred revision is pending before the Deputy Director of Consolidation, as such there is no scope of interference by this Court under Article 226 of the Constitution of India to interfere against the order passed allowing the substitution application during pendency of revision.

8. This Court in the case reported in 2022 (3) ADJ 1 Ram Prakash Vs. Deputy Director of Consolidation, Hardoi and Others has held that while deciding a time barred proceeding, the delay condonation matter should be considered and disposed of first before deciding the proceeding on merit. The relevant paragraph of the judgment are as follows:-

"19. We are not going into the issue as to whether an order passed by appellate authority on an application seeking condonation of delay is an interim order or final as the same has not been referred for consideration by the Division Bench. Different situations may arise in an appeal filed along with application seeking condonation of delay. Firstly, the application for seeking condonation of delay may be dismissed. As a consequence thereof, the appeal will also fail. Another situation may be that application seeking condonation of delay is allowed and thereafter the appeal may either be accepted or rejected.

20. If any statute provides certain period for filing of appeal, an appeal filed beyond the time limit will certainly be not entertained. If the provisions of 1963 Act are applicable and party is entitled to seek condonation of delay in filing appeal, an application has to be filed specifying the grounds on which delay in filing the appeal is sought to be condoned. It is only after that the application is allowed, the appeal can be entertained and heard on merits. Before that the appeal cannot be taken up and considered on merits.

21. As far as the issue regarding hearing of the application seeking condonation of delay and the appeal simultaneously is concerned, in our view, firstly the application has to be considered. Only thereafter, the appeal can be considered on merits but there is nothing in law which requires hearing of appeal on merits to be postponed mandatory after acceptance of the application seeking condonation of delay. Both can be taken up on the same day. However, the appeal has to be heard on merits only after the application seeking condonation of delay has been accepted.

22. In view of the aforesaid discussion, we answer the question referred to the Division Bench that an application seeking condonation of delay has to be decided first before the appeal is taken up for hearing on merits. However, it can be on the same day and there is no requirement of adjourning the hearing of appeal on merits after acceptance of the application seeking condonation of delay.

23. Let the matter be listed before learned Single Judge as per roster for further proceedings in the case."

9. Considering the entire facts and circumstances of the case, no interference is required against the order impugned dated 29.01.2025 and 24.06.2024 passed by respondent no. 2-Deputy Director of Consolidation. The writ-petition is dismissed. However, respondent no. 2-Deputy Director of Consolidation is directed to decide the pending time barred revision in proper manner i.e. the delay condonation matter should be considered and disposed of first, thereafter merit of revision shall be examined and disposed of subject to the order passed on delay condonation matter. The aforementioned exercise shall be completed by the respondent no. 2-Deputy Director of Consolidation, expeditiously preferably within a period of three months from the date of production of a certified copy of this order.

Order Date :- 21.3.2025

Neetu