Uttarakhand High Court
WPMS/2030/2023 on 1 August, 2023
Office Notes,
reports, orders
SL. or proceedings
N Date or directions COURT'S OR JUDGES'S ORDERS
o and Registrar's
order with
Signatures
01.08.2023
WPMS No. 2030 of 2023
With
WPMS No. 2049 of 2023
WPMS No. 2051 of 2023
Hon'ble Sharad Kumar Sharma, J.
Mr. Parikshit Saini, Advocate, for the
petitioner.
Mr. Gopal K. Verma, Advocate, for the
respondent.
1. These are three writ petitions, which engage
consideration of a common fact and law.
2. A detailed deliberations are not required to be
made with regard to the various legal aspects as
argued by the learned counsel for the petitioner that,
as against the Appellate Order which was passed by
the appellate Court of Settlement Officer,
Consolidation, while exercising his powers under
Section 11 of the U.P. Consolidation of Holdings Act,
which according to the observations made, late Sher
Singh has contested the proceedings and accordingly
the Appeal was decided in favour of the present
petitioner (since deceased).
3. Seeking its recall, a restoration application was
preferred under Section 41 of the U.P. Consolidation
of Holdings Act to be read with Section 201 of the
Land Revenue Act, seeking recall of the Appellate
Order. The Application thus preferred on 18.06.2005
has been allowed and the order passed by the
Settlement Officer, Consolidation allegedly on merits
on 13.06.1996 has been recalled. The said order
passed by the Settlement Officer, Consolidation, has
been put to challenge before the Deputy Director,
Consolidation and the Deputy Director, Consolidation
too has dismissed the Revision preferred by the
petitioner by an order dated 08.06.2023,
consequently resulting into revival of the order
passed by the Settlement Officer, Consolidation
dated 13.06.1996 and directed the appeal itself to be
decided afresh on its own merit.
4. Learned counsel for the petitioner has argued
that the recall would not be falling to be considered
in the light of the provisions contained under Section
41 to be read with Section 201 for the reason being
that in view of a categoric finding recorded by
appellate Court that late Sher Singh the predecessor
of the present respondent had appeared in a
proceedings under Section 11, and has contested the
same on merits and since there being no such ground
taken in the recall application as preferred on
18.06.2005, it does not refer to at any stage that Late
Mr. Sher Singh didn't had the knowledge of the
proceedings, nor does it challenge the finding
recorded by the Appellate Court to that effect, as to
be perverse where it records the finding that Sher
Singh has contested the proceedings.
5. Be that as it may. Learned counsel for the
petitioner had argued that the order of recalling the
Appellate Order dated 13.06.1996 on an Application
preferred under Section 41 to be read with Section
201 of the Land Revenue Act, preferred by the
respondent would be barred by the principles laid
down by the Full Bench judgment of the Allahabad
High Court as rendered in the matters of Smt.
Shivraji and others Vs. Dy. Director of Consolidation,
Allahabad and others, as reported in 1997 (88) RD
562.
6. This intricate question is not being ventured
into owing to the fact that the parties and their
counsels have come to a conclusion, that if the order
passed on an application under Section 41 to be read
with Section 201 is set aside, leaving it open for the
respondent, to prefer a Revision under Section 48 of
the U.P. Consolidation of Holdings Act, as against the
principal Appellate Order dated 13.06.1996, that may
be directed to be considered and decided on its own
merit.
7. Owing to the aforesaid unanimity in decision
taken by the parties to these writ petitions, the writ
petitions would stand allowed. The order passed by
the Deputy Director of Consolidation dated
08.06.2023 and the order dated 11.05.2018 passed
by the Settlement Officer, Consolidation would
hereby stand quashed.
8. Subject to the aforesaid liberty reserved for the
respondent to prefer a Revision under Section 48 as
against the said order of 13.06.1996 within a period
of one month from the date of receipt of the
certified copy of this order. In case, if the respondent
prefers a revision under Section 48 within the
aforesaid period as prescribed by this Court, the
same would be considered on its merit and would be
decided on its merit only and the bar of limitation
would not come into play, owing to the impact of
Section 14 of the Limitation Act.
9. Subject to the aforesaid, the writ petitions
stand allowed with the aforesaid liberty left open for
the respondent.
10. Let a copy of this judgment be placed in the
order sheet of the connected matters.
(Sharad Kumar Sharma, J.)
01.08.2023
Mahinder/
