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KUNTA & OTHERS versus A.D.C. & OTHERS

High Court of Judicature at Allahabad

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Kunta & Others v. A.D.C. & Others - WRIT - B No. 9268 of 1980 [2006] RD-AH 6266 (22 March 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 28.

CIVIL MISC.WRIT PETITON NO. 9268  OF  1980

Kunta  and others

Vs.

Assistant  Director of Consolidation and others

Hon'ble Krishna Murari, J.

Heard Sri Sri Kant learned counsel for the petitioners and Sri P.N. Khare for the  contesting respondents.

The dispute relates to plot no. 1032/1  situate d in village Manhan  Tehsil  Kerakat, District Jaunpur.

In the basic year the aforesaid plot no. 1032   area 2.96 acre was recorded  in the name of petitioners and respondent no. 3 and 4. During consolidation operation the Consolidation Officer  vide order dated 29.3.1968  divided the said plots  into the two parts, 1032/1 and 1032/2. Plot no. 1032/1   was in the nature of grove and it was excluded from consolidation scheme while 1032/2 was cultivable and was included in the scheme.  At the time of division area of plot no. 1032/1  was recorded as 0.75 acre. When petitioner came to know about the same he filed a time barred appeal  against the order dated 29.3.1968 along with an application under Section 5 of Limitation Act for condoning the delay. The Settlement Officer Consolidation vide order dated 21.1.1978 dismissed the application under Section 5 of Limitation Act and accordingly dismissed the appeal  as time barred. Feeling aggrieved the petitioners filed a revision. During the pendency of revision the  Deputy  Director of Consolidation directed the  Assistant Consolidation Officer to submit a report after making spot inspection and measurement. The Assistant Consolidation Officer after making spot inspection and measurement submitted a report on 2.9.1979. It was clearly mentioned in the said report that area of pot no. 1032/1 is 1 acre. Respondent no. 1 vide order dated 11.7.1980 dismissed the revision filed by the petitioner.

It has been urged by the learned counsel for the petitioners that  Deputy Director of Consolidation though called for a report but without considering the same he has illegally dismissed the revision. It has further been urged that in the facts and circumstances, the delay in filing the appeal was liable to be condoned and explanation submitted by the petitioners has not been appreciated either by Settlement Officer Consolidation or by the Deputy Director of Consolidation. In reply learned counsel for the respondents has tried to justify the impugned order. It has been urged that since the Deputy Director of Consolidation found that the Settlement Officer Consolidation has rightly refused to condone the delay as such there was no occasion for him to consider the report  of  Assistant Consolidation Officer.

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

It is no doubt correct  that appeal filed by the petitioners was belated. However,  considering the facts that dispute between the parties was with regard to the actual area of plot no. 1032/1 which could have been adjudicated by making measurement on the spot. The Deputy Director of Consolidation  though had called for a report in this regard from Assistant Consolidation Officer which was duly submitted but without  considering the same he dismissed the  revision. In my opinion, the explanation submitted by the petitioners for delay in filing the appeal was reasonable and  in the facts and  circumstances of the case, delay ought to have been condoned. Once the Assistant Consolidation Officer has submitted a report  after making measurement on the spot the Deputy Director of Consolidation ought to have decided it on merit after taking into account the same  rather than  entering into the technicalities of the matter.

In view of the above the impugned order of Deputy  Director of Consolidation dated 11.7.1980 is hereby quashed. The writ petition stands allowed. The case is remanded  back to Deputy Director of Consolidation to decide  the same afresh after considering the measurement  report submitted by   the  Assistant Consolidation Officer  dated  2.9.1979  in accordance with law and after hearing the parties within a period of three months from the date of production of certified copy of this order before him.  However, in the facts and circumstances of the case there shall be no order as to costs.

22.3.2006

g.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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