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Jhankari & Others v. Dy. Director Of Consolidation, Gorakhpur & Another - WRIT - B No. 7533 of 2007 [2007] RD-AH 2238 (12 February 2007)


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Court No.40

Civil Misc. Writ  Petition No. 7533 of  2007

Jhankari  & others    ...... Petitioners


Deputy Director of Consolidation  & others    ...... Respondents


Hon'ble Ashok Bhushan,J

Heard counsel for the petitioner and the learned standing counsel.  

By this writ petition, the petitioner has prayed for quashing the order of Deputy Director of Consolidation dated 10.1.2007  by which the Deputy Director of Consolidation has allowed the revision filed by respondent No.2 giving benefit of section 5 of the Limitation Act in her objection filed under section 9-A(2) of the U.P. Consolidation of Holdings Act, 1953.  Respondent  No.2 filed a time barred objection before Consolidation Officer with regard to Plot No.86, 89 & 90.  The petitioner along with the objection filed an application under 5 of the Limitation Act praying for condonation  of delay in filing objection.  The delay in filing the  objection was 10 years.  The explanation given by the petitioner was that respondent No.2 has given the land on batai to the petitioners and she used to get her crops and when  a week before she  went to take the crops, the writ petitioners refused to give  the crops and informed that her  name has been expunged.  The petitioner no.1  further stayed that she is  resident of another Village and her husband is dead.  The Consolidation Officer and Settlement Officer of Consolidation both refused to condone the delay.  The matter was taken in the revision by the respondent No.2.  The Deputy Director of Consolidation took note of the fact that the respondent No. 2 lives in District Basti  and the land is situated in District Maharajganj.  The Deputy Director of Consolidation also noticed that 1363 and  1365 Fasli  was recorded in the name of petitioner's husband.   He took the view that in the facts of the present case the matter ought to have been gone on merits.   The counsel for the petitioners challenging the order contended that the Deputy Director of Consolidation committed error in allowing the revision. Shri D.S.P Singh, learned counsel for the petitioner further contended that there were several persons who were co-tenure holder  and were dead but no steps were  taken for bringing  their heirs on the record.  He further contends that the delay of 10 years ought not to  have been condoned and the plea of the petitioners that they have given land on Batai does not give any benefit to respondent No. 2.  Reliance has been placed on the judgement of this Court dated 28.3.2006 in writ petition No. 4130 of 1990 (Sukhnandan Singh versus The Deputy Director of Consolidation and others) .

I have considered the submissions of the counsel for the petitioners and perused the record.   The Deputy Director of Consolidation in the impugned order has given cogent reasons for exercising the discretion in favour of condonation of delay.  The facts which were taken into consideration by Deputy Director of Consolidation was the  respondent No. 2  lives in District Basti  whereas land is  situated in District  Maharajganj. In 1363 and  1365 fasli the land  was also recorded in the name of husband of respondent No. 2.   The Deputy Director of Consolidation after considering  relevant facts have  exercised the discretion in favour of respondent No. 2  for giving the benefit under section 5 of the Limitation Act.  This Court in exercise of its writ  jurisdiction normally  does not interfere  with exercise of its discretion by consolidation authorities  on  giving benefit of section 5 of the Limitation Act.   It  is well settled  that the rights during consolidation  are finally settled which  bars adjudication of such  rights in future proceedings,  the Courts are to take a sympathetic view while condoning the delay in filing objection.  

The submission of the petitioner's counsel is that several co-tenure holders were dead whose heirs were not brought  on the record.  Suffice is to say that said objection has not been taken before the Deputy Director of Consolidation.    It will be open for the petitioner to raise such objection before the Consolidation Officer on the objection  under section  9-A(2) of the U.P. Consolidation of Holdings Act, 1953  which will be decided in accordance with law.   The judgement relied by the counsel for the petitioner in Sukhnandan Singh's  case was a case on its own fact.  Moreover, in that case  the explanation of  delay was disbelieved by the Consolidation authorities  and the writ petition was filed challenging the said decision of the authorities,  in that circumstances  the Court refused to interfere  with exercise of  discretion by consolidation authorities.  The said judgement does not help the petitioner in this case.  

In view of what has been said above , the writ petition lacks merit and is dismissed.

Date 12.2.2007



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