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Ram Prakash Shukla v. A.D.C. & Others - WRIT - B No. 12092 of 1982  RD-AH 5643 (11 November 2005)
Court No. 28
CIVIL MISC.WRIT PETITON NO. 12092 OF 1982
Ram Prakash Shukla and others
The Assistant Director of Consolidation & Ors.
Hon''ble Krishna Murari, J.
Heard Sri R.C. Singh learned counsel for the petitioners.
The dispute relates to khata no. 83, 93, 94, 289, 379 and 190 situate in village & post office- Khakhaig khor District Gorakhpur.
The petitioners and the contesting respondent no.3 and 4 belong to the same family. A belated objection under Section 9 -A (2) of the Act was filed by the petitioners claiming co-tenancy rights with the respondents. The said objection was accompanied by an application under Section 5 of Limitation Act duly supported by an affidavit. It was pleaded in the affidavit filed in support of application under Section 5 of Limitation Act that the forefathers of the petitioners shifted from the native village to District Munger, State of Bihar in connection with the livelihood and were living there. The father of the petitioners got an employment in Railways and the entire family was living there. Though the petitioners and other family members used to come to village on the occasions of marriage etc. or during vacation but they never came to know about the consolidation proceedings. It was also pleaded that they had very cordial relations with the contesting respondents and had full faith in them but they never informed about the consolidation operations as well. It was recently when the respondents started ascertaining their exclusive rights over the land in dispute, they made enquiry and came to know that the land in dispute has been recorded exclusively in the name of respondents. The consolidation Officer vide order dated 12.2.1982 refused to condone the delay and rejected the objection as barred by time. Revision filed by the petitioners against the said order was also dismissed by the Deputy Director of Consolidation on 23.9.1982. Feeling aggrieved the petitioners have approached this Court by means of this writ petition.
A perusal of the judgment of Consolidation Officer goes to show that he has refused to accept the explanation submitted by the petitioners on the ground that they were not residing out of country and used to visit the village often and as such it cannot be presumed that they had no knowledge about the proceedings. A further finding has been recorded that notices must have been issued to the petitioners. The same finding has been confirmed by the Deputy Director of Consolidation while dismissing the revision.
The findings of two Consolidation authorities are based on presumption. Merely because the petitioner visited the village at times cannot be the basis of coming to the conclusion that they will have knowledge of the consolidation proceedings. The explanation submitted by the petitioners for delay in filing the objection has not been considered and appreciated either by the Consolidation Officer or the Deputy Director of Consolidation in right perspective. The finding of the both authorities is based on presumption without reference to the averment made by the petitioners in affidavit seeking condonation of delay.
Looking into the finality to the determination of the rights of the parties in consolidation proceedings the dispute should be adjudicated on merits rather to dismiss the same on technicalities.
In view of the aforesaid facts and circumstances of the case, the impugned judgment of the Consolidation Officer dated 12.2.1982 as well as 23.9.1982 passed by Deputy Director of Consolidation cannot be sustained and are hereby quashed. The application under Section 5 of Limitation Act filed by the petitioners seeking condonation of delay stands allowed and the case is remanded back to the Consolidation Officer to be decided afresh on merits after notice and opportunity of hearing to all the parties concerned. Since the matter has remained pending for a long period, it is expected that the dispute shall be decided by the Consolidation Officer as expeditiously as possible.
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