# Ambika Prasad & Ors v. A.D.M. Basti & Ors

- **Citation:** (2021) 8 ILRA 398
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-30
- **Case number:** Writ B No. 525 of 2021
- **Bench:** Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ambika-prasad-ors-v-a-d-m-basti-ors-47215
- **Pages:** 6

## Headnote

A. UP Consolidation of Holdings Act, 1953
- Sections 12 & 48, Explanation (2) to
Section 48 - Consolidation proceeding -
Belated
appeal
before SOC
-
Delay
Condonation rejected - Revision before
DDC - Scope and maintainability - Though
in operative portion D.D.C. has made an
observation to dismiss the revision on the
ground of maintainability, in the body of
the judgment it has discussed the merits
of the delay condonation in detailed and
affirmed the finding of SOC - Held, S. 48
vested
vast
power
in
DDC
having
supervisory
jurisdiction
over
all
the
subordinate authorities, as such he may
call for and examine the record of any
case decided or proceeding taking by any
subordinate court - Decision on the
condonation of delay cannot be said to be
an interlocutory order as defined in the
Explanation - 2 to Section 48 of the Act.
(Para 11 and 13)
Writ petition dismissed. (E-1)
Cases relied on :-

## Text

398 INDIAN LAW REPORTS ALLAHABAD SERIES
computerized copy of the order from the
official website of High Court Allahabad
and shall make a declaration of such
verification in writing.
----------
(2021)08ILR A398
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.07.2021

BEFORE

THE HON'BLE DINESH PATHAK, J.

Writ B No. 525 of 2021

Ambika Prasad & Ors. ...Petitioners
Versus
A.D.M. Basti & Ors. ...Respondents

Counsel for the Petitioners:
Sri Mazhar Abbas Zaidi, Sri Sunil Kumar
Yadav

Counsel for the Respondents:
C.S.C., Sri Shiv Dayal Tiwari, Sri Sabhapati
Tiwari

A. UP Consolidation of Holdings Act, 1953
- Sections 12 & 48, Explanation (2) to
Section 48 - Consolidation proceeding -
Belated
appeal
before SOC
-
Delay
Condonation rejected - Revision before
DDC - Scope and maintainability - Though
in operative portion D.D.C. has made an
observation to dismiss the revision on the
ground of maintainability, in the body of
the judgment it has discussed the merits
of the delay condonation in detailed and
affirmed the finding of SOC - Held, S. 48
vested
vast
power
in
DDC
having
supervisory
jurisdiction
over
all
the
subordinate authorities, as such he may
call for and examine the record of any
case decided or proceeding taking by any
subordinate court - Decision on the
condonation of delay cannot be said to be
an interlocutory order as defined in the
Explanation - 2 to Section 48 of the Act.
(Para 11 and 13)
Writ petition dismissed. (E-1)
Cases relied on :-
1. Parash Nath Vs DDC & ors., 2008 (104) RD
516
2. Smt. Urmila Vs Amit Kumar Agrawal & ors.,
2013 (118) RD 180
3. Jeet Narain & anr. Vs Govind Prasad & ors.,
2010 (3) ADJ 470 (SC)
4. Mukesh & anr. Vs Additional District
Magistrate (Finance and
Revenue), Mathura & ors., 2015 (8) ADJ 73
(Delivered by Hon'ble Dinesh Pathak, J.)

1. Heard Sri Mazhar Abbas Zaidi,
learned counsel for the petitioner, who has
appeared
through
video
conferencing.
Learned
Standing
Counsel
for
the
respondent nos.1 to 3 and Sri Shiv Dayal
Tiwari, learned counsel for the respondent
nos.4 to 7, at admission stage.

2. Petitioners have filed the present
writ petition challenging the impugned
order dated 07.01.2021 passed by the
Additional
District
Magistrate,
Basti
(respondent no.1) exercising his power
under Section 48 of the U.P. Consolidation
of
Holdings
Act,
1953
(in
brevity
"U.P.C.H. Act") in Revision No.459 of
2020
(Computerized
No.D202017140001798) (Suit No.01798 of
2020) (Ambika Prasad and Others vs. Smt.
Savitri Devi and Others) and order dated
09.01.20215 passed by the Settlement
Officer of Consolidation, Basti (in brevity
"S.O.C.")(respondent
no.3)
in
Appeal
No.120 under Section 11 (1) of the
U.P.C.H. Act.

3. Present writ petition is arising out
of proceeding under section 12 of UPCH
Act. Dispute relates to property belongs to
one Hari Prasad. Plot in question i.e. Khata
8 All. Ambika Prasad & Ors. Vs. A.D.M. Basti & Ors.
399
No.407 situated in village Shankarpur was
recorded in the name of Hari Prasad. After
his
death
name
of
Ramsuresh
@
Ramduresh (predecessor in interest of the
petitioners) was ordered to be recorded in
the revenue record vide order dated
30.01.1982
passed
by
the
Assistant
Consolidation
Officer
(in
brevity
"A.C.O."). After lapse of 29 years, Smt.
Savitri Devi (predecessor in interest of
respondent nos.4 to 7) had filed an appeal
dated 16.07.20210 (annexure no.2) under
Section 11 (1) of the U.P.C.H. Act,
challenging the order dated 30.01.1982 on
the ground that it was ex-parte order passed
behind her back without giving her any
opportunity of hearing. In appeal she had
prayed condonation of delay in filing the
appeal.
Vide
order
dated
09.01.2015(annexure no.5), the S.O.C. has
allowed the prayer for condonation of delay
and fixed date for hearing on the merits of
the appeal. Feeling aggrieved, present
petitioners have preferred a revision before
the Deputy Director of Consolidation (in
brevity "D.D.C.") (respondent no.2), which
has been dismissed vide order dated
07.01.2021
(Annexure-8),
with
an
observation that there is no force in the
revision, which is in fact not maintainable
against an interlocutory order.

4. Learned counsel for the petitioners
submits that the D.D.C. has illegally
dismissed the revision on the ground of
maintainability, whereas the order passed,
allowing the prayer for condonation of
delay, is revisable and same should be
examined by the D.D.C. in exercise of
revisional jurisdiction under Section 48 of
the U.P.C.H. Act. He has also assailed the
order of the S.O.C. on the ground that delay
has illegally been allowed only on the basis
of litigation which is going on between the
parties with respect to the property of Hari
Prasad situated in other villages namely
Sarbhanaga and Majhauwa. In support of
his submissions learned counsel for the
petitioners has cited the case of Parash
Nath Vs. DDC and others, reported in
2008 (104) RD 516 and the case of Smt.
Urmila Vs. Amit Kumar Agrawal &
Others, reported in 2013 (118) RD 180.

5. Per contra, learned counsel for the
respondent nos.4 to 7 contended that the
S.O.C. has rightly allowed the prayer for
condonation of delay in positive exercise of
jurisdiction and the same is not amenable to
the higher court. He has further contended
that the revision filed by the present
petitioners has rightly been rejected by the
D.D.C. with an observation that there is no
force
in
the
revision
filed
by
the
revisionists as well as on the ground of
maintainability. He submits that the D.D.C.
has discussed the merits, for condonation of
delay, at length and dismissed the revision.
Mere making an observation with respect
to the maintainability of revision, would
not effect the judgment passed by the
D.D.C. In support of his case, learned
counsel for the respondents has cited Jeet
Narain and Another vs. Govind Prasad
and Others, 2010 (3) ADJ 470 (SC) and
Mukesh and another vs. Additional
District
Magistrate
(Finance
and
Revenue), Mathura and others, 2015 (8)
ADJ
73.
Learned
counsel
for
the
respondents has also submitted that with
respect to the property of deceased Hari
Prasad situated in another village, lis is
pending before this High Court bearing
Writ B No.11154 of 1982. In the aforesaid
matter, restoration application is still
pending.

6. Perused the record on board and
considered the submissions of learned
counsels for the parties.
400 INDIAN LAW REPORTS ALLAHABAD SERIES

7. Dispute relates to the property belongs
to Hari Prasad. Genealogical tree as shown in
the memo of appeal filed by Smt. Savitri
Devi(predecessor in the interest of respondent
nos.4 to 7) reveals that Hari Prasad and Hardeo
were collateral descendants from common
ancestral Vinda. Smt Savitri Devi is claiming
her right and title over the property in question
on the basis of registered will deed dated
24.12.1983 executed by Hari Prasad. She is
grand daughter of Hari Prasad. She came with
the case that Hanshraji(mother of Smt. Savitri),
daughter of Hari Prasad, was blind lady,
therefore, Hari Prasad had executed a registered
will deed in her(Smt. Savitri Devi) favour,
being pleased with her services. Second set of
person namely Ramsuresh @ Ramduresh
(predecessor in the interest of petitioners) was
claiming his right and title over the property of
Hari Prasad being a survivor. It appears that
property of Hari Prasad is situated in three
villages namely Shankarpur, Sarbhanga and
Majhauwa. With respect to the property of
Sarbhanga and Majhauwa it is averred that she
has got her name mutated vide order dated
15.02.1988. So far as the property situated in
village Shankarpur is concerned, Ramsuresh @
Ramduresh has got his name mutated vide
order dated 30.09.1982.

8. For the condonation of delay in filing
the appeal dated 16.07.2010 against the order
of C.O. Dated 30.09.1982, Smt. Savatri Devi
(appellant before SOC) came with the plea
that on the basis of registered will deed she
has got her name mutated, vide order dated
15.02.1988, over the property situated in
village Sarbhanga and Majhauwa, but she
could not get her name mutated over the
property situated in village Shankarpur,
inasmuch as she did not come to know about
consolidation proceedings went on in village.
When the respondent (in appeal before SOC)
threatened to her for taking the possession,
she
obtained
extract
of
khatauni
on
24.06.2010 and came to know about the
endorsement of order dated 30.09.1982
passed by ACO. On inquiry, no such record
was found relating to the order dated
30.09.1982.

9. Settlement Officer of Consolidation
has discussed the matter in detail in deciding
the condonation of delay in filing the appeal
and, came to the conclusion that in the
property in question i.e. khata no.407 situated
in village Shankarpur interest of the appellant
is also involved, therefore, gave finding that it
would not be appropriate to dismissed the
appeal on the ground of maintainability and
the laches.

10. In support of his finding SOC has
discussed the pendency of lis between the
parties with respect to property situated in
village Sarbhanga and Majhauwa, where
initially name of the Smt. Savitri was
recorded, but subsequently, vide order dated
13.03.2001, name of the present petitioners
were
mutated.
Against
order
dated
13.01.2001 passed by C.O. restoration
application is still pending before the court
concerned.

11. I am not satisfied with the
arguments advanced by counsel for the
petitioners that revision was dismissed only
on the ground of maintainability. Order dated
07.01.2021 passed by DDC reveals that it has
discussed the merits of the condonation of
delay and affirmed the finding recorded by
S.O.C. Though in operative portion D.D.C.
has made an observation to dismiss the
revision on the ground of maintainability, in
the body of the judgement it has discussed
the merits of the delay condonation in
detailed and affirmed the finding of SOC.

12. Case cited by the petitioners
reported in 2013 (118) RD 180 is not
8 All. Ambika Prasad & Ors. Vs. A.D.M. Basti & Ors.
401
applicable in the present matter, inasmuch
as it relates to the temporary injunction
which was modified to some extent in
appeal. Another cited case reported in 2008
(104) RD 516, is applicable to some extent
in the present matter, wherein revision was
held maintainable against allowing or
rejecting the condonation of delay passed
by C.O. Preposition laid down by Coordinate Bench of this Court in the
aforesaid case is also applicable in this
matter, but unfortunately same would not
come to the rescue of the petitioners. In the
aforesaid matter this Court has relied upon
the Supreme Court decision reported in
1984 RD 382, Sashi Prasad Gupta Vs.
DDC wherein Hon'ble Supreme Court has
expounded that higher court cannot lightly
interfere with the direction of the C.O.
unless the order sought to be revised is
clearly erroneous and likely to cause gross
miscarriage of justice. It is further observed
in the aforesaid judgment that when order
has been made under section 5 of
Limitation Act by the lower court in
exercise of its discretion allowing or
refusing an application to the extent time, it
cannot be interfered within revision, unless
lower court has acted with material
irregularity or contrary to law or has come
to that conclusion on no evidence.
Paragraph 12 of the case of Paras Nath
(Supra) is quoted below:-

"The Supreme court in Shanti
Prasad Gupta v. Deputy Director of
Consolidation, camp at Meerut and other,
considered the scope and power of Deputy
Director of Consolidation under section 48
of U.P Consolidation of Holding Act, 1953.
in the case before the supreme court
objection under sector 9-A was filed with
delay. The consolidation officer vide order
dated 22ndjuly, 1975 condond the delay in
filling the objection. A revision was filed
before
the
Deputy
Director
of
Consolidation challenging the order of
Consolidation officer. The Deputy Director
of Consolidation interfered with the order
of Consolidation officer. The writ petition
was filed in the High Court and thereafter
matter was taken to the Apex Court, The
Apex Court laid down that Deputy Director
of Consolidation cannot lightly interfere
with the discretion of the Consolidation
Officer unless the order sought to be
revised is clearly erroneous or is likely to
cause gross miscarriage of justice .
Following was laid down in paragraph 3 of
the said judgment -

"3?.Whether or not there is
sufficient cause for condonation of delay is
a question of fact dependent upon the fact
and circumstances of a particular case, and
the proposition is well settled that when
order has been made under section 5,
Limitation Act by the lower Court in the
exercise of its discretion allowing or
refusing an application to extend time, it
cannot be interfered with in revision, unless
the lower Court has acted with material
irregularity or contrary to law or has come
to that conclusion on no evidence. We are
aware that the power of the Director under
sector 48 of the Act are wider than those
mentioned in section 115 of the Code of
Civil Procedure. Even so, the Director
cannot lightly interfere with the discretion
of Consolidation Officer, unless the order
sought to be revised is clearly erroneous or
is likely to cause gross miscarriage of
justice. Such was not the case here. The
Consolidation Officer had in condoning the
delay exercised his discretion judicially on
the basic of evidence produced before him
by the parties. The Deputy Director of
Consolidation (exercising the powers of
Director )had without assigning any reason
allowed the revision-petitioner to produce
additional evidence (letter) before him,
402 INDIAN LAW REPORTS ALLAHABAD SERIES
which the revision-petitioner could with
due
diligence,
produce
before
the
Consolidation Officer, but failed to do so.
Then it is not apparent from the impugned
order whether the appellant before us, was
also given by the Deputy Director an
opportunity to produce evidence in rebuttal
of the additional evidence, although a bold
mention is there that "the opposite party
has not any documentary evidence in
rebuttal of this."

13. Section 48 of UPCH Act vested
vast power in DDC having supervisory
jurisdiction
over
all
the
subordinate
authorities, as such he may call for and
examine the record of any case decided or
proceeding taking by any subordinate
court. In this conspectus, it cannot be said
that DDC has got no jurisdiction to
entertain any application under section 48
of UPCH Act against any order or
proceeding
which
comes
from
the
subordinate authority. So far as the decision
on the condonation of delay is concerned, it
cannot be said to be an interlocutory order
as defined in the explanation-2 to section
48 of UPCH Act. Any decision on the
delay condonation amounts termination of
proceeding for condonation of delay.
Therefore, order passed on the delay
condonation application can be assailed
before the higher court.

14. Division Bench of this Court in
the matter of Mst. Kailashi Vs. DDC and
others, reported in 1972 RD 80 has held
that the revisional powers under section 48
of UPCH Act are very wide and can reach
every
order
passed
by
sub-ordinate
consolidation courts, even orders passed on
delay condonation.

15. In the matter in hand, petitioners
have failed to make out a case as to what
prejudice will caused to them due to remand
of matter before S.O.C. for considering the
right and title of the parties. No material
irregularity or the error have been pointed out
by the counsel for the petitioners in the orders
passed by SOC and DDC.

16. On the contrary learned counsel for
the respondents has cited paragraph nos.7, 8
and 9 of the case of Mukesh (Supra) to
substantiate his submissions that ordinary
higher court should not interfere in positive
exercise of the decision made by the
subordinate court. Relevant paragraph nos.7
and 8 of the aforesaid judgment is quoted
below:-

"7. It is settled that once the delay
has been condoned meaning thereby the
Court has exercised its discretion in a positive
manner and unless there is no explanation or
the explanation furnished is malafide, the
higher Court should not interfere with such
orders.

8. The Apex Court in State of
Bihar and others v. Kameshwar Prasad Singh
and another, JT 2000 (5) SC 389, has held
that "once the Court accepts the explanation
as sufficient, it is the result of positive
exercise of discretion and normally the
superior Court should not disturb such
finding, much less in revisional jurisdiction,
unless the exercise of discretion was on
wholly untenable grounds or arbitrary or
perverse. But it is a different matter when the
first Court refuses to condone the delay. In
such cases, the superior Court should be free
to consider the cause shown for the delay
afresh and it is open to such superior Court to
come to its own finding even untrammelled
by the conclusion of the lower Court.

9. This view has constantly been
followed by the Apex Court in numerous
cases thereafter. Reference may be given in
Apanshu Mohan Lodh v. Stae of Tripura,
8 All. Shankarlal Vs. State of U.P. & Ors.
403
2004 1 SCC 119, State (NCT of Delhi) vs.
Ahmed Jaan, 2008 (10) JT 179, Indian Oil
Corporation
Ltd.
v.
Subrata
Borah
Chowlek, (2010) 262 ELT 3. In Jeet Narain
and another v. Govind Prasad and others,
2010(3) adj 470 SC, the Apex Court has
condoned the delay of 26 years considering
the merit of the case in which the order was
obtained by playing fraud."

17. Both the consolidation courts,
SOC and DDC, in positive exercise of
jurisdiction, have given opportunity of
hearing to the contesting respondents after
considering the bonafides of Smt. Savitri
Devi, who is claiming her right and title
over the property in question on the basis
of registered will deed executed by her
maternal
grand
father.
Mere
an
endorsement relating to some case over the
khatauni cannot confer any right and title in
favour of the recorded person and said
entry is always subject to scrutiny by the
competent court. Therefore, on the ground
of laches valuable right of any person, who
is vitally interested in the property in
question, cannot be negated.

18. In light of the discussion as made
above, I do not find any justification in
interfering the orders passed by SOC and
DDC. Counsel for the petitioners fails to
substantiate his submissions in assailing the
orders
passed
by
SOC
and
DDC.
Opportunity of Smt. Savatri Devi, to be
heard, cannot be denied on the pretext of
technicalities, who has vested interest in the
property in question being a legatee as well
as grand daughter of recorded tenure
holder. I do not find any illegally,
perversity or error in the impugned orders
passed by SOC and DDC to warrant the
indulgence of this Court in exercising
extraordinary jurisdiction under Article 226
of the Constitution of India.

19. Present writ petition is devoid on
merits and is, accordingly, dismissed.
----------
(2021)08ILR A403
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.07.2021

BEFORE

THE HON'BLE DINESH PATHAK, J.

Writ B No. 695 of 2021

Shankarlal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Pramod Kumar Dwivedi

Counsel for the Respondents:
C.S.C., Sri Ashish Kumar Mishra, Sri Shri
Krishna Mishra, Sri Ajay Mishra

A. UP Consolidation of Holdings Act, 1953
- Sections 4, 6 & 12 - Consolidation
operation in pursuance of notification u/s
4 initiated - Subsequently notification u/s
6 issued to cancel the notification u/s 4 -
Effect - Relevancy of the final order
passed during consolidation proceeding -
Held, the provisions u/s 6(2) of the Act
left no room for doubt that final orders, if
any, passed during the consolidation
proceeding, on or before the cancellation
of notification as provided u/s 6(1), shall
be given effect to the revenue records and
accordingly, final revenue records shall be
maintained after cessation of the area to
be
under
consolidation
operations
-
Consolidation authorities are under legal
obligation to correct the revenue record in
pursuance of the final order passed by the
Assistant Consolidation Officer. (Para 8,
14 and 16)
Writ petition disposed of. (E-1)
Cases relied on :-