# Smt. Dayawati and others v. Deputy Director of Consolidation, Baghpat and others - **Citation:** (2011) 1 ILRA 290 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2011-03-23 - **Case number:** Civil Misc. Writ Petition No. 1719 of 2009 - **Bench:** A.P. Sahi - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-dayawati-and-others-v-deputy-director-of-consolidation-baghpat-and-others-41875 - **Pages:** 3 ## Headnote Sri A. N. Srivastava Sri Sandeep Kumar Sri Ashish Kumar Sri Rahul Mishra Sri Vivek Chaudhary C.S.C. U.P. Consolidation of Holdings Act-1953, Section-53-B-applicability of the provision of section 5 of limitation ActD.D.C. by Detail order-disclosed reason for non condoling delay-petitioner in very crytic casual manner without any detail-disclosed the source of knowledge-held-righty refused to condone delay. Court declined to interfere. Held: Para 6 It is therefore obvious that the provisions of Section 5 of Limitation Act with all its necessary accessories can be invoked in proceedings before the Consolidation Authorities provided there is a plausible and valid explanation attributed for having arrived at a delayed point of time. The affidavit which has been filed by the petitioners in support of the delay condonation application is absolutely casual, cryptic and without any details. The Deputy Director of Consolidation has therefore rightly recorded a finding that in the absence of any plausible explanation or any cogent reason having been offered in not having arrived before the Court in time, there was no occasion to condone the delay. ## Text 290 INDIAN LAW REPORTS ALLAHABAD SERIES [2011 will not be treated to be disqualified and will be considered along with the candidates of Special BTC Course 2007 subject to her comparative merit with other candidates. 16. We may add caveat here that only those candidates having degrees from State of Jammu and Kashmir will be considered qualified, who have obtained these degrees from the universities recognized by the University Grants Commission. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 23.03.2011 BEFORE THE HON'BLE A.P. SAHI, J. Civil Misc. Writ Petition No. 1719 of 2009 Smt. Dayawati and others ...Petitioner Versus Deputy Director of Consolidation, Baghpat and others ...Respondents Counsel for the Petitioner: S.K. Tyagi Counsel for the Respondents: Sri A. N. Srivastava Sri Sandeep Kumar Sri Ashish Kumar Sri Rahul Mishra Sri Vivek Chaudhary C.S.C. U.P. Consolidation of Holdings Act-1953, Section-53-B-applicability of the provision of section 5 of limitation ActD.D.C. by Detail order-disclosed reason for non condoling delay-petitioner in very crytic casual manner without any detail-disclosed the source of knowledge-held-righty refused to condone delay. Court declined to interfere. Held: Para 6 It is therefore obvious that the provisions of Section 5 of Limitation Act with all its necessary accessories can be invoked in proceedings before the Consolidation Authorities provided there is a plausible and valid explanation attributed for having arrived at a delayed point of time. The affidavit which has been filed by the petitioners in support of the delay condonation application is absolutely casual, cryptic and without any details. The Deputy Director of Consolidation has therefore rightly recorded a finding that in the absence of any plausible explanation or any cogent reason having been offered in not having arrived before the Court in time, there was no occasion to condone the delay. (Delivered by Hon'ble A.P. Sahi, J.) 1. Heard learned counsel for the petitioner and the learned counsel for the contesting respondents. 2. The issue is very short, as the matter has now to be examined in the light of the earlier judgment of this Court dated 10th September 2007 in writ petition No. 16761 of 2007. The judgment being precise and which also details the facts necessary for adjudication, is being gainfully reproduced here under: "Hon'ble Janardan Sahai,J. Counsel for the parties agree that the writ petition may be disposed of finally. The plot in dispute is 2941. It was recorded in the basic year in the name of late Indra Raj father of the petitioners and late Hari Singh father of the respondents 3, 4 and 5. Objections under Section 9 of the U.P. Consolidation of Holdings Act were filed by Indra Raj. The 1 All] Smt. Dayawati and others V. Deputy Director of Consolidation, Baghpat and others 291 compromise was entered on 31.1.1990 and order of compromise was passed by the Consolidation Officer on 15.2.1990. Against the order dated 15.2.1990 two appeals were filed one by the respondents 3, 4 and 5 and another by the respondents 2, 3 and 4, in the years 2003 and 2004 and were therefore belated and applications for condoning the delay was filed in both the appeals. The Settlement Officer Consolidation by his order dated 31.8.2004 dismissed both the appeals on the ground that sufficient explanation for the delay had not been given. The order of the Settlement Officer Consolidation was challenged in revision by the respondents 2 to 5. The Deputy Director of Consolidation has allowed the revision, has set aside the order of the Settlement Officer Consolidation as well as of the Consolidation Officer dated 15.2.1990 and has directed the Consolidation Officer to decide the case on merits. It was submitted by the petitioners counsel that the Deputy Director Consolidation has not considered whether the Settlement Officer Consolidation was right in dismissing the appeal on the ground that the delay had not been explained, in as much as that was the basis of the order of the Settlement Officer Consolidation. There appears to be some merit in the contention of the petitioners' counsel. The Deputy Director Consolidation has not adverted to the question whether finding of the Settlement Officer Consolidation was right that the delay was not properly explained. The matter has therefore to go back to the Deputy Director Consolidation for a fresh decision in accordance with law. The writ petition is allowed. The order dated 14.2.2007 passed by the Deputy Director Consolidation, Baghpat is set aside. The matter is sent back to the Deputy Director Consolidation for a fresh decision and the Deputy Director Consolidation shall try to decide the revision expeditiously and if possible within a period of six months from the date a certified copy of this order is filed before him." 3. Sri Tyagi learned counsel for the petitioners submits that when the matter was remitted to the Deputy Director of Consolidation, the petitioner had taken full care to explain the delay in the grounds of revision and the delay having been explained and the obvious consequences of losing property being evident, it was just and equitable for the Deputy Director of Consolidation to have condoned the delay taking a liberal view in the matter. He therefore submits that the impugned order deserves to be set aside and the delay as prayed for deserves to be condoned. 4. Learned counsel for the contesting respondents has invited the attention of the Court to the affidavit filed in support of the delay condonation application. The affidavit has been sworn by Surajpal son of late Hari Singh the petitioner no. 2. The only averment made in the said affidavit is that the deponent arrived from Delhi only yesterday and upon having come to know that name of his father has been scored out from the records therefore now he has filing the application for condoning the delay under Section 5 of the Limitation Act. The same is dated 27.2.2004. 5. Needless to mention that by virtue of amendment through U.P. Act No. 38 of 1958 the provisions of the Limitation Act were made enforceable in proceedings under the U.P. Consolidation of Holdings Act, 1953 by adding Section 53-B which is quoted herein under: 292 INDIAN LAW REPORTS ALLAHABAD SERIES [2011 "53-B. Limitation. - The provisions of Section 5 of the Limitation Act, 1963, shall apply to the applications, appeals, revisions and other proceedings under this Act or the rules made thereunder." 6. It is therefore obvious that the provisions of Section 5 of Limitation Act with all its necessary accessories can be invoked in proceedings before the Consolidation Authorities provided there is a plausible and valid explanation attributed for having arrived at a delayed point of time. The affidavit which has been filed by the petitioners in support of the delay condonation application is absolutely casual, cryptic and without any details. The Deputy Director of Consolidation has therefore rightly recorded a finding that in the absence of any plausible explanation or any cogent reason having been offered in not having arrived before the Court in time, there was no occasion to condone the delay. 7. There is no reason to take a liberal view in the matter keeping in view the fact that the appeal was filed after 13 years. 8. I do not find any merit in the submissions raised. The writ petition is accordingly dismissed. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 18.02.2011 BEFORE THE HON'BLE ASHOK BHUSHAN,J. THE HON'BLE SHYAM SHANKAR TIWARI,J. Civil Misc. Writ Petition No. - 1952 of 2011 M/S Nutech Pakcaging Limited And Another ...Petitioner Versus State Of U.P. And Others ...Respondents Counsel for the Petitioner: Sri S.M.G. Asghar Sri V.M. Zaidi Counsel for the Respondents: Sri Nripendra Mishra Sri Anurag Khanna C.S.C. U.P. Public Money (Recovery of Does) Act 1972-Recover certificate against guarantor issued on 26.03.02-while company notified under Act 1993 on 34.01.04-moreover Recovery Certificate has been issued against company-cannot be held to be barred under the provision of 1993 Act. Held: Para 14 and 27 Thus when the recovery proceedings have been initiated prior to notification of PICUP, the said proceedings could be continued even after the 1993 Act and the said proceedings cannot be held to be barred under the provisions of the 1993 Act. In view of the above discussions, following the judgment of the Apex Court in Kailash Nath Agarwal's case (supra), it is clear that the recovery against the guarantor is not prohibited by Section 22(1) of the 1985 although recovery against the industry concerned is prohibited by virtue of Section 22(1) of the 1985 Act. From a perusal of the recovery certificate (Annexure-3 to the writ petition), it is clear that recovery certificate has not been issued against petitioner No.1, rather recovery certificate has been issued against the guarantors, who have given personal guarantee, which fact is mentioned in paragraph 5 of the recovery certificate. Case law discussed: A.I.R 2003 S.C. 2103; A.I.R. 2005 (Alld.) 320; JT 2006(1) SC 380; (2004) 6 S.C.C. 758; (M/s Rafat Paper Mills Pvt. Limited and others vs. The Pradeshiya Industrial & Investment Corporation of U.P. Limited and others) decided on 22nd April, 2009; (2003)4 S.C.C.