K. N. Misra, J. - (1.) THIS writ petition is directed against the order dated 21st Nov. 1973 passed by the Dy. Director of Consolidation, certified copy of which has been annexed to the writ petition.
(2.) BRIEFLY stated the facts of the case are as follows. The dispute in the present writ petition relates to grove plot No. 1076 area 0.70 acres situate in village Aktahia Tappa Nagwa Tikar, Parg. Silhat, tahsil and district Deoria. The petitioners claimed to be the bhumidhars and in possession over the aforesaid grove. In the basic year a portion of the said grove plot i.e. plot No. 1076 M/00.40 acres was recorded in the name of the opposite parties nos. 3 and 4 Kishore and Bikau, while the remaining area i.e. plot no. 1076/00.30 acres was recorded in the name of the petitioners. The petitioners, on coming to know about the aforesaid wrong entries in the name of the opposite parties Nos. 3 and 4, filed an objection under Sec. 9-A (2) before the Consolidation Officer praying that the name of the opposite parties no. 3 & 4 be scored out and they be held to be the bhumidhars and their names be recorded as such. The said objection was opposed by opposite parties Nos. 3 & 4. The Consolidation Officer, however, did not enter into the merits of the case, but dismissed the objection vide his order dt. 25-12-1967, merely on the ground that the objection was not maintainable before him and since the petitioners had not filed objection before the Assistant Consolidation Officer the same cannot be looked into on merits. He did not call for the report of the Assistant Consolidation Officer on the objection which was filed before him under Sec. 9-A (2) of the Act and preferred to reject it on the aforesaid ground. Aggrieved by the said order dt. 25-12-1967 the petitioners preferred an appeal which was heard and dismissed by the Assistant Settlement Officer (Consolidation) vide his order dated 12-8-1969 holding the appeal to be not maintainable. The petitioners, thereupon, filed the revision against the said order which was heard and decided by the Dy. Director of Consolidation by an order dated 16-12-1970 on the ground that the objection filed by the petitioners was not competent as it could not be filed before the Consolidation Officer. He also held that the objection could be considered on merits if it was filed before the Assistant Consolidation Officer. After the dismissal of the revision on the aforesaid ground the petitioners filed an objection under Sec. 9-A (2) before the Assistant Consolidation Officer on 7-1-1971 a true copy of which has been annexed as Annexure '2' to this writ petition. The said objection contains a prayer regarding the condonation of delay in filing the objection on the ground specifically enumerated in paragraphs 5 & 6 of the objection. The petitioners had mentioned that they had been labouring under the wrong legal advice and had been pursuing deligently the remedy for the determination of the title with regard to the land in dispute. The Consolidation Officer dismissed the said objection vide order dated 30th August, 1971, holding that the objection is not maintainable under Sec. 9 of the Act. He did not enter into the merits of the grounds seeking condonation of delay in filing the objection. He also appears to have based his order on some report of the Assistant Consolidation Officer which does not relate to the plot in question and, as such, his order cannot be taken to be an order passed on the faets of the ease and is altogether erroneous. It appears that the Consolidation Officer had not taken care to look into the record itself and cursorily decided the ease. Aggrieved by the said order the petitioners filed the revision which was rejected by the Dy. Director of Consolidation, Deoria vide order dt. 21-11-1975. The Dy. Director of Consolidation has refused to condone the delay in filing the objection by mentioning wrongly that in the objection dated 7-1-1971 no grounds have been shown by the petitioner seeking condonation of delay. A perusal of the objection, true copy of which has been annexed as Annexure '2' would indicate that the petitioners had, in paragraphs 5 & 6 of the aforesaid objection, very clearly stated the grounds on which he sought condonation of delay. They have asserted that under the wrong legal advice they had filed objection and had been pursuing their remedy. This order dated 21-11-1977, certified copy of which has been annexed to the writ petition, has been impugned by the petitioners. I have heard the learned counsel for the petitioners and have gone through the averments contained in the writ petition as well as in the counter affidavit. The learned counsel for the petitioners has argued that the Dy Director of Consolidation has acted illegally in passing his order by mis-stating the facts that no ground has been shown for seeking the condonation of delay. In support of his contention, the learned counsel referred to the aforesaid paragraphs no. 5 & 6 of the objection dated 7-1-1971. I find substance in this submission. The Dy. Director of Consolidation has wrongly mentioned, in his order, that no ground has been shown by the petitioners for condonation of delay. The impugned order passed on mis-statement of facts stands vitiated in law and deserves to be quashed on this ground alone. The learned counsel for the opposite parties nos. 3 & 4 however urged that the petitioners had not filed separate application seeking condonation of delay and a composite objection with a prayer for condoning the delay and for deciding the claim on merits under Sec.9-A (2) of the Act would not be maintainable. He further contended that there is nothing on record to indicate that the aforesaid objection containing composite prayer was accompanied by an affidavit explaining each day's delay in preferring the objection. I find no substance in these submissions. The petitioners have stated grounds seeking condonation of delay in the objection. In the prayer he has also sought condonation of delay in filing the objection and for determination of his claim regarding bhumidhari rights on the land in question. There is no bar provided under the Act and the rules for such composite application. Provisions of Sec. 5 of the Limitation Act have been made applicable to the proceedings under the U. P. Consolidation of Holidings Act and the delay in filing the objection can be condoned if pre-requisite conditions regarding sufficient cause are shown. Nowhere in the Act or under the rules it is provided that separate application for condonation of delay should be filed while filing the objection under Sec. 9-A (2) of the Act. The consolidation authorities can even without an application being filed under Section 5 of the Limitation Act, condone the delay, if sufficient grounds are shown for the same. In exercising the jurisdiction for condoning the delay under Sec. 5 the only pre-requisite condition is that there should be sufficient cause shown for condoning the delay. It has been held by the Hon'ble Supreme Court in Dinabandhu Sahu v. Jadumont Mangaraj, AIR 1954 SC 411 that "Even if the matter had to be judged under Sec. 5 of the Limitation Act it would have been a proper exercise of power under that section to have excused the delay. The word 'sufficient cause' should receive a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant." The Hon. Supreme Court in another case-State of West Bengal v. The Administrator, Howarh Municipality, AIR 1972 SC 749 has laid down that "if a party had acted in a particular manner on a wrong advice given by his legal adviser, he cannot beheld guilty of negligence so as to disentitle the party to plead sufficient cause under Section 5 of the Limitation Act". The petitioners has averred, in their objection, that they, under the wrong legal advice, pursued their remedy upto the revisional stage and their objection was rejected on technical ground that the same should have been filed before the Assistant Consolidation Officer. The petitioners had thereupon filed the present objection stating the aforesaid facts, which the Dy. Director of Consolidation should have considered on merits. In his order he has wrongly mentioned that no grounds have been shown by the petitioners seeking condonation of delay. Since in these proceedings under the U.P.C.H.Act title of the parties is to be decided finally on merit hence the consolidation authorities should take a liberal view in the matter while condoning the delay. If there are no unexplained latches on their part it would serve the interest of justice if the delay is condoned and the objections are decided on merits and the same are not rejected merely on technicalities. The petitioners, in the present case, had filed objections but, unfortunately, the same was filed before a wrong court. The Consolidation Officer, instead of calling for a report from the Assistant Consolidation Officer, dismissed the same on the said technical ground that the objection was not filed before the proper court. He should have, instead of rejecting the objection, returned the objection for presentation before the proper court and thus time would have been saved in deciding the title of the parties on merits. I, therefore, find substance In the argument of the learned counsel for the petitioners, and I am of the opinion that since the earlier objection filed by. the petitioners was rejected by the Consolidation Officer on the aforesaid technical ground instead of deciding it on merits after calling report on it from the Assistant Consolidation officer to meet the technical objection in that manner or alternatively returning it to the petitioners for presentation before the Assistant Consolidation Officer, it would be quite just and proper that the delay be condoned and the petitioner, who had bona fide filed their objection before the Consolidation Officer on legal advise, be permitted to get their claim in respect of land in dispute determined on merits by condoning the delay in filing the objection under Sec. 5 of the Limitation Act.
(3.) IN the result the writ petition is allowed and the order dated 21-11-1973 passed by the Dy. Director of Consolidation, Deoria, certified copy of which has been annexed to the writ petition, is quashed. The Dy. Director of Consolidation is directed to restore the revision and decide the same on merits in the light of the observations made above. IN the circumstances of the case I make no order as to costs. Petition allowed.;