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Vijai Kumar And Others v. Deputy Director Consolidation And Others - WRIT - B No. 43308 of 1998  RD-AH 7472 (13 December 2005)
Heard Sri S.K.Srivastava holding brief of Sri P.N. Kushwaha, learned counsel appearing for the petitioners and Sri Dhan Prakash, learned counsel appearing for the respondents.
By means of this writ petition, the petitioners have challenged the order dated 9.12.1998 passed by the Deputy Director of Consolidation on the ground that they were only heard on restoration application and without affording any opportunity of hearing the revision has been decided on merits.
The facts are that against the appellate order dated 26.1.1996 the petitioners filed a revision. The revision was heard on 12.9.1997 and the judgment was reserved. Thereafter, on oral request made on behalf of respondent no.4, the Deputy Director of Consolidation directed spot inspection by a Advocate-Commissioner who submitted his report dated 3.10.1997. The parties were afforded opportunity to file objection to the said report and 15.10.1997 was fixed for judgment. The Deputy Director of Consolidation delivered the judgment on 15.10.1997. Thereafter, the contesting respondents moved an application dated 7.1.1998 to recall the order dated 15.10.1997 on the ground that it was an ex-parte order passed without any opportunity of hearing to them. Another application dated 19.3.1998 was also moved on behalf of State of U.P. and Gaon Sabha for recall of the order dated 15.10.1997. It has been alleged by the petitioners that no notice of the said restoration applications was ever issued to them and the same were being heard ex-parte and it was only by chance that on 2.12.1998 counsel appearing for the petitioners happened to be in the court of Deputy Director of Consolidation when the hearing on the restoration application was going on. He made a request on behalf of the petitioners for an opportunity of hearing on the restoration application. The Deputy Director of Consolidation fixed 9.12.1998 and gave liberty to the petitioners to make arguments on the restoration application in the meantime. The order sheet dated 2.12.1998 filed as annexure-17 to the writ petition, indicates that counsel for the respondent no.4 was heard on the restoration application and the case was fixed 9.12.1998 for delivery of orders and in the meantime, counsel appearing for the petitioners was given liberty to submit his argument on the said application. It has further been alleged that without affording any opportunity of hearing to the petitioners on merits of the case, the Deputy Director of Consolidation vide impugned order not only allowed the restoration application but also dismissed the revision as well.
A short counter affidavit has been filed by the respondents stating therein that the restoration application was allowed vide order dated 2.12.1998 and thereafter, 9.12.1998 was fixed for final orders on the merits and in the meantime, parties were given opportunity to argue their case on any intervening date. However, on perusal of the order sheet the stand taken by the respondents does not appear to be correct. It is clearly mentioned in the order sheet of 2.12.1998 that counsel appearing for the respondents Sri Kapil Deo has been heard on the restoration application and the counsel appearing for the petitioners wants time for arguments. The order sheet further records that the case may be taken up on 9.12.1998 for decision and in the meantime, counsel appearing for the petitioners may make his argument.
From the aforesaid, it is clear that the petitioners were not afforded any opportunity of hearing either on the restoration application or on merits and yet not only the restoration application has been allowed but the revision filed by the petitioners was also dismissed.
The procedure adopted by the Deputy Director of Consolidation appears to be irregular. The appropriate course would have been to afford an opportunity of hearing to both the parties on the restoration application and if the Deputy Director of Consolidation was of the opinion that restoration application ought to be allowed then after passing the orders, he ought to have fixed a date for hearing of the revision on merits. On 2.12.1998 the Deputy Director of Consolidation fixed 9.12.1998 for delivery of orders and directed that in the meantime, counsel appearing for the petitioner may make his argument. No specific date was fixed for arguments which again appears to be highly irregular.
In the aforesaid facts and circumstances, the impugned order passed by the Deputy Director of Consolidation is not liable to be sustained. However, looking into the findings recorded by the Deputy Director of Consolidation for allowing the two recall applications filed by respondent no.4 and State & Gaon Sabha, I am not interfering with the said part of the order. However, the impugned order of the Deputy Director of Consolidation deciding the revision on merits is being set aside. The case is remanded back to the Deputy Director of Consolidation for decision afresh on merits in accordance with law after notice and opportunity of hearing to all the parties concerned as early as possible preferably within a period of four months from the date of production of a certified copy of this order before him.
With the aforesaid directions, the writ petition stands partly allowed.
However, in the facts and circumstances, there shall be no order as to costs.
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