Gujrati vs Assistant Director of Consolidation Chandauli and Others

B. Dikshit, J.—During consolidation operation a dispute arose in respect of Khata No. 233, 170 and 478 of village Baghai, Kumbhapur, Pargana Narwan, Tehsil Chandauli, district Varanasi. As one Nar Singh Chaube son of Satya Narain Chaube, who is dead, was aggrieved by the order passed by Consolidation Officer, he preferred an appeal, wherein an ex pane order dated 25 101977 was passed. An application to set aside exparte order was moved. The exparte order was setaside by Settlement Officer Consolidation on 25101989 and appeal was restored to its original number. Aggrieved by the order of restoration, a revision was preferred by Jokhan, Ram Mohan and Shiv Mohan. During pendency of revision one of the opposite party Smt. Kaushalya died and her Annapurna Devi was substituted as daughter. The order of substitution was passed by Assistant Director of Consolidation substituting Annapurna Devi was passed on the day application for substitution was moved without giving any opportunity to petitioner to object against it. When the petitioner came to know about it on 871981, she raised objection to the effect that Smt. Annapurna was not daughter of Smt. Kaushalya Devi but she was the heir of Smt. Kaushalya Devi. The application of petitioner was rejected by Additional Director of Consolidation without inviting objection by order dated 1891981 (Annexure 6 to the writ petition) which has given, rise to this writ petition.

Learned Counsel for the petitioner was permitted to file certified copy of ex pane order dated 931981. The Counsel for parties were heard also on that certified copy of order.

The learned Counsel for petitioner argued that the substitution of Annapurna Devi was allowed without affording any opportunity of hearing to anyone. The substitution was ordered on 931981 and when petitioner moved .application to recall that order, again without giving any opportunity to petitioner to establish that she is the legal representative, her application has been rejected.

There is no dispute on facts. When such was the position then it is to be held that Assistant Director of Consolidation had no justification to have passed order so hurriedly and hastily on the date on which application was moved. However, even if he committed such an error then he should have corrected it by recalling that order and directing rehearing of the case after providing opportunity of hearing to parties. He did not act fairly. Although, provisions of Civil Procedure Code are not applicable to Consolidation proceedings but the principles lying under Order 22, Rule 5 is attracted. The Assistant Director of Consolidation should have determined as to who has to represent the estate of the deceased pending litigation. The ordering of substitution without there being any time gap between the date of moving of application for substitution and passing of the order, the rejection of application of petitioner without affording any opportunity of hearing to petitioner is bad in law. Thus, I am of the opinion that the order dated 931981 passed by Assistant Director of Consolidation substituting Smt. Annapurna Devi as legal representative of Smt. Kaushalya as well as the order rejecting application of petitioner dated 1891981 are unsustainable liable to be quashed.

For aforesaid reasons the writ petition is allowed, order passed by Assistant Director of Consolidation 1891981 (Annexure6 to the writ petition) and the order dated 931981 (Annexure3 to the writ petition) are quashed. The Assistant Director of Consolidation is directed to decide the application dated 871981 of petitioner afresh in the light of observation made above.