Noor Mohammad and Others vs Joint Director of Consolidation,Basti and Others

Binod Kumar Roy, J.—The petitioners pray to quash the revisional order dated 2831980 passed by the Joint Director of Consolidation, Basti in Revision No. 678. ,

Revision No. 678 was filed by respondent No. 2 Abu Shahma, who is a minor and chakholder No. 84, praying to allot plot Nos. 23 and 29 in his Chak. The revisional authority allotted plot no. 29 in his Chak which was in the Chak of Chakholder No. 797 Sakoor.

Learned counsel appearing for the petitioners submitted as follows :

(1) Plot No. 29 was allotted in the Chak of Sakoor (father of Manullah and Nasru, Petitioners No. 2 and 3) and petitioner No. 1 Noor Mohammad (son of Jahoor) jointly. The revisional authority has committed an error of law in holding that the said plot was allotted to Sakoor alone and disturbing the said plot of the petitioners.

(ii) Jahoor, father of the petitioner No. 1, is dead. The order sheet does not show that petitioner No. 1, Noor Mohammad was ever noticed and, therefore, principles of natural justice have been violated.

He relied upon on a decision of our own Court in Satrujeet v. Deputy Director and others; 1979 AWC 282.

The learned counsel for the contesting respondents, on the other hand, contended, with reference to the averments made in paragraphs 11 and 12 of the counteraffidavit as follows :

(i) The submissions made on behalf of the petitioners lack substance in as much as the petitioners were parties before the revisional authority, to whom notices were issued, and that the impugned order was passed in their presence after affording an opportunity of hearing to them, who are also real brothers living together and having a common mess and common roof.

(ii) Even assuming that the petitioners were not heard, the question as to whether they were heard being a question of fact should not be adjudicated by this Court and the petitioners, if so advised, may move the revisional authority for ventilating their grievances. My Findings :

I find substance in the submissions made by the learned counsel for the petitioners and accept them.

The impugned order does ''not show that the petitioners were heard or even parties to the revision. The petitioners are admittedly Mohammedan. Simply because they are having a common mess and are living under a common roof the principles in regard to the presumptions arising in regard to a Hindu Joint Mitakshara Family will not apply to them. It is true that the petitioners could have moved for rehearing the matter on the ground of nonaffording of an opportunity of hearing to them, but in view of the fact that the writapplication has remained pending in this High Court for the last about 15 years, I do not think it proper and expedient to drive them to take such a course. From the materials on the record I am satisfied that at least Jahoor, who was father of petitioner No. 1, and the petitioners No. I and 3 were not noticed. Accordingly I am of the view that there has been a violation of principles of natural justice.

This writ petition is, accordingly, allowed but in part. The impugned order (as contained in Annexure ''V to this writ petition) is set aside, and Revision No. 678 is remitted back to respondent No. 1 for a fresh decision according to law. In the interest of justice and to shorten the litigation, I also direct respondent No. 1 to allow the revisionpetitioners to file an application for impleadment of the writpetitioners and to dispose of the same according to law.

In the peculiar facts and circumstance;) of this case I make no order as to cost. . . .

9, Let a writ of certiorari issue accordingly.