Ram Adhar vs Deputy Director of Consolidation, Azamgarh and another

S.K. Singh, J.—Heard Sri A.K. Misra, and Sri Jokhan Prasad, learned Advocate in support of this writ petition and Sri Paliwal, learned Advocate who appears for the respondent.

Proceedings are under section 20 of U.P. Consolidation of Holdings Act which is in respect to allotment of plots in the chak of parties. Challenge is to the judgment of the Deputy Director of Consolidation by which revision filed by the respondent was allowed and restoration application filed by the petitioner was dismissed.

For disposal of the claim of parties, noting of facts in brief will suffice.

In the allotmentof chak proceeding adjustment was made in favour of the petitioner by order of the Consolidation Officer. Appeal filed by the respondent was dismissed on ''10.10.1980. Thereafter on 3.3.1990 revision was filed which is claimed to have been allowed without any notice and opportunity to the petitioner. Restoration was field which has been dismissed. To challenge the aforesaid two orders, this writ petition.

Submission of learned Counsel for the petitioner is that revision was filed after identification under section 52 of U.P.C.H. Act and in fact there was absolutely no explanation for the delay of about ten years and thus allowing of the revision without giving any finding whatsoever on the question of condonation of delay and that too without giving any notice and opportunity to the petitioner, on the facts cannot be said to be justified. Submission is that on filing recall application, petitioner was entitled to get opportunity of hearing but the Deputy Director of Consolidation taking the matter in a routine manner that as in the first order there is a mention that both sides have been heard, rejected recall application on account of which petitioner has suffered, serious prejudice. On the merits also learned Counsel submits that on account of the impugned adjustment petitioner has suffered serious prejudice as submitted in the writ petition.

In response to the aforesaid, Sri Paliwal, learned Advocate submits that as in the order of the Deputy Director of Consolidation there is a clear mention of herring of both sides, the pretext of the petitioner about lack of opportunity is wrong and Deputy Director of Consolidation has rightly rejected the application filed by the petitioner which in fact was review in the garb of restoration.

In view of the aforesaid, this Court is decide the claim of parties.

There is no dispute about the fact that two Courts i.e. Consolidation Officer and Settlement Officer Consolidation made adjustment in favour of the petitioner. Order of the appellate authority is dated 10.10.1980. Revision was filed on 3.3.1990. There is finding in the judgment of the Deputy Director of Consolidation that no counter affidavit was filed against the delay condonation matter. Be as it may, this happens to be the sole ground for condoning the delay of about ten years. Revision was admittedly filed after denotification under section 52 of U.P.C.H. Act. Explanation given by a party for condonation of delay might be accepted but it has to appear that there has been application of mind to the explanation so given. Assigning of long reason for condoning delay is not required but application of mind has to appear. Non filing of counter affidavit to the affidavit cannot be accepted/treated to be a ground for condonation of delay. Although in the matter of condonation .of delay a lenient view is to be taken so as to advance substantial justice but if the delay is long some care/attention is to be given by the concerned Court.

Be as it may, claim of petitioner was that no notice and opportunity was given to the petitioner''s side. Petitioner has filed recall application but Deputy Director of Consolidation has rejected recall application in a mechanical manner by saying that in the previous order there is mention of hearing, of both sides. There is supplementary affidavit on record of this Court which contains index of the revisional Court. There is mention of one Vakalatnama. Filing of Vakalatnama by the petitioner side and engagement of a Counsel as a fact has not been established and there is no finding by the Deputy Director of Consolidation to that effect. So long there is a clear finding in this respect, this Court feels that rejection of recall application cannot be said to be justified.

On the facts, this Court is convinced that revision has been allowed in a cursory and arbitrary manner without any notice and opportunity to the petitioner and thus irrespective of the result on the merits in the revision, as petitioner is to be provided opportunity of hearing the matter will have to receive a fresh attention by the Deputy Director of Consolidation. Adjustment of two courts below was in favour of the petitioner and thus while reversing that adjustment a proper finding also will have to be recorded. Be as it may, it is the concern of the Revisional Court to do the needful in accordance with law after giving opportunity of hearing to all concerned.

Accordingly, this petition succeeds and is allowed. Impugned Judgment/orders passed by the Deputy Director of Consolidation by which revision filed by the respondent was allowed and restoration application filed by the petitioner was rejected are hereby quashed. Deputy Director of Consolidation is directed to revive the revision to its original number and decide the same in accordance with law after giving adequate opportunity to all concerned preferably within a period of four months from the date of receipt of certified copy of this order.