AI Structured Summary
Not yet generated for this judgment
Judgment
S.N. Srivastava, J.
Supplementary affidavit be taken on record.
This writ petition is directed against the orders dated 19 2003 and 13102004 passed by Consolidation Officer and 1410 2005 passed by District/Deputy Director of Consolidation/Collector, Kushinagar.
The present proceedings arise out of Section 12 of U.P. Consolidation of Holdings Act on an application of opposite party to mutate his name on the basis of saledeed allegedly executed by one Mahatam. Petitioners filed an objection to the mutation application. It transpires from the record that on 1332003 date was fixed for evidence of petitioners. On that date, adjournment application of petitioners was allowed at the cost of Rs. 100/ and 2232003 was next date fixed. Thereafter, on 2232003, 29 32003 was the next date fixed due to absence of Consolidation Officer. Such general dates 1942003, 2452003 and 2862003 were also fixed. On 2862003, 2172003 was next date fixed. All general dates were fixed due to nonavailability of Presiding Officer. Again on 2172003, general date 1182003 and thereafter 192003 were fixed. On 192003 petitioners were not present at the time when the case was called out and thus his evidence was closed. Devendra Pathak, petitioner filed an application to recall the order dated 192003 on the same date, giving explanation of his absence at the time when the case was called out. Thereafter, a number of general dates were fixed due to nonavailability of Consolidation Officer or for the other reasons not on account of petitioners. It further transpires from the record that on 13102004, hearing took place and the application to recall was rejected and 18102004 was the date fixed for orders. Revision against the aforesaid order dated 13 102004 was dismissed on 14102005.
Learned Counsel for the petitioners urged that petitioners explained their absence at the time when the case was taken up and moved application to recall of the order dated 192003 on the same date i.e. 192003. Their application was illegally rejected without giving opportunity of hearing and without any reason. Petitioners appeared on the same date and moved recall application without any delay and explained their absence when the case was called out. Learned Counsel for petitioners further urged that petitioners are still ready to adduce evidence without taking any adjournment now.
In reply to the arguments of learned Counsel for the petitioner, learned Counsel for opposite party urged that a number of dates were fixed, but petitioners did not adduce evidence, opportunity to adduce evidence was rightly closed by order dated 13102004.
Considered the arguments of the learned Counsel for petitioners, learned Counsel for opposite party, learned Standing Counsel and also carefully considered the materials available on record.
From perusal of order dated 13102004, it is clear that the Consolidation Officer did not record any reason for rejection of restoration application dated 192003 and the order dated 19 2003 was also passed in absence of petitioners. But on the same date, application to recall the order dated 192003 was moved.
On consideration of materials on record, this Court is of the view that since petitioners have filed restoration application on the same date and also explained the reasons for their absence when the case was taken up on 192003, sufficient cause was fully explained. The order rejecting the restoration application is unsustainable in law. Consolidation proceedings are State sponsored scheme, so some lenient view may be taken where restoration application was filed on the same date when the order 192003 was passed. Deputy Director of Consolidation illegally rejected the revision of petitioners. It is further clear from the record that general dates were fixed due to nonavailability of Consolidation Officer or other reasons and not due to any adjournment application of petitioners. The orders dated 192003 and 13102004 passed by Consolidation Officer and dated 1410 2005 passed by District/Deputy Director of Consolidation, Kushinagar, which are impugned, suffer from error of law apparent on the face of record, are liable to be quashed.
In view of the discussions made above, writ petition succeeds and is allowed. Orders dated 192003 and 13102004 passed by Consolidation Officer, Padrauna, District Kushinagar and order dated 14102005 passed by District/Deputy Director of Consolidation, Kushinagar are quashed. As agreed by both the parties, they shall appear before Consolidation Officer concerned on 21st March, 2006. The Consolidation Officer shall receive documentary evidence on that date and also start to record oral evidence on that date. If, it is not possible to record the evidence on that date, the entire oral evidence shall be recorded within three months next thereafter. The case shall be finally decided within six months from the date of completion of the evidence by the parties as aforestated.
Certified copy of this order be issued to learned Counsel for the petitioners on payment of usual charges within 10 days.