KEDAR Vs. DEPUTY DIRECTOR OF CONSOLIDATION AND OTHERS

JUDGEMENT

(1.) Heard Counsel for the parties.

(2.) There appears to be no dispute that the proceeding relate to Sec. 9-A(2) of the U.P.C.H. Act which relates to the adjudication of title between the parties, which on being decided by the consolidation Courts attains finality in view of the provisions of Sec. 49 of the U.P.C.H. Act. There also appears to be no dispute that against the order of the Consolidation officer petitioner filed appeal before the appellate authority in which 31.12.1973 was the date fixed on which date on account of absence of the appellant or his Counsel the appeal was ordered to be dismissed in default. There also do not appear to be any dispute that on the same day restoration application was filed for the recall of order dismissing the appeal in default. The appellate authority by the order dated 22.1.1974 allowed the application and set aside the order dated 31.12.1973 and restored the appeal on payment of Rs. 10.00 as cost. The order of the appellate authority restoring the appeal was challenged by the opposite party in revision which has been allowed by the Deputy Director of Consolidation and the order of the appellate authority restoring the appeal has been set aside. During the course of the argument only dispute appears to be from the side of the respondents that the application dated 31.12.1973 was not singed by the Counsel who was actually engaged by the appellant in fact the application was filed by one Ramesh Prasad who has never signed Vakalatnama. The Settlement Officer Consolidation has allowed the restoration application filed by the petitioner after entertaining the application which was admittedly filed on the same day. The explanation given by the petitioner for his absence was accepted to be sufficient. The Deputy Director of Consolidation appears to have taken too technical view in interfering in the order of the appellate authority by which the restoration application was allowed. On the facts and circumstances this Court sitting in writ jurisdiction is fully satisfied with the bonafides on the part of the petitioner and the discretion so exercised by the appellate authority. By allowing the restoration application and restoring the appeal to its original number this Court is not convinced that in any manner respondents can be said to have suffered any prejudice and thus the Deputy Director of Consolidation cannot be permitted to interfere in the discretionary order passed by the appellate authority Restoration application was filed on the same day which has been allowed on payment of Rs. 10.00 as cost. The decision as has been referred to by the learned Counsel for the respondent as given in the case of Balram Tiwari and others Vs. Regional Transport Officer, Varanasi Region, Varanasi and another, 2000 (Suppl.) RD 765 : 2000 (39) ALR 186 has absolutely no application to the facts of the present case in as much as in the case referred above application was filed after 2-1/2 years and there was no efficient explanation for inordinate delay and thus on the facts of that case refusal to allow the application came into existence. The other decision as has been crated by the learned Counsel was Barn Singh and others Vs. Babu Sharma, AIR 1997 All. 185 has also absolutely no application to the facts, and circumstances of the present case. In fact against the order of restoration the opposite party should not have filed any revision as in no manner any prejudice can be said to have been occasioned. Filing of the restoration on the same day clearly reveals bonafides on the part of the petitioner in pursuing his rights and therefore, dismissal of the same will amount to non suiting the petitioner without any trail by the two higher forum in the consolidation process. Accordingly on the facts of the present case irrespective of technical objection having been argued by the learned Counsel for the respondents and as has been noted by the Deputy Director of Consolidation, this Court exercising its powers under Art. 226 of the Constitution of India is satisfied that the order of the Deputy Director of Consolidation needs interference by this Court.

(3.) Accordingly this petition succeeds and is allowed. The order dated 30.7.1974 is hereby quashed. The matter is sent back to the appellate authority for deciding the appeal afresh in accordance with law after affording adequate opportunity of hearing to the parties concerned. It is further made clear that on filing certified copy of this order by either of the parties the appellate authority will promptly move and will fix the dates in quick succession and will try to decide the appeal preferably within a period of four months from the date of receipt of certified copy of this order as the matter is pending since last nor that 30 years. It is further made clear that none of the parties will be allowed unwarranted adjournment unless it is required for very compelling reasons. Petition Allowed.