BALADIN Vs. D.D.C., ALLAHABAD AND OTHERS

JUDGEMENT

(1.) This writ petition has arisen out of proceedings under Sec. 42-A of the U.P. Consolidation of Holdings Act (in short 'Act'). It is on an application dated 11-5-185 filed by contesting Opposite party Jokhai before the Deputy Director of Consolidation claiming half share in Khata No. 311 of Village Bajti Pargana Mau, Tehsil Handia, District Allahabad which has given rise to this petition. The application was sent by Deputy Director of Consolidation to Consolidation Officer for disposal where petitioner filed objection dated 30-9-1983 opposing the relief claimed by Jokhai in that application. The Assistant Consolidation Officer was required to submit his report in this respect who submitted report dated 6-10-1983 recommending that Amaldaramad be made. The case was fixed by Consolidation Officer for 10-5-1984 for hearing on which date, he adjourned the case fixing 7-6-1984 according to order sheet of the case, Subsequently, an application was moved that the case be heard on that very day. This became necessary as according to Counsel for petitioner he was not present when case was adjourned for 7-6-1984 The application was directed to be put up on 11-5-1984. On 11-5-1984 the Court in respect of adjournment observed that the case has been finally heard and Sri Rama Shanker Pathak, Counsel for petitioner, only asked for date of argument. As according to order passed, the Court observed that some other Counsel has taken a long date for which there is no justification, therefore, the Consolidation Officer decided to proceed with the case and proceeded to dispose of the dispute on that very day. The Consolidation Officer by order dated 11-5-1984 accepted the report of the Assistant Consolidation Officer. He rejected the objection of petitioner and directed Amaldaramad to be made. The petitioner then moved an application supported by affidavit for recalling order dated 11-5-1984 claiming that Sri Pathak was not his Counsel and therefore, the order stands passed without affording any opportunity of hearing to him. The application was opposed by contesting opposite parties who filed counter-affidavit and contended that Sri Pathak was the Counsel who did file his Vakalatnama. The application of petitioner for recalling of the order was rejected by Consolidation Officer on 27-11-1984. He held that the order was passed after hearing the parties. The petitioner preferred revision which has also been dismissed. Feeling aggrieved the petitioner has filed this writ petition. Besides challenging order on application for recalling order dated 11-5-1984, the petitioner has also challenged the order dated 11-5-1984 on merits in this writ petition.

(2.) Learned Counsel for petitioner argued that the order dated 11-5-1984 has been passed without affording any opportunity of hearing to petitioner, which has been opposed by Counsel for Jokhai. Learned Counsel for Jokhai argued that as the Consolidation Officer and Deputy Director of Consolidation have recorded finding of fact that the order dated 11-5-1984 was passed after opportunity of hearing to petitioner, this finding cannot be interfered by this Court. The order for recalling of the order passed by the said two authorities is unsustainable. The main controversy was as to whether Sri Pathak was Counsel for petitioner or not. It was necessary for the Consolidation Officer to record a finding in that respect when the parties were at dispute. Unless the Consolidation Officer recorded its finding that petitioner was represented by Sri Pathak, it could not reject the application. In absence of such a finding the question as to whether petitioner was heard or not requires reconsideration. However, it is not necessary for me to send, this case back on that ground, as the case in respect of validity of order dated 11-5-1984 has been heard by me on merit and for the reasons assigned hereunder I am of the opinion that the order is liable to be quashed.

(3.) Learned Counsel for parties pressed before me that the application for Amaldaramad was moved by Jokhai against which an objection was filed by petitioner. They have argued that much arguments were advanced by Counsel for parties in respect of their respective contentions. From perusal of order dated 11-5-1984 it appears that the order of Consolidation Officer is bad for non-application of mind, without applying his mind to the merits of the matter he has allowed the application of Jokhai and rejected the objection of petitioner. Form perusal of order, it is apparent that, he rejected the objection of petitioner because Assistant Consolidation Officer submitted report in favour of Jokhai that Amaldaramad be ordered. The Consolidation Officer did not determine it himself as to whether any order dated 22-2-1973 was passed by the Assistant Consolidation Officer, which was the main dispute between the parties. The Consolidation Officer was discharging a quasi-judicial function and, therefore, it was necessary for him to examine material on record, assigned its own reason and after recording a specific finding as to whether any such order was passed by the Assistant Consolidation Officer, he should have disposed of petitioners objection. He was required to this but he did not do it. Instead he rejected petitioners objection in view of Assistant Consolidation Officers report. He was required to apply his independent mind to the facts of the case and come to his own conclusion. So far the report of the Assistant Consolidation Officer is concerned, the Consolidation Officer could take its assistance to examine the record but it was not substantive evidence. So far the finding is concerned, as observed earlier, he had to apply his mind independently and was required to arrive to his own conclusion on the basis of the material on record. As the order dated 11-5-1984 passed by Consolidation Officer suffers from such a legal infirmity, it is liable to be quashed.