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Allahabad High Court · body

1967 DIGILAW 4 (ALL)

Kunj Behari v. Dy. Director of Consolidation, U. P

1967-01-06

LAKSHMI PRASAD

body1967
JUDGMENT Lakshmi Prasad, J. - This is a petition under Article 226 of the Constitution. The petitioners preferred an objection under Section 9 of the U.P. Consolidation of Holdings Act claiming themselves to be sirdar's over one-half of the area of the disputed plot number 1384/12. The objection was allowed by the consolidation officer. Aggrieved by The order passed by the consolidation officer, opposite party No. 5 preferred an appeal winch was dismissed by the Assistant Settlement Officer, Consolidation, on February 8, 1965. Then opposite party No. 5 preferred a revision which was allowed by the Deputy Director of Consolidation. It is in these circumstances that the present position is filed for the quashing of the order passed in revision by the Deputy Director. 2. The allegation in the petition is that the revision came to be heard and decided by the Deputy Director without effecting service on petitioners Nos. 3 to 5 who accordingly had no knowledge of the revision and did not appear. According to the allegation in the petition, only petitioners Nos. 1 and 2 were served and they alone appeared, one personally and the other through a counsel, to oppose the revision, finis is the sole ground on which it is claimed that the impugned order stands vitiated. 3. The petition is opposed by opposite party No. 5. The material allegations in support of the case of the petitioners are made in paragraphs 8 to 10 of the petition which are sworn on personal knowledge. In the counter affidavit filed on behalf of opposite party No. 5 there is no square denial of the allegation that no service was effected on petitioners Nos. 3 to 5. In this connection reference may be made to the allegations made in the counter affidavit with reference to paragraphs 8 and 10 of the petition as also to the allegations made in paragraph 14 of the counter affidavit. 4. I have heard learned counsel for the parties. In view of the allegations made in the affidavit and in the counter affidavit, there is no escape from the conclusion that in fact petitioners Nos. 3 to 5 were not served in the revision and did not put in appearance, with the result that the impugned order came to be passed against them behind their back without affording them a chance to be heard. 3 to 5 were not served in the revision and did not put in appearance, with the result that the impugned order came to be passed against them behind their back without affording them a chance to be heard. That being so the impugned order cannot be sustained. The contention of the learned counsel for opposite party No. 5 however is that unless the petitioners are able to show that the position would have been different had petitioners Nos. 3 to 5 actually put in appearance no relief be given by this court in exercise of its writ jurisdiction. I am unable to accept the contention. It is well settled that no order to the prejudice of a party can be passed in a judicial or quasi-judicial proceedings without affording that party a chance to be heard. The violation of that principle vitiate the order passed against a party behind its back and that fact by itself justifies the issue of certiorari. It is not for this court to decide if or not the position would have been different had the party been served and given a chance to be heard. I accordingly conclude that the petition succeeds. 5. The petition is allowed and the impugned order passed by the Deputy Director in revision is quashed with the direction that he shall proceed to decide the revision afresh on merits after giving notice to each of the petitioners. In the circumstances, I direct parties to bear their costs.