JUDGMENT S.N. Srivastava. J.
1. This writ petition is directed against the judgment dated 9.3.2005, passed by the Deputy Director of Consolidation and order passed on reference dated 7.6.2005, Annexures - 7 and 8 to the writ petition.
2. Heard learned counsel for the petitioners and Sri Deepak Jaiswal as well as Sri Madhusudan Dixit, learned counsels appearing on behalf of Caveator-Opp. Parties.
3. Learned counsel for the petitioners urged that the judgment dated 17th October, 2002 was passed by the Settlement Officer, Consolidation without giving any opportunity of hearing to the petitioners by which Chak allotted to the petitioners was disturbed and, therefore, petitioners filed a restoration application which was allowed by Settlement Officer, Consolidation on 22.5.2003. The earlier judgment dated 17th October, 2002 was recalled. This judgment dated 22.5.2003 was wrongly set aside by the impugned judgment of Deputy Director of Consolidation on the ground that it amounts to review. Learned counsel for the petitioners urged that impugned judgment was not passed in accordance with law and is liable to be quashed.
4. In reply to the same, learned counsels for the Caveator-Opp, Parties urged that judgment dated 17.10.2002 was passed on merits after giving opportunity of hearing to the petitioners. The judgment dated 22nd May, 2003 recalling judgment dated 17th October, 2002 and allotting Chak on merits amounts to review of earlier judgment of Settlement Officer, Consolidation which was also passed without giving opportunity of hearing to the contesting Respondents, and in any case no judgment on merit could be passed in the matter of allotment of Chak without giving opportunity of hearing to the affected parties. It is further urged that the judgment of Deputy Director of Consolidation was rightly passed in accordance with law.
5. Learned counsels for the Caveator-Opp. Parties urged that they do not propose to file any counter affidavit to the writ petition.
6. Considered materials on record and arguments of learned counsel for the parties.
7. It transpires from the record that Appeal No. 335/1271 and Appeal No. 407/1337 of Satish Pal Singh and Bhajjan-respondents were decided by a common judgment on 17th October, 2002. From the judgment, it is clear that notices were not served to affected Chak-holders including petitioners and others, namely, Naubat, Dhan Singh, Jagdish and Ram Prasad etc. This judgment dated 17th October, 2002 was recalled by the Settlement Officer, Consolidation on the ground that petitioners were not heard, but Settlement Officer, Consolidation while allowing restoration application also passed a judgment on merits and by the same judgment made alteration in the Chak on merits. Respondents were not heard before alteration of Chak by the Settlement Officer, Consolidation. Judgment of Settlement Officer, Consolidation dated 22nd May, 2003 passed on merits altering Chaks of petitioners and other Chakholders without giving opportunity of hearing suffers from error of law.
8. The law is well settled that review is a statutory remedy under a statute. U.P. Consolidation of Holdings Act or the Rules framed thereunder do not provide any provision for review. Consolidation authorities have no power to review. By Section 41 of the U.P. Consolidation of Holdings Act, 1953 provisions of Chapter IX and X of the U.P. Land Revenue Act apply to all proceedings including Appeals and Application under the U.P. Consolidation of Holdings Act, which provides right to file a Restoration Application.
9. Section-41 of the U.P.C.H. Act is being reproduced below for ready reference:
"41. Application of U.P. Land Revenue Act, 1901.-Unless otherwise expressly provided under this Act, the provisions of Chapters IX and X of the U.P. Land Revenue Act, 1901, shall apply to all proceedings including appeal and applications under this Act."
10. Chapter IX of the U.P. Land Revenue Act provides Section 201 of the Land Revenue Act, same is being reproduced below:-
"20. No appeal from orders passed ex parte or by default.- No appeal shall lie from an order passed under Section 200 ex parte or by default.
Rehearing on proof of good cause for non-appearance. - But in all such cases, if the party against whom judgment has been given appears either in person, or by agent (if a plaintiff, within fifteen days from the date of such order, and if a defendant, within fifteen days after such order has been communicated to him, or after any process for enforcing the judgment has been executed or at any earlier period), and shows good cause for his non-appearance, and satisfies the officer making the order that there has been a failure of justice, such officer may, upon such terms as to costs or otherwise as he thinks proper, revive the case and after or rescind the order according to the justice of the case:
Order not to be altered without summons to adverse party.
Provided that no such order shall be reversed or altered without previously summoning the party in whose favour judgment has been given to appear and be heard in support of it."
11. In view of these provisions, in case an ex parte judgment was passed, the remedy open to a party, who was not served notice or was not heard, is to file an application for recall of the judgment and to get the case restored.
12. In the facts of the present case, it is borne out from the record that petitioners were not served any notice before the appellate authority while judgment dated 17th October, 2002 allowing the appeals of Satish Pal Singh and another was passed, but affected Chakholders were also not served any notice before passing judgment dated 22.5.2003 on merit altering Chaks.
13. The appellate authority after restoring the Appeal was required to fix a date for hearing of all the affected Chakholders to decide the Appeal on merits. As both the judgments dated 17th October, 2002 and 22nd May, 2003 of Settlement Officer were passed without giving opportunity to all affected Chakholders, both the judgments are liable to be set aside. Thus, Both the judgments of the Settlement Officer, Consolidation are quashed. The Deputy Director of Consolidation has also passed judgment without considering this aspect and also prepared a reference to comply the judgment of Settlement Officer Consolidation which was not in accordance with law.
14. With the result, writ petition succeeds and is allowed, Judgments dated 17th October, 2002 and 22nd May, 2003, passed by the Settlement Officer, Consolidation and judgment dated 9th May, 2005 of Deputy Director of Consolidation as well as order passed on reference dated 7th June, 2005 (Annexures-7 and 8 to the writ petition) are quashed. Settlement Officer, Consolidation is directed to decide the appeals afresh on merit in accordance with law after giving opportunity of hearing to all the concerned parties within a period of four months from the date of presentation of a certified copy of this order. All the parties are directed to cooperate with the proceedings before the Settlement Officer, Consolidation.
15. There shall be no order as to cost.