Heard Shri Shivaji Singh Sisodiya, learned counsel for the petitioner, learned Standing Counsel, appearing for State respondent and Shri R.K. Pandey, learned counsel appearing for contesting respondents No. 2 and 3.
With the consent of the learned counsel for the parties, the writ petition is taken up for final disposal with liberty to the remaining respondent No. 4 to file a recall application, if he feels aggrieved by the order.
Through this writ petition, the petitioner has prayed for issuing writ of certiorari quashing the orders dated 01.10.2012 and 06.01.2012, passed by Deputy Director of Consolidation, Bareilly in Revision No. 233 (Hasan Khan and others Vs. Nusrat Ali Khan). Vide order dated 06.01.2012, the revision filed by respondents No. 2 and 3 was allowed, whereas by the subsequent order dated 01.10.2012, the petitioner's recall application was rejected.
The facts giving rise to this case are that, it appears against the order dated 20.10.2011, passed by the Settlement Officer, Consolidation in Appeal No. 542/196 of 2010-2011 (Nusrat Ali Khan and others Vs. Hasan Khan and others) a revision was filed on 19.12.2011. The said revision was barred by time. However, the Deputy Director of Consolidation has allowed the revision on 06.01.2012 holding the appellate order without jurisdiction.
The petitioner, herein, has filed an application for recall of the aforesaid order on the ground that the order dated 06.01.2012 was passed ex parte without hearing him. The restoration application was rejected on the ground that a notice was sent and that was received by the daughter of the petitioner, for the petitioner. Treating sufficient service, the Deputy Director of Consolidation rejected the recall application on the ground that the order of Settlement Officer, Consolidation was without jurisdiction.
Shri R.K. Pandey, learned counsel appearing for contesting respondents submitted that the order passed by the Deputy Director of Consolidation cannot be faulted with and that order has been passed on merit in accordance with law.
Be that as it may. I am not inclined to see the merit of the revisional order and maintainability of the appeal, for the simple reason that from the perusal of the order dated 06.01.2012, I am satisfied that the order dated 06.01.2012 was passed without there being any proper notice, as the service of notice on the daughter cannot be treated to be service on the petitioner unless the finding is recorded that the daughter was major and was living with the father as member of the family in view of the provisions contained under Order 5, Rule 15 of the Code of Civil Procedure. Therefore, the impugned order passed by the Deputy Director of Consolidation cannot be sustained.
In result, the writ petition succeeds and is allowed. The order dated 06.01.2012 is hereby quashed. The Deputy Director of Consolidation is directed to pass a fresh order after hearing all concerned in accordance with law by passing a reasoned speaking order expeditiously, not later than six months, from the date of production of certified copy of the order of this Court.
Parties are directed to appear before the Deputy Director of Consolidation on 28th January, 2013.
Order Date :- 18.12.2012 AKSI