- (1.)Leave granted.
(2.)By an ex-parte order dated 26th Dec., 1990, the Additional District Magistrate (F/R) Prescribed Authority Ceiling Banda, acting under Sec. 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 declared an area measuring 9.33 hectares to be surplus under the provisions of the said Act. The applicant-appellant filed an application for the recall of that order on the ground that the applicant had on 19th Dec., 1990, the previous date of hearing, reached the Court of the Prescribed Authority late by which time the matter had already adjourned to 26th Dec., 1990. Counsel engaged by the applicant did not however inform the applicant that the proceedings had been set ex-parte against the applicant. On 26th Dec., 1990 when he appeared again an ex-parte order was passed by the Prescribed Authority without hearing the applicant. The explanation did not find favour with the Prescribed Authority who dismissed the recall application by an order dated 11th Jan., 1996. An appeal was then preferred by the appellant before the Additional Commissioner, Finance, Jhansi Division, which too met with the same fate and was dismissed by an order dated 24th July, 1996. Writ Petition No.31710 of 1996 filed by the applicant-appellant before the High Court of Judicature at Allahabad to assail the above orders came to be dismissed by the High Court in terms of its order 23rd May, 2011. The High Court took the view that the appellant had not assigned any reason why he remained absent for such a long time and despite so many dates of hearing fixed for the purpose. The argument that the matter had been fixed for framing of issues and suddenly taken up for orders was found to be untenable by the High Court and the explanation offered unacceptable. The present appeal assails the correctness of the order passed by the High Court and the Authorities below.
(3.)We have heard learned counsel for the parties at some length and perused the orders under challenge. It is common ground that the proceedings were set ex-parte against the appellant in terms of an order dated 19th Dec., 1990 passed by the Prescribed Authority. The appellant's explanation for his absence on that day was that he had reached late by which time the matter stood adjourned without his lawyer informing him that the Prescribed Authority had proceeded ex-parte. On 26th Dec., 1990, when he came to the court again he realised that he had been proceeded ex-parte and ex-parte order passed by the Prescribed Authority. An application for setting aside the ex-parte order was then filed on the 26th Dec., 1990 itself with an explanation that was cogent. What the Prescribed Authority was called upon to examine was whether the explanation offered by the appellant for his non-appearance on 19th Dec., 1990 was acceptable. If the explanation was held acceptable the ex-parte order passed on 19th Dec., 1990 would have to be set aside and so also order dated 26.12.1990 passed pursuant thereto. Whether or not the appellant had any justifiable cause for his non-appearance on earlier dates of hearing was irrelevant to the question whether the proceedings had been rightly set ex-parte on 19th Dec., 1990. No explanation for such non-appearance was necessary for the simple reason that whatever may have been the position, in regard to the previous absence of the appellant, the same had not resulted in the proceedings being set ex-parte against him on that basis. The question was whether the appellant-applicant had a cogent explanation to offer for his non-appearance on the date the proceedings were set ex-parte. If he had, the order had to be recalled. If not, the application could be dismissed. We regret to say that neither the Prescribed Authority nor even the Commissioner in appeal or the High Court in writ petition has looked at the issue from the above perspective. Each one of them was swayed by the fact that the appellant-applicant was negligent in pursuing the matter because he was not appearing on the earlier dates of hearing. If the previous negligence or non-appearance had not resulted in any adverse action, the same could provide no reason for refusing to vacate an order passed ex-parte. Whether the explanation for non-appearance on the date the proceedings were set ex-parte was acceptable was the real question. The explanation offered by the applicant was not, however, examined leave alone satisfactorily.