K. P. Singh, J. - (1.) OPPOSITE-party no. 4 in the present writ petition, Sunhari Lal, applied for cancellation of leases in favour of the petitioners on 1-8-1967 under section 198, sub-clause (2) of the UP ZA and LR Act on 24-4-1968. The application was corrected and headed under Rule 115 (N) of Act 1 of 1951. It appears that in the proceedings, a report from Tahsildar was called for. On the receipt of the report, after hearing the parties, the opposite-party no.. 2 passed the impugned order contained in Annexure '4' attached with the writ petition. Against the order of the opposite-party no. 2, the petitioners had preferred a revision-petition, which was submitted to the Board of Revenue for quashing the order of the trial court dated 2-4-1969, as is evident from Annexure '5' on the record dated J 6-9-1970. Thereafter, the revisional court through its order dated 29-10-1974 discharged the reference and dismissed the revision-petition. Aggrieved by the order of the revisional court dated 29-10-1974, the petitioners have approached this Court under Article 226 of the Constitution.
(2.) THE learned counsel for the petitioners has contended before me that the order of the trial court is too cryptic and in clear violation of the principles of natural justice and the petitioners were not afforded an opportunity to file objections against the report of the Tahsildar and the trial court acted illegally and arbitrarily in passing the impugned order contained in Annexure '4'. THE revisional authority has also patently erred in confirming the judgment of the trial court. The learned counsel for the contesting respondent has submitted in reply that by the impugned order substantial justice has been done between the parties as the allotment of a portion of the disputed land was in favour of the relations of Pradhan and Members of the Land Management Committee; hence the leases were correctly cancelled and it is not a fit case where interference should be made with the impugned order. In this connection my attention has been drawn to Parahu v. Deputy Director of Consolidation U. P. at Gorakhpur, 1964 AWR 155. It is noteworthy that a perusal of the order-sheet in the case indicates that the report of the Tahsildar was received on 13-3-1969 and 2-4-1969 was fixed for arguments and the trial court on that very day passed the impugned order contained in Annexure '4'. The trial court failed to invite objections against the report of the Tahsildar and yet relied upon that report and passed the impugned order contained in Annexure '4'. On the facts and circumstances involved in the present case, the trial court could not exercise jurisdiction at the instance of Sunhari Lal because the application moved by him giving rise to the present writ petition was a belated one and the trial court would not get jurisdiction to deal with the claim of the petitioners at the instance of Sunhari Lal and this aspect of the matter appears to have escaped notice of the trial court completely.
(3.) UNDER suo motu powers the trial court could proceed against the petitioners and in that circumstances it was expected of the trial court to apprise the petitioners to proceed against them under its suo motu powers. The record of the case does not indicate that the trial court gave any notice to the petitioners to proceed under its suo motu powers against the petitioner. In this connection, the learned counsel for the petitioners invited my attention to B. N. Boy v. State of Bihar, AIR 1971 SC 1045. The learned counsel for the contesting respondent has submitted in reply that in view of Rama Kant Singh v. Deputy Director of Consolidation, U. P., AIR 1975 SC 126, the impugned orders cannot be interfered with on the ground that no notice was given to the petitioners for the exercise of suo motu power against the petitioners. The relevant observation made in the ruling emphasized by the learned counsel for the respondent is to the following effect in paragraph 16 of the reported ruling : ".........In such a case even if he does not pointedly bring it to the notice of the parties that he proposes to exercise his suo motu power nor does he in his order speak about it, the order will not be vitiated for it is settled law that if power to act is there, the action will not be invalid simply because the relevant provision of law conferring power is not quoted." In Haji Kutub Uddin v. Allah Banda, AIR 1973 All. 235 a learned Single Judge of this Court has made the following observation ; ".........It is not the law as I am aware of that a report of the Commissioner is substantive evidence in the case. It may become substantive evidence only when the Commissioner is examined as a witness. Of course it is open to a court to take the report into consideration after objection against it had been disposed of, in order to assess the substantive evidence produced by the parties in a case." ;