S.R.Misra - (1.) BY means, of this writ petition, under Article 226 of the Constitution, the petitioners seek quashing of order dated 27-2-1979 passed by Deputy Director of Consolidation, as well as the order dated 20-1-1979, passed by Consolidation Officer
(2.) THE case has peculiar facts. On 27-10-1975 an ex parte order was passed by the Consolidation Officer against the petitioners. On 20-11-1975. the petitioners applied for setting aside aforesaid order. On 8-6-1976, the Consolidation Officer set aside the order dated 27-10-1975 on payment of Rs. 10 as costs. Respondent no. 4 preferred a revision against the order dated 8-6-1976 on the ground that no notice of the restoration application was served on him. THE revision was decided in favour of the petitioner by the Dy. Director of Consolidation on 27-11-1976, but a sum of Rs. 10 was imposed and petitioner was directed to pay the said amount to Bala Din. The case of the petitioner is that the aforesaid amount of Rs. 10 was paid on the same day to the counsel for Bala Din and he made an endorsement on record to the effect that the amount was duly received by him. However, an application was moved on 13-1 1979 by Jagannath, respondent no. 3 that petitioner did not pay the amount of costs imposed upon him and therefore, he prayed for quashing of the order of restoration. Meanwhile on account of fire in the Collectorate, Allahabad, the document containing endorsement of counsel for Baladin to the effect that he had received the amount of Rs. 10, was burnt. On 20-1-1979, Consolidation Officer passed order that petitioner is willing to pay the costs, but respondents are not prepared to accept the same, The matter then again came before the Dy. Director of Consolidation by means of revision, as well as, reference by Consolidation Officer. The revision was allowed and the ex parte order dated 27-10-1975 was made operative. Hence this petition. Sri Srikant Misra, appearing for the petitioner vehemently contended that the order to pay Rs. 10 was to Bala Din and not to Jagan Nath. It having been admitted that costs of Rs. 10 was paid to Bala Din question of paying the same to Jagannath did not arise, and the Deputy Director of Consolidation has totally failed to consider this aspect of the matter. Sri Misra drew my attention to the order dated 26-11-1976, Annexure 3, wherein, in the last but one paragraph, it has been clearly directed that Laxman Singh will pay Rs. 10 to Bala Din as costs. That being so, question of paying the said amount to Jagannath did not arise and the subsequent order of the Dy. Director of Consolidation holding that costs has not been paid, is apparently erroneous. He next contended that even if it is assumed that costs were to be paid to Jagannath, from the materia! on record, it is established that petitioner had offered to pay the same it was respondents, who refused to accept. Thus, the petitioner cannot be blamed.
(3.) ON the other hand, Sri Prakash Krishna tried to defend the impugned order on the ground that petitioner did not comply with the direction of the Dy. Director of Consolidation and, therefore, the petitioner does not deserve any sympathy of this Court. I am in complete agreement with the submission of the learned counsel for the petitioner. It is crystal clear from the order dated 26-11-1976 that the amount was to be paid to Bala Din and not to Jagan Nath. Moreover, it is also very much on the record that the petitioner was willing to pay the amount of Rs. 10 to Jagannath as well, but it was Jagannath who refused to accept the same. The Deputy Director of Consolidation is a very senior officer in the hierarchy. He is the final authority before whom the right, title and interest of the parties are decided. His order and judgments should be based on proper appreciation of evidence available on record and he should try to avoid taking too hiper-technical view. In the present case, the Deputy Director of Consolidation has totally ignored the evidence on record while deciding the revision and has arrived to a conclusion by taking wholly hiper technical view of the matter. It has been repeatedly held by the Apex court as well as various High Courts that leaning of the Authorities/Tribunals and Courts should be to decide the case no merits after hearing the concerned parties and case should not be decided finally depriving a party of its valuable right of hearing. If the party itself is negligent in pursuing its remedy and the tendency is to delay the proceedings certainly there is a cogent and genuine reason to proceed ex parte, but where the party is cautious to its remedy and is not negligent, as in the present case where the petitioner was always prepared to pay the costs to the respondents even after paying the same to Baladin depriving it of its valuable right of hearing can never be upheld by this court. The impugned order is, therefore, liable to be set aside.;