N. L.Ganguly, J. - (1.) THE petitioner has challenged the order dated 28.8.1995 (Annexure 8 to the writ petition) passed by the D.D.C. BY the supplementary affidavit, another prayer has also been made for quashing the order dated 20.11.1995 passed by the D.D.C. refusing to recall the order impugned.
(2.) THE facts of the case are not disputed. THE consolidation proceedings in the village were closed by publication of notification under Section 52 of the U. P. Consolidation of Holdings Act on 9.11.1979. It is said that after denotification under Section 52 of the Act was published, an order had been passed by the D.D.C. dated 30.6.1992. THE said order has also been annexed as Annexure 4 to the writ petition. It appears from the perusal of the said order that in the reference proceedings a portion of the land was to be given to the S. S. P., Varanasi, as mentioned in the letter dated 27.10.1975, for construction of the quarters for Police Station, Orai. THE orders were passed by the D.D.C. on the reference sent to him by the order dated 30.6.1992 without any notice to the contesting O. Ps. No. 2 to 5. An application was submitted by O. Ps. No. 2 to 5 before the D.D.C. to recall the order dated 30.6.1992. THE said application was allowed and the order dated 30.6.1992 was recalled by the D.D.C. THE learned counsel for the petitioners strenuously argued that after denotification of the village under Section 52 of the Act, the D.D.C. had no jurisdiction to pass any order. He could not recall or modify any order he or his predecessor had passed earlier. THE learned counsel for the petitioner cited a decision reported in Hart Ram v. D.D.C, Azamgarh, 1989 RD 281. THE Division Bench in the said case was considering the question whether after denotification of the village under Section 52 of the Act, the D.D.C. could pass any order in the matter. THE Division Bench was of the view that after finding that the village has been denotified, if the authority finds that the land which is the subject-matter of the dispute is covered under the notification, he shall desist from exercising any power under Section 48 (3) of the Act. With this view, the case was finally disposed of. The judgment cited by the learned counsel has to be examined in view of the statute also. The provisions of Section 52 (2) and (3) of the Act are quoted as under: "52. Close of consolidation operations- (1) ...................... (2) Notwithstanding anything contained in sub-section (1), any order passed by a court of competent Jurisdiction in cases of writs filed under the provisions of the Constitution of India, or in cases or proceedings pending under this Act on the date of issue of the notification under sub-section (1), shall be given effect to by such authorities, as may be prescribed and the consolidation operations shall, for that purpose, be deemed to have not been closed. (3) Where the allotment or lease of any land made before the Consolidation Scheme becomes final under Section 23, is cancelled by an order under sub-section (4) of Section 198 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 and such order becomes final, then notwithstanding anything contained in the provisions of this Act, such order shall be given effect to by such authorities, as may be prescribed, in the following manner, and the consolidation operation shall, for that purpose, be deemed to have not closed, namely- la) the value of the land which was the subject-matter of such allotment or lease shall first be ascertained in the manner prescribed ; lb) the value referred to in clause (a) shall be deducted from the total value of land allotted to the tenure-holder concerned during consolidation proceedings ; (c) the tenure-holder shall be entitled, during consolidation proceeding, to land equivalent in valuation to the said land." The Division Bench was not considering the question whether an order, which was passed by the D.D.C. after denotification without notice to the other party can be examined by him on an application for recall of the order passed ex parte. The question is plain and simple, i.e., when an order is passed without giving opportunity to the other side, it is always necessary in the ends of justice to give an opportunity of hearing to such party who was not heard. In this case the order, as found by the court below, was passed without notice to the present contesting O.Ps. As such the D.D.C. was pleased to recall that order, which was passed without affording opportunity of hearing to the other side. The technical argument advanced by the learned counsel for the petitioner that he could not look into the order is not clinching and I do not accept the submission, as advanced. The learned counsel for the petitioner submitted that after the order was passed, an application was moved by the petitioner before the D.D.C. for recalling the order dated 28.8.1995. It has been argued that on the date when the case was heard, the senior counsel had not appeared before the court and an application was moved on behalf of the petitioner's counsel for adjournment of the case. Inspite of the fact, no order was passed on the application and the court proceeded to pass that order. The perusal of the order of the D.D.C, which has been annexed with the supplementary affidavit, shows that the D.D.C. records a finding that the counsel was heard and order was passed on merits. Thus the finding of the D.D.C. that the petitioner's counsel was heard is a finding of fact. The learned counsel for the petitioner submitted that the letter of the Advocate who was assisting the senior counsel is on the record wherein it is said that the senior counsel was not well and was suffering from ailment. I am not inclined to accept the version given in the letter to interfere in the findings recorded by the D.D.C.
(3.) THE learned counsel for the petitioner Sri Faujdar Rai lastly submitted that the application for recall of the order of 1992 was highly belated and there was no justification for the D.D.C. to recall the order passed in 1992 without considering the laches and delay. THE argument is not well-founded. THE order, which was passed in 1992, as found by the D.D.C, was without notice. If an order is passed without notice, and the application is moved at the earliest when the person concerned got knowledge of the same, there is nothing wrong. As such, I am not impressed with the argument advanced. Neither there is any submission nor objection before the D.D.C. when the matter was heard. The learned counsel for the petitioner submits that the order of the D.D.C. impugned, Annexure-8 to the writ petition, is bad in law cannot be sustained.;