B. L. Yadav, J. - (1.) THIS is an application moved on behalf of Respondent No. 3 Ram Nath to recall the order dated 18-8-1986 passed by me dismissing the writ petition in limine but directing that the restoration application of the petitioners may be decided. The spot inspection may be made after hearing the parties concerned. It is, however, also directed that the case may be decided by some other Consolidation Officer other than Sri Ahmad Siddique who had decided the case earlier. The stay restoration application has been filed by Respondent No. 3 accompanied by an affidavit. The parties were given opportunity to exchange their affidavits.
(2.) SRI G. N. Verma, learned counsel for Respondent No. 3 urged that the order dated 18-8-1986 disposing of the writ petition was passed without affording an opportunity of hearing to him and was an ex-parte order and therefore the same may be recalled ; that the restoration application filed by the petitioners should not have been ordered to be considered again by the Consolidation Officer ; and that no spot inspection was necessary to be made. Mr. Verma stated that the order dated 18-8-1986 may be recalled first and thereafter some appropriate order may be passed. Sri H. N. Shukla, learned counsel for the petitioners, on the other hand, urged that under the circumstances of the case the order dated 18-8-1986 was passed dismissing the petition in limine but making an observation under the peculiar facts and the circumstances that the petitioners' application for restoration may be considered afresh and the spot inspection may be made and the parties may be heard again. The order disposing of the petition was perfectly correct and was passed in the ends of justice and requires no interference. Having heard the learned counsel for the parties, it appears proper and just to state the facts of the case in a bit detail in order to appreciate the controversy. The proceedings before the Consolidation Officer in respect of the modification in the area and the correction of map etc. and allotment of chak proceedings under sections 9, 9--A, 20 and 48 of the U. P. Consolidation of Holdings Act (for short the Act) became final. It appears that neither any appeal nor revision was filed by Respondent No. 3 against the demarcation in the area and for adjustment of the map etc. nor any such mention was made in the affidavit by Respondent No. 3 nor there is any thing to indicate that on record. The application under section 42-A of the Act was filed by Respondent No. 3. In that application only the State was made a party and not the petitioners. That application was allowed, without impleading the petitioners as parties and without hearing them, by the Consolidation Officer on 5-1-1985 (Vide Annexure ' 1 'to the petition). Thereafter the petitioners filed an application for restoration stating that they were affected by the order dated 5-1-1985 passed on the application under section 42-A of the Act but they were not made parties nor they were heard. Consequently, they prayed that they may be heard and the order may be recalled directing a line in plot no. 1256/5 to be effaced and also directing that the western mendh of plot no. 1256/5 would be the eastern mendh etc. The petitioners alleged in the application for restoration that they have their abadi and dalan on the land in dispute and their interests were vitally affected by the ex-parte order dated 5-1-1985. This restoration application of the petitioners was rejected on 18-8-1986 by Sri Ahmad Siddique, Consolidation Officer (Annexure ' 2 ' to the petition). Against that order the petitioners preferred a revision under section 48 of the Act which was also dismissed by the order dated 21-7-1986. But it was directed that the Consolidation Officer should make measurements on the spot and should carry out the measurements regarding the amended map and that the petitioners may be given an opportunity of being heard. Against this order dated 21-7-1986 dismissing the revision, the order dated 18-1-1986 dismissing the petitioners' application for restoration and the order dated 5-1-1985 allowing ex-parte the application of Respondent No. 3 under section 42-A of the Act, the present petition has been filed, which was disposed of by the order dated 18-8-1986.
(3.) NOW coming to the present restoration application on the date of the presentation of the writ petition, even though notices were not issued to Respondent No. 3, but as application of the Respondent No. 3 was allowed without impleading the petitioners as parties and as petitioners' restoration application was dismissed, hence I directed that the Consolidation Officer should decide the restoration application of the petitioners afresh before making spot inspection in the presence of parties and after hearing them. So far as the merits of the case are concerned it is the cardinal principle of natural justice as contained in maxim " Audi Alterem Partem ", and also under the Scheme of the Act and also in view of section 48 of the Act that whenever any application is being filed affecting the interest of any party, that person must be impleaded as a party and must be afforded an opportunity of hearing. In the instant case allotments of chaks and modification of the area of plots and measurements of plots of the parties became final at the stage of sections 9, 9-A and 20 of the Act, and much thereafter Respondent No. 3 made an application under section 42-A of the Act.;