Lakshmi Prasad, J. - (1.) This a petition under Article 226 of the Constitution. In the basic year the disputed land stood recorded in the name of the petitioner an objection under section 9 of the U.P. Consolidation of Holdings Act was preferred by opposite party No. 7 her objection was allowed by the Consolidation Officer with the result that the name of the petitioner was ordered to be expunged it may here be mentioned that the objection of opposite party No. 7 was filed on December 15, 1962 in pursuance to the notice issued under section 9 in November 1962. Aggrieved by the decision of the consolidation officer the petitioner went in appeal which was dismissed on April 29, 1963 instead of preferring a second appeal the petitioner went in appeal which was dismissed on April 29, 1963. Instead of preferring a second appeal the petitioner preferred a revision which was dismissed. Subsequently the petitioner discovered that in so far as provisions of the old Act as it stood prior to its amendment by U.P act VIII of 1963 applied to the case, her remedy against the appellate order dated April 29, 1963 was by way of a second appeal and not by way of revision. Accordingly she preferred a second revision. It came to be dismissed by the District Deputy Director, Sitapur by the order dated March 16, 1966 be quashed on the ground that the view taken by the Deputy Director that the second appeal was not maintainable is manifestly erroneous.
(2.) None appears to oppose the petition despite service of notice, The allegations made in the petition stand supported by an affidavit which has not been controverted, so the facts narrated above have got to be accepted as correct for the purposes of the petition. Having regard of the fact that the notice under section 9 were issued in November 1962 and the objection under section 9 was filed on December 1962 i.e. prior to March 8, 1963 on which date the U.P Act VIII of 1963 amending the U.P Consolidation of Holdings Act came into force, there is no doubt that the provisions of the unamended act applied to the case and not those of the amended Act. Since the appellate decision came to be given on April 29, 1963 i.e. subsequent to March 8, 1963 it is obvious that the proviso to section 47(i) of the U.P Act VIII of 1963 would have no application and as such the case would continue to be governed even as regard second appeal and revision by the provisions of the unamended act. So the contention of the petitioner that the remedy of the petitioner when she felt aggrieved by the appellate order dated April 29, 1963 was by way of a second appeal and not by way of revision, cannot but be held to be correct. Merely because the petitioner pursued a wrong remedy, it could not by itself stand in the way of the petitioner if she subsequently adverted to the remedy open to her in law. It is no doubt mentioned in the impugned order that the second appeal was filed long after the expiry of the limitation provided therefore and further that no copy of any of the lower courts orders was filed along with the appeal. There may be the relevant factors to be taken into consideration in disposing of the appeal, but certainly on that account it cannot be said that the second appeal is not maintainable. It would be open to the authority competent to dispose of the second appeal to pass whatever orders it deems proper on the petitioner's application for condonation of delay in preferring the appeal. Likewise, it would be open to the authority concerned to pass suitable orders for the reason that the petitioner failed to file copies of the lower court's orders along with the memo of appeal, But if the authority concerned disposes of the above mentioned two points in favour of the petitioner, then it will be its duty to dispose of the second appeal on merits. At any rate, the second appeal cannot be dismissed as non-maintainable. Since the impugned order dismisses the second appeal as non-maintainable, it being manifestly erroneous cannot be sustained.
(3.) In the end the petition is allowed and the impugned order dated March 10, 1966 is quashed with the direction that the District Director shall proceed to dispose of the second appeal in the light of the observations made in the body of this judgement.;