An order of restoration cannot be based on an apparent error on the face of the record.

S.R. Misra

1. By means of the present writ petition, the petitioners seek issuance of writ in the nature of writ of certiorari, quashing the order dated 29-9-1986 passed by respondent mo. I annexed as Annexure 4 to the writ petition.

2. The controversy involved in the present writ petition is a short one and, for deciding the said controversy, it is not necessary to deal with the facts of the case, in great detail. The only relevant fact is that on 31-3-1986, Joint Director of Consolidation allowed a. revision filed by the petitioners. Gaon Sabha, respondent no. 2 filed a restoration application accompanied by an affidavit of DGC, and, the Deputy Director of Consolidation allowed' the same by the impugned order, hence this petition.

Sri S. D. Pathak, appearing for the petitioners, drew my attention to three points, they are, (1) that an observation made by a Court in its judgment should be taken to be final and the same cannot be contradicted by means of an affidavit, rebutting or disputing the judgment in which such observation is made, (ii) mind of the Deputy Director of Consolidation (for short 'DDC') while considering the 'question of restoration was influenced by the fact that Sri Vrindavan was not Pradhan of Gaon Sabha but Sri Krishna Murari Pande was Pradhan; and (iii) that a perusal of the two orders, contained in Annexures 5 and 6 to the writ petition, would reveal that on three dates, DDC was fully aware in view of statement of fact made in the order sheets, that the case was argued on behalf of the Gaon Sabha

3. It would be opposite to quote the orders contained in Annexures 5 and 6. Order in Annexure 5 reads as under :- 14-3-86. Aaj nigrani prastut ki gai. Bahas nigrani karta suni gai. DGC Rajaswa di bahas ke liye Dinank 17-3-86 ki tai. Order in Annexure 6 reads as under :- 17-3-86. Aaj patrawali prastut ki gai. DGC Rajaswa ki bahas suni gai patrawali waste nirnay 20-3-86 ko prastur ki Jaye.

4. In the affidavit of DGC in paragraph 2, he has admitted that the case was fixed for 17-3-86 and he appeared on that date but the case was adjourned for argument on 20-3-1986 But, Sri Pathak vehemently urged that after hearing the argument; the case was decided by the DDC.

Sri Pathak also contended that affidavit was filed on behalf of the petitioners bat the same was not taken into consideration by the DDC. In view of the orders contained in the aforesaid two order sheets, Annexures 5 and 6 the statement of fact recorded by DDC is in teeth of the two orders, and order sheets being part of record, they could not be lightly brushed aside. Thus, for the reasons mentioned above, the order has been passed by the DDC on the basis of non-application of mind to the materials available on record and, therefore, the same is liable to be set aside.

5. Sri R. C. Singh, appearing for the Gaon Sabha tried to defend the order and vehemently contended that since it is an order of restoration and rights of the parties have not yet been decided, irrespective of the fact as to whether the order is right or wrong this Court cannot interfere with the same in its writ jurisdiction, He also urged that mere mention of the wrong name of Pradhan would not render the order to be bad in law. Moreover, mentioning of wrong name of the Pradhan is only a part of the material and the order is not solely based on it.

6. I have carefully considered the arguments advanced before me by S/Sri Pathak and Singh for the parties. Without going into the controversy raised by the petitioners and the respondents in my opinion the order impugned requires interference by this court owing to apparent error committed by the DDC on the face of record. It is apparent from the perusal of record that while allowing the restoration application, the DDC has given much weight to the fact that at the time of decision in the revision, Sri Vrindavan was not Pradhan and real Pradham was Sri Krishna Chandra Pande. The Joint Director of Consolidation, while deciding the revision