HIGH COURT OF JUDICATURE AT ALLAHABAD ?[RESERVED] AFR Court No. - 6 Case :- WRIT - B No. - 56524 of 2015 Petitioner :- Raj Nath Respondent :- Deputy Director Of Consolidation, Jaunpur And 5 Others Counsel for Petitioner :- S.C. Tripathi Counsel for Respondent :- C.S.C.,B.L. Verma,Bedi Lal Verma connected with Case :- WRIT - B No. - 59549 of 2015 Petitioner :- Mangala Prasad Respondent :- Dy. Director Of Consolidation & 9 Others Counsel for Petitioner :- Suresh Chandra Tripathi Counsel for Respondent :- C.S.C.,Manoj Kumar Yadav,Ramakant Tiwari Hon'ble Anjani Kumar Mishra,J.
Heard Shri S.C. Tripathi, learned counsel for the petitioner and Shri S.N. Tripathi and Shri B.L Verma, for the caveator.
With the consent of the parties, the matter has been heard and is being decided finally at the admission stage itself without calling for a counter affidavit.
The writ petition arises out of proceedings for allotment of chaks and seeks for quashing of the order dated 25.08.2015 passed by the Deputy Director of Consolidation whereby he has allowed the revisions no. 1686 and 1688 while a third revision being revision no. 1687 has been dismissed.
The submission of the learned counsel for the petitioner is that revisional court has passed the order impugned without summoning the record of the courts below. The lower court record was neither summoned nor was before the Deputy Director of Consolidation when the impugned order was passed. He, therefore, submits that the impugned order is vitiated in view of the law laid down in the Full Bench decision of this Court in Rama Kant Vs. DDC AIR 1975 (Allahabad) 126.
The contention of the learned counsel for the respondents is that there was no necessity by summoning the lower court records. The village map and also the relevant CH Form-23 were before the Deputy Director of Consolidation. He further submits that the orders passed by the subordinate consolidation authorities, namely, the Consolidation Officer, and the Settlement Officer, Consolidation had been annexed along with the memo of revision. All these documents have been duly considered before passing the impugned order. In any case, it was only these documents which were relevant for decision of the revision itself.
His contention is that even if the lower court record had been summoned and had been produced before the Deputy Director of Consolidation the only other document that would have been before him would be the copy of the objection and the memo of appeal. He has placed reliance upon a decision of this Court in the case of Ram Bachan vs. DDC 2015 (127) RD 675 in support of his contention that only the village map and the CH Form-23 of the parties is relevant for deciding the revision arising out of proceedings for allotment of chaks. He has further tried to draw a distinction between title proceedings under Section 9 and Section 12 of the Act and the instant proceedings for allotment of chaks which arise from an objection under Section 21 of the Act. He submits that the position in the case of the title proceedings may be different.
However, as far as chak allotment matters are concerned, all the relevant documents were before the Deputy Director of Consolidation and, therefore, the order impugned cannot be interfered with on the ground raised by learned counsel for the petitioner.
On the basis of the submissions made by the learned counsel for the parties, the only question that arises for consideration in the instant writ petition is as to whether the Deputy Director of Consolidation while exercising the revisional powers under Section 48 of the UP Consolidation of Holdings Act is competent to decide a revision without summoning and perusing the lower court record.
Section 48 of the Act which is central for deciding the controversy in the instant writ petition is quoted herein below:-
"[48. Revision and reference.- (1) The Director of Consolidation may call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings; or as to the correctness, legality or propriety or any order [ other than an interlocutory order] passed by such authority in in the case or proceedings, may, after allowing the parties concerned an opportunity of being heard, make such order in the case or proceedings as he thinks fit.
(2) Powers under sub-section (1) may be exercised by the Director of Consolidation also on a reference under sub-section (3).
(3) Any authority subordinate to the Director of Consolidation may, after allowing the parties concerned an opportunity of being hear, refer the record of any case or proceedings to the Director of Consolidation for action under sub-section (1).] [Explanation.- [(1)] For the purposes of this section, Settlement Officers, Consolidation, Consolidation Officers, Assistant Consolidation Officer,s Consolidator and Consolidation Lekhpals shall be subordinate to the Director of Consolidation].
Explanation (2)- For the purposes of this section the expression 'interlocutory order' in relation to a case or proceeding, means such order deciding any matter arising in such case or proceeding or collateral thereto as does not have the effect to finally disposing of such case or proceedings.
[Explanation (3).-The power under this section to examine the correctness, legality or propriety of any order includes the power to examine any finding, whether of fact or law, recorded by any subordinate authority, and also includes the power to reappreciate any oral or documentary evidence.]"
From a bare perusal of this provision, it is clear that while exercising powers under Section 48 of the Act, the Deputy Director of Consolidation is required to examine the record of any case decided by any subordinate authority for satisfying himself as to the regularity of the proceedings or the correctness, legality or propriety of any order passed by the subordinate authorities. This power can be exercised as regards all orders of subordinate authorities, except interlocutory orders.
For deciding the controversy involved in the writ petition, it would also be relevant to refer to various other provisions of the Act itself.
Section 21 (3) of the Act provides that before deciding an objection against the provisional consolidation scheme the authorities is mandatorily required to make a spot inspection. An analogous provision is to be found in sub-section (4) of Section 9-B. In this provision the requirement of a local spot inspection is mandatory both for the Consolidation Officer as also the Settlement Officer, Consolidation.
Rule 24-D of the Rules under the Act, provides that when the Consolidation Officer or the Settlement Officer, Consolidation make a local inspection, they are required to prepare inspection memos and place such memos on the record of the proceedings.
Rule 26 (5) makes it mandatory for the Consolidation Officer to make a local inspection of the plot concerned while deciding a dispute relating to determination of exchange ratio or for determining the valuation of trees, well or other improvement existing on a plot. Even this inspection memo is required to be necessarily placed on the record of the case.
Apart from the provisions quoted above, it goes without saying that there might be other relevant evidence available on record of proceedings that may have been filed by the parties, therein, including the oral testimony of the parties.
This Court in the case of Hari Das and another vs. DDC (2005) 98 RD 593 has held that the Deputy Director of Consolidation while setting aside a judgement of an inferior court, is required to consider the entire evidence available on record.
Explanation 3 which has been added to Section 48 w.e.f 10.11.1980, empowers the Deputy Director of Consolidation to appraise the evidence available on record and to record findings both on facts and on law, contrary to those returned by the subordinate authorities.
From the provisions noted above, as also in view of the judgement in the case of Hari Das (supra) it is clear that the Deputy Director of Consolidation while deciding a revision has to also consider the evidence that is available on record of the proceedings before the courts below. This cannot be done till such time the record of the proceedings before the subordinate consolidation authorities is before him.
Sub-section (1) of Section 48 mandates that the Deputy Director of Consolidation while deciding a revision has to satisfy himself about the correctness legality or propriety of any order passed by such subordinate authorities.
A conjoint reading of the various provisions as also the case law referred to above, necessarily leads to the conclusion that the record of the subordinate courts is required to be before the Deputy Director of Consolidation while deciding a revision.
In the case of Ram Bechan (supra) cited by the respondent, it has been held that while deciding a revision arising out of a chak allotment proceedings, the village record and map are essential records. In that case, these records were before the Deputy Director of Consolidation and had been examined prior to passing an order. The court has further observed that the purpose of local inspection is to properly appreciate arguments of the parties. The object of such spot or local inspection is not to collect fresh evidence.
The judgement cited does not appear to have considered the Full Bench decision in the case of Rama Kant (supra). The Full Bench has observed as follows while answering the questions referred to it:-
"After the record has been called for by the Deputy Director of Consolidation under Section 48 of the UP Consolidation of Holdings Act he should examine the record to decide whether it was a fit case for exercise of the revisional jurisdiction suo motu. Such opinion shall have to be formed even where the application in revision moved by a party is defective having been made beyond the prescribed period of limitation or all the necessary parties have not been impleaded.
If the Deputy Director of Consolidation finds that the case requires further hearing he shall give notice to all the necessary parties irrespective of whether they were or were not impleaded in the application and after giving them reasonable opportunity of hearing pass such orders as he thinks fit. Where the application in revision is not defective and is maintainable the exercise of revisional jurisdiction shall be at the instance of the Parties and not suo motu."
From the judgement of the Full Bench it necessarily follows that the Deputy Director of Consolidation has to examine the record of the proceedings before the subordinate authorities to decide whether it is a fit case for interference at the revisional stage. It, therefore, necessarily follows that such an opinion cannot be formed without examining the record of the proceedings before the courts below and, therefore, the submission of the learned counsel for the petitioner must necessarily be accepted.
Since it has been admitted by the learned counsel for the petitioner that the record of the proceedings of the subordinate consolidation authorities had neither been summoned nor was available before the Deputy Director of Consolidation when he passed the impugned order of the reversal, the writ petition merits interference.
Accordingly and in view of the above discussion, the impugned order passed by the Deputy Director of Consolidation which has admittedly been passed without summoning or perusing the record of the proceedings before the Consolidation Officer as the Settlement Officer, Consolidation, cannot be sustained and is, therefore, set aside. The writ petition is accordingly allowed and the impugned order dated 28.05.2015 is set aside. The matter is remanded back to the Deputy Director of Consolidation, respondent no. 1 to decide the revisions no. 1686 and 1688 afresh.
Insofar as the revision no. 1687, the third revision decided by the impugned order is concerned, the same has been dismissed but the revisionists, namely, Vinod has not challenged the order of dismissal. The impugned order, therefore, insofar as it relates to revision no. 1687 is not being interfered with.
The writ petition no. 59549 of 2015 involves an identical issue.
Shri S.C. Tripathi is counsel for the petitioner in this petition as well while Shri Rama Kant Tiwari appears for the respondents 2 and 5. Shri Manoj Kumar Yadav, appears for the respondent no. 8.
Although some of the respondents, namely, respondents no. 3, 4, 6, 7, 9 and 10 are not represented, yet as a purely legal issue has been raised in this petition which has already been decided in the connected writ petition, this writ petition is also being decided in the same terms without calling for any counter affidavit or issuing notices to the unrepresented respondents.
In this writ petition No. 59549 of 2015, the Revisional Courts record was summoned and was produced by learned Standing Counsel for perusal by this Court. Upon such perusal, the allegation in the writ petition that the lower court record was not before the Deputy Director of Consolidation when he decided the revision was found to be correct. The record was thereafter returned to learned Standing Counsel.
The contention of learned counsel for the respondents is that no injustice has been caused to the petitioner merely by the fact that the lower court record was not before the Deputy Director of Consolidation while he decided the revision exercising powers under Section 48 of the U.P. Consolidation of Holdings Act.
This contention is repelled in view of the foregoing discussion in Writ Petition No. 56524 of 2015.
This writ petition is also liable to be allowed and the order dated 05.10.2015 passed by the respondent no. 1 is liable to be quashed and the matter deserves to be remanded back for a fresh decision, to be passed after summoning and perusing the lower court record and after hearing all concerned.
The writ petition no. 56524 of 2015 is allowed in part. The order dated 05.10.2015 insofar as it relates to Revision Nos. 1686 and 1688 is set aside. This order will not apply to revision no. 1687 which has been dismissed vide the order impugned.
The writ petition no. 59549 of 2015 is also allowed and the order dated 05.10.2015 is set aside.
Both the matters are accordingly remanded back for passing fresh orders after summoning and perusing the respective lower court records and after hearing all concerned.
Order Date :- 20.11.2015 Priyanka