HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. -20 AFR Case :- CONSOLIDATION No. - 206 of 2013 Petitioner :- Mumtaz Ahmad And Others Respondent :-Deputy Director Of Consolidation Lucknow And Others. Counsel for Petitioner :- Umesh Kumar Srivastava Counsel for Respondent :- C.S.C., Brijesh Yadav 'Vijay', D.S. Pandey, M.P. Yadav Hon'ble Ram Surat Ram (Maurya),J.
1. Heard Sri Umesh Kumar Srivastava, for the petitioners and Sri M.P. Yadav, for contesting respondents.
2. The writ petition has been filed against the orders of Consolidation Officer dated 12.02.2013 and Deputy Director of Consolidation dated 07.03.2013, passed in recall applications in title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the 'Act').
3. The dispute between the parties relates to the land of khata 16 of village Madari Khera, pargana Nigohan and district Lucknow, which was recorded in the names of Imtiyaz Ahmad and Syed Ahmad sons of Mohd. Nisar Ahmad, in basic consolidation records. Aziz Ahmad, Mumtaz Ahmad and Majharul Anwar Ahmad (now represented by the petitioners) filed an objection, for recording their names as the heirs of Imtiyaz Ahmad and deleting the name of Syed Ahmad, stating that name of Syed Ahmad was recorded without any basis. Syed Ahmad filed counter objection and claimed that his name was rightly recorded over the land in dispute, in which he had 1/2 share. During pendency of the case, before Consolidation Officer, Aziz Ahmad and Syed Ahmad died. The petitioners moved applications for substitution of the heirs of Aziz Ahmad and Syed Ahmad, which were allowed. Thereafter, Consolidation Officer, by order dated 29.09.2011, allowed the objection of the petitioners holding that Imtiyaz Ahmad was sole owner of the land in dispute and name of Syed Ahmad was recorded without any basis and directed for recording the names of the petitioners, deciding their share and deleting the name of Syed Ahmad.
4. Syed Aktedar Ahmad and others (respondents-2 to 5) filed an application for recall of the order dated 29.09.2011. It has been stated by the respondents that the name of their father was recorded in basic consolidation records but by exparte order dated 29.09.2011, it has been deleted without giving any notice or opportunity of hearing to them. On coming to know about the order, the recall application was filed, which was liable to be allowed, condoning the delay. Similar application was also moved for recalling the order dated 17.11.2012 passed in the proceeding under Rule-109-A of the Rules. The recall applications were heard by Consolidation Officer, who by the separate order dated 12.02.2013 held that after death of Syed Ahmad, the petitioners filed an application dated 02.04.2011 for substituting his heirs. On which notices were issued, which were served by pasting of the notice on the doors. On its basis service of notices were deemed sufficient. As the heirs of Syed Ahmad did not appear as such Consolidation Officer proceeded exparte against them and passed exparte order dated 29.09.2011. On these findings, he allowed recall applications and recalled the orders dated 29.09.2011 and 17.11.2012.
5. The petitioners filed two revisions (registered as Revision Nos. 373 and 374) from the aforesaid orders. Both the revisions were consolidated and heard by Deputy Director of Consolidation, who by order dated 07.03.2013 held that Consolidation Officer has passed the order dated 12.02.2013 without giving opportunity of hearing to the petitioners. On these findings, he allowed the revisions, set aside the orders of Consolidation Officer dated 12.02.2013 and remanded the matter to Consolidation Officer to decide recall applications afresh after hearing the parties. Hence this writ petition has been filed.
6. The counsel for the petitioners submits that a Full Bench of this Court in Anarkali and others Vs. DDC and others, 1997 (15) LCD 921 (FB) has held that the consolidation authorities have no jurisdiction to review/recall their final orders passed on merit. The orders of Consolidation Officer dated 12.03.2013 are illegal and without jurisdiction. The revisions of the petitioners ought to have been allowed finally but Deputy Director of Consolidation has illegally remanded the matter to Consolidation Officer for fresh decision on the recall applications, which were not maintainable. By the impugned order, Deputy Director of Consolidation has conferred the jurisdiction upon Consolidation Officer, which was not vested in him under the statute. The orders of consolidation authorities are illegal and liable to be set aside.
7. I have considered the arguments of the counsel for the parties and examined the record. The question referred to Full Bench for consideration was as to whether under UP. Consolidation of Holdings Act, 1953 and UP. Consolidation of Holdings Rules, 1954, jurisdiction of review has been conferred upon the consolidation authorities. The arguments raised before Full Bench in Anarkali and others Vs. DDC and others, 1997 (15) LCD 921 (FB) was that as by virtue of Section 41 of the Act, Chapter IX and X of U.P. Land Revenue Act, 1901 were applied and Section 210 of falling under Chapter X of U.P. Land Revenue Act, 1901 conferred power of review upon highest revenue court i.e. Board of Revenue U.P. as such Deputy Director of Consolidation who is highest consolidation court was vested with the power of review. Full Bench held that jurisdiction of review has to be conferred by the statute itself. By virtue of Section 41 of the Act, only procedure contained in Chapter IX and X of U.P. Land Revenue Act, 1901 were applied to the proceedings provided under the Act. As under the Act, there is no provision of review as such provision of review under Section 210 of U.P. Land Revenue Act, 1901 will not apply. In concluding paragraph of the judgment words "review/recall" has been used which means recalling the order by way of review.
8. So far as recalling of exparte order is concerned, every Court/Tribunal has inherent jurisdiction to recall the exparte orders. This power is derived upon the maxim "actus curiae neminem gravabit ". By act of the Court no one should suffer any injury. If a Court/Tribunal passed exparte order in violation of principles of natural justice then it has jurisdiction to recall its such order on the application of aggrieved person.
9. Similar controversy came up for consideration before Supreme Court in Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal, AIR 1981 SC 606. In which it has been held that it is true that there is no express provision in the Act or the rules framed thereunder giving the Tribunal jurisdiction to do so. But it is a well known rule of statutory construction that a Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. In a case of this nature, we are of the view that the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary. We do not find any such statutory prohibition. On the other hand, there are indications to the contrary. We are unable to appreciate the contention that merely because the ex parte award was based on the statement of the manager of the appellant, the order setting aside the ex parte award, in fact, amounts to review. The decision in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji, AIR 1970 SC 1273 is distinguishable. It is an authority for the proposition that the power of review is not an inherent power, it must be conferred either specifically or by necessary implication. Sub-sections (1) and (3) of Section 11 of the Act themselves make a distinction between procedure and powers of the Tribunal under the Act. While the procedure is left to be devised by the Tribunal to suit carrying out its functions under the Act, the powers of civil court conferred upon it are clearly defined. The question whether a party must be heard before it is proceeded against is one of procedure and not of power in the sense in which the words are used in Section 11. The answer to the question is, therefore, to be found in sub-section (1) of Section 11 and not in sub-section (3) of Section 11. Furthermore, different considerations arise on review. The expression "review" is used in the two distinct senses, namely (1) a procedural review which is either inherent or implied in a court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter sense that the court in Patel Narshi Thakershi's case held that no review lies on merits unless a statute specifically provides for it. Obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every court or Tribunal..
10. Supreme Court again in Rabindra Singh v. Financial Commr. Coop. (2008) 7 SCC 663, held that what matters for exercise of jurisdiction is the source of power and not the failure to mention the correct provisions of law. Even in the absence of any express provision having regard to the principles of natural justice in such a proceeding, the courts will have ample jurisdiction to set aside an ex parte decree, subject of course to the statutory interdict. Same view has been again taken in Sunitadevi Singhania Hospital Trust v. Union of India, (2008) 16 SCC 365.
11. In view of the aforesaid discussion, the writ petition has no merit and is dismissed.
Order Date :- 28.10.2015 Rahul/-