Hari Lal And Others vs Deputy Director Of Consolidation ...
2014 Latest Caselaw 308 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?[AFR] 
 
[RESERVED]
 
Court No. - 14
 

 
Case :- CONSOLIDATION No. - 42 of 2007
 

 
Petitioner :- Hari Lal And Others
 
Respondent :- Deputy Director Of Consolidation Barabanki And 2 Others
 
Counsel for Petitioner :- Anoop Srivastava,Parasu Ram,Shrawan Kumar
 
Counsel for Respondent :- C.S.C.,Balram Yadav,R.N.Gupta
 

 
Hon'ble Anjani Kumar Mishra,J.

1- Heard Sri Shravan Kumar and learned counsel for the petitioners, and Sri Balram Yadav who appears for contesting respondent no. 2.

2- The dispute in the writ petition relates to chak nos. 169 and 1773 of village Naya Mau, Pargana Mawai, Tehsil Rudauli, District Barabanki, which were recorded in the name of Hosila Prasad. The following pedigree is relevant for the purpose of the writ petition:

Shripal

............................................................................................................. 

 I                               I                        I                        I

 I                               I                        I                        I

Shiv Prasad        Hosla Prasad.     Kamta Prasad      Ram Das

The petitioners are the sons of Shiv Prasad, Kamta Prasad and Ram Das, respectively.

3- On the death of Hosila Prasad, son of Shripal, the Assistant Consolidation Officer (in short, ACO) passed an order on 3.3.2014 on the basis of a compromise whereby the name of Hosla Prasad, deceased, was ordered to be expunged from the land in dispute and his son Ram Sagar was ordered to be recorded thereon.

4- The order of the ACO was challenged by the petitioners by means of Appeal no. 1575 on the ground that Hosla Prasad was never married and he, therefore, died issueless. Ram Sagar who had been ordered to be recorded in his place after his death, is not his son but a resident of another village whose father's name is also Hosla and this Hosla is son of Rajpal, while the deceased was Hosla son of Shripal. Taking advantage of the similarity in the names, Ram Sagar got his name recorded over the land in dispute fraudulently though in fact, he is a rank outsider and has no concern with the land in dispute, or with Hasala son of Shripal, the deceased.

5- The Settlement Officer of Consolidation (for short, SOC) by his order dated 28.1.2006 allowed the appeal filed by the petitioners, set aside the order passed by the ACO and remanded the matter for consideration afresh on merits.

6- The order of remand was challenged by Ram Sagar, respondent no. 2 by means of Revision No. 901 under section 48 of the U.P. Consolidation of Holdings Act ( for short, Act). The Dy. Director of Consolidation (in short, DDC) by his order dated 26.12.2006 allowed the revision, set aside the order of remand and confirmed the order passed by the ACO on 3.3.2004. Aggrieved, the petitioners have filed the instant writ petition.

7- Learned counsel for the petitioners has assailed the order impugned on the ground that the revision was filed against an order of remand, which was an interlocutory order and, therefore, not amenable to the revisional jurisdiction under section 48 of the Act. He has stated that the DDC has decided the case relying upon a voter identity card and family register extract filed by the respondent. The DDC has recorded that the order passed by the ACO was on the basis of a compromie duly signed by the two members of the Consolidation Committee and, therefore, the same was in accordance with law and liable to be affirmed. He submits that the case as set up by the petitioners in the appeal filed by them that Ram Sagar was son of Hosla Prasad son of Rajpal, and not Ram Sagar son of Hosla Prasad, son of Shripal, has not at all been considered by the revisional Court and, therefore, the impugned order is liable to be set aside. He has further submitted that the scope of the revision was confined to the question as to the legality or otherwise of the order of remand. The SOC while passing the order of remand had not recorded any finding on the merits of the claim of the petitioners and, therefore, it was not open for the DDC to have decided the dispute himself.

8- Learned counsel for the respondent has submitted that the order passed by the DDC was perfectly justified in the facts and circumstances of the case. The DDC is a court of fact and has jurisdiction to pass orders after appraisal of the evidence on record and by recording a finding contrary to that which has been recorded by the subordinate courts. He has cited the following decisions in support of this contention:

Sukkhu Vs. Dy. Director of Consolidation, 2010 (28)LCD 1699

Krishna Kumar Vs. Dy. Director of Consolidation, 2012  (30) LCD 2361

Govind Singh and others Vs. Dy. Director of Consolidation, 1998 (89) RD 699.

9- He has also submitted that the contention of the learned counsel for the petitioners that the order of remand was an interlocutory order and, therefore, the revision against the same was not maintainable, is not correct in view of the judgment rendered by the Division Bench in the case of Dina Nath and others Vs. DDC, 2010 (28) LCD 1396.

10- I have considered the submissions made by the learned counsel for the parties and have perused the record.

11- The contention of the learned counsel for the petitioners that the revision was not maintainable being directed against an order of remand, which is an interlocutory order, is not correct in view of the law laid down by the Division Bench (supra). In fact, this Bench was constituted for considering this very question. The question that was formulated for consideration by the Division Bench is reproduced below:

"(i) Whether an order passed in appeal under section 11 of the U.P. Consolidation of Holdings Act by the Settlement Officer Consolidation deciding the appeal finally by setting aside the order of the Settlement Officer Consolidation and remanding the matter to the Consolidation Officer is an interlocutory order within the meaning of section 48 of the U.P. Consolidation of Holdings Act and revision is barred against such order under section 48?"

The question was answered as follows :

"(1) an order passed in appeal under section 11 of the U.P. Consolidation of Holdings Act by the Settlement Officer Consolidation deciding the appeal finally by setting aside the order of the Settlement Officer Consolidation and remanding the matter to the Consolidation Officer is not an interlocutory order within the meaning of section 48 of the U.P. Consolidation of Holdings Act and revision is not barred against such order under section 48."

12. Thus, the first submission of the petitioners has no merit and is repelled.

13. Coming to the second contention raised by the learned counsel for the petitioners, it is clear from the perusal of the order of remand that the SOC has merely noticed the allegations made by the petitioners in their memorandum of appeal and on its basis set aside the compromise order and remanded the case for consideration afresh. It is undoubtedly the correct legal position that the DDC is the last court of fact. The authorities/decisions cited by the learned counsel for the contesting respondent noticed above lay down the correct law, and the same cannot be disputed. In this connection, it would further be relevant to point out that section 48 of the Act was amended in the year 2002 in view of the conflicting decisions in this regard and the matter was clarified by inserting Explanation 3 thereto. The said amendment is quoted below:

"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 an subordinate authority, and also includes the power to reappreciate any oral or documentary evidence."

14- In view of the amended provision, there cannot be any dispute that the DDC w.e.f. 10.11.1980 is the last court of fact and while exercising his revisional jurisdiction can appraise the evidence and thereafter record his own findings. Although, this power of the DDC as the last court of fact cannot be disputed, yet in the facts and circumstances of this case, in my considered opinion, the impugned order is not liable to be affirmed for the reasons, which are being given below.

15- The newly added Explanation 3 provides that the DDC can reappreciate the evidence and record his own findings on the questions in issue before him. The word 'reappreciate' is relevant. It necessarily denotes that there was an earlier appraisal of the evidence on record by the subordinate courts. It therefore necessarily follows that if the subordinate courts have already appraised the evidence and recorded a finding, it was open to the DDC to re-appreciate the same and take a contrary view. However, in the case at hand, this is not the position. The order of the Assistant Consolidation Officer was passed on the basis of a compromise to which the petitioners were not signatories. They preferred an appeal, which has been allowed and the compromise order was set aside and the matter has been remanded for consideration on merits. The SOC has merely noted the allegations made by the petitioners in their appeal, but has neither referred to any evidence on record nor considered the same. The DDC in the impugned judgment has referred to the evidence filed by the contesting respondent but has totally failed to refer to any evidence filed on behalf of the petitioners. He has not even referred to the case as set up by the petitioners in their appeal that the contesting respondent was not the son of the deceased Hosla, but the son of another Hosla son of Rajpal, while the deceased Hosla was son of Shripal. This, in fact, was the crux of the controversy begging determination as regards the dispute between the parties. But this question has not been dealt with by the DDC. Therefore, in the aforesaid facts and circumstances, though undisputedly the DDC has jurisdiction to re-appraise the evidence and record his own finding on the points in issue it is not open for him to appraise the case of only one party and, thereafter, record his findings without considering the case and evidence of the pther party / parties. The insistent submission of the learned counsel for the respondent that the DDC, being the last court of fact, has recorded a finding in his favour and, therefore, the impugned order deserves to be affirmed, cannot be accepted. The position would have been different if the case of the petitioners had also been considered by the revisional court and there was even a passing reference to the evidence filed on their behalf. This is not the case here.

16- Even otherwise, it is evident from the scheme of the Act itself that the orders passed by the first court, namely, the Assistant Consolidation Officer or Consolidation Officer, whether in title proceedings or in allotment proceedings, are subject to appeal before the SOC and, thereafter, subject to the revisional jurisdiction of the DDC under section 48 of the Act. It is also well settled that the right of appeal is a statutory right and no appeal can be filed unless the statute provides for the same. However, once the statute provides for an appeal against any order passed in the proceedings under the Act, which is further subject to the revisional jurisdiction under section 48, in case the contention of the learned counsel for the respondent is accepted, the petitioners would stand deprived of their right to appeal or revision, as is provided under the Act. Since this statutory remedy of appeal is provided under the Act, allowing the order of the DDC to stand, in my opinion, it would deprive the petitioners not only of the statutory remedy of appeal but also a subsequent revision, which for all practical purposes is a second appeal available to a party under the scheme of the Act. In any case, every party should be provided at least one appeal in the proceedings in view of the scheme of the Act itself, and this requirement would stand fulfilled if the matter is remanded to the SOC for a fresh decision. Against the order passed by the SOC, the aggrieved party will have the remedy of filing a revision, a second innings, which would be in accordance with the general scheme of the Act itself. In view of the same and also in view of the fact that the DDC has passed the order without considering the case of the petitioners and without adverting to the evidence filed by them, the impugned order is liable to be set aside.

17- The SOC before whom the appeal had been preferred was fully competent to decide the same, being a court of fact, but the said authority has failed to exercise jurisdiction vested in it and, therefore, the matter deserves to be remanded to the SOC who shall decide the case afresh on the basis of the evidence that may be on record or may be filed by the parties. This is possible only if the remand order passed by the Settlement Officer Consolidation is also quashed even though the same is not under challenge in this writ petition. This approach is being adopted with a view to shorten the litigation between the parties and also because this Court can, in exercise of powers under Article 226 of the Constitution of India, mould the relief so as to do justice between the parties.

18- Since the matter is a very old one, the SOC is expected to make every endeavour to decide the appeal after hearing of the parties concerned, without granting any unnecessary adjournments to either of them, within a period of 3 months from the date of production of certified copy of this before him.

19- Accordingly and subject to the aforesaid directions, the writ petition is allowed. The order dated 26.12.2006 passed by the Deputy Director of Consolidation and the order dated 28.01.2006 passed by the Settlement Officer Consolidation are quashed. The matter is remanded to the Settlement Officer Consolidation who shall decide the same afresh after affording opportunity to the parties to adduce evidence, if any, and after hearing them. There will however be no orders as to costs.

Order Date :- 28.3.2014

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