Prem Nath And Ors. vs Deputy Director Of Consolidation ...
2015 Latest Caselaw 922 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

 										A.F.R.
 

 
									    Court No. 10.
 

 

 

 
 			Writ Petition No. 436 (Cons) of 2015. 
 

 
Prem Nath and others. 		............................................Petitioners. 
 

 
 					Versus 
 

 
Deputy Director of Consolidation, Barabanki
 
and others. 				....................................Opposite parties.
 

 

 

 
Hon'ble Rajan Roy,J. 

Vakalatnama filed by Sri Mohd. Ali Advocate on behalf of opposite party no. 3 is taken on record.

Heard Sri Mohd. Arif Khan, Senior Advocate, assisted by Sri Mohd. Aslam Khan Advocate on behalf of the petitioners as well as Sri Mohd. Ali for opposite party no. 3 and learned Standing Counsel for official opposite parties nos. 1 and 2.

This writ petition arises out of proceedings under the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act 1953) challenging the order of the revisional court dated 29.05.2015 passed under Section 48 of the said Act.

The dispute herein relates to Khata No. 556, plot no. 51m, measuring 1.619 hectares, situate at village Baburi Gaon, Pargana Dewa, Tehsil Nawabganj, district Barabanki. The said land was recorded in the name of Ram Lakhan. After his death the names of petitioner nos. 1 and 2 were recorded as heirs of Ram Lakhan vide order of Consolidation Officer Sri Jagdeep Yadav, dated 07.10.2003. Thereafter the said land was sold by petitioner nos. 1 and 2 to petitioner nos. 6 and 7 who in turn were mutated in respect to the land in question vide order of the Consolidation Officer dated 24.09.2008. Petitioner nos. 6 and 7 also sold the said land to petitioner nos. 10 and 11 herein vide sale-deed dated 10.07.2009. Petitioner nos. 10 and 11 applied for mutation of their names under Section 12 of the Act 1953 and the Assistant Consolidation Officer ordered the mutation on 25.11.2009. Petitioner nos. 10 and 11 also sold out the land to petitioner nos. 8 and 9 vide registered sale-deed dated 25.02.2011 who in turn applied for mutation of their names under Section 12 of the Act, 1953 and the Assistant Consolidation Officer ordered mutation in their favour on 21.08.2012.

At this stage opposite party no. 3 claiming himself to be son of Ram Lakhan filed an appeal on 08.09.2014 before the Settlement Officer (Consolidation) (hereinafter referred to as SOC) challenging the original order dated 07.10.2003 by which petitioners nos. 1 and 2 were recorded in respect to the land in question in the revenue record as heirs of Ram Lakhan, alleging fraud on their part. It was contended that Ram Lakhan son of Vishwapati and Ram Lakhan son of Sripati were two different persons but by fraud and giving an impression that both were the same person the petitioners nos. 1 and 2 got themselves recorded in the revenue records with the intent to usurp the land though petitioner nos. 1 and 2 belong to Kori caste whereas Ram Lakhan, the original tenure holder, was Kurmi. The opposite party no. 3 claims to be son of Ram Lakhan. As he was living elsewhere he could not come to know about the alleged fraud and after having knowledge of the same he filed the appeal.

Be that as it may, in the appeal pending before the SOC petitioner nos. 1 and 2 (other petitioners were not party in the proceedings before the court below, nor the order of mutation in their favour was under challenge) put in appearance and raised objections with regard to maintainability of the appeal as also it being barred by limitation whereupon an order dated 18.02.2015 came to be passed by the SOC (who incidentally was the same officer, Jagdeep Yadav, who had passed the order impugned dated 07.10.2003) to the effect that the question of maintainability, bar of limitation and merits of the case would be considered on 25.02.2015. It seems that thereafter another application was filed by petitioners 1 and 2 stating that as the SOC Sri Jagdeep Yadav himself had passed the impugned order when he was on the lower post of Consolidation Officer, therefore, he had no jurisdiction to hear the appeal, whereupon another order dated 11.03.2015 was passed to the effect that this issue shall also be considered at the time of final hearing along with other issues in terms of the order dated 18.02.2015.

Being aggrieved petitioner nos. 1 and 2 filed a revision before the Deputy Director of Consolidation under Section 48 of the Act 1953 assailing the orders dated 18.02.2015 and 11.03.2015. The Deputy Director of Consolidation in purported exercise of his powers under Section 48 decided the merits of the controversy by means of the impugned judgment and order dated 29.05.2015 quashing the order dated 07.10.2003 passed by the Consolidation Officer which was under challenge in appeal before the SOC, and directing the revenue authority to record the name of opposite party no. 3 herein in place of Ram Lakhan son of Vishwapati in respect to the land in question and also ordered lodging of an FIR against petitioner nos. 1 and 2 revisionists for having committed fraud in the matter. It is against this order that the present writ petition has been filed.

The contention of Sri Mohd. Arif Khan, learned Senior Counsel for the petitioners firstly is that the Deputy Director of Consolidation did not have the jurisdiction to decide the merits of the controversy during pendency of the appeal before the SOC as the scope of revision before him was limited to the validity of the orders dated 18.02.2015 and 11.03.2015 passed by the appellate authority. Secondly even on merits, accordingly to him, the allegation of fraud has to be specifically pleaded and proved and it cannot be treated to be proved in such a superficial manner, that too in a proceeding initiated after more than 10 years which was not even maintainable in the first place. He invited the attention of the court to the pleadings filed by the opposite party no. 3 before the appellate court to show that his credentials were doubtful as at one place he has claimed himself to be Thakur by caste and thereafter turned around and claimed himself to be Kurmi. Moreover, the opposite party no. 3 was the son of Laxman and not Ram Lakhan. He also challenged the impugned order on various other grounds mentioned in the writ petition.

Sri Mohd Ali, learned counsel for opposite party no. 3, when confronted with the question as to how the revisional court could decide the merits of the appeal relied upon the provisions of Section 48 of the Act 1953 submitted that the powers of the revisional court are very wide. He can 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 of any order and also has power to re-appreciate any oral or documentary evidence. He invited the attention of the Court to sub-section (3) of Section 48 wherein a provision has been made for a reference to the revisional court by any sub-ordinate authority i.e. SOC, CO, ACO, Consolidator and Consolidation Lekhpal for action under sub-section (1). Therefore, according to him there are wide powers given to the revisional court under Section 48 and no umbrage could be taken if the Deputy Director of Consolidation has entered into the merits of the controversy and decided the same. Sri Ali also addressed the Court on the question of fraud alleging that petitioner nos. 1 and 2 were not the heirs of Ram Lakhan son of Vishwapati and had usurped the property by committing fraud. He relied upon two judgments of the Supreme Court i.e. (i) A.V.Papayya Sastry and others Vs. Gover of A. P. and others, reported in (2007)4 SCC 221 and (ii) S.P. Chhengalvaraya Naidu Vs. Jagannath and others, reported in (1994)1 SCC 1 in support of his arguments based on fraud to contend that fraud vitiates all proceedings.

Section 48 of the Act 1953 reads as under:--

" 48. (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 of any order [other than an interlocutory order] passed by such authority in the case of 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) 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 heard, refer the record of any case or proceedings to the Director of Consolidation for action under sub-section (1).

Explanation - (1) For the purpose of this section, Settlement Officers, Consolidation, Consolidation Officers, Assistant Consolidation Officers, Consolidator and Consolidation Lekhpals shall be subordinate to the Director of Consolidation.

Explanation - (2) For the purpose 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 proceeding.

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 re-appreciate any oral or documentary evidence."

Explanation 3 was added to the aforesaid Section 48 by U. P. Act No. 3 of 2002 with effect from 10.11.1980. This provision was enacted to nullify the effect of certain pronouncements of the Courts wherein it had been held that the revisional court under Section 48 could not examine the findings of fact recorded by subordinate authorities and that the powers of revision were limited.

A revision under Section 48 lies either on an application of the aggrieved party or suo moto or on a reference made by any subordinate authority. A revision under Section 48 lies for the purpose of satisfaction being arrived at by the revisional authority as to the regularity of the proceedings or as to the correctness, legality or propriety of any order (other than interlocutory order). Explanation 2 to Section 48 makes it clear that the expression "interlocutory order" referred to in the said section, 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 proceeding. In the present case the appeal had been filed by opposite party no. 3 before the SOC on 08.09.2014 assailing the order dated 07.10.2003 passed by the Consolidation Officer recording the names of petitioner nos. 1 and 2 as legal heirs of Ram Lakhan in the revenue records. During pendency of the appeal the orders dated 18.02.2015 and 11.03.2015 came to be passed which merely provided that the question of maintainability, bar of limitation and jurisdiction of Sri Jagdeep Yadav to hear the appeal, would be considered at the time of final hearing. The said orders did not have the effect of finally disposing of the appeal. None of the two orders under challenge in the revision filed by petitioner no. 1 and 2 decided any matter arising in the appellate proceedings before the SOC nor had the effect of disposal of the appeal finally. At best a grievance could have been maintained with regard to order dated 11.03.2015 as Sri Jagdeep Yadav SOC i.e. the appellate authority had himself passed the original impugned order dated 07.10.2003 when he was Consolidation Officer but nothing more.

A perusal of the impugned order dated 29.05.2015 passed by the Deputy Director of Consolidation shows that the DDC has not bothered to consider and decide the validity of the orders impugned before him nor the maintainability of the revision against such orders. After calling a report of the Assistant Consolidation Officer he has embarked upon exercise of delving into the merits of the appeal and the validity of the order of Consolidation Officer dated 07.10.2003 under challenge in appeal and after summoning the records has himself appreciated the material on record and recorded a finding of fraud against petitioner nos. 1 and 2. Based thereon he has quashed the order dated 07.10.2003 and allowed the revision in the terms already mentioned hereinabove. All this has been done by him while the appeal was pending adjudication before the SOC under Section 11 of Act 1953.

As Sri Jagdeep Yadav was himself Consolidation Officer who had passed the order dated 07.10.2003, therefore, obviously he could not himself hear the appeal against his own order. Therefore, to this extent the assertion of the petitioners herein is sustainable. However, the revisional authority has not considered this aspect but has himself decided the merits of the controversy. The question is as to whether he could have done so under Section 48 of Act 1953.

Appeal under Section 11 and Revision under Section 48 of Act 1953 are two distinct statutory remedies. The scope of the two remedies is also different. Powers of revision under Section 48 and appeal under Section 11 are distinct. The appellate powers are of wider amplitude. Howsoever wide the power under Section 48 may be, even after amendment made in the year 2002, it does not permit the revisional authority to summon the records and decide the merits of an appeal pending before the SOC under Section 11 without the appellate authority having passed any order deciding the appeal or an order deciding any matter which has the effect of disposing of the appeal. Such action is destructive of the statutory remedy of appeal under the Act 1953. No doubt, the DDC has suo moto powers under Section 48 but it does not mean that he can call for the record of appeal pending before the SOC and decide the same on merits without the appellate authority having decided the same. Reference may be had in this regard to a decision of this Court in the case of Ranjeet and others Vs. Dy. Director of Consolidation Ballia and others reported in 1999(90) RD 363 wherein during pendency of appeal against an order of subordinate authority a revision was filed before the DDC under Section 48 against the same order. Reliance was placed by the respondents therein upon various decision including a Full Bench decision of this Court in the case of Ramakant Singh Vs. Deputy Director of Consolidation, reported in 1974 (suppl.) RD 262. This Court, after considering the said Full Bench and other decisions, held as under:--

"6. The facts of these three cases relied upon by the learned counsel for the respondent no. 2 are different, in all these three cases the appeal before the Settlement Officer was not pending, in the instant case, as seen above the appeal and cross-appeals were pending before the Settlement Officer (Consolidation), the petitioners specifically urged before the Deputy Director of Consolidation that in view of the pendency of the appeal, the revision was not maintainable. The present case is a case where the jurisdiction exercised by the Deputy Director of Consolidation is destructive of the statutory remedy of appeal and it is a fit case which calls for interference in petitions under Articles 226/227 of the Constitution of India."

In another case reported in [2007 (102) RD 250] Chhakku Ram and others Vs. Deputy Director of Consolidation, Varanasi and others a revision was filed under Section 48 challenging the order of SOC dismissing the appeal on the ground of limitation. The issue was as to whether while considering validity of the order passed by the SOC the revisional authority could have considered and decided the merits of the controversy also. This Court again after considering the Full Bench decision in Ramakant Singh's case (supra) held as under:--

"3. Counsel for the respondents Sri Sankatha Rai assisted by Sri Pradip Rai made two submissions on the point of maintainability. First that even if the Deputy Director of Consolidation has not given any specific finding regarding the condonation of delay the delay would be deemed to have been condoned by him when he entered into the merits of the case. On this point he relied a decision in M. B. Shah V. B. N. Agarwal (AIR 2002 SC 451). This decision has no application to the present case. It is not in dispute that the revision, which was filed by respondent No. 2 was within time against the order of the Settlement Officer Consolidation. It was the appeal before the Settlement Officer Consolidation, which had been dismissed on the ground of limitation. It is also submitted that the record of the case was before the Deputy Director of Consolidation and he could, therefore, decide the case on merits. In support reliance is placed upon the Full Bench decision of this Court in Ramakant Singh V. Deputy Director of Consolidation (AIR 1975 Alld. 126). In that case the question referred was whether after the record is called for under section 48 the Deputy Director of Consolidation can dismiss the revision for non-impleadment of a necessary party in the memorandum of revision or he can decide the case after hearing the party not impleaded. It was held that after the record has been examined the Deputy Director of Consolidation can exercise the revisional jurisdiction suo moto and take appropriate decision after hearing the affected parties. The Full Bench further holds that if the revision application is not defective the exercise of the revisional jurisdiction shall be at the instance of the parties and not suo moto. In the present case the revision was not defective. The exercise of jurisdiction was therefore at the instance of the petitioner and not suo moto. The Deputy Director of Consolidation was therefore required to examine the correctness of the order of the Settlement Officer Consolidation dismissing the appeal on the ground of limitation, which was the order challenged and not the merits of the chak allotment. Counsel for the petitioners relied upon a decision of this Court in Bashir Ahmad Khan V. Deputy Director of Consolidation, Ghazipur and others (2005(98) RD 378) in which this Court in similar circumstances has taken the view that the proper course for the Deputy Director of Consolidation in a revision against an order of Settlement Officer Consolidation dismissing the appeal on the question of limitation is to examine the correctness of that order. It appears from the facts and circumstances of this case too the proper course to be adopted by the Deputy Director of Consolidation was to examine the correctness of the order of the Settlement Officer Consolidation, which he failed to do. As regards the merits also I find that the order of the Deputy Director of Consolidation cannot be sustained. The contention of the learned counsel for the petitioners is that the loss, which would be occasioned to the petitioners by the modification in the chaks made by the Deputy Director of Consolidation has not been considered. Reliance is placed upon the averments made in paragraph 6 of the writ petition in which it is stated that there is a house of the petitioner No. 2 adjoining plot No. 368. If it be true that the petitioner No. 2 does have his house adjoining plot No. 368 it would be a circumstance in favour of the petitioner No. 2 for allotment of a chak near his abadi. No opinion, however, is being expressed by this Court upon this point as it is proposed to remand the case to the Deputy Director of Consolidation for fresh decision."

In the case at hand there has been no adjudication by the SOC either of the appeal in entirety or of any matter/issue. Even after amendment in the year 2002 and addition of explanation 3 to Section 48 the revisional authority is not empowered to adopt the course of action as done by him in this case. Explanation 3 only empowers him to enter into the question of fact to examine any finding recorded by the subordinate authority whether on fact or law and in this context it includes the power to re-appreciate the evidence for the purpose of examination of correctness, legality or propriety of any such finding. It does not mean that the revisional authority can call for the records of the appellate authority and decide the appeal himself in exercise of his revisional powers without any finding having been recorded by the appellate authority or appeal itself having been decided. Reference may be made in this regard to the pronouncement made by this Court in the case of Karan Singh (Dead) Through L. Rs. Vs. Deputy Director of Consolidation, Aligarh and others, reported in [2003(94) RD 382 wherein after noticing the decision of the apex court in Gaya Deen (D) through L.Rs and others Vs. Hanuman Prasad (D) through L. Rs and others reported in [2001 (92) RD 79 (SC) as also the amendment of 2002 the Court held in para 6 as under:--

"...... The amendment of Section 48 of the Act has widened the scope of the powers of the Deputy Director of Consolidation. It has given power to him to reappraise the evidence but it nowhere provided that the Deputy Director of Consolidation will have jurisdiction to reverse the findings recorded by the authorities below and can substitute his own findings. The Apex Court in Gaya Din (D) through L.Rs. and others Vs. Hanuman Prasad (D) through L.Rs. and others [(2001(92) RD 79 (SC)] specifically laid down that the Deputy Director of Consolidation has got no jurisdiction to act as the Consolidation Officer or the Settlement Officer Consolidation, otherwise there will remain no difference in the powers of the Consolidation Officer, the Settlement Officer Consolidation and the Deputy Director of Consolidation while dealing with the cases originally, in appeal and revision. In case the Deputy Director of Consolidation was of the opinion that the findings recorded were bad in law, he could set aside the same after reappraisal of the evidence and could remand the case for decision afresh."

Reference may also be made to another decision of this Court in the case of Bashir Ahmad Khan (D) through L. Rs. V. Deputy Director of Consolidation and others reported in 2005(1) AWC 924 (Alld) wherein the question which arose for consideration was regarding jurisdiction of the revisional authority to decide a revision challenging the order of the appellate authority dismissing the appeal on the ground of limitation, on merits. A learned single Judge of this Court referring to a Division Bench judgment of this Court in the case of Tirath V. Joint Director of Consolidation reported in 1985 RD 276 held as under:--

"10. A Division Bench of this Court vide judgment in the case of Tirath V. Deputy Director of Consolidation (supra), answered the question in negative. While repealing the contention that authority exercising the power under Section 48 of the Act have very wide power including suo moto power and can look into the record and if there is any defect it can be corrected by him, it was observed by the Division Bench as follows:

"In this view of the matter, the revisional authority was called upon to examine the record of the case as it pertain to the appeal before appellate authority. The principal reason given by the appellate authority for dismissing the appeal was that it was barred by time. The revisional authority had to see whether the order was justified in law or not. It had to examine whether any application has been made for condonation of delay and whether any adequate reason has been given for the same or not, and whether the order dismissing the appeal as time barred was justified in the circumstances of the case and we would observe here that in a revision under Section 48 (1) of the Act where there is no defect in the revision itself to merit its rejection in limine, the revisional authority has to confine itself to the decision in the appeal and the ground given for the decision in that order. We are further of the opinion that it was not open to the revisional authority to go into the question of merits while exercising the powers conferred under Section 48 (1) in the above circumstances."

The law laid down by the Division Bench in the case of Tirath V. Deputy Director of Consolidation (supra) is squarely applicable to the facts of this case.

11. In the present case also the order passed by Settlement Officer Consolidation was not an adjudication of the claim of the parties on merits, but an order dismissing the appeal as barred by limitation. The Deputy Director of Consolidation without considering the legality or otherwise, of the order passed by the Settlement Officer Consolidation and without setting aside his findings straightway proceeded to decide the revision on merits. It was incumbent upon the Deputy Director of Consolidation to have considered the order of Settlement Officer Consolidation refusing to condone the delay in filing the appeal on its own merit and if satisfied about the sufficiency of the ground for delay ought to have set aside the order of the Settlement Officer Consolidation dismissing the appeal as time barred and remand the case back to him to be decided on merits. It was not open to him to proceed and decide the revision on merits."

Thus clearly the scope of revision under Section 48 and that of appeal under Section 11 being different and two separate statutory remedies having been provided, there being no adjudication of the appeal nor of any substantial issue involved therein by the appellate authority, it was not open for the Deputy Director of Consolidation to decide the merits of the pending appeal in exercise of his powers under Section 48. It was clearly not the scope of revision except to the limited extent pointed out hereinabove. The entire dispute was not available for adjudication before the revisional authority. The revision itself was not maintainable as the orders impugned were purely interlocutory.

In view of the above discussion the impugned judgment and order dated 29.05.2015 cannot be sustained. The same is accordingly quashed.

At this stage Sri Mohd. Ali learned counsel for opposite party no. 3, informed the Court that after passing the impugned order the appellate authority has decided the appeal vide judgment and order dated 06.06.2015 holding it to have become infructuous after the decision of the revisional authority. Sri M. A. Khan feigns ignorance about the said judgment. Be that as it may, as the judgment of the revisional authority dated 29.05.2015 itself has been quashed as it suffers from jurisdictional error, therefore all consequential acts also stand nullified. The appeal of opposite party no. 3 as also the applications in respect of which the order dated 18.02.2015 had been passed stand restored. As the present SOC is the same officer who had passed the order dated 07.10.2003 against which the appeal has been filed, the competent authority under Rule 65 of the U.P. Consolidation Rules 1954 is directed to transfer the appeal to some other competent officer within a week from the date a certified copy of this judgment is produced before it. The officer so nominated shall hear and decide the appeal as also the applications filed by petitioners 1 and 2 referred to above within a period of three months from the date of nomination by the competent authority.

The writ petition stands allowed.

18.06.2015.

Shaakir/