Anil Kumar Gera vs State Of U.P. And 10 Others
2019 Latest Caselaw 2183 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Reserved 
 
Court No. - 9
 

 
Case :- WRIT - B No. - 292 of 2019
 
Petitioner :- Anil Kumar Gera
 
Respondent :- State Of U.P. And 10 Others
 
Counsel for Petitioner :- Sunil Kumar,Kunal Ravi Singh
 
Counsel for Respondent :- C.S.C.,Vikas Budhwar,Vinod Kumar Yadav
 
Connected with
 
Case :- WRIT - B No. - 403 of 2019
 
Petitioner :- Kanti Devi
 
Respondent :- Deputy Director Of Consolidation, Budaun And 11 Others
 
Counsel for Petitioner :- Vinod Kumar Yadav,Abhishek Kumar Yadav
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Anjani Kumar Mishra,J.

Heard Shri Kunal Ravi Singh for the petitioner and Shri R.C. Singh for the respondent no. 8, Kanti Devi.

The instant writ petition is directed against the order dated 19.12.2018 passed by the Joint Director of Consolidation and the order dated 15.01.2019 passed by the respondent no. 3.

By order dated 19.12.2018, the Joint Director of Consolidation has allowed a transfer application filed by respondent no. 8, Kanti Devi and transferred a revision pending before the Deputy Director of Consolidation, Budaun to Moradabad. An application for recall of this order filed by the petitioner has been rejected vide order dated 15.01.2019. Hence this writ petition challenging the aforesaid two orders.

The submission of counsel for the petitioner is that the transfer order dated 19.12.2018 was passed ex-parte without any notice or information to the petitioner and without hearing him. In fact the transfer application was allowed the day it was filed. Since the order was manifestly ex-parte, the petitioner filed a recall application which has been rejected relying upon Section 44-A of the U.P. Consolidation of Holdings Act.

It is also submitted that while rejecting the recall application the respondent has misconstrued a judgment of this Court in Writ B No. 55839 of 2014 (Surendra Pal Singh Vs. Addl. Director Consolidation Judicial and 6 others).

Elaborating further, it has been submitted that a transfer application had been filed by the respondent before the District Deputy Director of Consolidation, which was rejected on 07.12.2018. The said order was never challenged by the respondent. However, five days later, a transfer application was filed before the Joint Director of Consolidation, whereupon the order dated 19.12.2018 was passed and the transfer application allowed, ex-parte. It is contended that under the circumstances shelter of Section 44-A of the U.P.C.H. Act could not have been taken by the Joint Director of Consolidation for allowing the transfer application or for rejecting the recall application.

Under Rule 65(2) of the U.P. Consolidation of Holdings Rules, the power to transfer a revision vests in the District Deputy Director of Consolidation. This power had been invoked by the respondent no. 8 but the relief prayed for, was refused by the District Deputy Director of Consolidation vide order dated 07.12.2018. Therefore and since with regard to the same case, the power under Rule 65(2) was invoked but relief refused, it was not open for the Joint Director of Consolidation to transfer the case taking shelter of Section 44-A of the Act.

Shri R.C. Singh appearing for respondent no. 8 has submitted that the transfer application was necessitated because a Minister in the State Government had written letters to the Deputy Director of Consolidation, Budaun and, therefore, the respondent had no hope of getting justice from his Court.

It is also submitted that the petitioner is only interested in delaying the disposal of the revision while the respondent no. 8 is only interested in its speedy disposal.

He has additionally submitted that the revision may be transferred to any other district as per the choice of the petitioner or in the alternative the District Deputy Director of Consolidation may be directed to dispose of the revision, expeditiously, in a time bound manner.

In rejoinder, counsel for the petitioner has submitted that the petitioner is a handicapped person and, therefore, transfer of the revision to any other district will be extremely problematic for him.

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

For deciding the controversy in this writ petition, it is necessary to refer to Rule 65 of the U.P. Consolidation of Holdings Rules, which is extracted below:-

"65. Section 54. - (1) The Settlement Officer, Consolidation, may withdraw any case from the file of any Consolidation Officer or Assistant Consolidation Officer subordinate to him and may refer the same for disposal to any other Consolidation Officer or Assistant Consolidation Officer competent to deal therewith.

[(1A) The Officer before whom appeals, revisions or references under the provisions of the Act or these rules are instituted may transfer any case instituted or pending before him to any other officer empowered to hear and decide such case, or recall case pending before any other officer from the file of that officer to his, own file. The District Deputy Director of Consolidation of a district where Joint/Deputy/Assistant Director of Consolidation is posted may call for record of any revision or case pending before such officer for disposal and may transfer it to such officer if he is unable to decide it for some reason.]

(2) The Director of Consolidation may withdraw any case from the file of any Settlement Officer, Consolidation, and refer the same to any other Settlement Officer Consolidation for disposal."

Sub-rule 2 of Rule 65 above, empowers the Director of Consolidation to withdraw a file from any Settlement Officer Consolidation and transfer the same to any other Settlement Officer Consolidation, for its disposal.

In my considered opinion, this power has been given to the Director of Consolidation because normally there is only one Settlement Officer Consolidation discharging appellate jurisdiction in a District. Therefore, transfer of a case pending before the Settlement Officer Consolidation, almost invariably, entails transfer of the case outside the district.

Under Rule 1-A, the District Deputy Director of Consolidation can transfer to himself any revision pending before the Joint Director of Consolidation, Deputy Director of Consolidation or Assistant Director of Consolidation or transfer it to any other officer.

It is not in dispute that this provision was invoked by the respondent and the District Deputy Director of Consolidation rejected the transfer application. Therefore, the power to transfer the case under Rule 65 (1-A) had been invoked and exercised but relief was refused by the District Deputy Director of Consolidation.

Section 44-A no doubt permits a superior authority to exercise the powers conferred upon a inferior authority under the Act but the said provision cannot be construed to mean that even where a subordinate authority has exercised the power conferred upon it by the Act, the same can be re-exercised by a superior authority. No such repeated exercise of jurisdiction can be construed upon a bare reading of Section 44-A, which reads as follows:-

"44A. Powers of subordinate authority to be exercised by a superior authority. - Where powers are to be exercised or duties to be performed by any authority under this Act or the rules made thereunder, such powers or duties may also be exercised or performed by any authority superior to it."

Under the circumstances, I find merit in the submission of counsel for the petitioner that shelter of Section 44-A could not have been taken by the respondent while rejecting the recall application filed by the petitioner.

Even otherwise the transfer order dated 19.12.2018 is manifestly ex-parte and for that reason alone the rejection of the recall application cannot be sustained. Moreover, as already observed herein above, the recall application could not have been rejected taking shelter of Section 44-A of the Act.

Under the circumstances, both the impugned orders are liable to be set aside.

Besides, in view of the submissions made by counsel for the parties, this Court is of the opinion that interest of justice would stand served, in case, after setting aside the impugned orders, the District Deputy Director of Consolidation is directed to decide the revision himself, after hearing the parties, strictly in accordance with law and preferably within a period of two months from the date a certified copy of this order is filed before him.

Connected Writ Petition 403 of 2019 has been filed by Kanti Devi, respondent no. 8 in Writ Petition No. 292 of 2019. It is directed against the order of the Deputy Director of Consolidation dated 10.08.2018 allowing a restoration application filed by Anil Gera, the petitioner in the other writ petition, thereby setting aside an order dated 30.06.2016 on the ground that it was passed ex-parte. It is this very revision, which stands restored by the order dated 10.08.2018, which is the subject matter of controversy in Writ Petition No. 292 of 2019, which petition is to be allowed as above and directions have to be issued for its expeditious disposal.

Under the circumstances, the writ petition no. 403 of 2019 has, for all practical purposes, been rendered infructuous and is liable to be dismissed as such.

Accordingly and subject to the directions/observations herein above, Writ Petition No. 292 of 2019 is hereby, allowed while Writ Petition No. 403 of 2019 is dismissed as infructuous.

Order Date :- 01.04.2019

Mayank