Rajesh Lal And 6 Others vs Deputy Director Of ...
2023 Latest Caselaw 144 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 5
 

 
Case :- WRIT - B No. - 3635 of 2022
 

 
Petitioner :- Rajesh Lal And 6 Others
 
Respondent :- Deputy Director Of Consolidation, Kushinagar And 2 Others
 
Counsel for Petitioner :- Shesh Kumar Srivastava
 
Counsel for Respondent :- C.S.C.,Arunesh Kumar Singh
 

 
Hon'ble Dinesh Pathak,J.

Sri Ashok Kumar, Advocate has filed memo of appearance for respondent no. 2, which is taken on record.

Heard learned counsel for the petitioners, learned Standing Counsel for respondent nos. 1 and 3 as well as learned counsel for the private respondent no.2.

In view of the peculiar facts and circumstances of the present case and the order proposed to be passed herein under, this court proceeds to finally decide this matter at the admission stage with the consent of counsel for the parties without calling for their respective affidavits.

By way of instant writ petition the petitioner has invoked extraordinary jurisdiction of this Court under Article 226 of the Constitution of India challenging the remand order dated 30.11.2022 passed by the Deputy Director of Consolidation in Revision No. 0077 of 2018 (Annexure No. 10).

Grievance of the petitioners is that the Deputy Director of Consolidation has illegally remanded the matter just to facilitate the revisionist/respondent no. 2 whereas the entire evidence was available before him and he was competent enough in exercise of his power under Section 48 of U.P. Consolidation of Holdings Act (in brevity "U.P.C.H. Act") to decide the case on merits.

Facts culled out from the averments as made in the writ petition and annexures thereto are that the property in question belongs to Brahmdev Narayan Lal as well as Yaduvansha. Janak Dulari (mother of respondent no. 2) has filed objection under Section 9-A(2) of U.P.C.H. Act claiming her right and title over the property in question on the basis of succession being a daughter of Brahmdev Narayan Lal. The objection filed by Janak Dulari (mother of respondent no. 2) was opposed by the petitioners, who are claiming their right and title on the basis of un-registered will deed dated01.08.1968, said to have been executed by Chandradhari (son-in-law of Brahmdev Narayan Lal). The petitioners have also challenged the status of Janak Dulari (mother of respondent no. 2) being a daughter of Brahmdev Narayan Lal. The Consolidation Officer, vide order dated 29.05.2006, has dismissed the objection filed on behalf of Janak Dulari. Having been aggrieved with the order passed by the Consolidation Officer, Janak Dulari has filed an appeal before the Settlement Officer of Consolidation, who has dismissed the appeal as well. The Deputy Director of Consolidation, on revision being filed on behalf of respondent no. 2, has allowed the same vide order dated 30.11.2022 and remitted the matter before the Settlement Officer of Consolidation to re-consider the matter on merits.

Learned counsel for the petitioners submits that no additional evidence was required to be filed and all the evidence, which were available on record, were sufficient to examine the right and title of the parties over the property in question, however, the Deputy Director of Consolidation has miserably failed to exercise its jurisdiction so vested in it by law under Section 48 of U.P.C.H. Act. It is further submitted that under Explanation (3) to Section 48 of U.P.C.H. Act the Deputy Director of Consolidation is competent enough to examine the correctness, legality or propriety of any order passed by the court subordinate. He is also empowered to appreciate any evidence available on record. Therefore, on this score alone, the order passed by the Deputy Director of Consolidation is not sustainable and is liable to be quashed. It is further submitted that the ground as taken by the Deputy Director of Consolidation for remand of the matter before the Settlement Officer of Consolidation is not justifiable in the eyes of law inasmuch as he is competent enough to re-appreciate the evidence on record to decide the status of Smt. Janak Dulari being daughter of Brahmdev Narayan Lal and her entitlement over the property in question.

Per contra, learned counsel for the respondent has contended that the Deputy Director of Consolidation has rightly remanded the matter before the Settlement Officer of Consolidation to consider the judgment dated 05.12.1958 passed in Appeal No. 37/1946 and the judgment dated 06.11.1973 passed in Suit No. 145 under Section 229-B of U.P.Z.A. & L.R. Act. It is further contended that the name of Janak Dulari was already recorded in the family register and, therefore, long standing entry cannot be ignored by the court without any justifiable ground. It is further contended that there was no occasion for the Deputy Director of Consolidation to re-appreciate the evidence available on record and he has rightly relegated the parties before the Settlement Officer of Consolidation to re-examine the matter with respect to the right and title of the parties over the property in question.

Having considered that rival submissions advanced by the counsel for the parties and perusal of record it reveals that the objection filed on behalf of Janak Dulari (mother of respondent no. 2) on the basis of succession, being daughter of Brahmdev Narayan Lal, has been dismissed by the Consolidation Officer and same was affirmed by the Settlement Officer of Consolidation on appeal being filed by her. The Deputy Director of Consolidation, on revision being filed on behalf of respondent no. 2, has relegated the parties before the Settlement Officer of Consolidation to reconsider three specific documents i.e. judgment dated 05.12.1958 passed in Appeal No. 37/1946, the judgment dated 06.11.1973 passed in Suit No. 145/under Section 229-B of U.P.Z.A. & L.R. Act and family register of 1967. All these documents would have properly been re-appreciated by the Deputy Director of Consolidation in deciding the revision on merits rather to relegate the parties before the Settlement Officer of Consolidation.

In my opinion, no justifiable ground is made out for remand before the Settlement Officer of Consolidation, whereas the Deputy Director of Consolidation is himself competent enough to decide the right and title of the parties, on the basis of the evidence available on record, in exercise of its revisional power as enunciated under Section 48 of U.P.C.H. Act. No additional evidence was directed or required to be filed at the instance of either of the parties to re-examine the matter before the Settlement Officer of Consolidation. Explanation (3) to Section 48 gives evince power to the Deputy Director of Consolidation to examine the correctness, legality or propriety of any order passed by the court subordinate. Moreover, the Deputy Director of Consolidation is empowered as well to re-appreciate any oral or documentary evidence available on record. For the purposes of re-appreciation of evidence, matter is not required to be remanded before the court subordinate and the Deputy Director of Consolidation in his vested power as enunciated under Section 48 of U.P.C.H. Act can re-examine all the evidence, oral as well as documentary, available on the record. For the ready reference, provision of Section 48 and Explanation-3 to Section 48 of U.P. C.H. Act 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 of any order] [other than an interlocutory order]passed by such authority 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 heard, refer the record of any case or proceedings to the Director of Consolidation for action under sub-section (1).

[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.]"

Having considered the legal provisions, as discussed above, I am of the considered view that the Deputy Director of Consolidation has failed to exercise its jurisdiction so vested in it by law. There is no justification to relegate the parties before the Settlement Officer of Consolidation for re-appraisal of the documentary evidence i.e. judgment dated 05.12.1958 passed in Appeal No. 37/1946, the judgment dated 06.11.1973 passed on Suit No. 145/under Section 229-B of U.P.Z.A. & L.R. Act and the family register of 1967. All these documents can be re-examined and discussed by the Deputy Director of Consolidation in deciding the revision rather to remit the matter before the Settlement Officer of Consolidation for its re-appreciation.

As such, instant writ petition succeeds and is allowed. The impugned order dated 30.11.2022 passed by the Deputy Director of Consolidation (Annexure No. 10) is hereby quashed. Revision petition before the Deputy Director of Consolidation is hereby restored to its original number and parties are relegated before the Deputy Director of Consolidation to get the revision decided afresh. It is expected that the said revision, as mentioned above, shall be decided strictly in accordance with law after giving due opportunity of hearing to the parties concerned expeditiously, preferably, within a period of three months from the date of production of a certified copy of this order.

Order Date :- 3.1.2023

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