Heard Mr.Mohan Singh, learned counsel for the petitioners, learned Standing Counsel as well as Mr.N.N.Jaiswal, learned counsel for the opposite party No.3.
The petitioners have challenged the order dated 31st of December, 2009, passed by the Deputy Director of Consolidation, Bahraich, whereby he has set aside the order dated 19th of February, 2007, passed by the Settlement Officer Consolidation, inter alia on the ground that the order is without jurisdiction as against the order passed by the Settlement Officer Consolidation, which was interlocutory in nature the revision was not maintainable. By means of order dated 19th of February, 2007, the Settlement Officer Consolidation by setting aside the order dated 10th of December, 1997, passed by the Consolidation Officer remanded the case to pass a fresh order on merit after providing opportunity of hearing to the parties.
Briefly, the case set up by the petitioners is that the land of Khata No.90, situated at village Salarpur, Pargana, Tehsil and District Bahraich was initially recorded in the names of Doobar, Mohd.Hussain and Habeeb sons of Subrati as well as Gulam Rasool alias Ghulam Mohammad and Rafiq, both sons of Rasool in basic year Khatauni. The total areas of the said Khata is 1.66 acre and 1/3rd part of the land was sold out by the aforesaid Khatedars in favour of Mustaq Ahmad, father of the petitioner No.1 and 2 and Mohd.Koya opposite party No.16 through registered sale deed dated 16th of October, 1980. On the basis of 2 the said sale deed they entered into possession over their respective share of the land. It appears that their names were not mutated in the revenue record and it remained recorded in the names of sellers. During the course of consolidation proceedings they filed objection under Section 9-A (2) of the U.P.C.H.Act before the Consolidation Officer. Their submission is that instead of deciding the said objection the Consolidation Officer passed the order on 10th of December, 1997 to devolve the property on the basis of right of succession, against which the purchasers filed an appeal with 8 years delay, on the ground that they were not the party in the proceeding and by the order impugned their rights have been affected. The Settlement Officer Consolidation by means of order dated 19th of February, 2007 allowed the application for condonation of delay and remanded the matter to the Consolidation Officer for a fresh order by setting aside the order dated 10th of December, 1997. Being aggrieved with which Mr.Gulam Mohammad and others filed a revision stating the facts therein that against the order dated 10th of December, 1997 the appeal filed by Mohd.Koya was rejected by means of order dated 17th of January, 2006. He also challenged the said order in the revision. The revisional court also confirmed the order passed by the court of appeal, therefore, the order passed by the Settlement Officer Consolidation as well as Deputy Director of Consolidation have the effect of resjudicata between the parties and there was no question to recall the earlier order passed by the Consolidation Officer and set aside the same.
The learned counsel for the petitioners submits that since in the appeal and revision filed by Mr.Mohd.Koya, the petitioners were not the parties, the orders passed therein have no effect of resjudicata at least for the petitioners. In support of his submissions he cited two cases i.e. (1) Mangal Das K.Desai versus Shashikant R.Desai and others reported in 2000 (2) UPLBEC 1417 and (2) Amarendra Komalam and another 3 versus Usha Sinha and another reported in 2006 (24) LCD
323. He further submits that against the remand order passed by the appellate court, the interference by the Revisional court is not permissible. In support of his submission he relied upon the following decisions:-
(1) Smt.Lal Dei through LRs and others versus Deputy Director of Consolidation, Varavansi and others reported in 2005 (98) RD 520.
(2) Rajbir and others versus Dy.Director of Consolidation, Meerut and others reported in 1999 (90) RD page 313. (3) Ram Bhajan and others versus Deputy Director of Consolidation, Allahabad and another reported in 2001 (19) LCD 906.
(4) Dularey and others versus Dy. Director of Consolidation and others reported in 2005 (99) RD 174.
On the other hand Mr.N.N.Jaiswal, learned counsel for the opposite party No.3 raised objection against the maintainability of the writ petition on the ground that once the order passed by the Settlement Officer Consolidation was affirmed, it has the effect of resjudicata between the parties. He further submitted that once the order passed by the Consolidation Officer was affirmed by the orders passed by the court of appeal and revisional court, it merged into the order passed by the higher court and after merger of the order with the order of the higher court, it was not open for him to recall it and review the same. He further submits that it is settled view that the consolidation courts have no jurisdiction to review its order.
Upon perusal of the record, I find that the sale deed in question was executed in favour of the petitioners' father and opposite party No.16 on 16th of October, 1980, but the names of the purchasers were not recorded in the revenue record. During the course of consolidation proceedings the Consolidation Officer recorded the names of legal heirs of the sellers (deceased) on the 4 basis of the right of succession, against which the purchasers i.e. the petitioners' father as well as the opposite party No.16 filed an appeal. The petitioners' father also moved an application for recall of the order before the Consolidation Officer. Though the appeal of the opposite party No.16 was dismissed, against which a revision was also dismissed, but it appears that the court of appeal allowed the appeal of the petitioners and remanded the matter to the Consolidation Officer for a fresh decision, whereas it is not in dispute that the matter had become final at the stage of revisional court and if the petitioners were aggrieved with the same, on the ground of non-joinder of party, definitely they could have challenged the order passed by the Deputy Director of Consolidation before this court by filing a writ petition, but they did not do so, rather they succeeded to get the order dated 10th of December, 1997 recalled, which was already merged into the order passed by the Deputy Director of Consolidation, therefore, I am of the view that the order passed by the Settlement Officer Consolidation as well as the Consolidation Officer is without jurisdiction.
The learned counsel for the petitioners also raised finger on the jurisdiction of the Deputy Director of Consolidation, who has interfered in the order passed by the Settlement Officer Consolidation on the ground that under Section 48 of the U.P.C.H.Act his jurisdiction is very limited and he could see only the jurisdictional error, if any, committed by the Settlement Officer Consolidation, but it could not enter into the merit of the case. However, upon perusal of the order impugned I find that since the order passed by the Consolidation Officer was already merged into the order passed by the Deputy Director of Consolidation, by allowing the application for recall of the order, the Settlement Officer Consolidation has exercised the power, which was not vested with it, therefore, the revisonal court has rightly interfered in the order passed by the court of appeal. The 5 Hon'ble Supreme Court has discussed the power of the revisional consolidation authority as is provided under Section 48 of the U.P.C.H.Act, 1953 in several cases, some of which are discussed hereunder:-
(1) Gaya Din (D) through LRS. And others versus Hanuman Prasad (D) Through LRS. And others reported in 2001 (1) SCC 501. In this case the Hon'ble Supreme Court held that Section 48 of U.P.C.H.Act, 1953 gives very wide powers to the Deputy Director of Consolidation. The relevant paragraphs 10, 11 and 12 are reproduced hereunder:-
"10. There can be no doubt that under the amended Section 48 of the Consolidation Act, the revisional power of the Director of Consolidation is not confined to errors of jurisdiction as was the position under the unamended provision. The power of the revisional authority now extends to satisfying himself as to the regularity, correctness, legality or propriety of any order other than an interlocutory order. It is well settled that conceptually the powers of a revisional authority, even if couched in wide language, cannot be equated with the powers of an Appellate Authority.
11. The scope of the powers of the Deputy Director under the amended provision came up for consideration of this Court in Ram Dular v. Dy. Director of Consolidation, Jaunpur (1994 Supp. (2)SCC 198). It was observed that in considering the correctness, legality or propriety of the order or correctness of the proceedings or regularity under Section 48 of the Consolidation Act, the Deputy Director of Consolidation could not assume the jurisdiction of the original authority as a fact- finding authority by appreciating for himself those 6 facts de novo; he had to consider whether the legally admissible evidence had been considered by the authorities in recording a finding of fact or law or the conclusion reached by them was based on evidence or any patent illegality or impropriety had been committed or there was any procedural irregularity, which would go to the root of the matter. That judgment was relied on in a recent judgment of this Court in Seshmani v. Dy. Director of Consolidation, District Basti, U.P. {2000 (2) SCC 523}.
12. It is true that in Sheo Nand v. Dy. Director of Consolidation Allahabad ({2000 (3) SCC 103} this Court observed: (SCC p.112, para 20) "(Section 48 of the Consolidation Act) gives very wide powers to the Deputy Director. It enables him either suo motu on his own motion or on the application of any person to consider the propriety, legality, regularity and correctness of all the proceedings held under the Act and to pass appropriate orders. These powers have been conferred on the Deputy Director in the widest terms so that the claim of the parties under the Act may be effectively adjudicated upon and determined so as to confer finality to the rights of the parties and the revenue records may be prepared accordingly."
(2) Sheo Nand and others versus Deputy Director of Consolidatio, Allahabad and others reported in 2000 (3) SCC
103. The Hon'ble Supreme Court held that Section 48 of the U.P.C.H.Act, 1953 gives very wide powers to the Deputy Director of Consolidation. The relevant paragraphs 20 and 21 are reproduced hereunder:-
"20. The section gives very wise powers to the Deputy Director. It enables him either suo motu on his own motion or on the application of any person to consider the propriety, legality, regularity and correctness of all the proceedings held under the Act and to pass appropriate orders. These powers have been conferred on the Deputy Director in the widest terms so that the claim of the parties under the Act may be effectively adjudicated upon and determined so as to confer finality to the rights of the parties and the revenue records may be prepared accordingly.
21. Normally, the Deputy Director, in exercise of his powers, is not expected to disturb the findings of fact recorded concurrently by the Consolidation Officer and the Settlement Officer (Consolidation), but where the findings are perverse, in the sense that they are not supported by the evidence brought on record by the parties or that they are against the weight of evidence, it would be the duty of the Deputy Director to scrutinize the whole case again so as to determine the correctness, legality or propriety of the orders passed by the authorities subordinate to him. In a case, like the present, where the entries in the revenue records are fictitious or forged or they were recorded in contravention of the statutory provisions contained in the U.P. Land Records Manual or other allied statutory provisions, the Deputy Director would have full power under Section 48 to reappraise or re-evaluate the evidence-on-record so as to finally determine the rights of the parties by excluding forged and fictitious revenue entries or entries not 8 made in accordance with law."
(3) Ram Dular versus Dy. Director of Consolidation, Jaunpur and others reported in 1994 Supp (2) SCC 198. The relevant portion of paragraph 3 is reproduced hereunder:-
"3................ It is clear that the Director had power to satisfy himself as to the legality of the proceedings or as to the correctness of the proceedings or correctness, legality or propriety of any order other than interlocutory order passed by the authorities under the Act. But in considering the correctness, legality or propriety of the order or correctness of the proceedings or regularity thereof it cannot assume to itself the jurisdiction of the original authority as a fact-finding authority by appreciating for itself of those facts de novo. It has to consider whether the legally admissible evidence had not been considered by the authorities in recording a finding of fact or law or the conclusion reached by it is based on no evidence, any patent illegality or impropriety had been committed or there was any procedural irregularity, which goes to the rest (sic root) of the matter, had been committed in recording the order or finding..............."
(4) The Hon'ble Supreme Court followed the aforesaid decision in the case of Seshmani and another versus Deputy Director of Consolidation, District Basti, U.P.and others reported in 2000 (2) SCC 523.
Thus it is well established that the Deputy Director has wide power to interfere in the order passed by the inferior consolidation courts, therefore, I am of the view that the Deputy 9 Director of Consolidation has rightly exercised his power in interfering in the orders passed by the Settlement Officer Consolidation. On merit of the case also I am of the view that once the order passed by the Consolidation Officer is merged into the order passed by the Deputy Director of Consolidation, it was not open for the Consolidation Officer to recall the same. If he was aggrieved with the order passed by the consolidation courts on the ground that these orders prejudicially affect their right and have been passed without joining them as party of the proceeding, they could have challenged the order passed by the Deputy Director of Consolidation before this court by filing a writ petition, but until and unless the order passed by the Deputy Director of Consolidation is set aside, it was not open for the Consolidation Officer to reopen the proceeding and review his order, therefore, I do not find any error in the order impugned.
The writ petition is dismissed.
Dated:27.1.2010 Banswar