1. Heard Sri A.K. Jauhari, learned counsel for the petitioners, Sri Mahendra Kumar Mishra, learned Standing counsel for the opposite party nos. 1,2 and 3 and Sri Dilip Kumar Pandey, learned counsel for the opposite party no.4.
2. This petition has been filed challenging the order dated 10.12.1997 passed by the Deputy Director of Consolidation(hereinafter referred as D.D.C.), Raibareily by means of which the revision under Section 48 of the Consolidation of Holdings Act has been allowed without issuing notices or affording opportunity to the petitioners.
3. The facts, for adjudication of the instant writ petition as emerged from the pleadings, are that the lease of the disputed lands was granted to the petitioners. The opposite party nos. 6 and 9 had filed objections under Section 9-A(2) of the Consolidation of Holdings Act, which were allowed by the consolidation officer after affording opportunity to adduce the evidence and after considering the same by means of the orders dated 11.12.1996. Thereafter the Gaon Sabha had filed an application for restoration. Considering the same, the order dated 11.12.1996 was stayed by means of the order dated 31.12.1996. Challenging the same, the revisions were filed. In the meantime, Gaon Sabha had also filed the appeals against the orders dated 11.12.1996. The appeals were rejected by means of the order dated 29.10.1997. The Gaon Sabha had filed a revision against the same, which was registered as Revision No.1150 of 1997.
4. A report dated 08.12.1997 was submitted by the Consolidation officer to the effect that the entries in the name of the petitioners in the revenue records are forged because the land in dispute is recorded as 'Oosar' in the Khatauni. On the basis of the said report, three revisions were registered under Section 48 of Consolidation of Holdings Act. The D.D.C., after perusing the report and the records, allowed the revisions without issuing notices to the petitioners on the ground that for cancelling the forged entries, parties need not be informed, as has been held by the Board of Revenue as well as the High Court and set aside the order dated 29.10.1997 passed by the Settlement Officer Consolidation and order dated 11.12.1996 passed by the Consolidation Officer. Hence the present writ petition has been filed.
5. Submission of learned counsel for the petitioners is that the petitioners had got the lease of the lands in dispute from the Gaon Sabha. Objections filed by the petitioner nos. 6 and 9 were allowed by the Consolidation Officer and the appeal filed against the same was dismissed by the Settlement Officer Consolidation, which was challenged in revision. In the meantime a report was submitted on 08.12.1997 by the Consolidation Officer before the Deputy Director of Consolidation alleging that the entries made in the name of the petitioners are forged, on the basis of which also the revision was registered. He further submitted that the report was submitted without affording any opportunity to the petitioners and the Deputy Director of Consolidation also without issuing notice or affording any opportunity to the petitioners allowed the revisions without authority of law and the order passed by the Settlement Officer Consolidation and Consolidation Officer have been set aside in an arbitrary and illegal manner, which could not have been done.
6. Learned Standing Counsel on the basis of report submitted by the Consolidation Officer submitted that it was found that the entries made in favour of the petitioners are forged one and for forged entries, there is no requirement of issuing any notice or affording any opportunity to the concerned. Therefore the impugned order has rightly been passed in accordance with law and it does not suffer from any illegality or error.
7. Learned counsel for the Gaon Sabha does not dispute that the order has been passed without affording any opportunity. However, he submitted that the entries were made without approval of patta as per the pleadings and records annexed with the writ petition. Therefore the entries made in favour of the petitioners are forged and the impugned order has rightly been passed.
8. I have considered the submissions of learned counsel for the parties and perused the orders and documents placed on record.
9. The question for consideration, in the present writ petition, is as to whether the revision under Section 48 of the Consolidation of Holdings Act could have been decided without issuing notices and affording opportunity to the affected parties or not. For consideration of the issue, it would be appropriate to reproduce Section 48, which reads as under:-
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. -] [(1)] For the purposes 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 purposes 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.]
10. Section 48 provides that 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 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. Therefore the revision and reference under Section 48 can be decided only after allowing the parties concerned opportunity of hearing but in the present case even the notices have not been issued on the ground that on the basis of the report submitted by the consolidation officer and looking to the records as per requirement, it is apparent that all the entries are forged. The revisional authority has also not recorded as to which of the records were seen and how he came to the conclusion that the entries are forged, while the orders dated 11.12.1996 was passed on the basis of oral as well as documentary evidence.
11. In the instant case, the revisions under Section 48 were registered on the report of the consolidation officer. Sub Section 3 of Section 48 provides that 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. The reference/report made by the consolidation officer has been filed by the opposite parties alongwith the counter affidavit.
12. Perusal of the report/reference dated 08.12.1997 filed alongwith the counter affidavit indicates that before submitting the report, no opportunity of hearing was afforded by the consolidation officer to the affected persons, i.e, petitioners. Learned counsel for the petitioner has also submitted that no opportunity was afforded. Therefore this Court is of the view that the report/reference submitted by the Consolidation Officer was without following the due process of law. Therefore the same could not have been accepted, that too without issuing notices and affording opportunity to the affected parties i.e. the petitioners.
13. The power conferred under Section 48 on the Director of Consolidation, are wide enough so that the claims 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. Therefore in case any such report was submitted in accordance with law that the entries are forged one, the propriety/legality, regularity and correctness of the same and the order challenged in revision can be considered by him after re-appreciating or re-evaluating the evidence on record.
14. The Hon'ble Apex Court, in the case of Sheo Nand versus Deputy Director of Consolidation; 2000(3) SCC 103, has held as under in paragraph 20 and 21:-
"20. The Section 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 claims 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 scrutinise 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 record 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 re-appraise 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 made in accordance with law."
15. The Hon'ble Apex Court, in the case of Sher Singh(Dead) by LR's versus Joint Director of Consolidation and others;(1978) 3 SCC 172, has held that the powers conferred under Section 48 of the Consolidation of Holdings Act is pari materia to Section 115 of the Code of Civil Procedure. The relevant paragraphs 4,5 and 12 are reproduced below:-
4.The principal question that falls for our determination in this case is whether in passing the impugned order, the Joint Director of Consolidation, exceeded the limits of the jurisdiction conferred on him under section 48 of the 1953 Act. For a proper decision of this question, it is necessary to advert to section 48 of the 1953 Act is it stood on the relevant date before its amendment by Act No. VIII of 1963 "Section 48 of the U.P. Consolidation of Holdings Act: The Director of Consolidation may call for the record of any case if the Officer (other than the Arbitrator) by whom the case was decided appears to have exercised a jurisdiction not vested in him by law or to have failed to exercise jurisdiction so vested, or to have acted in the exercise of his jurisdiction illegally or with substantial irregularity and may pass such orders in the case as it thinks fit."
5.As the above section is pari materia with section 115 of the Code of Civil Procedure, it will be profitable to ascertain the scope of the revisional jurisdiction of the High Court. It is now well settled that the revisional jurisdiction of the High Court is confined to cases of illegal or irregular exercise or non-exercise or illegal assumption of the jurisdiction by the subordinate courts. If a subordinate court is found to possess the jurisdiction to decide a matter, it cannot be said to exercise it illegally or with material irregularity even if it decides the matter wrongly. In other words, it is not open to the High Court while exer- cising its jurisdiction under section 115 of the Code of Civil Procedure to correct errors of fact howsoever gross or even errors of law unless the errors have relation to the jurisdiction of the- court to try the dispute itself.
12.The position that emerges from these decisions is that section 115 of the Code of Civil Procedure empowers the High Court to satisfy itself on three matters : (a) that the order of the subordinate court is within its jurisdiction;(b) that the case is one in which the court ought to have exercised jurisdiction; and failed to do so (c) that in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provisions of law, or with material irregularity by committing some error of procedure in the course of the trial which is material in that it may have affected the) ultimate decision. And if the High Court is satisfied that there is no error in regard to any of these three matters, it has no power to interfere merely because it differs from the conclusions of the subordinate court on questions of fact or law. A distinction must be drawn between the errors committed by subordinate courts in deciding question of law which have relation to, or are concerned with, questions of jurisdiction of the said courts, and errors of law which have no such relation or connection. An erroneous decision on a question of fact or of law reached by the subordinate court which has no relation to question of jurisdiction of that court, cannot be corrected by the High Court under section 115."
16. In view of above, it is not in dispute that the D.D.C. is conferred with the widest powers under which he could have examined the report/reference made to it, if it was in accordance with law but in terms of section 48 after affording opportunity of hearing to the affected parties. It has not been done in the present case. The impugned order has been passed without issuing notices and even without recording any finding as to how he came to conclusion that the entries are forged and the orders passed by the lower court passed on the basis of evidence are not sustainable.
17. The Hon'ble Apex Court in the case of Ram Phal versus State of Haryana and others; 2009(3) SCC 258 has held that the duty to give reasons for coming to a decision is of decisive importance which cannot be lawfully disregarded. The relevant paragraph 6 is reproduced below:-
"6.The duty to give reasons for coming to a decision is of decisive importance which cannot be lawfully disregarded. The giving of the satisfactory reasons is required by the ordinary man's sense of justice and also a healthy discipline for all those who exercise power over others."
18. The Hon'ble Apex Court, in the case of Secretary and Curator Victorial Memorial Hall versus Howrah Ganatantrik Nagrik Samity, has held that reason is the heartbeat of every conclusion.The relevant paragraph 41 is reproduced below:-
"41. Reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, it becomes lifeless. Reasons substitute subjectivity by objectivity. Absence of reasons renders the order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum."
19. In view of above, it was required to be considered as to whether the subordinate consolidation authorities have acted illegally in exercising their jurisdiction or exceeded their jurisdiction but the revisional authority has failed to do so and, merely, on the basis of a report, without issuing notices and recording any reasons, has set aside the orders passed by the courts below. The recording of reasons is must, which discloses as to how the mind has been applied by the authority in arriving at the conclusion. Therefore the reasons are like a bridge. It also ensures transparency and fairness in the decision making. It is also necessary for the affected party to know the reasons on which the order has been passed against him so that he may challenge the same raising his ground. It is also necessary for the higher court for examining the correctness of the order because unless the reasons are recorded, the higher Court cannot examine as to what transpired to the concerned authority in reaching to the decision and the decision is based on correct reasoning or not.
20. Even if the authority, on the basis of report, is of the view that the entries are forged, the affected persons are required to be given opportunity of being heard to show the justification of entries made in their favour. The authority is also under obligation to record reasons as to how the entries are forged.
21. In view of above, this Court is of the considered opinion that the impugned order has been passed not only in flagrant violation of the principles of natural justice as well as provisions contained in Section 48 of the Consolidation of Holdings Act but it is cryptic order without assigning any reasons. Therefore it has no legs to stand in the eyes of law and is liable to be set aside with direction to the opposite party no.1 to consider afresh and pass the order in accordance with law after affording opportunity to the petitioners.
22. Accordingly, the impugned order dated 10.11.1997 passed in Revision No.1150,1112, 1113 and 1114 of 1997(Chedda Khan and others versus Deputy Director of Consolidation) is set aside. The opposite party no.1 is directed to decide the revisions afresh in accordance with law and the observations made here-in-above.
23. The parties shall appear before the opposite party no.1 alongwith the certified copy of this order on 22.02.2021. The opposite party no.1 shall make its earnest endeavour to decide the revisions expeditiously and within a period of six months from the date of production of certified copy of this order.
24. With the aforesaid, the writ petition is partly allowed. No order as to costs.
.
.............................................(Rajnish Kumar,J.) Order Date :- 27.1.2021 Akanksha