JUDGMENT
1. Faced with conflicting opinion expressed by different 'benches' of co-ordinate strength (All Single Judges), Learned Single Judge referred the matter for consideration by a larger bench and the Hon'ble Chief Justice as contemplated under Rules of Court 1952 (as amended upto date) has nominated this Bench to resolve the conflict and set at rest the legal position. Consequently the matter has come up for before this Bench for adjudication.
2. Can a party to the Proceedings under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act) directly invoke 'Revisional' jurisdiction of DDC Under Section 48 of the Act by passing statutory remedy of Appeal under Section 12 of the Act.
3. The pith and substance of the issue in 'controversy' can be summarized, for ready reference as follows:-
4. Following two questions have been framed and referred by Learned Single Judge for decision:-
A. Whether the Deputy Director of Consolidation can exercise revisional jurisdiction under Section 48 against the appealable order passed by the Consolidation Officer where no appeal has been filed?
B. Whether the decisions of learned Single Judges in:-
1. 1995 R.D. Page 534 Damodar Prasad v. Deputy Director of Consolidation, Allahabad and Ors.
2. 1998 (89) R.D. page 578 Santosh Kumar and Ors. v. U.P. Sanchalak Chakbandi, Faizabad and Ors.
3. 1999 (90) R.D. page 363 Ranjeet and Ors. v. Deputy Director of Consolidation Balia and Ors.
4. 2000 R.D. page 608 Hari Har Ram v. Deputy Director of Consolidation Ballia and Ors.
5. Judgment dated 28.9.1999 passed in writ petition No. 26527 of 1999 Rama Shanker Singh and Ors. v. Deputy Director of Consolidation, Varanasi and Anr.
lays down correct law or the view taken by the learned Single Judge in following cases lay down the correct law?
1. 1979 R.D. page 308 Ram Das and Anr. v. Deputy Director of Consolidation and Ors.
2. 1982 R.D. page 78 Hori Lal v. Deputy Director of Consolidation, Allahabad and Ors.
3. 1985 All. L.J. 1343 Ram Saran v. Assistant Director of (Consolidation) and Ors.
4. 1990 R.D. page Ram Surat and Ors. v. Gram Sabha, Nagar, Haraiva Mirzapur and Ors.
Facts of the Case:-
5. A dispute arose in between one Faurjdar (the petitioner) and Smt. Prabhawati (the respondent) during consolidation operations. Matter was placed before the Consolidation Officer for decision of the dispute under Section 9-A (2) of the Act. An alleged compromise purporting to be on behalf of the respective parties was presented before the Consolidation Officer, who decided the dispute vide the order dated October, 8, 1996 in terms of the said compromise. Subsequently an application dated September, 4, 1997 was filed by Smt. Prabhawati for the recall of the order dated 8.10.1996 on the ground that the order dated 8.10.1996 was obtained by playing fraud; no notice or summon of the case was served on her nor she filed any such compromise; there is no order sheet on the record which may show that any proceedings were taken out before the Consolidation Officer. She pleaded that compromise has been got verified by impersonation as she did not appear before the Court nor engaged any counsel. The allegations made in recall application were duly supported by statement on oath. The said recall application was dismissed in default by the order dated 13th of December, 1999.
6. Smt. Prabhawati filed two revisions being revision No. 812 of 2000, (annexure 9 to the writ petition) against the order dated October, 8, 1996 passed in original case No. 3173 and revision No. 707 of 1998 against the order dated 18.10.1996, on similar pleas. In the memo of revision she has set up plea of fraud against the present petitioner and others and pleaded that no notice or summon was served on her by the Consolidation Officer before recording the compromise nor she ever entered into any such compromise. It has been also stated that Faujdar, the petitioner has filed a belated objection before the Consolidation Officer, notice of which was not given to her. An objection was raised by the present petitioner before the respondent No. 1 about maintainability of the revision on the ground that it is barred by time.
7. The Deputy Director of Consolidation by the impugned order dated 27th December, 2001 held that the question 'whether the revision is barred by time, and, therefore not maintainable, shall be heard and decided at the time of hearing of the revision being heard on merits itself. Aggrieved against the aforesaid order the present writ petition has been filed.
Contention of the Petitioner:
8. It appears that in the present writ petition the petitioner has endeavoured to raise and press a new plea with regard to the non maintainability of the revision before the respondent No. 1 which was, though mentioned in the objection but appears to have been not pressed as it does not find mention in the impugned order; there is also no objection that said plea, though pressed but not dealt with by the court below.
9. It is submitted that the order passed by the Consolidation Officer dated October, 8, 1996 is an appealable order under Section 11 of the Act and as such the revision filed by the contesting respondent No. 2 Smt. Prabhawati under Section 48 of the Act is not maintainable and is liable to be rejected as such.
10. Before Learned Single Judge reliance is sought to be placed by the learned Counsel for the petitioner upon the following cases:-
1. 1995 R.D. Page 534 Damodar Prasad v. Deputy Director of Consolidation, Allahabad and Ors.
2. 1998 (89) R.D. page 578 Santosh Kumar and Ors. v. U.P. Sanchalak Chakbandi, Faizabad and Ors.
3. 1999 (90) R.D. page 363 Ranjeet and Ors. v. Deputy Director of Consolidation Ballia and Ors.
4. 2000 R.D. page 608 Hari Har Ram v. Deputy Director of Consolidation Ballia and Ors.
5. Judgment dated 28.9.1999 passed in writ petition No. 26527 of 1999 Rama Shanker Singh and Ors. v. Deputy Director of Consolidation, Varanasi and Anr.
11. Shri Ram Niwas Singh, the learned Counsel for the petitioner contends that legislative intent is clear; viz, orders, which are otherwise appealable under Section 11 of the Act, cannot be challenged directly by filing revision under Section 48 of the Act before Dy. Director of Consolidation. He seeks to support his contention with the help of Rule 111 of the Rules framed under the Act. It is pointed out, that in the said Rule, limitation for filing a revision against an order is 'thirty days' but there is no such period of limitation is prescribed for a revision (if filed) against a proceeding. On that basis he contends that one can infer from the above circumstance that legislature did contemplate revisions of two kinds before the Respondent No. 1, - (a) against an 'Order (i) and (ii) against a'proceeding'. Further elaborating the argument, it is argued that a conjoint reading of Section 11 and Section 48 of the Act makes it clear that a revision against an order which is appealable under Section 11 of the Act, is not conceived by the legislature and, hence it should be held as 'not maintainable' in law. He also submits that regular forum of 'Appeal' if provided in the Statute, should not be allowed to be rendered redundant.
Contention of the Respondents:-
12. In reply, the learned standing counsel Shri M.R. Jaiswal and Shri O.P. Rai, representing Respondent No. 2 submit that legislature is competent to provide more than one remedy in a statute against an order in a given situation, it is the choice of 'aggrieved person' to avail oneself of either of these remedies and there is no bar to provide two forums. According to the Respondent, a plain reading of Section 48 of the Act, does not show any 'inhabitation' or 'hitch' or restriction upon the right of 'aggrieved person' against an order of Consolidation Officer etc., or during Proceeding to first challenge order 'wrong' or Proceeding by way of appeal under Section 11 before Settlement Officer Consolidation or, in the alternative invoke 'revisional-jurisdiction' before Higher Authority i.e. DDC. It was further submitted that, if any, restriction is imposed, as suggested by the petitioner it will amount to rewrite 'Statute' which is neither permissible in law nor warranted in the facts of the present case.
13. Section 48 as originally enacted of U.P. Act No. 5 of 1954 is reproduced below:-
48. Revision- 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 may think fit.
14. It was amended and was substituted by U.P. (Amendment Act No. 24 of 1956). The provision, thus, amended is reproduced below:-
48. Powers of Director of Consolidation to call for records and to revise orders. The Director of Consolidation may call for the record of any case or proceeding if the Officer (other than the Arbitrator) by whom the case was decided or proceeding taken appears to have failed to exercise, jurisdiction so vested, or to have acted in the exercise of his jurisdiction illegally or with substantial irregularity and pass such orders in the case as it think fit.
15. Above section was further amended by U.P. (Amendment Act No. 38 of 1958) as well as by Section 38 of U.P. (Amendment Act No. 38 of 1963). Amended Section 48, as it stands today, is quoted below:-
Section 48, Revision and reference - (1) The Director of Consolidation may call for and examine the record of any case decided or proceeding taken by any subordinate authority for the purpose of satisfying himself as to regularity of the proceedings; or as to the correctness, legality or propriety of any order [other than interlocutory order] passed by such authority in the case of proceedings and 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 Deputy 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 Officer, Consolidation, Consolidation Officer, Assistant Consolidation Officer, Consolidator and Consolidation Lekhpal shall be subordinate to the Director Consolidation.
Explanation - (II) For the purpose of this section the expression "interlocutory order' in relation to a case or proceeding or collateral thereto as does not have the effect of finally disposing of such case or proceeding.
Explanation - (III) The power under this section to examine the correctness, legality or propriety of any order includes the power to examine any findings, whether of fact or law, recorded by any subordinate authority, and also includes the power to re-appreciate any oral or documentary evidence.
16. It may be pointed that Explanation - III was inserted by U.P. Act No. 3 of 2002 w.e.f. 21st of June, 2002.
17. It may be pointed out that this Court in a Full Bench decision Zila Parishad v. Bramha Rishi Sharma AIR 1970 Allahabad 376 has held that if two remedies have been provided by an enactment it is open to the aggrieved person to choose either of them, unless there is any prohibition. In this case an exparte injunction order was passed. The said order was appealable. The defendant had also a right to apply for the vacation of the injunction order before the Court who passed the injunction order. In this fact situation, the Full Bench has made the following observation:-
The language and the object of Rule 1(r) of Order 43 and the scheme of Rules 1 to 4 of Order 39 show that an appeal also lies against the exparte order of injunction. As soon as an interim injunction is issued and the party affected thereby is apprised of it, he has two remedies: (1) he can either get the ex parte injunction order discharged or varied or set aside under Rule 4 of Order 39 and if unsuccessful avail the right of appeal as provided for under Order 43, Rule 1(r), or (2) straightway file an appeal under Order 43, Rule 1(r) against the injunction order passed under Rules 1 and 2 of Order 39, C.P.C. It is not unusual to provide for alternative remedies. For instance, when an ex parte decree is passed against a person, he has two remedies: either he may go up in appeal against the ex parte decree or he may seek to get the ex parte decree or he may seek to get the ex parte decree set aside by the same court.
18. Under the Civil Procedure Code against an ex parte decree two remedies to the defendant have been provided. He can file an application for setting aside the exparte decree under Order IX Rule 13 of C.P.C. or to file appeal against the exparte judgment. By an amendment through which an Explanation has been added being C.P.C. Amendment Act 1976 w.e.f. 1st of February, 1977 now it has been provided that if a party has availed remedy of filing appeal against the exparte judgment he is debarred to file an application under Order IX Rule 13 C.P.C.
19. Under the Income Tax Act against the assessment order it is upon an assessee to file an appeal before the First Appellate Authority or to file 'revision' directly before the Commissioner of Income Tax under Section 263 of the Income Tax Act. U.P. Minor Mineral Rules, Rules 77, 78 and 79 are also to the same effect.
20. The argument of the learned Counsel for the petitioner is that this Court should interpret Section 48 in such a manner so as to exclude the direct filing of revision against such orders or proceedings which are appealable first under Section 11 of the Act. Under Section 11 of the Act any aggrieved party to the proceedings under Section 9-A by an order passed by the Assistant Consolidation Officer or the Consolidation Officer may file appeal within 21 days before the Settlement Officer Consolidation. On comparing the Section 11 with Section 48 of the Act it is clear that only limited orders which are passed under Section 9-A by Assistant Consolidation Officer or the Consolidation Officer are made appealable. On the other hand under Section 48 the Deputy Director of Consolidation is empowered to examine the proceedings and the order of not only Assistant Consolidation Officer or the Consolidation Officer but also of Settlement Officer Consolidation, Consolidator and Consolidation Lekhpals also, thus we find no justification to accept the aforesaid argument of the petitioner.
21. Language of Section 48 is plain and simple and admits of no doubt. It was not disputed, and could not be disputed by the petitioner, that on the plain interpretation of Section 48 of the Act, the section does not provide any bar to entertain a revision by the Deputy Director of Consolidation even if the order under revision is appealable and the appeal has not been filed. Shri R.P. Gupta, advocate, who appeared as amicus curie on the request of the Court has referred to a Constitution Bench Judgment of Supreme Court in the case of Nathi Devi v. Radha Devi Gupta AIR 2005 SC 648, wherein it was held that the interpretative function of the Court is to discover the true legislative intents. It has been said that in interpreting a Statute, the court must, if the words are clear, plain, unambiguous and reasonably susceptive to only one meaning, irrespective of the consequence. They must be expounded in their natural and ordinary sense. When language is plain and unambiguous and admits of only one meaning no question of construction of Statute arises and the Act speaks for itself. Courts are not concerned with policy involved or that the results are injurious or otherwise, which may fall from giving effect to the language used. If the words used are capable of one construction only, then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. In considering whether there is ambiguity the Court must look at the Statute as a whole and consider the appropriateness of the meaning in a particular context, to avoid absurdity and inconsistencies, unreasonableness which may render Statute unconstitutional. In para 5 of the judgment it has been stated in the following words:-
It is well settled that literal interpretation should be given to the Statute if the same does not lead to an absurdity.
22. In para 16 of the judgment, it has quoted an excerpt from its earlier judgment in the case of Nasiruddin and Ors. v. Sita Ram Agrawal , which is reproduced below:-
37. The court's jurisdiction to interpret a statute can be invoked when the same is ambiguous. It is well known that in a given case the court can iron out the fabric but it cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of provision is plain and unambiguous. It cannot add or subtract words to a statute or read something into it which is not there. It cannot rewrite or recast legislation. It is also necessary to determine that there exists a presumption that the legislature has not used any superfluous words. It is well settled that the real intention of the legislation must be gathered from the language used. It may be true that use of expression 'shall or may' is not decisive for arriving at a finding as to whether statute is directory or mandatory. But the intention of the legislature must be found out from the scheme of the Act It is also equally well settled that when negative words are used the courts will presume that the intention of the legislature was that the provisions should be mandatory in character.
Interpretation postulates the search for the true meaning of the words used in the statute as a medium of expression to communicate a particular thought. The task is not easy as the 'language' is often misunderstood even in ordinary conversation or correspondence. The tragedy is that although in the matter of correspondence or conversation the person who has spoken the words or used the language can be approached for clarification, the legislature cannot be approached as the legislature, after enacting a law or Act, becomes functus officio so far as that particular Act is concerned and it cannot itself interpret it. No doubt, the legislature retains the power to amend or repeal the law so made and can also declare its meaning, but it can be done only by making another law or statute after undertaking the whole process of law making, J.P. Bansal v. State of Raj. A.I.R. 2003 S.C. 1405, para 12.
23. G.P. Singh in Statutory Interpretation (8th Vol.) 2001 has observed as follows, which has been reproduced by the Apex Court in D. Saibaba v. Bar Council of India 2003 (4) J.T. 435 (P. 16):-
It may look some what paradoxical that plain meaning rule is not plain and require some explanation. The rule, that plain words, require no construction, starts with the premise that the words are plain, which itself is a conclusion reached after construing the words. It is not possible to decide whether certain words are plain or ambiguous unless they are studied in their context and construed.
24. In Prakash Nath Khanna v. C.I.T., the Apex Court has observed as follows: -
It is well settled principle in law that the court can not read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself. The question is not what may be supposed and has been intended but what has been said....
25. In view of the above, we are of the opinion that on the plain language of Section 48 the argument of the petitioner cannot be accepted. If we accept the argument of the petitioner's counsel it would virtually amount to re-writing Section 48, which is, normally and as of course, permissible under law.
26. Now we take up the cases referred in the referring order by the Learned Single Judge and relied upon by the petitioner.
27. In the case of Damodar Prasad v. Deputy Director of Consolidation (Supra) only this much has been said that an order under Section 9-B being appealable, if it is challenged in revision without availing remedy of appeal it would be destructive of a remedy under the Act. The jurisdiction under Section 48 of the Act ought not to be exercised in a manner which may be destructive of a statutory remedy. On a close reading of the said judgment we find the aforesaid observations were only tentative observations made by the Learned Single Judge and were not conclusive in as much as in the very next sentence it has been observed "that this aspect of the matter also needs to be examined at the end of Deputy Director of Consolidation." It is difficult to deduce a ratio that in the aforesaid case as a matter of law filing of such revision was held to be not maintainable. Be that as it may, with great respect to the Learned Judge we fail to understand how the filing of revision is 'destructive of a remedy under the Act'. Rather, in our opinion it advances the aims and objects of the Act as it facilitates the early disposal and settlements of dispute. Choice has been given to litigants to reach to the higher authority directly instead of approaching the said authority through the route of first filing appeal before the Settlement Officer Consolidation and then revision before the Deputy Director of Consolidation. We, therefore, are unable to subscribe with the view of the judgment of the Learned Single Judge in the aforesaid case.
28. The next case relied upon is Santosh Kumar v. U.P. Sanchalak Chakbandi 1998 (89) RD 578. In the aforesaid case the Learned Single Judge after noticing the argument of the counsel for the petitioner passed the order at the admission stage of the revision, while issuing notice to the opp. parties directing the Deputy Director of Consolidation not to dispose of the revision and with further direction that the opp. party be directed to prefer an appeal. No reasoning or ratio has been laid down in the said case. The aspect that it is open to legislature to provide more than one remedy was neither argued nor was considered by the Learned Single Judge and therefore, we are of the opinion, that the said judgment is not a binding precedent and was not correctly decided. The case of Ranjeet v. DDC 1999 (90) RD 363 is distinguishable on facts in as much as an appeal was filed against the order of the Consolidation Officer and thereafter a revision was also filed against the said order. In this fact situation it was held as follows:-
Where the appeal is pending, it is not appropriate for the Deputy Director of Consolidation to interfere in revision, specially, when the scope of interference in appeal is much wider than the scope of interference in revision.
29. In this case also in the penultimate paragraph the Learned Single Judge has said that the jurisdiction exercised by the Deputy Director of Consolidation is destructive of the statutory remedy of appeal. We, with great respect, disapprove the said observation made by the Learned Single Judge as it does not borne out from the scheme of the Act or on the plain language of Sections 11 and 48 thereof.
30. The next case relied upon is Smt. Madhuri v. DDC 2004 (96) RD 46. In this case without filing objection revision was preferred by the petitioner which was dismissed on the ground of alternative remedy. The High Court observed that it is still open to the petitioner to file objection under Section 12 of the Act before the Consolidation Officer. We do not find any applicability of the said judgment on the issue in hands.
31. On the other hand we find that this Court in the case of Ram Das v. DDC 1979 AWC 513 has dealt with the present issue directly. The relevant portion of the judgment is reproduced below:-
The order was also challenged as being without jurisdiction as the opposite party did not prefer any appeal against the order of the Consolidation Officer. It is true that normally revision should not be filed directly against an order, if appeal lies, but there is no bar express or implied either Under Section 21 or Section 48 prohibiting a direct revision. Even Rule 111 which provides limitation for filing revision lays down that an application under Section 48 shall be presented by the applicant or his duly authorized agent to the District Deputy Director Consolidation within 30 days of the order against which the application is directed. It removes any doubt if there be any, and permits filing of revision against any order.
32. This judgment was not noted by the Learned Judges in the case of Damodar Prasad (supra), Santosh Kumar and others (supra), Ranjeet and others (supra) and Rama Shanker and others (supra). Therefore on the principle of per incurium the judgments delivered in the case of Damodar Das and other judgments are liable to be ignored.
33. We note that doctrine of per incuriam is applicable where by inadvertence a binding precedent or relevant provisions of the Statute have not been noticed by the Court.
In Halsbury's Laws of Ingland (4th Edn.) Vol. 26 on pages 297-98, para 578 per incuriam has been stated as follows:
A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow; or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force. A decision should not be treated as given per incuriam, however, simply because of a deficiency of parties, or because the court had not the benefit of the best argument, and, as a general rule, the only cases in which decision should be held to be given per incuriam are those given in ignorance of some inconsistent statute or binding authority. Even if a decision of the Court of Appeal has misinterpreted a previous decision of the House of Lords, the Court of Appeal most follow its previous decision and leave the House of Lords to rectify the mistake.
In the case of Mamleshwar Prasad v. Kanhaiya Lal (1975) 2 SCC 232 the Apex Court has held as follows:
Certainty of law, consistency of rulings and comity of courts- all flowering from the same principle-converge to the conclusion that a decision once rendered must later bind like cases. We do not intend to detract from the rule that, in exceptional instances, where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reaching, it may not have the sway of binding precedent It should be a glaring case, an obtrusive omission. No such situation presents itself here and we do not embark on the principle of judgment per incuriam. Finally it remains to be noticed that a prior decision of this Court on identical facts and law binds the Court on the same points in a later case. Here we have a decision admittedly rendered on facts and law indistinguishably identical and that ruling must bind.
In the case of A.R. Antulay v. R.S. Nayak the Apex Court has quoted the observations of Lord Goddard in Moore v. Hewitt (1947) 2 All ER 270 (KBD) and Penny v. Nicholas (1950) 2 All ER 89 (KBD) to the following effect:
Per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong.
In the case of State of U.P. v. Synthetics & Chemicals Ltd. (1991) 4 SCC 1391 the Apex Court has observed as follows:
'Incuria' literally means "carelessness". In practice per incuriam appears to mean per ignorantium. English Courts have developed this principle in relaxation of the rule of stare decisis. The "quotable in law' is avoided and ignored if it is rendered, "in ignorantium of a statute or other binding authority" Young v. Bristol Aeroplane Co. Ltd. (1944) 2 All ER 293.
In the case of Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. (2001) 6 SCC 356 the Apex Court has held that a prior decision of this Court on identical facts and law binds the Court on the same points of law in a latter case. This is not an exceptional case by inadvertence or oversight of any judgment or statutory provisions running counter to the reason and result reached. Unless it is a glaring case of obtrusive omission, it is not desirable to depend on the principle of judgment "per incuriam'.
In the case of Government of A.P. v. B. Satyanarayana Rao (2000) 4 SCC 462 the Apex Court held that the rule of per incuriam can be applied where a Court omits to consider a binding precedent of the same Court or the superior Court rendered on the same issue or where a Court omits to consider any statute while deciding that issue.
In the case of State of Bihar v. Kalika Kuer alias Kalika Singh and Ors. the Apex Court has held that per incuriam would mean such element of rendering a decision in ignorance of any provision of the statute or the judicial authority of binding nature and earlier decision cannot be said to have been rendered per incuriam and liable to be ignored on the ground that a possible aspect of the matter was not considered or not raised before the Court or more aspect should have been gone into by the Court deciding the matter earlier.
34. The Supreme Court in the case of N. Bharqawan Pillai v. State of Kerala in para 14 has held that if a view has been expressed without analyzing the statutory provision, cannot be treated as a binding precedent and at the most is to be considered as having been rendered per incurium.
35. We may also notice here the observation made in the judgment of Division Bench of this Court in Mst. Kailashi v. DDC 1972 RD 80.
The Consolidation Officer condoned the delay in filing an objection under Section 9, U.P. Consolidation of Holdings Act, the other side feeling aggrieved filed a revision. The Deputy Director went into the merits and held that there was no sufficient explanation for the delay. On this ground he allowed the revision and set aside the order condoning the delay. Learned counsel for the applicant has urged that the Deputy Director had no jurisdiction to go into the merits of the application for the Condonation of delay. Section 48 of the U.P. Consolidation of Holdings Act confers powers upon the Deputy Director to reach on facts and law every kind of order passed by a subordinate consolidation authority. The order condoning the delay was subject to the revisional powers under Section 48 of the Act.
36. The Learned Single Judge referring the case in the reference order has rightly pointed out that the above observations of the Division bench supports the view that Deputy Director of Consolidation can revise every order passed by any subordinate consolidation authority. Another Learned Single Judge in Ram Sharan v. Assistant Director (Consolidation) 1985 Allahabad Law Journal 1343 has held as follows:-
In Sub-clause (1) of Section 11 it is provided that any party to the proceedings under Section 9-A, aggrieved by an order of the Assistant Consolidation officer or the Consolidation Officer, under that section may, within 21 days of the date of the order, file an appeal before the Settlement Officer Consolidation, who shall, after affording opportunity of hearing to the parties concerned, give his decision thereon. It is, therefore, clear that a person who is not a party to the proceedings under Section 9-A cannot file an appeal as of a right, although he may, if aggrieved by the order prefer an appeal with leave of the Court, as held in Basalat's case (1983 All LJ NOC 37) (supra). However, when a thing which cannot be done as of a right its non-compliance would not operate as a bar to taking recourse to other available legal remedy. Thus, when an appeal cannot be filed as of a right under Section 11 of the Act by an aggrieved person who is not a party to the proceedings, find it difficult to accept that the non-filing of an appeal would operate as a bar to invoking the revisional jurisdiction by the person aggrieved by the order-passed by the Assistant Consolidation Officer or the Consolidation officer under Section 9-A of the Act. In my opinion the revision filed by the aggrieved person straightway without filing an appeal against the impugned order would be maintainable and it cannot be rejected as being non-maintainable. The revisional jurisdiction of the Director of Consolidation under Section 48 of the Act is apparently very wide and it can be invoked without any let or hindrance by any person aggrieved by the order although he may not be party to the case. Section 48 contains no such clause nor it can be so construed as to be applicable only against the orders passed by the appellate authority under the Act. In my opinion the revisional jurisdiction under Section 48 of the Act can be exercised by the Director of Consolidation against any order passed by any subordinate consolidation authority in any case or proceedings under the Act, except an interlocutory order.
37. In view of the above discussion we are of the opinion that the aforesaid decisions laying down that an order of an authority subordinate to Deputy Director of Consolidation can be challenged directly by filing revision under Section 48 of the Act without resorting to the remedy of filing appeal under Section 11 of the Act and thus revision is maintainable lay down law correctly. There is no bar to compel a litigant to invoke the appellate jurisdiction first, before filling a revision under Section 48 of the Act. The decisions holding otherwise, in our considered opinion does not lay down the law correctly and all such decisions are hereby overruled.
38. Scope of Section 48 has been subject matter of interpretation by this Court as well as by the Apex Court on a number of times.
39. Necessity to insert Explanation III arose on view of decision of Supreme Court given in the case of Gayadin v. Hanuman Prasad 2001 (92) RD 79, wherein it was held that notwithstanding the fact that Section 48 though couched in wide terms, permits interference only when the findings of the subordinate authority are perverse i.e. they are not supported by the evidence on record or against law or where they are vitiated due to procedural irregularity. The issue involved in the case in hand was, however, not the subject matter of the consideration of Apex Court in the aforesaid case.
40. Sheo Nath v. D.D.C. AIR 2000 S.C. 1141 is an authority for the proposition that Section 48 gives very wide powers to the Deputy Director of Consolidation so that claims of the parties under the Act may be effectively adjudicated upon and determined so as to confer finality of the rights of the parties and revenue records may be prepared accordingly.
41. Plain reading of Section 48 of the Act shows, and it is also not disputed by the petitioner's counsel, that very wide power has been conferred on the authority concerned who is empowered to call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purposes of satisfying himself as to the regularity of the proceedings etc. It does not provide, like Section 115 of the Civil Procedure of Code that an order would be revisable where no appeal lies. Section 115 of the C.P.C., 1908 in no uncertain terms provides that revision lies only when there is no provision of appeal. Similarly, under Section 333 of U.P. Zamindari Abolition and Land Reforms Act a revision will lie if an appeal lies or where an appeal lies but has not been preferred. The argument of the learned Counsel of the petitioner is that Section 48 should be read in such a manner so as to exclude filing of the revision directly under that section when the order is appealable. The said argument in view of the language of the Section 48 of the Act is misconceived and cannot be accepted.
42. No other point is involved in the writ petition.
While granting the interim order this Court passed the following order:-
Issue notice.
In the meantime the Deputy Director of Consolidation, Azamgarh respondent No. I is directed to consider the question of delay in Revisions No. 707 and 812 pending before him and he may proceed to hear the parties on merits of the revisions only if the delay in preferring the revision is condoned. It will be open to the Deputy Director of Consolidation to proceed to hear the parties on merits in the event of Condonation of delay on the same day or thereafter.
None of the counsel are in a position to inform whether, the Revision No. 707 and 812 are still pending or not before the Deputy Director of Consolidation. Since the matter is old one and contesting party respondent No. 2 is a widowed lady, we direct the respondent No. 1 to hear and decide the revisions, if not already decided, within a period of two months from the date of production of certified copy of this order.
We decide Question - A. "Whether the Deputy Director of Consolidation can exercise revisional jurisdiction under Section 48 against the appealable order passed by the Consolidation Officer where no appeal has been filed?" Answer in affirmative.
C. Deputy Director of Consolidation can exercise revisional jurisdiction under Section 48 in respect to an appealable order passed by the Consolidation officer where no appeal has been filed. We decide the question - B. Whether the decisions of learned Single Judges in:-
1. 1995 R.D. Page 534 Damodar Prasad v. Deputy of Consolidation, Allahabad and Ors.
2. 1998 (89) R.D. page 578 Santosh Kumar and Ors. v. U.P. Sanchalak Chakbandi, Faizabad and Ors.
3. 1999 (90) R.D. page 363 Ranjeet and Ors. v. Deputy Director of Consolidation Ballia and Ors.
4. 2000 R.D. page 608 Hari Har Ram v. Deputy Director of Consolidation Ballia and Ors.
5. Judgment dated 28.9.1999 passed in writ petition No. 26527 of 1999 Rama Shanker Singh and Ors. v. Deputy Director of Consolidation, Varanasi and Anr.
lays down correct law or the view taken by the learned Single Judge in following cases lay down the correct law?" Answer No.
43. Decisions of Learned Single Judges in the cases of Damodar Prasad (supra), Santosh Kumar and others (supra), Ranjeet and others (supra), Hari Har Ram (supra) and Rama Shanker Singh and others (supra) do not lay down correct law and hereby overruled. The correct law is as expounded by Learned Single Judges in the case of Ram Das (supra) and Ram Saran (supra).
44. The writ petition is hereby dismissed. No order as to costs.