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Faujdar vs Deputy Director Of ...

High Court Of Judicature at Allahabad|31 January, 2002

JUDGMENT / ORDER

JUDGMENT Ashok Bhushan, J.
1. One of the questions which has arisen in the writ petition is as to whether the Deputy Director of Consolidation while exercising jurisdiction under Section 48 of the U. P. Consolidation of Holdings Act, 1953 (hereinafter to be referred as "the Act") can directly hear the revision against an order passed under Section 9A of the Act. The submission of the counsel for the petitioner Sri R. N. Singh is that the Deputy Director of Consolidation has no Jurisdiction to entertain a revision under Section 48 of the Act directly against the order passed under Section 9A. He has submitted that there is provision of appeal under Section 11 of the Act, hence revision can neither be filed nor can be entertained by the Deputy Director of Consolidation. In support of his submission the counsel for the petitioner has placed reliance on the following decisions :
(1) Damodar Prasad v. Deputy Director of Consolidation. Allahabad and others, 1996 AWC (Suppl) 158 ; 1995 RD 534.
(5) Judgment dated 28.9.1999 passed in Writ Petition No. 26527 of 1999, Rama Shanker Singh and others v. Deputy Director of Consolidation, Varanasi and another.
2. In Damodar Prasad's case (supra), learned single Judge has taken the view that an order passed under Section 9B being appealable even challenged in revision without availing of the remedy of appeal, could be destructive of a remedy under the Act. Paragraph 6 of the aforesaid Judgment is extracted below :
"6, It may also be pertinent to observe that an order under Section 9B being appealable, its challenge in revision without availing of the remedy of appeal would be destructive of a remedy under the Act. The order dated 21.2.1990 was certainly an order under Section 9B of the U. P. Consolidation of Holdings 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. This aspect of the matter also needs to be examined at the end of the Deputy Director of Consolidation."
3. In Santosh Kumar's (supra). It was held by the learned single Judge that the revision should not have been entertained directly by the Deputy Director of Consolidation. It was: held by the learned single Judge in the Judgment :
"It has been urged by the learned counsel for the petitioners that although language of Section 48 is very wide which empowers the Deputy Director of Consolidation to revise any order and the proceedings taken by any subordinate authority and may call for the record for satisfying 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 or proceedings, may, after allowing parties concerned of being heard, make such order in the case or proceedings as he thinks fit but Section 11 of the said Act which is applicable to the proceedings under Section 12 provides an appeal against the orders passed by the Consolidation Officer and therefore, revision should not have been entertained directly by the Deputy Director of Consolidation. In view of the above, it is directed that the Deputy Director of Consolidation shall not dispose of the said revision preferred by opposite party No. 2 and shall direct him to prefer an appeal under Section 11 of the Consolidation of Holdings Act."
4. In Ranjeet's case (supra) again, the learned single Judge took the view relying on the case of Santosh Kumar. that challenge in revision under Section 48 of the Act without availing the remedy of appeal is destructive of statutory remedy. It was held in paragraph 6 of the judgment:
"6. The facts of these three cases relied upon by the learned counsel for the respondent No. 2 are different, in all these three cases the appeal before the Settlement Officer was not pending. In the instant case, as seen above the appeal and cross-appeals were pending before the Settlement Officer (Consolidation), the petitioners specifically urged before the Deputy Director of Consolidation that in view of the pendency of the appeal, the revision was not maintainable. The present case is a case where the jurisdiction exercised by the Deputy Director of Consolidation is destructive of the statutory remedy of appeal and it is a fit case which calls for interference in petitions under Articles 226/227 of the Constitution of India."
5. In Hari Har Ram and Ram Shanker Singh's cases, learned single Judge of this Court took the view that the order passed by the Deputy Director of Consolidation in revision preferred directly against the order of the Consolidation Officer, is not maintainable.
6. Section 48 of the U. P. Consolidation of Holdings Act, as it was originally enacted provided :
"Section 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 exercise of his jurisdiction illegally or with substantial irregularity and may pass such orders in the case as it may think fit."
After several amendments finally Section 48 was substituted by U. P. Amendment Act No. VIII of 1963. Section 48 as it now stands in the statute book provides :
"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 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 of 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 of Consolidation, Consolidation Officers, Assistant Consolidation Officers, Consolidators 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 proceedings, means such order deciding any matter arising in such case or proceeding or collateral thereto as does not have the effect of finally disposing of such case or proceeding."
7. Looking to the plain and simple language of Section 48, Sub section (1) which provides that the Director of Consolidation may call for and examine the record of any case decided or proceedings taken by any subordinate authority makes it clear that this Section empowers the Director of Consolidation to revise orders passed by any subordinate authority. The Explanation (1) of Section 48 provides that for the purpose of this Section, Settlement Officers of Consolidation, Consolidation Officers, Assistant Consolidation Officers. Consolidators and Consolidation Lekhpals shall be subordinate to the Director of Consolidation. This Section 48 (1) read with Explanation (1) clearly contemplates the power of revision with Deputy Director against any case decided or proceedings taken by any subordinate authority as explained in Explanation (1). The provision of Section 48 as amended clearly contemplates exercise of power of revision by Director against the order of any subordinate authority without any exception. The Division Bench of this Court in Mst. Kailashi v. Deputy Director of Consolidation and others, 1972 RD 80, held that Section 48 of the U. P. Consolidation of Holdings Act confers power upon the Deputy Director of Consolidation to reach on facts and law every kind of order passed by any subordinate consolidation authority. The Division Bench held that :
"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."
8. The above observations of the Division Bench, supports the view that the Deputy Director of Consolidation can revise every order passed by any subordinate consolidation authority. Learned counsel for the petitioner submitted that the observations of the Division Bench in the above case is only obiter. He has submitted that the question which has been raised in the present writ petition was not before the Division Bench, hence the Division Bench cannot be held to be authority for the proposition. He has submitted that the order condoning the delay in filing objection under Section 9 does not fall within the scope of order under Section 9 or 10 and was not an appealable order, hence the Deputy Director interfered in the aforesaid order. He submitted that the said judgment is not an authority for the proposition that even if the order under Section 9 is appealable, revision can be entertained.
9. There are series of decisions of this Court by various single Judges taking the view that the revision is not maintainable under Section 48 of the Act before the Deputy Director of Consolidation directly against an order passed by the Consolidation Officer. In following judgments, different learned single Judges of this Court has taken the aforesaid view :
10. In Ram Das's case (supra), the learned single Judge of this Court held 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 under Section 48 prohibiting the direct revision. It was held in the aforesaid judgment--
"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 authorised agent to the District Deputy Director of Consolidation within 50 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."
11. In the case of Hori Lal (supra), it was held that the Director of Consolidation if he finds on facts and circumstances of the case that the order passed by the Consolidation Officer or Assistant Consolidation Officer suffers from any manifest error of law, he can very well interfere with such order in exercise of powers under Section 48 (1).
12. In Ram Saran's case (supra), the learned single Judge has elaborately considered the effect of amendment made in Section 48 by U. P. Act No. VIII of 1963. It was held in the aforesaid case in paragraphs 6, 10 and 11 :
"6. Thus, in my opinion, a person, even if he is not a party in the proceedings but is aggrieved by an order passed under Section 9A of the Act can invoke the revisional Jurisdiction of the Deputy Director of Consolidation even without filing an appeal against the order. The Deputy Director of Consolidation, after summoning the record and giving opportunity of hearing to the parties would pass such orders as may be deemed fit and proper on the facts and circumstances of the case. In this view of the matter I find that the revision filed by the petitioner against the impugned order dated 17.3.1982 passed by the Assistant Consolidation Officer was maintainable and the Deputy Director of Consolidation erred in rejecting the revision as not maintainable on the erroneous ground that the petitioner has not filed appeal against that order.
10. It, therefore, appears to me that the revision filed by the petitioner could not be thrown out merely on the ground that he had not filed an appeal against the Impugned order dated 17.9.1982 passed by the Consolidation Officer. Similar question cropped up for consideration before me in Writ Petition No. 2202 of 1976, Ram Ajore v. Deputy Director of Consolidation. decided on 14.10.1981 : 1982 All LJ 1160, wherein it was held that a revision can be filed by the aggrieved party under Section 48 of the Act without preferring an appeal before the Settlement Officer of Consolidation against that order. See also Hori Lal v. Deputy Director of Consolidation, Allahabad, 1982 ALSJ 223. Similar view was taken by K. P. Singh, J., in Smt. Taluka Devi v. Assistant Director of Consolidation, Azamgarh, 1981 RD 120. In another decision Ram Das v. Deputy Director of Consolidation, 1979 AWC 513 : 1979 ALJ 761, R M. Sahai, J., also took similar view.
11. It is, thus, well-settled that revisional Jurisdiction can be Invoked by the aggrieved party even without filing an appeal, and, as such, the Deputy Director of Consolidation, in my opinion, committed grave error of jurisdiction in dismissing the revision filed by the petitioner on the aforesaid erroneous ground."
13. From the above discussion, it is clear that although the language of Section 48 is in very wide term and does not admit any exception to the effect that the power of revision cannot be invoked against an appealable order passed by the Consolidation Officer if the appeal has not been filed but in view of conflicting views of different learned single Judges on the aforesaid controversy, it has become necessary to refer this matter to Hon'ble the Chief Justice for constituting a larger Bench to resolve the conflict between the conflicting decisions of different learned single Judges of this Court. Following are the questions which need consideration by the larger Bench :
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) Damodar Prasad v. Deputy Director of Consolidation, Allahabad and others, 1996 AWC (Suppl) 158 ; 1995 RD 534. (2) Santosh Kumar and others v. U. P. Sanchalak Chakbandi, Faizabad and others. 1998 (89) RD 578. (3) Ranjeet and others v. Deputy Director of Consolidation, Ballia and others, 1999 12) AWC 1415 ; 1999 (90) RD 363. (4) Hari Har Ram v. Deputy Director of Consolidation, Ballia and others, 2000 RD 608.
(5) Judgment dated 28.9.1999 passed in Writ Petition No. 26527 of 1999, Rama Shanker Singh and others v. Deputy Director of Consolidation, Varanasi and another.
lays down correct law or the view taken by the learned single Judge in following cases lays down the correct law?
(1) Ram Das and another v. Deputy Director of Consolidation and others, 1979 RD 308. (2) Hori Lal v. Deputy Director o J Consolidation, Allahabad and others. 1982 RD 78. (3) Ram Saran v. Assistant Director of Consolidation and others, 1985 ALJ 1343. (4) Ram Surat and others v. Gram Sabha, Nagar Haraiya Mirzapur and others, 1990 (1) AWC 591 ; 1990 RD 160. 14. Let the record of this writ petition be placed before the Hon'ble Chief Justice for constituting a larger Bench.
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Title

Faujdar vs Deputy Director Of ...

Court

High Court Of Judicature at Allahabad

JudgmentDate
31 January, 2002
Judges
  • A Bhushan