(Oral)
1. Heard learned counsel for the petitioner.
2. This petition has been filed by the petitioner, praying for quashing of the order dated 21.10.2016 passed by the Deputy Director of Consolidation, Faizabad (for short 'DDC') along with proceedings of Revision No.886 (Mohd. Naeem vs. Asarun Nisha and others) and also for a mandamus to be issued to the DDC, restraining him from proceeding in the said Revision, pending before him.
3. This Court, at the time of admission of the writ petition, had passed a detailed order on 4.11.2016, which is being quoted hereinbelow:
"Heard learned counsel for the petitioner, learned Standing Counsel for opposite parties no. 1 and 2, Sri Azad Khan, learned counsel for opposite party no.3 and perused the record.
Issue notice to opposite party no.4.
Learned counsel for the petitioner while challenging the impugned order dated 21.10.2016 passed by opposite party no.1/ Deputy Director of Consolidation, Faizabad in Revision No.886 (Mohammad Naeem Vs. Asarun Nisha and others) submits that opposite party no.4 aggrieved by the order dated 28.9.2016, filed an Appeal No.1832 before Settlement Officer Consolidation , Faizabad and during the pendency of the said appeal , concealing the said fact filed a Revision no. 886 before opposite party no.1 in which an interim order dated 21.10.2016 has been passed . Accordingly, it is submitted by learned counsel for the petitioner that interim order dated 21.10.2016 is obtained by fraud, so liable to be stayed.
After hearing learned counsel for the parties , who are present today and going through the record, submission made by learned counsel for the petitioner appears to be correct as such as an interim measure it is provided that till the next date of listing , further operation and implementation of impugned order dated 21.10.2016( Annexure no.1) passed by opposite party no.1/ Deputy Director of Consolidation, Faizabad shall remain stayed.
However, it will be open for Settlement Officer Consolidation, Faizabad to decide the Appeal No. 1832 pending before him on merit after giving opportunity of hearing to the parties concerned.
Learned counsel for the respondents prays for and is granted four weeks' time to file counter affidavit, rejoinder affidavit, if any, be filed within two weeks thereafter.
List thereafter."
4. It has been submitted by the learned counsel for the petitioner that after the aforesaid order was passed, the respondents have withdrawn the Appeal filed before the Settlement Officer of Consolidation, Faizabad (for short 'SOC') and now only the Revision No.886 is pending.
5. The facts of the case as are relevant for decision of the controversy are that the mother-in-law of the petitioner Smt. Aleemul Nisha had executed a registered Will Deed of the land in dispute in favour of the petitioner on 21.12.2004 in the presence of two marginal witnesses. The petitioner filed an application for recording of her name as successor to Smt. Aleemul Nisha. Under Section 12 of the U.P. Consolidation of Holdings Act before the Consolidation Officer, Bikapur, Faizabad (for short 'CO'), the respondent no.4 claimed half share of the land in dispute under Section 171 of the U.P.Z.A. and L.R. Act. The petitioner, on the other hand, filed her objection, claiming the entire land in dispute on the basis of the registered Will Deed dated 21.12.2004. The petitioner also filed an objection to the objection filed by the respondent no.4. The CO after examining the petitioner as well as one of the marginal witnesses, by an order dated 28.9.2016, directed for recording the name of the petitioner over the land in dispute on the basis of registered Will executed by her mother-in-law.
6. The respondent no.4 filed Appeal no.1832 (Mohd. Naeem Vs. Smt. Asaran Nisha and others) before the SOC against the order passed by the CO along with a stay application. The petitioner had already filed a caveat and on notice having been received, she appeared through her counsel before the SOC. No orders were passed in favour of respondent no.4 in the Appeal and the same remained pending. On being unsuccessful in obtaining an interim order in Appeal, respondent no.4 filed Revision No.886 along with a stay application against the order passed by the CO dated 28.9.2016, that is the very same order against which, respondent no.4 had filed Appeal no.1832 before the SOC. The Revision was entertained and was posted for hearing on stay application on 20.10.2016. The respondent no.1 on 21.10.2016 while issuing notice to the parties, stayed the operation of the order dated 28.9.2016 passed by the CO till further orders with a direction to the parties to maintain status quo over the land in dispute. It is this order, which has been challenged by the petitioner.
7. Sri M.E. Khan, appearing for the petitioner, has submitted that the order impugned is a result of complete abuse of the process of the Court by the respondent no.4 as after filing of Appeal no.1832, respondent no.4 did not disclose that the said Appeal is pending against the same judgment and order dated 28.9.2016. Respondent no.4 took a chance before the DDC also. The DDC failed to appreciate, in the absence of clear statement made in this regard, that the Appeal had been filed and was pending. He entertained the Revision against the judgment and order dated 28.9.2016 and even while issuing notice to the parties, stayed the operation of the order passed by the CO dated 28.9.2016.
8. It has been emphasized by Sri M.E. Khan on the basis of a judgment rendered by a Division Bench of this Court in Faujdar, son of Nagar vs. Deputy Director of Consolidation and others, 2006 (2) ADJ 691 that a Revision can no doubt be filed directly against an order passed by the CO in case no Appeal is filed. However, when an Appeal is filed and the same is pending, Revision cannot be filed simultaneously by a litigant against the order of the CO.
9. This Court has perused the aforesaid judgment dated 6.1.2006. This Court was considering two questions framed and referred to it by the learned Single Judge for decision, which are as follows:
"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. MANU/UP/0400/1979MANU/UP/0400/1979: 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."
10. This Court finds from the judgment rendered by the Division Bench that it has answered the question referred to as question-A, in the affirmative. It has been settled by the Division Bench that a litigant can straightaway file a Revision even against an order passed by the Assistant Consolidation Officer. However, this Court finds from the said judgment that there is no observation that in case an Appeal has been filed by a litigant aggrieved by the order passed by the Assistant Consolidation Officer or the CO, no Revision can be filed simultaneously.
11. A judgment cannot be interpreted by this Court. It has to be read in the fact and circumstances in which, it was rendered. It can only be a binding precedent for that question of law which it actually decides. Nothing can be read into a judgment or inferred from it.
12. Learned counsel for the petitioner has referred to Para-42 of the said judgment. The relevant part of Para-42 of the judgment is being quoted hereinbelow:
"42. .........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.
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 is No. ......"
13. It is apparent, however, from Para-41 of the said judgment and from a perusal of various amendments made in the Act in Section 48, that the DDC can entertain a Revision against any order in any case or a proceeding before any of the subordinate authorities. The language of the Act gives a very wide power to DDC to entertain a Revision where no Appeal has been filed, no doubt, but can this be interpreted to mean that where an Appeal is filed, there also simultaneously, Revision can be filed against the same order.
14. This Court feels that if the DDC is allowed to entertain a Revision where Appeal has been filed and is pending against an order passed by the CO and not against any proceedings before the appellate court or any order of the appellate court, enforcement of Revision would lead to an abuse of the process of the Court by dishonest litigant.
15. There is no doubt, however, that simultaneously, two proceedings can be provided in a Statute against one single order. In this case, the order of CO was an order that could have been challenged either in Appeal or in Revision, but to let the litigant first file an Appeal and then during the pendency of the same (without disclosing the pendency of the said Appeal), file a Revision against the order passed by the CO, would amount to giving premium to dishonesty.
16. It is not as if the respondent no.4 had challenged an order passed by the SOC in Appeal, rejecting his stay application. In the Appeal, only two dates were fixed when it was filed. As there was a caveat application filed by the petitioner, notices were directed to be served upon her and then a date was fixed for hearing on admission. There was no order passed by the SOC that prejudiced the rights of respondent no.4 in any manner whatsoever to permit him to challenge such order passed by the SOC before the DDC in Revision. In fact, no order of SOC was challenged before the DDC in Revision. The DDC was looking into a Revision filed against the order dated 28.9.2016 passed by the CO.
17. The DDC no doubt, has wide powers and he can call for the records of any case before any subordinate authority. The Explanation attached to Section 48 of the Act provides therein that a "subordinate authority" would include not only the CO but also the Assistant Consolidation Officer and the SOC, but such powers are limited by the fact that the Statute itself provides a remedy to the litigant to file a Statutory Appeal under Section 11 of the Act before the SOC.
18. This Court has also been informed that during the pendency of the Revision and during the pendency of this writ petition with the interim order passed therein, respondent no.4 has made an application to the SOC and has withdrawn his Appeal as not pressed.
19. In such facts of the case, the order dated 21.10.2016 passed by the DDC in Revision is set aside, giving liberty to respondent no.4 to approach the SOC again by filing appropriate recall application for revival of his Appeal. The proceedings initiated by the respondent no.4 and entertained by respondent no.1 also stand quashed.
20. The writ petition stands allowed.
Order Date :- 26.11.2019/Sachin