Heard Sri Vishun Narain and Sri Arun Kumar Mishra, learned counsel for the petitioner , Sri Ajai Kumar Misra, learned counsel for the contesting respondents and learned State Counsel .
Facts, in brief, in the present case are that the petitioner Sri Suneel Kumar is the holder of Chak no. 2045 Gata No. 15 area 0.539 hactare situate in village Grant Datpur, Pargan Kukubh, Tehsil -Gola District Kheri.
After start of consolidation proceedings, objections were filed before opposite party no.3 in the matter in issue, thus litigation started in respect to the chak in question between the petitioner and opposite party no.4. Banke Lal , who is holder of Chak no.147. Accordingly a case has been registerd before opposite party no.3 . Consolidation Officer, First, Camp- Gola, District Kheri ( Case no. 117/2012) in which plea was taken by the petitioner in his defence was that petitioner may be allotted a chak at his original holding I.e. Gata -15 as there his private source of irrigation/ boring . However the case of the petitioner has been rejected by opposite party no.3 by an order dated 22.12.2011.
Aggrieved by the said facts, petitioner filed an appeal( Appeal No. 327 of 2012, Suneela Kumar Vs. Banke lal and others ) alongwith application for condonation of delay before Settlement Officer Consolidation, Kheri, who by means of order dated 30.3.2012 condoned the delay and allowed the appeal with the following observations:-
"अभिलेख अवलोकन से स्पस्ट है कि अपीलकर्ता चकदार स. ३०४५ को एक चक उसके मूल गाटा स. १५ मि. आदि पर प्रदिष्ट दिया गया है । अपीलकर्ता द्वारा अपने प्रदिष्ट चक में जो उडान नंबर दिए गए है उन्हें निकाल कर मूल नंबर गाटा स. १५ पर चक की मांग की गयी है । अपीलकर्ता द्वारा जो मांग की गयी है वह मूल नंबर पर की गयी है जो उचित है । अतः उपरोक्तानुसार प्रस्तुत अपील स्वीकार योग्य है ।"
Thereafter, Sri Banke Lal fled a revision ( Revision No. 393/ 2012 , Banke Lal Vs. Suneel Kumar ) under Section 48 of the U.P. Consolidation and Holdings Act, 1953 ( hereinafter referred to as "Act'), allowed by an order dated 18.8.2012 ( Annexure no.8) with the following observations:-
"ग्राम अभिलेख व पुष्टिकृत भूचित्र के अवलोकन से विदित है कि निगरानीकर्ता को जो चक चकबंदी अधिकारी स्तर पर गाटा स. - १५ मि. प्रदिष्ट किया गया था, उससे वह संतुष्ट था, अब उसका चक जंगल में पतली पट्टी के रूप में बनाया गया है, जिसमे वह संशोधन चाहता है । निगरानीकर्ता की मांग है कि चकबंदी अधिकारी स्तर पर उसे अच्छी व ख़राब दोनों प्रकार की भूमि प्रदिष्ट थी । अब जंगल के किनारे की उजाड़ भूमि दे दी गई है , इसमें संशोधन करके चकबंदी अधिकारी स्तर का चक दिया जाये, जिससे दोनों पक्षों को अच्छी व ख़राब भूमि मिल सके । निगरानीकर्ता की मांग उचित प्रतीत होती है एवं निगरानी स्वीकार योग्य है ।"
In view of the factual background, present writ petition has been filed.
The main thrust of the arguments advanced by the learned counsel for the parties for consideration is whether the action on the part of opposite party no.1/Deputy Director of Consolidation, Lakhimpur Kheri, thereby passing the impugned judgment and order dated 18.8.2012 ( Anneuxre no.8) by reversing the judgment and order dated 30.3.2012 ( Annexure no.6) of Settlement Officer of Consolidation , Lakhimpur Kheri is in accordance with the provisions as provided under Section 48 of the Act.
Section 48 of the Act was amended by amendment Act 8 of 1963. Before its amendment Section 48 read as under:
"48. 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."
U.P. Act No.8 of 1963 the Section 48 was again amended and after amendment the same reads as under:-
"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 ha 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 its is based on no evidence, any patent illegality or impropriety had been committed or there was any procedural irregularity, which goes to the root of the matter, had been committed in recording the order or finding."
Again by U.P. Act No.20 of 1982 (w.e.f.10.11.1980), the following explanation has been inserted after sub-section 3 of Section 48 of the Act :-
"Explanation - [1] For the purpose of this section, Settlement Officers, Consolidation, Consolidation Officers, Assistant Consolidation Officers, Consolidator and Consolidation Lekhpals shall be subordinate to the Director of Consolidation."
Thereafter by U.P. Act No. 3 of 2002 (w.e.f. 10.11.1980), the following explanation has been inserted after sub-section 3 of Section 48 of the Act :-
"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."
In the case of Sheo Nand Vs. Dy. Director of Consolidation, Allahabad & Ors. 1991 RD (SC) 213, Honble the Supreme Court has dealt with Section 48 (1) as amended in the year 1963 held as under:-
"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."
Again in the case of Ram Dular Vs. Dy. Director of Consolidation 1994 Supp. (2) SCC 198, it has been held as under:-
"It is clearly 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 its is based on no evidence, any patent illegality or impropriety had been committed or there was any procedural irregularity, which goes to the root of the matter, had been committed in recording the order or finding."
In the case of Shesh Mani and Ors. Vs. Dy. Director of Consolidation, District Basti, U.P. and Ors. 2000 (18) LCD 602 Supreme Court, the scope of revisional jurisdiction under Section 48 (after 1963 amendment) came up for consideration before Hon'ble the Apex Court, wherein it has been held as under:-
"It is difficult to accept the contempt of the appellants. The Consolidation Officer as well as the Assistant Settlement Consolidation Officer had ignored the sales certificate in favour of Ram Khelawan, predecessor of the respondents. To base a claim on adverse possession, it is not enough to allege that one is in possession of the land. The ingredients of adverse possession were missing as these were not alleged nor taken into consideration. The Consolidation Officer as well as the Assistant Settlement Consolidation Officer proceeded on a wrong premise and against the settled principles of law. The Deputy Director, Consolidation, therefore, was well justified in exercising his power of revision and coming to a different conclusion. The writ petition was rightly dismissed by the High Court and so also the review petition of the appellants."
In the case of Ram Nath (dead) through legal LRs. Vs. Deputy Director of Consolidation, Jaunpur and another, 2005 (98) RD 570, this Court has held that while exercising the power of revision under Section 48 of the U.P. C. & H. Act, Deputy Director of Consolidation possesses the powers to give his own findings by assigning reasons contrary to the findings given by the court below.
From the perusal of the findings given by opposite party no.1/ Deputy Director of Consolidation, Kheri while reversing the judgment passed by Settlement Officer Consolidation thereby depriving the petitioner from his original holding where he has got his private source of irrigation he has not given any reason for doing so, rather on the point in issue the order passed by opposite party no.1 is silent, thus the same is contrary to provisions as provided under Section 48 of the Act, liable to be set aside.
For the foregoing reasons, the writ petition is allowed. The order dated 18.8.2012 ( Annexure -8) passed by opposite party no.1/ Deputy Director of Consolidation, Kheri is set aside and the matter is remanded to opposite party no.1 to decide the same a afresh after giving adequate opportunity to the parties concerned expeditiously, preferably, within a period of four months from the date a certified copy of this order is produced before it.
For a period of four months or till the decision is taken by opposite party no.1/ Deputy Director of Consolidation, Kheri whichever is earlier, parties are directed to maintain status quo as exits today.
Order Date :- 10.12.2012 dk/