JUDGMENT R.H. Zaidi, J.
1. Heard learned counsel for the parties and also carefully perused the record.
2. By means of this petition filed under Article 226 of the Constitution of India, petitioners pray for issuance of a writ, order or direction in the nature of certiorari quashing the order dated 28.1.1992 passed by the respondent No. 1. Prayer for a direction in the nature of mandamus commanding the respondents not to interfere in the possession of the petitioners over the land in dispute has also been made.
3. The relevant facts of the case giving rise to the present petition in brief are that the dispute relates to plot No. 680 measuring about 4 acres situated in village Khera Heloo, pargana and district Etawah, for short 'the land in dispute'. According to the petitioners, the land in dispute was acquired by their father Megh Singh from the then Zamindar Ajodhiya Nath Tandon. It is stated that the relations of Narain Singh, the Pradhan of the village and the petitioners were strained. Consequently, Narain Singh started proceedings against the father of the petitioners under Section 115B of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 in the Court of Sub-Divisional Officer in respect of the land in dispute. During pendency of the said-proceedings, father of the petitioners died leaving behind the petitioners as his heirs and legal representatives, who were after his death substituted in his place. In the said case, parties produced evidence in support of their cases. The Sub-Divisional Officer, after going through the material on the record, held that the petitioners were Sirdars of the land in dispute and directed their names to be recorded in place of their father in the revenue papers vide order dated 22.9.1955. Thereafter, it was on 5.9.1968 that a notification under Section 4 of the Forest Act was issued wherein the land In dispute was also included and declared as forest land. As soon as the petitioners came to know about the aforesaid notification, they challenged the validity of the same by filing objection, before the Forest Settlement Officer. They have also produced relevant evidence before him in support of their case ; but the Forest Settlement Officer dismissed their objection. Challenging the validity of the said order, the petitioners filed an appeal before the District Judge, Etawah, who was the appellate authority under the Act. The District-Judge after hearing the parties and after perusing the record was pleased to allow the appeal by his Judgment and order dated 4.1.1973 in favour of the petitioners and directed to exclude the land in dispute from the forest land. After the order was passed by the District Judge, the petitioners have applied for mutation of their names in the revenue papers. The State of Uttar Pradesh filed an objection against the petitioners' application. The Sub-Divisional Officer, in the said proceedings sent for the report of Naib Tehsildar, which was submitted on 10.7.1973 in favour of the petitioners. The names of the petitioners were also directed to be mutated in the revenue papers and possession over the land in dispute was directed to be handed over to the petitioners by the forest department by the Sub-Divisional Officer by his order dated 27.9.1973. The forest department thereafter filed a restoration application before the Sub-Divisional Officer for recalling the order dated 27.9.1973. The said application was objected to by the petitioners and was ultimately dismissed by the Sub-Divisional Officer by his order dated 6.3.1974. In compliance with the order passed by the Sub-Divisional Officer, the names of the petitioners were mutated in the revenue papers over the land in dispute and they were also put in actual possession of the same. The forest department instead of filing any appeal or revision against the order dated 6.3.1974, filed another restoration application, in which the order dated 6.3.1974 was not challenged. The Sub-Divisional Officer acting illegally, allowed the second restoration application, set aside the order dated 27.9.1973 but the order dated 6.3,1974, referred to above remained intact. The petitioners challenged the validity of the order dated 21.2.1975, passed by the Sub-Divisional Officer before the Commissioner. The Commissioner after hearing the parties made a reference to the Board of Revenue recommending in favour of the petitioners for setting aside the order passed by the Sub-Divisional Officer. The Board of Revenue after hearing the parties and perusing the material on the record accepted the reference and allowed the revision by its judgment and order dated 27.3.1980. It was held that second restoration application was legally not maintainable and the order dated 6.3.1974, passed by the Sub-Divisional Officer became final between the parties. The order passed by the Board of Revenue became final. However, one Sri Naraln Singh, Pradhan of the village filed another application before the Sub-Divisional Officer for setting aside the order passed by him in favour of the petitioners. The said application was objected to and opposed by the petitioners and was ultimately dismissed by the Sub-Divisional Officer by his order dated 9.10.1975.
4. It appears that Sri Narain Singh thereafter exerted undue influence upon the Sub-Divisional Officer on the basis of which the Sub-Divisional Officer passed an order in November, 1991, directing expunctions of the names of the petitioners saying that he has passed the order referred to above by mistake. Challenging the validity of the said order, the petitioners filed Writ Petition No. 4089 of 1992, which was allowed by this Court and the aforesaid order passed by the Sub-Divisional Officer was set aside. The aforesaid orders became final and are binding upon the parties. However, Sri Narain Singh, who was inimical towards petitioners, filed a complaint before the District Deputy Director of Consolidation against the petitioners. The said complaint was not against any order passed by any authority under the U. P. Consolidation of Holdings Act ; but the same was registered as Revision No. 41 of 1992 under Section 48 of the Act. The respondent No. 1 without affording an opportunity of hearing to the petitioners and without recording any cogent reasons for the same passed the Impugned order dated 28.1.1992 ex pane directing expunction of the names of the petitioners from the revenue papers and to record the forest department over the same. He has also directed a first information report to be lodged against the petitioners under Section 420, I.P.C. On the basis of the said order, a criminal case was registered against the petitioners. They were arrested and sent to jail. However, on an application made by them, they were released on bail. It has also been stated that the statement made before the Court by Sri Narain Singh did not support his case, consequently, the petitioners were acquitted in the criminal case. As the order passed by the respondent No. 1 was wholly illegal and without jurisdiction, the same was passed not only In violation of the principle of natural justice but also in violation of the provision of Section 48 of the Act, the petitioners had no option but to challenge the same in this Court by means of the present petition.
5. The writ petition was admitted and an Interim order was also granted by this Court in favour of the petitioners. On behalf of the respondents, a counter-affidavit has been filed by one Sri Nagendra Vikram, in which he has not denied the relevant facts specifically. He has simply asserted that the petitioners were fraudulent persons and ft was only by practising fraud that they had obtained the orders from the authorities below. In reply of the facts stated in the counter-affidavit, a rejoinder-affidavit has also been filed by the petitioners, in which the facts stated in the counter-affidavit have been denied and the facts stated in the writ-petition have been reiterated and reaffirmed.
6. The present petition came up for hearing before this Court on 14.3.2002. Learned counsel for the petitioners vehemently asserted that impugned order has been passed by the respondent No. 1 wholly illegally and in violation of the provisions of Section 48 of the U. P. Consolidation of Holdings Act inasmuch as the application before the Deputy Director of Consolidation was not filed against any order passed by any consolidation authority and that no reference, as provided under Sub-section (3) of Section 48 of the Act was also made. The said order was, therefore, liable to be quashed. It was also urged that the petitioners were not afforded an opportunity of hearing. The impugned order was ex parte and against the provisions of Section 48 of the Act. Since learned standing counsel was not in a position to give reply of the argument made by learned counsel for the petitioners, this Court on the said date passed the following order :
"Heard learned counsel for the parties at some length. Learned standing counsel is not in a position to explain under what provision of law the Collector has exercised the jurisdiction and set aside the order passed by the authorities below and decided the case against the petitioners. He prays for and is granted one week time to seek instructions and to file supplementary-affidavit, if he so advised.
List immediately on expiry of one week for further hearing. It is made clear that on the next date of listing the hearing of this case shall not be adjourned on any ground.
March 14, 2002."
7. On expiry of two weeks, the case was listed on several times but on the one pretext or the other, the hearing of the writ petition was got adjourned by the respondents. On behalf of the respondents, a supplementary-affidavit has been filed in which several facts have been stated but nothing has been stated which was required to be stated by this Court by order dated March 14, 2002. It has not been specified that under what provision of law, the respondent No. 1 has passed the impugned order that too without affording an opportunity of hearing to the petitioners. In reply of the supplementary-affidavit, a supplementary counter-affidavit has also been filed denying the facts stated in the supplementary-affidavit. It is not necessary to state in detail the facts stated in the supplementary-affidavit and the supplementary counter-affidavit inasmuch as they are not relevant for the purposes of the case. Today, when the case was taken up, the learned counsel appearing for the petitioners reiterated and reasserted his arguments. It was urged that the impugned order is wholly without jurisdiction inasmuch as the same has been passed in violation of provisions of Section 48, The respondent No. 1 had no Jurisdiction to entertain the complaint/ application of Sri Narain Singh and to pass the impugned order that too ex parte without affording an opportunity of hearing to the petitioners. It was also urged that the orders passed by the District Judge dated 4.1.1973, allowing the appeal of the- petitioners, by the Board of Revenue allowing the revision filed by the petitioners, by the Sub-Divisional Officer rejecting the claim of respondents and by this Court allowing the writ petition having become final, the respondent No. 1 had no jurisdiction to ignore the said orders as they operate res judicata between the parties. The respondent No. 1 had no jurisdiction to pass the impugned order that too without affording any opportunity of hearing to the petitioners.
8. On the other hand, learned standing counsel supported the validity of the impugned order. It was urged that the orders have been obtained by the petitioners in their favour from various authorities and Courts by playing fraud, therefore, the respondent No. 1 has rightly passed the impugned order without affording them an opportunity of hearing and rightly directed the land in dispute to be recorded in the name of the Forest Department. He has submitted that the revision filed by Sri Narain Singh was legally maintainable under Section 48 of the Act, which was rightly allowed. It was also urged that in case this Court comes to the conclusion that it was necessary to afford an opportunity of hearing to the petitioners, the case may be remanded to respondent No. 1 for decision afresh after affording opportunity to the parties concerned of being heard. He has also submitted that the writ petition has got no force and the same was liable to be dismissed.
9. I have considered the submissions made by the learned counsel for the parties.
10. The first question which arises for consideration and decision in this case is as to whether respondent No. 1, acting as a District Deputy Director of Consolidation, had the jurisdiction to entertain the complaint of Sri Narain Singh and to treat the same as revision under Section 48 of the Act. Section 48 of the Act provides 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, Consoli-dator 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."
11. A reading of the aforesaid section reveals 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 any such authority in the case or proceedings and may after allowing the parties concerned an opportunity of being heard make such order in the case or proceeding as he thinks fit.
12. Sub-section (3) of the aforesaid section provides that any authority subordinate to 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 subsection (1). Explanation (1) to subsection (3) clarifies that Settlement Officer Consolidation, Consolidation Officer, Assistant Consolidation Officer, Consolidator and Consolidation Lekhpals shall be subordinate to the Director of Consolidation.
13. In the present case, Sri Narain Singh did not make the complaint nor he has filed any revision against any order decided by any subordinate authority as defined under the Act nor the proceedings taken by any subordinate authority were challenged by him. Respondent No. 1, therefore, acting as the Deputy Director of Consolidation had no jurisdiction to entertain his complaint, to register the same as revision and to decide it that too without affording an opportunity to the petitioners of being heard whose interest was adversely affected by the impugned order. The order passed by the respondent No. 1 is, thus, wholly without Jurisdiction and illegal. Learned standing counsel was afforded several opportunities to give reply of the question of jurisdiction but he has utterly failed to give any reply. Learned standing counsel although conceded that the petitioners ought to have been afforded opportunity of hearing before the impugned order was passed ; but he has submitted that the opportunity can be afforded now and the matter may be remanded to the respondent No. 1 for decision afresh. It is well settled in law that the case can be remanded to the Court or authority which is competent to decide it. In view of the fact that the respondent No. 1 had no jurisdiction to entertain and decide the complaint made by Sri Narain Singh, therefore, the case cannot be remanded to the Deputy Director of Consolidation. Thus, the impugned order passed by respondent No. 1 is wholly illegal and without Jurisdiction. From the facts stated above, it is apparent that the orders passed by the Sub-Divisional Officer, District Judge and the Board of Revenue in favour of the petitioners in respect of the land in dispute have become final. The said orders have been passed by the competent authorities in competently instituted proceedings, the said orders are binding upon the parties and operate as res Judicata between them, therefore, the respondent No. 1 had no jurisdiction to ignore the said orders. It may also be noted that the arch enemy of the petitioners, namely, Sri Narain Slngh, in criminal case at a later stage did not support his case. He has actually supported the case of the petitioners, therefore, there was no justification for respondent No. 1 to rely upon his statement and to issue directions against the petitioners in respect of the land in dispute.
14. From the material on the record, it is evident that the village where the land in dispute is situated was under the operation of the Act. Neither Sri Narain Singh nor the State of U. P. nor the Forest Department filed any objection before the Consolidation authorities in respect of the land in dispute. Therefore, there was no justification for the respondent No. 1 to entertain the complaint of Sri Narain Singh and to pass the Impugned order. So far as the nature of the land in dispute is concerned, the order dated 4.1,1973, passed by District Judge in appeal, arising out of proceeding under the Forest Act, has become final. Respondent No. 1 was, thus, in error in holding that the land in dispute belonged to the Forest Department and the same was liable to be mutated in its name.
15. For the facts and reasons stated above, the impugned order passed by respondent No. 1 is manifestly erroneous, illegal and without Jurisdiction, the same is. therefore, liable to be quashed.
16. The writ petition succeeds and is hereby allowed. The order dated 28.1.1992, passed by respondent No. 1 is quashed. No order as to costs.