Srimati Tulsa v. District Director of Consolidation
1964-08-19
B.N.NIGAM, G.D.SAHGAL
body1964
DigiLaw.ai
JUDGMENT B.N. Nigam, J. - Srimati Tulsa and another filed Writ Petition No. 596 of 1963 under Article 226 of the Constitution praying for a writ of certiorari quashing the order dated 20th August, 1963 passed by the District Director of Consolidation, Rae Bareli copy of which is annexure 3 with the petition. We may here point out that the name of opposite-party No. 1 does not appear to have been correctly mentioned. The officer purported to act in exercise of his powers as a Director of Consolidation and the U.P. Consolidation of Holdings Act (U.P. Act V of 1954) does not envisage any officer by the name of District Director of Consolidation. 2. In the petition it was stated that plot No. 1206 of village Panhauna, Pargana Inhauna, Distt. Rae Bareli was entered in the name of Mata Prasad who left only two daughters, the present petitioners. The Khata was not ancestral. During the consolidation proceedings the petitioners applied for entry of their names in place of Mata Prasad. Opposite-party No. 2 filed an objection and claimed to be in possession since long. Three other persons also filed objection whose claim was rejected by the Consolidation Officer. The petitioner's claim was accepted. Opposite-party No. 2 filed an appeal, then a second appeal and finally a revision application before opposite-party No. 1 on 17th May, 1963 and this revision application was allowed, hence the writ petition. 3. The petition came up for hearing before the learning Chief Justice and he was of opinion that the abolition of the office of the Deputy Director did not affect the question of his subordination to the Director and that a Director may revise an order passed by the Deputy Director even under the amended Section 48 (as amended by U.P. Act VIII of 1963). He further recorded the opinion that there was nothing manifestly wrong or illegal in the impugned order as he had found that Ram Saran had become a sirdar because of his being in cultivatory possession in the year 1359 Fasli. Against that order, Smt. Tulsa and another have come up in special appeal. 4. We have heard the learned counsel for the parties. The first contention of the learned counsel is that Sri G.M. Murtaza could not have heard a revision against the order of Sri.
Against that order, Smt. Tulsa and another have come up in special appeal. 4. We have heard the learned counsel for the parties. The first contention of the learned counsel is that Sri G.M. Murtaza could not have heard a revision against the order of Sri. K.S. Tripathi as both of them were invested with the power of a Deputy Director. It appears to us that there is some slight confusion. This second appeal was decided by Sri. K.S. Tripathi on 19.2.1963. It is conceded by the learned counsel that on that date a revision against that order was entertain able under the provisions of Section 48 of the Consolidation of Holdings Act (U.P. Act V of 1954). It is further conceded by the learned counsel that the amendments introduced by U.P. Act VIII of 1963 do not take away the right of revision which was available against this order dated 19.2.1963. That being so, a revision application could be preferred on 17th May, 1963 in the court of any officer vested with the powers of a Director under the Government Notification dated 15.4.1963 (Notification No. 1502-CH/IE-132-63 dated April 16, 1963) published in the Uttar Pradesh Gazette dated April 27, 1963 Part I at page 789 does not affect any other powers which he might be enjoying under any other notification. The fact remains that on 17th May, 1963 the officer before whom this revision application was filed had the powers of a Director. We are, therefore, of opinion that the revision application was preferred before a competent authority. 5. The learned counsel has urged with reference to the definitions of 'Deputy Director, Consolidation' and 'District Deputy Director of Consolidation' in sub-Section (4-A) and (4-B) of Section 3 of U.P. Act V of 1954 that the Collector of the District is only District Deputy Director, Consolidation. We are unable to see any reason for holding that this in any manner restricts the power of the State Government to confer on the Deputy Commissioner or the Collector the powers of a Director of Consolidation under Section 44(ii) of U.P. Act V of 1954. 6. The learned counsel then urged that Section 44(ii) only authorised the State Government to confer on any officer the powers of the Director Consolidation and not his duties. This is easily answered.
6. The learned counsel then urged that Section 44(ii) only authorised the State Government to confer on any officer the powers of the Director Consolidation and not his duties. This is easily answered. In Daluram Pannalal Modi v. Assistant Commissioner of Sales Tax Indore A.I.R. 1963 S.C. 1581 it has been held in paragraph 5 :- "Where powers and duties are inter connected and it is not possible to separate one from the other in such wise that powers may be delegated while duties are retained and vice versa, the delegation of powers takes with it the duties. Further Section 48 of U.P. Act V of 1954 does not refer to any duties but only to powers and, therefore, there can be no manner of doubt that the power to hear and decide revisions could be conferred by the State Government by a notification under Section 44(ii) of U.P. Act V of 1954. 7. It was then urged by the learned counsel that under this notification both Sri K.S. Tripathi and Sri. G.M. Murtaza were conferred the powers of a Director and, therefore, Sir. G.M. Murtaza was not competent to hear a revision application against the order of Sri. K.S. Tripathi. We are unable to attribute this argument except to a little confusion. The revision was not directed against any officer but against an order. An appeal or a revision against an order passed by a District Judge may be heard by the High Court even if the particular District Judge has been promoted to the High Court. Thus the capacity or the position of Sri K.S. Tripathi at the time the revision application was heard is immaterial. The material question is whether the Director could have heard a revision application directed against an order of a Deputy Director. On that point even the learned counsel has no doubt. 8. The learned counsel then referred us to the provisions of the amended Section 48. He urges that a revision is different from an appeal and, therefore, questions of fact could not have been gone into. The learned counsel has relied on Hari Shankar v. Rao Girdhari Lal A.I.R. 1963 S.C. 698.
8. The learned counsel then referred us to the provisions of the amended Section 48. He urges that a revision is different from an appeal and, therefore, questions of fact could not have been gone into. The learned counsel has relied on Hari Shankar v. Rao Girdhari Lal A.I.R. 1963 S.C. 698. It was then held: "A right of appeal carries with it a right of re-hearing on law as well as fact, unless the statue conferring the right of appeal limits the rehearing in some way....The power of hear a revision is generally given to a superior court so that it may satisfy itself that a particular case has been decided according to law." In our opinion this decision does not lay down any general law that whenever the word 'revision' is used, the powers are similar to those which may be exercised by a High Court acting under Section 115 of the Code of Civil Procedure. We are informed that recently in the case of Ram Narain Singh v. Sardar Dalip Singh 1964 S.C. Notes 66 (Civil Appeal No. 99 of 1964 decided by the Supreme Court on February 25, 1964) 1964 S.C. Notes 66, it has been held that the powers of a revision are very wide. It, therefore, appears to us that it depends on the language used in the particular statute and the language of that particular statute will also determine the scope of the re-hearing, whether it is called a revision or an appeal. 9. The learned counsel has then urged that the powers under Section 48 are limited to the propose of satisfying as to the regularity of the proceedings or as to the correctness, legality or propriety of any order. There can be no doubt that the phrase "regularity of the proceedings" refers to the procedure observed in the proceedings in any of the subordinate courts. As regards the word "correctness," the learned counsel urges that as the Director of Consolidation has only to see the correctness of the order, he must proceed on the assumption that the facts found are correct. We do not agree with the learned counsel but it is not necessary for our purposes to contradict him either as we can base our decision on the word `propriety' occurring subsequently.
We do not agree with the learned counsel but it is not necessary for our purposes to contradict him either as we can base our decision on the word `propriety' occurring subsequently. As regards the word "legality", we agree with the learned counsel that this confines itself to the legality of the order and includes misdirections as to law. In respect of the phrase "Propriety of any order," the learned counsel's contention is that a finding of fact may be interfered with only if it has been arrived at in ignorance of certain evidence or assumption of certain evidence which does not really exist on the record. 10. At first the contention of the learned counsel was that the Director could not interfere with the concurrent findings of fact. When we asked the learned counsel whether it was his view that the Director could, in the exercise of his powers under Section 48, interfere with a finding of fact of the lower appellate court if it was at variance with the finding of fact recorded by the trial court, the learned counsel gave up the use of the word `concurrent' and argued that the Director could not interfere with the finding of fact recorded by the last court of appeal which was the last court of fact. It appears to us that the learned counsel is introducing the considerations of Section 100 of the Code of Civil Procedure in interpreting the terms of Section 48 of U.P. Act V of 1954. To our mind the phrase "propriety of any order" envisages the correctness of a finding as regards facts also and we are of opinion that the scope of Section 48 of U.P. Act V of 1954 as amended by U.P. Act VIII of 1963 includes within it the right to interfere with the findings of fact recorded by the last court of appeal and this should include also the right to interfere with those finding of fact even if all the courts below have concurred in those findings. 11. The learned counsel has referred us to a decision of a learned single Judge of this Court in Shanker Singh v. Emperor A.I.R. 1929 All. 587 for an interpretation of the word `proprietor' as used in Section 435 of the Code of Criminal Procedure.
11. The learned counsel has referred us to a decision of a learned single Judge of this Court in Shanker Singh v. Emperor A.I.R. 1929 All. 587 for an interpretation of the word `proprietor' as used in Section 435 of the Code of Criminal Procedure. We do not think that an interpretation of the word `Propriety' in that Act is of any assistance to us, but we find that the decision supports the conclusions drawn by us. We are also informed that the Mohammad Sami Khan v. Deputy Director of Consolidation U.P. Lucknow Writ Petition No. 585 of 1963 decided on 26.11.1963 (Lucknow Bench) a learned single Judge of this Court came to the conclusion that the powers under Section 48 include the power to upset the concurrent findings of fact arrived at by the lower courts. We have been told that in Special Appeal No. 9 of 1964 this judgment has been upheld but unfortunately that decision could not be placed before us as the office has not been able to trace the particular file. However, on a consideration of the language employed in Section 48 as amended by U.P. Act VIII of 1963, we are of opinion that the Director of Consolidation has the right and power to interfere with the findings of fact even if they are concurrent. 12. The learned counsel then urged that there was an error of law apparent on the face of the record. The learned counsel concedes, that in the exercise of writ jurisdiction this court is not entitled to correct errors of fact. As laid down in the case of Syed Yakoob v. K.S. Radhakrishnan A.I.R. 1964 S.C. 477, "a finding of fact recorded by the `Tribunal' cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned findings". The error pointed out by the learned counsel is that the Director wrongly concluded that Ram Saran was in possession in the year 1359 Fasli and had thus became an adhivasi and later a sirdar. We are unable to see any force in this contention. The fact whether Ram Saran was or was not in cultivatory possession is, to our mind, a pure question of fact. On that finding of fact certain rights accrue to Ram Saran.
We are unable to see any force in this contention. The fact whether Ram Saran was or was not in cultivatory possession is, to our mind, a pure question of fact. On that finding of fact certain rights accrue to Ram Saran. That, in our opinion, is not a question of law. Whether the Marfat entry in the years 1357 Fasli and 1358 Fasli should have been interpreted to mean actual cultivatory possession in the particular circumstances of the case is, in our opinion, not a finding that can be challenged in a writ petition as indicated in Syed Yakoob's case (supra). No other point has been passed before us. We are, therefore, of opinion that there is no force in this special appeal. We dismiss it with costs.