Raghunandan v. Regional Deputy Director — 1965 DIGILAW 521 (ALL)

JUDGMENT Jagdish Sahai, J. - This writ petition has come to us on a reference made by Asthana, J. by means of the order dated 15-3-1965. 2. The petitioners filed suit No. 448 of 1956 for a declaration and in the alternative for possession over plots No. 152 and 153 situate in village Amauli (Dist. Gorakhpur) in the court of the Munsif Bansgaon. The suit was dismissed on 6-8-1957. The petitioner appealed to the District Judge, who transferred it to the court of the Civil Judge, Gorakhpur, for hearing and decision. The appeal was, however, stayed by the learned Civil Judge under the provisions of the U.P. Consolidation of Holdings Act (hereinafter referred to as the Act) because in the meantime consolidation operations had started in village Amauli aforesaid. As a result of `partal' the Assistant Consolidation Officer found under Sec. 8(3) of the Act that it was the petitioners who were in possession and not the respondents. The respondents filed an appeal to the Consolidation Officer against the order of the Assistant Consolidation Officer. The appeal was dismissed on 14-8-1957. The respondents then went up in revision under Sec. 48 of the Act, but by the time the revision could come up for hearing the statement of tenure-holders under Sec. 11 of the Act was published and the Deputy Director stayed the hearing of the revision. In the list of tenure-holders published under Sec. 11 the names of the respondents were shown against the disputed plots. The petitioners thereupon filed an objection, which the Consolidation Officer dismissed on 17-1-1958. The petitioners, however, did not file an appeal against this order. Instead they filed a revision application before the Deputy Director of Consolidation on 8-2-1958. That revision application was ordered to be stayed by the Deputy Director of Consolidation by means of the order dated 20-6-1958. In the meantime, on 12-4-1958 the petitioners had already filed objections under Sec. 20 of the Act, to the statement of proposals. The Consolidation Officer dismissed the objections on 15-11-1958 and the appeal filed by the petitioners before the Settlement Officer Consolidation was dismissed on 9-3-1959. The petitioners then filed a revision application before the Deputy Director of Consolidation, which was dismissed on 10-6-1959. A little earlier, however, the Consolidation proceedings had already been confirmed under Sec. 23 of the Act. 3. The Consolidation Officer dismissed the objections on 15-11-1958 and the appeal filed by the petitioners before the Settlement Officer Consolidation was dismissed on 9-3-1959. The petitioners then filed a revision application before the Deputy Director of Consolidation, which was dismissed on 10-6-1959. A little earlier, however, the Consolidation proceedings had already been confirmed under Sec. 23 of the Act. 3. The petitioners challenge the order of the Deputy Director of Consolidation dated 10-6-1959, that of the Settlement Officer (Consolidation) dated 9-3-1959 and that of the Consolidation Officer dated 15-11-1958 by means of the present writ-petition, on the ground that the petitioners objection under Sec. 20 was not barred by the provisions of Sec. 12(7) of the Act. During the course of arguments before Asthana, J. a preliminary objection was taken on behalf of the respondents to the effect that inasmuch as the consolidation proceedings had been confirmed under Sec. 23 of the Act the same had become final, and for that reason the writ petition could not be allowed. Reliance was placed on a decision of this Court in Atar Singh v. Dhoop Singh, 1963 ALJ 975. Asthana, J. doubted the correctness of this decision and referred the case for being heard by a larger Bench. 4. Mr. R. B. Misra, who has appeared on behalf of the petitioners, has strenuously contended that Sec. 23 should be read along with Sec. 48 of the Act, with the result that it must be held that once a revision application has been filed before the revising authority, action under Sec. 23 of the Act is automatically suspended and no order under that provision can be passed, and inasmuch as in Atar Singh's case, 1963 ALJ 975, this aspect of the matter has not been considered it has been wrongly decided. Sec. 23 an Sec. 48 of the Act, so far as relevant for our purposes, read:- 23. Confirmation of the Provisional Consolidation Scheme and the Issue of Allotment Orders - (1) The Settlement Officer, Consolidation, shall confirm the provisional Consolidation Scheme.- (a) if no objections are filed within the time specified in Sec. 20; or (b) where such objections are filed, after such modifications or alterations as may be necessary in view of the orders passed under sub-Secs (1) to (4) of Sec. 21. (2) The provisional Consolidation Scheme so confirmed shall be published in the unit and, except as otherwise provided by or under this Act, shall be final. (3) Where the allotments made under Sec. 19-A are not modified under Sec. 21............" 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 correct ness, legality or propriety of any order passed by 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 proceedings as he thinks fit. (2) . . . . . . (3) . . . . . . 5. In our judgment, there is no justification for holding that the provisions of Sec. 23 are controlled by or an subject to the provisions of Sec. 48 of the Act. Sec. 23 does not require the Settlement Officer, Consolidation to await the result of a revision application. In fact the Settlement Officer Consolidation may not even he aware of the pendency of a revision application. The only limitations on the exercise of the powers under Sec. 23 of the Act are provided in Cls. (a) and (b) of sub-Sec. (1) of that section. The Settlement Officer Consolidation must await the orders passed under sub-Secs. (1) to (4) of Sec. 21 and not those passed under Sec. 48 of the Act. The two powers are completely independent of each other and operate in different fields. Whereas Sec. 23 provides for confirmation of the scheme so as to make the same final, Sec. 48 only gives the Director the power to correct an error, a power which may or may not be exercised. All that Mr. Misra has said is that if proceedings under Sec. 23 do not await the decision of a revision application under Sec. 48, in some cases the revision application may become infructuous. 6. In the first place there is no provision requiring information being given of a pending revision to a Settlement Officer Consolidation and Mr. Misra had to admit that in most of the cases the Settlement Officer would never have knowledge that a revision application was pending. 6. In the first place there is no provision requiring information being given of a pending revision to a Settlement Officer Consolidation and Mr. Misra had to admit that in most of the cases the Settlement Officer would never have knowledge that a revision application was pending. Secondly, there being no limitation provided for filing of a revision application, the Settlement Officer Consolidation would have to wait indefinitely, with the result that the scheme would never become final. In our opinion an interpretation which would result in the provisions of Sec. 23 being rendered dead cannot be accepted. We have already pointed out earlier that there is nothing in Sec. 23 or in Sec. 48 of the Act which suspends the jurisdiction of the Settlement Officer (Consolidation) to proceed under Sec. 23 of the Act. Suspension of such proceedings cannot be inferred merely because some revision application may become infructuous. Many times and under almost all Acts revision applications or even appeals become infructuous because of supervening circumstances. A similar submission was made with regard to the maintainability of a suit filed by a landlord against a tenant for his ejection after obtaining permission of the District Magistrate under Sec. 3 of the U.P. Control of Rent and Eviction Act, on the ground of the permission having been revoked by the Commissioner or the State Government; but the submission was repelled by a Full Bench of this Court and it was held that notwithstanding the order revoking the permission the suit remained validly instituted. 10. The argument that in such a case the orders passed by the State Government or the Commissioner revoking the permission became infructuous was not accepted (See Bashi Ram v. Mantri Lal, 1965 ALJ 58). Apart from the fact that the interpretation placed by Misra would under Sec. 23 be read, it is not supported either by any statutory provision or the analogy of any other Act. The normal rule is that neither the filing of an appeal nor the filing of a revision application has the effect of automatically suspending the operation of the order appealed or the order sought to be revised See State of U.P. v. Mohammad Nooh, A.I.R. 1958 S.C. 86. The normal rule is that neither the filing of an appeal nor the filing of a revision application has the effect of automatically suspending the operation of the order appealed or the order sought to be revised See State of U.P. v. Mohammad Nooh, A.I.R. 1958 S.C. 86. That being the position, we find no merits in the submission that the result of the filing of a revision application is to suspend the jurisdiction of the Settlement Officer (Consolidation) under Sec. 23 of the Act. We, therefore, overrule this submission. That disposes of the ground on which the reference has been made to us by the learned single Judge. We are satisfied that for the reasons given by us in this judgment the decision in Avtar Singh's case, 1963 ALJ 975, is correct and requires no reconsideration. 7. On the merits, the position is that the order confirming the provisional scheme has been passed under Sec. 23 of the Act, with the result that that scheme has become final. It is true that we can interfere in exercise of our writ jurisdiction; but we decline to do so in the present case on the simple ground that the petitioner had a right of appeal, which he did not avail of. When the law gives an alternative remedy and the same has not been availed of, this Court is always reluctant to interfere in exercise of its writ jurisdiction. That being the position, we are of the opinion that there are no merits in this writ petition. 8. It is accordingly dismissed. In the circumstances of the case, we direct the parties to bear their own costs. Petition dismissed.