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1967 DIGILAW 196 (ALL)

Bhagwan Bux Singh v. Deputy Director Consolidation

1967-05-16

LAKSHMI PRASAD

body1967
ORDER Lakshmi Prasad, J. - This is a petition Under Article 226 of the Constitution. The dispute in the case relates to plot No. 181. u/s 9 of the UP Consolidation of Holdings Act each of the Petitioner and opposite party No. 5 filed an objection claiming himself or herself to be the bhumidhar of the disputed plot. The Petitioner's objection was filed on 12-1-1963 whereas that of opposite party No. 5 on 14-1-1963. Both these objections were disposed of by a single order dated 27-6-1963 by the Consolidation Officer. He dismissed the objection of the Petitioner but allowed that of opposite party No. 5. The Petitioner went in appeal which was dismissed on 19-9-1963. He then instead of filing a second appeal preferred a revision purporting to be one u/s 48 of the amended Act and the same was allowed on 14-2-1964 by a Deputy Director (Sri Vishnu Prakash). He remanded the case to the Consolidation Officer with the direction to decide the whole dispute afresh by affording a chance to the parties to lead fresh evidence. The Consolidation Officer then proceeded to decide the case as directed in the order of remand. Parties led evidence before the Consolidation Officer subsequent to the order of remand. Then the Consolidation Officer decided the objection in favour of the Petitioner by his order, dated 16-4-1965. Opposite party No. 5 then preferred an appeal which was dismissed on 25-8-1965. She then went in revision. At the hearing of the revision it was contended on behalf of the Petitioner that in fact no revision was maintainable in so far as the unamended Act and not the amended Act applied. This argument raised on behalf of the Petitioner was countered by opposite party No. 5 by pointing out that on that parity of reasoning the order dated 14-2-1964 was itself void and a mere nullity in the eye of law, with the result that whatever was decided subsequent thereto in compliance therewith had to be ignored as a mere nullity. This argument raised on behalf of the Petitioner was countered by opposite party No. 5 by pointing out that on that parity of reasoning the order dated 14-2-1964 was itself void and a mere nullity in the eye of law, with the result that whatever was decided subsequent thereto in compliance therewith had to be ignored as a mere nullity. The Deputy Director, who disposed of the revision preferred by opposite party No. 5 by his order dated 7-12-1965, while upholding the contention of the Petitioner that the revision was not maintainable, accepted the argument raised on behalf of opposite party No. 5 and held that the order dated 14-2-1964 was a mere nullity and as such, whatever was done subsequent thereto, must stand quashed. It is in these circumstances that the present petition is filed with a prayer that the order dated 7-12-1965 passed by the Deputy Director be quashed. 2. The petition is opposed by opposite parties Nos. 5 to 8. It may here be mentioned that opposite party No. 5 claimed title by virtue of her purchase from opposite party No. 6 and opposite parties Nos. 7 and 8 asserted to have been in possession on behalf of opposite party No. 5. In the counter affidavit filed on behalf of opposite parties Nos. 5 to 8 it is alleged in paragraph 14 that Sri Vishnu Prakash Deputy Director, who passed the order dated 14-2-1964 remanding the case to the Consolidation Officer, was not empowered to hear and decide second appeals in accordance with the provisions of Section 11(2) of the unamended Act. It is further alleged in that paragraph that the question as to whether or not Sri Vishnu Prakash held the requisite authority for hearing and deciding second appeals came up for decision before this Court in writ petition No. 155 of 1963 Amarnath v. Sri Vishnu Prakash and Ors. and it was decided that he did not hold the requisite authority. This allegation in paragraph 14 of the counter affidavit is not squarely denied in the rejoinder affidavit, as shall appear from paragraph 10 of the rejoinder affidavit in which allegations are made with reference to the allegations made in parapragh 14 of the counter affidavit. and it was decided that he did not hold the requisite authority. This allegation in paragraph 14 of the counter affidavit is not squarely denied in the rejoinder affidavit, as shall appear from paragraph 10 of the rejoinder affidavit in which allegations are made with reference to the allegations made in parapragh 14 of the counter affidavit. Paragraph 10 of the rejoinder affidavit says: That the deponent is advised to state that the contents of para No. 15 of the counter-affidavit are not correct and the cases cited therein not applicable. 3. Certain other pleas have also been raised in the counter affidavit which it is unnecessary to take notice of, as shall appear from the following discussion. 4. I have heard learned Counsel for the Petitioner. His contention is that the order dated 7-12-1965 having been passed without jurisdiction deserves to be struck down. He maintains that a quasi judical tribunal unless given power to review its decision by an express provision in the statute creating it, has no power to review its decision. There may perhaps be no dispute with the proposition advanced by the learned Counsel. It may be possible to hold that the Deputy Director did not have power to review the decision dated 14-2-1964 by a subsequent decision. Still the question arises if on the facts of the case it would be a proper exercise of discretion on the part of this Court if it were to grant the relief sought by the Petitioner. There is no gain saying the fact that writ of certiorari is a discretionary relief and is not necessarily to be given merely to satisfy the technicalities of law. While deciding the question as to whether or not it is fit to grant that discretionary relief in a particular case, the Court has to take into consideration an over all picture of the case with a view to find as to whether or not it would be just and fair to grant relief. On the facts stated there can be little doubt that the remedy of the Petitioner if he felt aggrieved by the appellate order dated 19-9-1963 was to go higher by way of a second appeal and not by way of a revision, in so far as it is the provisions of the unamended Act which applied to the case and not those of the amended Act. That being so the revision which he preferred was undoubtedly incompetent. It might have been possible to justify the decision dated 14-2-1964 which the Deputy Director Sri Vishnu Prakash gave in purported exercise of his revisional jurisdiction with reference to his second appellate jurisdiction, had he been found to have possessed second appellate jurisdiction. As indicated above, the allegation in the counter affidavit that Sri Vishnu Prakash did not possess second appellate jurisdiction has not been specifically controverted in the rejoinder affidavit. Moreover, my attention has been drawn to notification No. 4005/G-285-59 dated 30/31-3-1962, published in the UP Gazettee dated 7-4-1962, Part I-A page 720, which shows that the second appellate jurisdiction was conferred on Sri Vishnu Prakash as required by Section 11(2) of the unamended Act by Sri I.D.N. Sahi, Ayukta. What is required by Section 11(2) of the unamended Act is that the authority to hear second appeal is to be conferred by the Director of Consolidation. In so far as Sri I.D.N. Sahi was appointed Commissioner, Consolidation and not Director, Consolidation, even though it may be that he was conferred the powers of Director of Consolidation, it could not be said that the authority to hear second appeals conferred by Sri Sahi was valid within the provisions of Section 11(2) of the unamended Act. In the circumstances, it is clear that Sri Vishnu Prakash who passed the order dated 14-2-1964 did not have authority to hear and dispose of second appeals and that being so, it is not possible to justify the said decision given by him in the purported exercise of his revisional jurisdiction, with reference to his second appellate jurisdiction which he did not have. Hence, the position remains that the order dated 14-2-1964 was bad and a mere nullity in the eye of law. That being so, it would not be proper for this Court to interfere with the order dated 7-12-1965, which simply sets aside the order dated 14-2-1964 which was a mere nullity, even though it may be that the authority passing the order dated 7-12-1965 did not have the jurisdiction (to) review the order dated 14-2-1964. 5. There is yet another approach to the same question. 5. There is yet another approach to the same question. Even if it be assumed for a moment that this Court should interfere with the order dated 7-12-1965 for the reason that it came to be passed without jurisdiction, no matter what is the consequence of that order, it may be pointed out that in that case the matter having come to the notice of this Court, it would be only appropriate for this Court to interfere with the order dated 14-12-1964 as well, which, as already indicated above, is a mere nullity, having been passed by a tribunal without jurisdiction. So, in effect no useful purpose would be served by taking that circuitous method because the net result of such interference would be the same as has been brought about by the impugned order dated 7-12-1965. 6. In view of the foregoing discussion, I am of the opinion that this is not a fit case in which a writ of certiorari may issue for quashing the order dated 7-12-1965. The petition is dismissed, but the parties are directed to bear their costs.