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1968 DIGILAW 165 (ALL)

Daya Ram v. State of U. P.

1968-04-04

R.L.GULATI

body1968
ORDER R.L. Gulati, J. - This writ petition arises out of certain proceedings under the UP Consolidation of Holdings Act (hereinafter referred to as the Act). 2. As a result of the consolidation operations, the Petitioner was allotted a chak and an approach road to the chak was also provided. The Petitioner felt that the approach road provided was not suitable as he had to cover an unduly long distance in order to reach his chak. He, therefore, applied for the chance of the chak road. The consolidation Officer and the Additional Settlement Officer, Consolidation, after making spot enquiries, found the grievance of the Petitioner to be genuine and recommended a new chak road for the use of the Petitioner. The Deputy Director of Consolidation approved the recommendations of the Consolidation authorities and sanctioned the proposed new chak road. The approval was accorded by the Deputy Director of Consolidation on 31-10-1962, in exercise of his powers u/s 21(6) of the Act. 3. It appears that the Respondents Nos. 4 and 5 were aggrieved by the change in the chak road and they, accordingly, filed an application before the Deputy Director of Consolidation purporting to be u/s 21(6) of the Act and u/s 201 of the UP Land Revenue Act for the cancellation of the order of the Deputy Director of Consolidation dated 31-10-1962. The Deputy Director of Consolidation then passed another order which is dated 27-3-1963, setting aside the earlier order dated 31-10-1962. This order purports to have been passed u/s 21(6) of the Act. The present writ petition is directed against this order of the Deputy Director of Consolidation on the ground that the impugned order is wholly without jurisdiction. 4. The question involved in the writ petition will depend upon the interpretation of Section 21(6) of the Act which is quoted below: 21(6). The present writ petition is directed against this order of the Deputy Director of Consolidation on the ground that the impugned order is wholly without jurisdiction. 4. The question involved in the writ petition will depend upon the interpretation of Section 21(6) of the Act which is quoted below: 21(6). The Deputy Director of Consolidation may also, where he is of the opinion, either in the course of hearing of an appeal Under Sub-section (5), or otherwise, that material injustice is likely to be caused to a tenure-holder in giving effect to the Statement of Proposals as revised by the Settlement Officer, Consolidation Under Sub-section (4) or as subsequently confirmed by him u/s 23 as the case may be, but not later than the date of notification issued u/s 52, for reasons to be recorded in writing, take cognizance of the case as if it were an appeal filed Under Sub-section (5) and decide it accordingly. The aforesaid provision confers power on the Deputy Director of Consolidation to interfere, suo motu, or on an application from an interested person, with the statement of proposals even after they have been confirmed u/s 23 if, in the opinion of the Deputy Director of Consolidation, such proposals would cause injustice to a tenure holder. He can then, after recording the reasons, take cognizance of the case and decide it treating it to be an appeal Under Sub-section (5) of Section 21. 5. The powers contained in Section 21(6) are an extension of his appellate power; u/s 21(5) and can be exercised only for the purpose of making an amendment in the statement of proposals even after they have been revised by the Settlement Officer, Consolidation and confirmed u/s 23 of the Act. Obviously, the power u/s 21(6) of the Act cannot be exercised by the Deputy Director of Consolidation to review his own order or to recall or cancel an order passed by him earlier. Such a thing would be completely beyond the ambit of Section 21(6) of the Act. The order passed by him on 27-3-1963, cancelling his earlier order dated 31-10-1962, is, therefore, wholly without jurisdiction and has to be set aside. The Learned Counsel for the opposite parties Urged that the impugned order even though purports to have been passed u/s 21(6) of the Act is really an order in exercise of the inherent jurisdiction of the Dy. The Learned Counsel for the opposite parties Urged that the impugned order even though purports to have been passed u/s 21(6) of the Act is really an order in exercise of the inherent jurisdiction of the Dy. Director of Consolidation and should be upheld as such. I cannot agree. The legality of an order is to be judged with reference to the particular provision under which it purports to have been passed. The impugned order on the face of it purports to have been passed u/s 21(6) of the Act arid, as I have already pointed out above, Section 21(6) does not contemplate the passing of any such order. The Deputy Director of Consolidation has not purported to exercise any inherent jurisdiction vested in him. Whether or not he has any such inherent jurisdiction, as has been contended for by the Learned Counsel for the opposite parties, may be a question which may be decided in an appropriate case where the order does purport to have been passed by the authority concerned under its inherent jurisdiction. I am alto of the opinion that a Deputy Director of Consolidation being not a court, but a creature of the Act itself cannot exercise any inherent jurisdiction beyond that conferred upon him by the Act itself. However, it is not necessary to decide this point in view of the fact that the Dy. Director of Consolidation does not purport to have passed the impugned order in exercise of his inherent jurisdiction. 6. The order of the deputy Director of Consolidation dated; 27-3-1963, therefore, cannot be upheld and is quashed. However, there is one more aspect of the case which cannot be lost sight of. The original order dated 31-10-1962, does not appear to have been passed in conformity with the provisions of Section 21(6) of the Act. That section enjoins upon the Deputy Director of Consolidation to decide a matter which falls u/s 21(6) of the Act treating it to be an appeal u/s 21(5). An appeal contemplates a hearing to both the parties or at least an opportunity to both the parties to put forward their case in sortie other manner. In the instant case, the Deputy Director of Consolidation did not afford any opportunity to the opposite parties Nos. An appeal contemplates a hearing to both the parties or at least an opportunity to both the parties to put forward their case in sortie other manner. In the instant case, the Deputy Director of Consolidation did not afford any opportunity to the opposite parties Nos. 4 and 5 of representing their case before he accorded approval u/s 21(6) of the Act to the proposal submitted to him by the Additional Settlement Officer, Consolidation. Such a procedure is obviously contrary to the procedure laid down in Section 21(6) of the Act and is also violative of the principles of natural justice; Therefore; it is necessary to set aside his earlier order dated 31-10-1962 also to enable him to decide the matter afresh after affording reasonable opportunity of being heard to both the parties. 7. The result is that this writ petition is allowed. The two orders passed by the Deputy Director, of, Consolidation, one dated 27-3-1963; and the other dated 31-10-1962, are quashed. He is directed to restore the Petitioner's application u/s 26(sic) [21(6)] to its original number and decide it afresh after hearing both the parties and in accordance With law. In the circumstances; there is no order as to costs.