Manbhawati Devi v. Deputy Director Consolidation, U. P
1969-01-10
M.H.BRG.
body1969
DigiLaw.ai
JUDGMENT M.H. Brg., J. - The petitioner is the daughter of Smt. Jagpatti. Her case, that her mother had remarried a man called Mahesh about nine years before a transaction of sale in favour of the contesting opposite parties and had, therefore, lost her rights in the land in dispute, was accepted by the Consolidation Officer in proceedings under Section 9110 of the U. P. Consolidation of Holdings Act (hereinafter referred to as the Act) . An appeal to the Settlement Officer (Consolidation) , filed by the contesting opposite parties 4 to 8, the transferees from Smt. Jagpatti, failed on 28th August, 1963. The contesting opposite parties then filed a revision application before the Deputy Director of Consolidation, Opposite Party No. 1 under Section 49 of the Act. It cannot now be disputed that the provisions of Section 48 of the Act as amended on 8-3-1963 were applicable so that the Deputy Director was exercising enlarged powers of revision. The Deputy Director, in exercise of these powers, passed an order on 30-12-1963 by which he allowed certain additional documentary evidence to be filed and awarded Rs. 25/- as costs and gave the petitioner an opportunity to rebut the additional evidence. The petitioner has come up to this Court under Article 226 of the Constitution against that order and prays that it be quashed although the revision application itself was not decided by that order. 2. Learned counsel for the petitioner contends that the order of 30-12-1963 passed by the Deputy Director, opposite party No. 1, is without jurisdiction inasmuch as Section 48 of the Act, even after its amendment in 1963, does not confer the power of taking additional evidence upon the Director of Consolidation whose powers have been delegated to the Deputy Director, Section 48 of the Act now reads as follows : "Revision and reference. 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 such authority in the case or proceedings and may, after allowing the parties concerned an opportunity or being heard, make such order in the case or proceedings as he thinks fit. (2) Powers under sub-sec.
(2) Powers under sub-sec. (1) may be exercised by the Director of Consolidation also on a reference under sub-sec. (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 proceeding to the Director of Consolidation for action under sub-sec. (1) ." 3. It is true that Section 48 does not specifically refer to any power to take additional evidence. It is also clear that the record of a subordinate authority can be sent for in order to satisfy the Director of Consolidation "as to the correctness, legality or propriety of any order passed by such authority in the case or proceedings". This, it is contended, confines the jurisdiction of the Director to the record already before the subordinate authority. The argument, however, over-looks several other important considerations. Firstly, although the record of the subordinate authority has to be sent for, the purpose of sending for it is to enable the Director of Consolidation to satisfy himself about the correctness of an order which may include the correct determination of facts. Secondly, the final order on the revision can only be passed after allowing the party concerned an opportunity of being heard. A party 'may very well be able to make out a case that for some reason beyond its control, it could not produce adequate or relevant evidence before the subordinate authority. It may desire to produce additional evidence as a part of its right of being heard. The term "opportunity of being heard" is capable of being interpreted liberally as including an opportunity to lead additional evidence where a party is able to make out a reasonable ground for permitting it. It is true that the order passed by the Deputy Director does not indicate the reasons why the additional evidence has been allowed as it ought to have done. Nevertheless, it has not been shown from the assertions made in the petition that the additional evidence is either irrelevant or that the contesting opposite parties have not given any grounds why it should be admitted. No copy of the application made by the contesting opposite parties has been filed.
Nevertheless, it has not been shown from the assertions made in the petition that the additional evidence is either irrelevant or that the contesting opposite parties have not given any grounds why it should be admitted. No copy of the application made by the contesting opposite parties has been filed. It has, however, been stated in paragraph 9 of the petition that the order of the Deputy Director is without jurisdiction as no ground has been given why the additional evidence is being admitted. This assertion does not amount to showing that no reasons existed for the admission of the additional evidence. All that it means is that the Deputy Director has not given his reasons as he ought to have done. Thirdly, the revisional power includes the power of making such order as the Director thinks fit. These words are also wide enough to include an order for additional evidence on sufficient grounds made out. Fourthly, I find that Sections 38 and 39 of the Act specifically confer the power upon all consolidation authorities, including the Director of Consolidation to take evidence. The Director of Consolidation does not exercise original jurisdiction. He could only take evidence in proceedings under Section 48 of the Act. No rule has been framed under the Act to regulate the power to take additional evidence in proceedings under Section 48 of the Act. But, the power must necessarily be exercised judicially and reasonably for purposes incidental to and implied in the exercise of the power to revise the orders of subordinate authorities on grounds falling within the scope of Section 48 of the Act As the order permitting additional evidence, in proceedings under Section 48 of the Act, has to be passed in exercise of a judicial discretion, it is advisable to state grounds or reasons for exercising the discretion. However, as the impugned order does not finally determine the rights of the parties and has not been proved by the petitioner to be otherwise unreasonable, the mere fact that grounds or reasons are not stated in it will not suffice for interference by this Court at this stage under Article 226 of the Constitution. The position would have been different if the order had been one disposing of the revision application finally. 4.
The position would have been different if the order had been one disposing of the revision application finally. 4. It may be mentioned here that the Supreme Court in State of Kerala v. K.M.C. Abdulla and Co., A.I.R. 1955 SC 1585, has considered the question whether revisional power necessarily implies a restriction on the powers of the revising authority so as to prevent it from holding further inquiry or ordering adduction of further evidence. The majority view in that case, upon the construction of the provisions of the Act under consideration there and the particular rule before their Lordships, was that the revisional jurisdiction is not in all cases restricted to matters already on the record of the subordinate authority and would include further inquiry and evidence. Such a question must necessarily be determined upon the provisions of the particular enactment under consideration. I find, upon reading the provisions of Section 48, as it stands now, together with the clear and express provisions of Sections 38 and 39 of the Act, that it cannot be said that the Director's powers of revision are confined in every case to the evidence already on the record. In my opinion, in suitable cases and on sufficient grouns made out, the revising authority may take additional evidence before passing final orders. 5. I, therefore, dismiss this writ petition. As no one appears for the opposite parties, I make no order as to costs.