Hardeo Pathak v. Deputy Director of Consolidation, Dist. Ballia
1979-02-05
R.M.SAHAI
body1979
DigiLaw.ai
ORDER R.M. Sahai, J. - With change in the office of Gaon Sabha Jageshwar Singh either due to personal malice against the petitioner for contesting election against him or motivated by sense of public duty filed a miscellaneous application on 1-11-1973 before the Consolidation Officer after a lapse of nine years, since finalisation of chaks, for inquiry and correction of revenue records which the petitioner was alleged to have got manipulated with connivance of consolidation staff. It did not find favour and was dismissed on 14-9-74 on the ground that the village had been denotified under Section 52 of U. P. Consolidation of Holdings Act. Another attempt was made on 23rd October 1974 but with no better result. Having failed twice before the Consolidation Officer revisional jurisditcion under Section 48 was invoked against the second order dated 5-4-1975 but the revisional authority felt helpless as the first order was permitted to have become final and second application was filed after nearly nine months of denotification on 6th January 1974. In review the Deputy Director held that there being no provision for review the application was not maintainable but in exercise of suo motu powers he directed the Consolidation Officer to decide the application for correction on merits. 2. Suo motu power is an aspect of revisional power conferred on the Deputy Director under Section 48 of the Act. Its scope and ambit does not travel beyond the powers of examining the legality and propriety of the order passed by subordinate authority. As the power is to correct the error of subordinate authority the Deputy Director could in the exercise of suo motu power also do the same thing. The conferment of suo motu power on the Deputy Director is not peculiar to the Consolidation of Holdings Act. 3. It is very common and is normally found in statutes dealing with special subject, for instance, Section 10 of U. P. Sales Tax Act, Section 264 of Income-tax Act. The purpose obviously is to clothe such an authority with ample powers to effectuate the objective of passing 'such order as it thinks fit. The power however cannot be equated with residuary power or supervening power as the learned counsel for the opposite party attempted to suggest. The Legislature has even refrained from conferring power of review.
The purpose obviously is to clothe such an authority with ample powers to effectuate the objective of passing 'such order as it thinks fit. The power however cannot be equated with residuary power or supervening power as the learned counsel for the opposite party attempted to suggest. The Legislature has even refrained from conferring power of review. If an order passed by the Deputy Director cannot be reopened it is doubtful if it can be done in exercise of suo motu power. It would be permitting him to do indirectly which he could not do directly. The power of review and exercise of suo motu power are different and independent. They cover entirely different field. In the review proceedings against the order dated 5-4-76 the Deputy Director asked the Assistant Consolidation Officer to submit a report. The report was submitted after inspecting the record in the Munsifs court where a suit for injunction in respect of some plots is pending. How could the Deputy Director obtain fresh material in review proceedings is difficult to understand. The learned counsel argued that the Deputy Director while exercising suo motu power did not touch the order passed in revisional jurisdiction but he has set aside the first order of the Consolidation Officer passed on 14-9-74 and this he could do. The argument is attractive but suffers from a fallacy. It is admitted that the first application to reopen was rejected, may be on an incorrect basis that the village had been denotified but the question is could the Deputy Director revive the proceedings in exercise of suo motu power even after the dismissal of the second application for precisely the same relief and after its finality from the revisional authority. The second application was to review the order dated 14-9-1974 and reopen. The scope, therefore, of the second application was narrow, and in any case, it was continuation of the first. The finality of the proceedings in respect of the second application resulted in the finality of the first as well. 4. The learned counsel for the opposite party argued that the powers under Section 48 are very wide and the Deputy Director could in the exercise of the power under this section reopen any matter.
The finality of the proceedings in respect of the second application resulted in the finality of the first as well. 4. The learned counsel for the opposite party argued that the powers under Section 48 are very wide and the Deputy Director could in the exercise of the power under this section reopen any matter. Reliance was placed on Indris v. State (1972 Rev Dec 140), Abdul Junaid v. Deputy Director Consolidation (1972 All LJ 435) and Muchur v. Deputy Director Consolidation (1967 Rev Dec 330). The argument is not convincing and cannot be accepted. Howsoever wide the power might be it cannot be construed that the Deputy Director had been conferred the power to reopen the matter which has been judicially decided by the Consolidation Officer or Settlement Officer Consolidation except in accordance with the procedure provided under law. The Deputy Director is an authority constituted under the Act to perform certain duties assigned to him. He cannot go beyond it. The power exercised by him has to be culled from the language of the Act, Rules or the section itself. As there is nothing in Section 48 or any other section which supports the argument of the learned counsel for petitioner, it cannot be accepted that the Deputy Director apart from revisional power or the suo motu power which he could exercise has any additional power In the exercise of which he could reopen any matter. Such an interpretation would keep a tenure-holder exposed to the risk of harassment, 5. In Indris case (supra) there is a stray observation that proceedings reopened by the Deputy Director on allegation of fraud would be covered in the words 'all other work used in Section 47 (2) of the Amending Act. It was not considering the scope of suo motu power. In Muchurs case proceedings were reopened on a reference submitted under Section 48 (3) of the U. P. Consolidation of Holdings Act. It was held that simply because proceedings under Section 48 (3) were taken on an initiative of a private party it did not render the order of Deputy Director erroneous or without jurisdiction. In Abdul Junaids case the Bench was concerned with Rule 111. None of the decisions, therefore, are helpful. In State of Kerala v. K. M. Cheria Abdullah & Co.
In Abdul Junaids case the Bench was concerned with Rule 111. None of the decisions, therefore, are helpful. In State of Kerala v. K. M. Cheria Abdullah & Co. ( AIR 1965 SC 1585 ) the Supreme Court while considering the scope of suo motu powers in Kerala Sales Tax Act where the language is more or less similar it was held (at p. 1591): - "It would not invest the revising authority with power to launch upon inquiries at large so as either to trench upon the power which are expressly reserved by the Act or by the rules to other authorities or to ignore the limitation inherent in the exercise of those powers." The Deputy Director in review proceedings got a report from the Assistant Consolidation Officer and exercised its suo motu power on its basis. The inquiry was an inquiry at large and in exercising the suo motu powers the Deputy Director ignored the inherent limitation in it. 6. It was then argued that the order passed by the Deputy Director is just as from the report of the Assistant Consolidation Officer copy of which has been filed as Annexure to the supplementary counter-affidavit it is apparent that the petitioner was guilty of forgery and this court should in exercise of its discretionary jurisdiction refuse to interfere in the order. It is admitted that a suit has been filed and the same controversy regarding manoeuvring in the revenue records has been raised on behalf of the Gaon Sabha and it is pending adjudication. The question whether any fraud has been practised or any manoeuvring has been done by the petitioner is a matter which can effectively be adjudicated by the Civil Court, in an affidavit filed on behalf of the petitioner the entries have been attempted to justify as being based on orders passed by the consolidation authorities. It is also alleged that the entire report of the Assistant Consolidation Officer is based on misapprehension inasmuch as he has taken the valuation of the original holding and the valuation which the petitioner has been allotted now. And as there is much difference in the two he has inferred that forgery has been committed. The petitioner has stated that the land purchased by them which is noted in the Khataune extract has not been taken into account.
And as there is much difference in the two he has inferred that forgery has been committed. The petitioner has stated that the land purchased by them which is noted in the Khataune extract has not been taken into account. On the other hand the learned counsel for opposite parties produced certified copy of CH Form etc. to demonstrate that there were additions of some plots in petitioners khata without it being accounted for in the number, area or valuation. And therefore it was a case of forgery. To decide this controversy or examine its veracity in the light of conflicting claims might result in prejudging the issue. And as the matter is already pending in the Civil Court it is not expedient to touch this controversy at all nor is it expedient to consider the effect of presumption enacted in Section 27 of the Consolidation of Holdings Act and the manner of its rebuttal. 7. The result is that this petition succeeds and is allowed. The order dated 4-5-1976 passed by the Deputy Director is quashed. The petitioner shall be entitled to its costs.