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1981 DIGILAW 925 (ALL)

Ram Ajor v. Deputy Director of Consolidation

1981-10-14

K.N.MISRA

body1981
ORDER K.N. Misra, J. - This petition under Article 226 of the Constitution is directed against the order dated 26th March 1976 passed by the Deputy Director of Consolidation, Pratapgarh by which he allowed the revision filed by Opposite Parties Nos. 2 and 3 and amended the Chak of the petitioner and also that of the Opposite Parties. 2. Briefly stated the facts of the case are that the petitioner Ram Ajor, Chak-holder No. 325 had held land measuring 2 bighas biswa 4 biswansis, which was within the consolidation scheme. As against this original holding, the petitioner was allotted one Chak of an area measuring 2 bigha 4 biswansis. Aggrieved by this order, the petitioner filed objection which was allowed by the Consolidation Officer vide order dated 26-5-1973 and he suitably amended the Chak of the petitioner and he was allotted a second Chak near village abadi on plot No. 688. Against the said order, the Opposite Party No. 2 has preferred an appeal which was rejected by the Settlement Officer (Consolidation) as time barred vide order dated 31st May, 1975. The Opposite Parties Nos. 2 and 3 thereupon filed two separate revisions which were heard and allowed by the Deputy Director of Consolidation vide order dated 26th March, 1976 and the Chaks of the revisionists were amended. Feeling aggrieved by this order, the petitioner filed the present writ petition. 3. Learned counsel for the petitioner argued that the Deputy Director of Consolidation had acted illegally in including his plot No. 689/2 in the consolidation scheme which was his abadi land on which his house was situated. He further contended that since the appeal which was filed by Opposite Party No. 2 was time barred, the Deputy Director of Consolidation acted illegally and without jurisdiction in deciding the revisions on merits without considering the question of condonation of delay. He further contended that Opposite Party No. 3 had filed the revision direct against the order passed by the Consolidation Officer without preferring an appeal against it and as such the Deputy Director of Consolidation acted illegally and without jurisdiction in entertaining the revisions against the order passed by the Consolidation Officer. In reply, the learned counsel for the Opposite Parties Nos. In reply, the learned counsel for the Opposite Parties Nos. 2 and 3 argued that the Deputy Director of Consolidation could entertain a revision against the order passed by the Consolidation Officer although no appeal was preferred by Opposite Party No. 3 against that order. He further contended that although the appeal was time barred which was filed by the Opposite Party No. 2 but the Deputy Director of Consolidation even without considering the question of delay in filing the appeal could entertain a revision and decide it on merits. In support of his contention, she has placed reliance on the decisions of this Court reported in Kalian v. Deputy Director of Consolidation, (1971 R. D. (HC) 491) and Mustafa Ali v. Deputy Director of Consolidation, (1967 R. D. (HC) 149). I have carefully considered the arguments advanced by the learned counsel for the parties and I find no substance in the argument advanced on behalf of the petitioner. 4. So far as the question of including plot No. 682/2 within the consolidation scheme is concerned, I find that this plot was included in the consolidation scheme on the request of the petitioner himself and the same was allotted in his Chak as his house was situated thereon. The Deputy Director of Consolidation had made certain amendments in the Chaks of the petitioner on the consideration of fact that on plot No. 692 which was allotted in the Chak of the petitioner, there were certain trees belonging to Opposite Party No. 2 Nohar, the Chak-holder No. 157. He had further found that on plot No. 688, the trees belonging to Chak-holder No. 211 were situated. This plot was allotted in the Chak of the petitioner. The trees belonging to the petitioner were situated on plot No. 689 but this portion of plot was kept out of the consolidation scheme and on the agreement of the parties, this portion was also brought in the consolidation scheme and it was allotted in the Chak of the petitioner as his trees were situated thereon. The Opposite Parties Nos. 2 and 3 were the co-tenure-holders along with the petitioner. In these circumstances, the adjustment which was made by the Deputy Director of Consolidation appears to be just and proper and the petitioner has not been prejudiced in any manner whatsoever. 5. The Opposite Parties Nos. 2 and 3 were the co-tenure-holders along with the petitioner. In these circumstances, the adjustment which was made by the Deputy Director of Consolidation appears to be just and proper and the petitioner has not been prejudiced in any manner whatsoever. 5. Learned counsel for the petitioner has contended that the original holding as compared to the allotted holding has been reduced by more than 50%. On scrutiny, I find that this contention is incorrect. The petitioner had held land measuring 2 bighas 1 biswa 4 biswansis in his original holding. He has now been allotted an area measuring 1 bigha 14 biswa 19 biswansis and thus it is less than 25% which is permissible in law. It is admitted fact that the Opposite Party No. 3 had not preferred any appeal against the order passed by the Consolidation Officer and he had filed the revision directly under S. 48 of the U. P. Consolidation of Holdings Act. The appeal which was filed by Opposite Party No. 2 was time barred and was dismissed as such. Thereupon he preferred the revision within limitation against that order. The Deputy Director of Consolidation had summoned the record and had perused the same which is evident from the recital made in the judgment itself and has not been disputed before me. The Deputy Director of Consolidation in exercise of power under S. 48 of the Act would entertain a revision directly against the impugned order passed by the Consolidation Officer. S. 48 of the Act as it stands at present, was amended by U. P. Act No. VIII of 1969. Prior to it, the power under S. 48 of the Act would be exercised by the Deputy Director of Consolidation only against the order passed by the Deputy Director of Consolidation in second appeals. This limitation in exercise of revisional power was done away with by the aforesaid Act No. VIII of 1963. Now under the amended S. 48 of the Act, a revision can be filed against any order passed by any subordinate authority while prior to the aforesaid amendment, a revision could be filed after the decision in second appeal against the order passed by the Deputy Director of Consolidation. The relevant S. 48 of the Act, as it stood prior to its amendment by the Act No. VIII of 1963, is quoted below : - "48. The relevant S. 48 of the Act, as it stood prior to its amendment by the Act No. VIII of 1963, is quoted below : - "48. Revision - The Director of Consolidation may call for the record of any case decided or proceeding taken, where he is of the opinion that a Deputy Director, Consolidation has - (i) exercised jurisdiction not vested in him in law; or (ii) failed to exercise the jurisdiction vested in him or (ii) acted in exercise of his jurisdiction illegally or with substantial irregularity and as a result of which substantial injustice appears to have been caused to a tenure-holder and he may, after affording reasonable opportunity of hearing to the parties concerned, pass such orders in the case of proceedings as he thinks fit." 6. In this view of the matter a revision could now be under the amended S. 48 of the Act filed directly against the order passed by the Consolidation Officer even without preferring appeal before the Settlement Officer (Consolidation) against the said order. 7. The revisional powers conferred by the said Act upon the Deputy Director of Consolidation are very wide. Even in a case, where a party without filing an appeal, present an application under S. 48 of the Act, the Deputy Director of Consolidation could summon the record in exercise of suo motu revisional power and could consider and decide the legality and propriety of the orders passed in the case or proceedings taken by the subordinate authorities and could pass such orders, which he may find to be just and proper. In this view of the matter also, I am of the opinion that the contention of the learned counsel for the petitioner that the revisional appeal filed by Opposite Party No. 3 directly against the order of the Consolidation Officer has got no force. 8. The Deputy Director of Consolidation admittedly summoned the record of the case. He , could, therefore, pass the impugned order after hearing the parties. The petitioner was afforded opportunity of being heard. He cannot, therefore, be said to have been prejudiced in any manner whatsoever. 9. Learned counsel for the petitioner has further contended that since the appeal which was filed by Opposite Party No. 2 was dismissed as time barred and, therefore, a valuable right accrued to him by the rejection of the appeal by the Settlement Officer (Consolidation). He cannot, therefore, be said to have been prejudiced in any manner whatsoever. 9. Learned counsel for the petitioner has further contended that since the appeal which was filed by Opposite Party No. 2 was dismissed as time barred and, therefore, a valuable right accrued to him by the rejection of the appeal by the Settlement Officer (Consolidation). I do not find any merit in this argument. As observed above, the Deputy Director of Consolidation could exercise the revisional power under S. 48 of the Act and summon the record and decide the case on merits after hearing the parties. He could pass appropriate orders if on scrutiny of the evidence on the record he was satisfied that there was manifest error of law in the order passed by the subordinate authorities. The question about delay in filing the appeal was not at all material for the exercise of the revisional powers by the Deputy Director of Consolidation as he could in exercise of revisional power approach the order passed by the Consolidation Officer and could consider the propriety and legality of the same after giving opportunity of hearing to the concerned parties. 10. In Kalian's case supra, Hon'ble Justice B. N. Lukur observed that the Deputy Director of Consolidation acting under S. 48 of the U. P. Consolidation of Holdings Act could suo motu consider the propriety of the orders of the subordinate authorities and he was not bound by the fact that the appeal to the Settlement Officer (Consolidation) was time barred. Even then, he had jurisdiction to interfere with the orders of two lower authorities. In this view of the matter, I find no substance in the argument of the learned counsel for the petitioner. 11. No other point is pressed before me. 12. In the result, the writ petition fails and is hereby dismissed but in the circumstances of the case, the parties shall bear their own costs.