Jai Narain v. Joint Director of Consolidation — 1981 DIGILAW 998 (ALL)

JUDGMENT K.N. Misra, J. - This writ petition is directed against the order dated 30th of April, 1081 passed by the Deputy Director of Consolidation under Section 48 of the U.P. Consolidation of Holdings Act (hereinafter referred to as the `Act'). 2. Briefly stated the facts of the case are : The dispute, in the present case, relates to Khata No. 311 consisting of Plot No. 304/3 area one acre which was recorded in the basic year Khatauni in the name of Minraj Kumir wife of Ram Karat and in class 9 the name of Jag-deo, father of petitioners Jai Narain and Ram Lakhau was recorded Upon the publication of C.H. Form 3 two sets of objections were filed. The petitioners filed objection claiming sirdari rights on the land in dispute on the basis of adverse possession. Opposite parties No. 2 and 3, namely, Bhageloo and Khilodhar filed objection claiming sirdari rights being sikmi tenants of the land in dispute. The Consolidation Officer vide order dated 23rd of September, 1970 allowed the objection of the petitioners and held them to have acquired sirdari rights on the basis of adverse possession. Objections filed by opp. parties No. 2 and 3 were rejected. Aggrieved by the said order opp. parties No. 2 and 3 filed an appeal which was allowed by the Settlement Officer (Consolidation) vide order dated 11.1.71, holding opp. parties No. 2 and 3 to be the sirdar tenants of the land in dispute and rejected the claim of the petitioners holding that they have not acquired sirdari rights on the basis of their alleged adverse possession. 3. Aggrieved by the said order the petitioners filed revision under Section 48 of the Act which was rejected on merits, after hearing both the parties, by the Deputy Director of Consolidation vide its order dated 26th of May, 1971. 4. The petitioners contended that the Deputy Director of Consolidation passed an order on 22nd May, 1972 contained in Annexure `2' to the writ petition in exercise of power of review under Section 48 (3) and directed the name of the petitioners to be recorded as sirdar over the land in dispute by restoring the order dated 28th September, 1970 passed by the Consolidation Officer and reviewing his earlier order dated 26th May, 1971. This order is said to have been incorporated in the Khatauni of the land in dispute. This order is said to have been incorporated in the Khatauni of the land in dispute. When the opposite parties No. 2 and 3 came to know about the said amaldaramad, they moved an application before the Deputy Director of Consolidation on 25th August, 1971 saying that the amaldaramad which has been made in the name of the petitioners is altogether fictitious and that the Deputy Director of Consolidation had no jurisdiction to pass an order on 25th May, 1972, reviewing his earlier order. 5. The Deputy Director of Consolidation called a report on the said application and, ultimately, vide order dated 30th April, 1971 directed that the amaldaramad which has been made in the name of the petitioners be expunged. He further directed that an enquiry be made to determine as to which official is involved in making the aforesaid fictitious amaldaramad in the name of the petitioners. He also held that the copy of the order dated 25th May, 1972 which was filed before him on behalf of the petitioners was Farji. Against this order dated 30th April, 1981 the petitioners have filed this writ petition. 6. The learned counsel for the petitioners Sri Uma Kant, contended that the Deputy Director of Consolidation could pass the order dated 25th of May, 1972 in exercise of power of review envisaged under Section 220 of the U.P. Land Revenue Act contained in Chapter `X' of the Land Revenue Act, which has been made applicable to the proceedings under the U.P. Consolidation of Holdings Act by virtue of the provisions contained in Section 41 of the Act. 1 do not find any substance in this argument. It is no doubt true that under Section 41 of the U.P. Consolidation of Holdings Act it has been provided that : "Unless otherwise expressly provided by or under this Act, the provisions of Chapter IX and X of the U.P. Land Revenue Act, 1901, shall apply to all proceedings including appeal and applications under this Act." 7. But merely because the provisions contained in Ch. X of the Land Revenue Act has been made applicable the power of review cannot be said to have been conferred upon the Deputy Director of Consolidation. This question came up for consideration before a Division Bench of this Court in Qadam Singh and another v. Ganga Saran and Ram Saran, 1960 A.L.J. 336. X of the Land Revenue Act has been made applicable the power of review cannot be said to have been conferred upon the Deputy Director of Consolidation. This question came up for consideration before a Division Bench of this Court in Qadam Singh and another v. Ganga Saran and Ram Saran, 1960 A.L.J. 336. wherein it was held that : "It is not possible to hold that under Section 220 of the U.P. Land Revenue Act read with Section 41 of the U.P. Consolidation of Holdings Act a power to review its own decision is conferred upon all Dy. Directors of Consolidation." Section 48 of the Act confers upon a Deputy Director of Consolidation the power to pass such orders as he thinks proper but having once passed such orders, it does not expressly, nor by implication confer upon him the power to set aside his earlier order and pass another order in its place." 8. In an another case Ram Pyarey v. Dy. Director of Consolidation and others, A.I.R. 1973 All. 347 a Division Bench of this Court held : "In our opinion Section 41 of the Act only makes applicable the provisions of Chapters IX and X of the U.P. Land Revenue Act to proceedings initiated under the U.P. Consolidation of Holdings Act, including proceedings of appeal and revision. Once the proceedings are initiated under this Act, the procedure Laid down in Chapters IX and X shall apply. Section 41, however, does not authorise the initiation of proceedings not contemplated or authorised by the Act. The power of review has to be specially conferred and unless there is a provision in the Act permitting initiation of such proceedings the question of applicability of procedure Laid down in Chapters IX and X of the U.P. Land Revenue Act does not arise. In the case of Qadam Singh v. Ganga Saran, 1960 A.I.R. L.J. 836. this Court had taken the view that no review lies. We are also of the same view.' 9. The learned counsel for the petitioners, in support of his contention that the Dy. Director of Consolidation has got inherent power of review, has placed reliance upon a case reported in Smt. Lachman v. Dy. this Court had taken the view that no review lies. We are also of the same view.' 9. The learned counsel for the petitioners, in support of his contention that the Dy. Director of Consolidation has got inherent power of review, has placed reliance upon a case reported in Smt. Lachman v. Dy. Director, Consolidation, 1966 R.D. 419 wherein the Division Bench has held : "It is however settled that every Court or Tribunal has inherent jurisdiction apart from statutory jurisdiction to correct any error committed by itself. This power is based on a legal maxim which is to the effect that no party shall suffer because of the Court or the Tribunal. There is a clear distinction between a statutory review and a review under the inherent powers of the Tribunal to rectify the wrong that has been committed by itself. 10. This question whether the Dy. Director of Consolidation is possessed of inherent jurisdiction to review his order came up for consideration in a case by this Court in Mata Pd. v. Deputy Director of Consolidation U.P. Lucknow, 1972 R.D. 9 wherein Hon. U.S. Srivastava, J. placing reliance upon a decision of the Supreme Court in Patel Narshi Tarkeshi v. Pradyuman Singhji, A.I.R. 1970 S.C. 1273 held that : "It cannot be disputed that the power to review must be found within the statute itself and in the absence of any provision to that effect in the statute, no authority has got power to review its own order. As held by the Supreme Court in Patel Narshi Tarkeshi v. Pradyuman Singhji there is no inherent power in a court to review its own order. 11. Hence the order of the Dy. Director of Consolidation reviewing his order was completely beyond bis jurisdiction. 12. The Hon'ble Supreme Court in Patel Narshi Tarkeshi v. Pradyuman Singhji (supra) considered the question whether an authority has got inherent power to review his own order or not and held that: "The power to review is not inherent power. It must be conferred by law either specifically or by necessary implication.' 13. In this view of the matter, I am of the opinion that the Dy. Director of Consolidation is not possessed of any power of review under the provisions of Section 48 of the Act nor he has got any inherent jurisdiction to review his earlier order. It must be conferred by law either specifically or by necessary implication.' 13. In this view of the matter, I am of the opinion that the Dy. Director of Consolidation is not possessed of any power of review under the provisions of Section 48 of the Act nor he has got any inherent jurisdiction to review his earlier order. Thus the order dated 25th May, 1972, which is said to have been passed by the Dy. Director of Consolidation reviewing his earlier order dated 26th May, 1971, was completely beyond his jurisdiction and resulted in grave miscarriage of justice. 14. The learned counsel next placed reliance upon a decision reported in Hari Shanker v. Dy. Director of Consolidation and others, 1980 R.D. 167 wherein Hon. The Supreme Court observed that : "It is a common saying that justice must not only be done but it must appear to have been done. It may be that despite the fact that the contesting respondent's counsel was the relation of the presiding Officer of the Court, the Officer must have decided the case on its merits but that is not the same thing as saying that the appellant had no reasonable ground to move for the transfer of the case. On these facts the Hon. Supreme Court was pleased to hold that : "The High Court was not justified in summarily dismissing the writ petition of the appellant. There was basis for the allegation of the appellant that the principles of natural justice had been contravened while deciding the revision petition inasmuch as he was not given a reasonable opportunity to present his case." 15. Hon'ble Supreme Court in the aforesaid case has neither considered nor expressed any opinion on the question whether the Dy. Director of Consolidation has got the power to review his own order passed under Section 48 of the U.P. Consolidation of Holdings Act. This case is, therefore, not of much help on the question under consideration. The Hon'ble Supreme Court in a later decision : Patel Narshi Tarkeshi (supra) has held that: "The power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. Its power of review has been conferred by law upon the Dy. Director of Consolidation under the provisions of U.P. Consolidation of Holdings Act either specifically or by necessary implications." 16. It must be conferred by law either specifically or by necessary implication. Its power of review has been conferred by law upon the Dy. Director of Consolidation under the provisions of U.P. Consolidation of Holdings Act either specifically or by necessary implications." 16. The learned counsel next contended that in any view of the matter the Dy. Director of Consolidation could, in the interest of justice, pass an order dated 25 May, 1972 recalling its own order dated 26th May, 1971 which, in his opinion, was not a correct decision as he had omitted to consider certain documents properly while deciding the revision earlier. I do not find any substance in this contention. It is not disputed that the earlier order dated 26th May, 1971 was passed by the Dy. Director of Consolidation dismissing the revision of the petitioner on merits after hearing both the parties. As the order was not an ex-parte order, and, it is also not the case of the petitioner that he was not given an opportunity of hearing while the said order was passed hence the principles of natural justice were not violated by the Dy. Director of Consolidation in deciding the revision on merits by order dated 26th May, 1971. Thus, the aforesaid Hari Shanker's case (supra) referred by the learned counsel for the petitioners is not applicable to the facts of the present case. 17. The Dy. Director of Consolidation has observed that there exists no order dated 25th May, 1972 and the copy of the order which was supplied to the petitioner was Farji. It may or it may not be so, but one thing is apparent that the Dy. Director of Consolidation could not pass any such order in purported exercise, of power of review. The order dated 25th May, 1972, which is said to have been passed by the Deputy Director of Consolidation reviewing his earlier order dated 26th May, 1971 was clearly without jurisdiction and has resulted in manifest injustice. Having once decided the revision on merits and having dismissed the revision of the petitioners vide order dated 26th May, 1971, he had no jurisdiction to review that order and to pass another order on 25th May, 1972 allowing the revision, which was earlier dismissed on merits. Having once decided the revision on merits and having dismissed the revision of the petitioners vide order dated 26th May, 1971, he had no jurisdiction to review that order and to pass another order on 25th May, 1972 allowing the revision, which was earlier dismissed on merits. Thus, in my opinion, the order dated 25th May 1972 is clearly without jurisdiction and the amaldaramad which was made in the name of the petitioners on the basis of the said order was clearly illegal and void and it has been rightly ordered to be expunged by the Deputy Director of Consolidation by order dated 30th April, 1981, which is equitable and just and, consequently, it is not a fit case where High Court should exercise its equitable jurisdiction of issuing a writ under Article 226 of the Constitution for the purpose of quashing an order, which is equitable and just order, and to restore an order, which was per se illegal and without jurisdiction and has resulted in manifest injustice. 18. In the result the writ petition fails and is accordingly dismissed.