Dasoo v. Deputy Director of Consolidation, Varanasi
1982-07-13
R.M.SAHAI
body1982
DigiLaw.ai
ORDER R.M. Sahai, J. - Although the impugned order passed by Deputy Director of Consolidation in exercise of revisional power under S. 48 of U.P. Consolidation of Holdings Act in proceedings arising out of allotment of chaks has been assailed being violative of S. 19 of the Act and devoid of any . reason but the most powerful attack launched against it was the jurisdiction of Deputy Director to interfere with findings of fact on principle laid down by the highest Court in two of its decisions Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar, AIR 1980 S C 1253 and Dattonpant Gopalvarao Devkate v. Vithalrao Marutirao, AIR 1975 SC 1111 . Both these decisions were connected with Sections 50 and 25 of Mysore Rent Control Act and Tamil Nadu Buildings (Rent Control) Act respectively. In the first it was observed "It is true that the power conferred on the High Court u/s 50 is not narrow as that revisional power of the High Court under section 115 of the C. P. C. but at the same time it is not wide enough to make the High Court a second Court of first appeal. We do not think that there are such pressing grounds in this case which would justify our upsetting the view of the High Court confirming those of the Lower Appellate Court." In the second which in fact followed Raja Lakshmi Dyeing Works the Supreme Court held (para 3) : "The language of section 25 is indeed very wide. But we must attach some significance to the circumstance that both the expressions appeal' and 'revision are employed in the Statute. Quite obviously the expression revision' is meant to convey the idea of a much narrower jurisdiction than that conveyed by the expression 'appeal'. In fact it has to be noticed that under S. 25 the High Court calls for and examines the record of the appellate authority in order to satisfy itself. The dominant idea conveyed by the incorporation of the words to satisfy itself under S. 25 appears to be that the power conferred on the High Court u/s 25 is essentially a power of superintendence. Therefore, despite the wide language employed in S. 25 the High Court quite obviously should not inferfere with findings of fact merely because it does not agree with the finding of the subordinate authority." 2.
Therefore, despite the wide language employed in S. 25 the High Court quite obviously should not inferfere with findings of fact merely because it does not agree with the finding of the subordinate authority." 2. Learned counsel vehemently argued for restrictive approach by revisional authority as spelled out from these decisions. According to him the Deputy Director of Consolidation could not convert himself into a court of second appeal and adjudicate on questions of fact. He maintained that whatever interpretation might have been but in view of these decisions it may be held that revisional power cannot be equated with appellate power and the Deputy Director committed an error of jurisdiction in interfering with findings of fact recorded by appellate authority. The argument is no doubt attractive. But it ignores legislative history of S. 48. Prior to 1963 second appeal lay both on question of fact and law and the order was revisable u/s 48 on grounds analogous to power conferred on under S. 115 of Civil P. C. In order to minimise litigation and hurry the process of reform the right to file second appeal of a tenure-holder was taken away but S. 48 was substituted and it has been taken well right settled by series of decisions given by this Court that this Section empowers revising authority to examine both questions of fact and law (See Babu v. Deputy Director of Consolidation, 1968 Rev Dec 36, Raj Kumar v. Dy. Director of Consolidation, 1969 All WR (H. C.) 80, Smt. Kailashi v. Dy. Director of Consolidation 1972 Rev Dec 24 : (1972 All L J 29). 3. Apart from legislative history one should not lose sight of the difference in power conferred on High Court and quasi judicial authority. Language of S. 48 or of analogous provisions of other State Statutes may be similar to the language of Sections 50 and 25 of Mysore Rent Act and Tamil Nadu Buildings Rent Control Act but power under those statutes was conferred on High Court. Power of Superintendence conferred on High Court cannot be equated with power which a quasi judicial authority may enjoy as the last or final authority under the Statute. As observed by Hon'ble Supreme Court in Shankar Ramchandra Abhyankar v. Krishiji Dattatraya Bapat AIR 1970 SC 1 it is not the description but the nature of power which is decisive.
Power of Superintendence conferred on High Court cannot be equated with power which a quasi judicial authority may enjoy as the last or final authority under the Statute. As observed by Hon'ble Supreme Court in Shankar Ramchandra Abhyankar v. Krishiji Dattatraya Bapat AIR 1970 SC 1 it is not the description but the nature of power which is decisive. The jurisdiction which is exercised on revision u/s 115 C. P. C. is nothing but a part of the general appellate jurisdiction of the High Court as a superior court' hedged with limitations. If the Statute does not place any fetter on the exercise of power then restriction cannot be read on it only because it is described as revisional power. Similar language had been used in S. 10 of U. P. Sales Tax Act conferring power of revision on Additional Judge Revision of Sales as it stood before 1980. It was never disputed that revising authority court could examine questions of fact. If the interpretation as suggested by learned counsel is accepted then so far allotment of chaks is concerned the provision u/s 48 shall not be available. Whether a chak should be allotted at place A or B or it was near source of irrigation or on original holding are questions of fact rarely giving rise to procedural error of jurisdiction, therefore to interpret the Section in restrictive sense would work hardship and shall be contrary to scheme of the Act. 4. Even on merits the order is unassailable and eminently just. Both petitioner and opposite parties were proposed one chak by Assistant Consolidation Officer while framing scheme of consolidation under S. 19. It was objected by petitioner u/s 20 and he claimed that the proposed chak should be allotted near his source of irrigation. It was accepted by Consolidation Officer. But it resulted in bifurcation of opposite party's one chak in (wo which were allotted at two different places. He filed appeal but failed. The Deputy Director of Consolidation after hearing both parties and one Nihor who is opposite party no. 4 directed that the order of Assistant Cosolidation Officer may be restored. While passing this order the relevant observation made by Deputy Director of Consolidation were that Nihor was satisfied with proposed allotment or adjustment which resulted in variation of his plot as well.
4 directed that the order of Assistant Cosolidation Officer may be restored. While passing this order the relevant observation made by Deputy Director of Consolidation were that Nihor was satisfied with proposed allotment or adjustment which resulted in variation of his plot as well. The other observation was that petitioner admitted that the valuation of plot No. 49 which originally belonged to opposite party and which the Deputy Director of Consolidation proposed to give to petitioner carried the same valuation as the plots of petitioner which was his original holding. He further observed that by this allotment the petitioner was placed at plot No. 49 but that being close to chak Nos. 40, 10 and 106 belonging to his co-tenant the petitioner would not be prejudiced. In this way Deputy Director of Consolidation proposed allotment by which both petitioner and opposite party have been allotted one chak in respect of the area that they held. In doing so he had to shift petitioner from his original holding to certain extent. Criticism of such order as erroneous or devoid of any reason is misconceived. Some of the reasons given by Deputy Director have been detailed above. They appear to be perfectly sound. Moreover if the order of appellate authority on which great reliance has been placed by learned counsel can be characterised as reasoned order then the order of Deputy Director of Consolidation is unassailable. 5. Similarly the other line of attack that the revisional authority committed an error in allowing the revision without any finding as to why it was not possible to allot chak to petitioner on his original holding is equally untenable. After all in allotment some adjustment and shifting is bound to take place. It may not be satisfying to everyone. But that is not the test. Being aware of such difficulties the Legislature provided that a tenure holder should be allotted chak on his original holding but only to the extent it was possible. It is true that it should not be used as handle by consolidation authorities to make arbitrary allotment and refuse a tenure holder chak at his original holding but whether such action was arbitrary cannot be regulated and it shall vary from case to case. At the time of hearing a map of village was produced.
It is true that it should not be used as handle by consolidation authorities to make arbitrary allotment and refuse a tenure holder chak at his original holding but whether such action was arbitrary cannot be regulated and it shall vary from case to case. At the time of hearing a map of village was produced. After perusing it appeared if opposite party could be allot chak on plot No. 46 his one chak shall remain intact. But the learned counsel had not implead those chak holders as parties, therefore, it could not be considered further. It appears if any other method would have been adopted it would have been resulted in two chaks to opposite party. But the allotment of chaks in the manner proposed by Deputy Director of Consolidation has advantage of allotting one chak both to petitioner and opposite party. The anxiety of petitioner to disturb opposite party which would result in two chaks at two different places cannot be appreciated. 6. As regards the last argument that Deputy Director of Consolidation was required to record a finding that the order of the Settlement Officer Consolidation suffers from any illegality, impropriety or correctness it may be observed that once Deputy Director of Consolidation found that by adjusting opposite party on plot No. 48 and petitioner on plot No. 49 both could be given one chak he was acting in accordance with law and the order of Settlement Officer Consolidation was contrary to principle laid down in Sections 19 and 20 of U. P. Consolidation of Holdings Act. In Jagarnath v. Dy. Director of Consolidation, 1980 All WC 613 : (1980 U P L T NOC 168) it was observed by this Court that: "The consolidation authorities should, as far as possible, i.e., so far as it is practicable, I unless it is a case where it is 'not possible to do so' allot land at the place where the tenure holder holds the largest part of his original holding. The orders of the consolidation authorities must sufficiently indicate that they were alive to the requirement that a departure from the rule can be made only in an exceptional case.
The orders of the consolidation authorities must sufficiently indicate that they were alive to the requirement that a departure from the rule can be made only in an exceptional case. If, therefore, the order fails to so sufficiently indicate, it must fall." This decision does not lay down anything apart from this that the consolidation authorities must be alive to the situation and should not pass an order- which is contrary to the spirit contained in Sections 19 and 20. As pointed out the Deputy Director of Consolidation was fully alive to the situation of allotting one chak each to petitioner and opposite party. In Dr. A. N. Srivastava. v. Dy. Director of Consolidation, 1982 All LJ NOC 51 it was held by brother K. N. Misra, I "In the matter of making allotment of chaks to various tenureholders the equities have to be adjusted in accordance with the principles laid down in S. 19. Simply because a person is a big tenure holder as compared to other tenure holders his claim for allotment of land at the largest part of holding cannot be given goodbye The words "as far as possible" used in S. 19 (1) (e) do not confer any jurisdiction upon the consolidation authorities to act arbitrarily ignoring the provisions contained therein." The decision again is not helpful. Whether order passed by consolidation authorities was contrary to provisions of law depends upon the facts of the case. As pointed cull above the order was just as contemplated in S. 19 of the Act. In Chandrapal Singh v. Director of Consolidation, 1979 All WC SOC No. Ill 66 : (1979 U.P.LT NOC 44) it has been held by brother R. S. Singh, J, that "Allotment of a compact area at the place where a tenure-holder holds the largest part of his holding or his private source of irrigation should be as a matter of rule. Any departure from it should be only by way of exception. In case of no compliance with the aforesaid provisions consolidation authorities will have to assign good reasons as to why it is not practicable to follow it." 7. In Babu Singh v. Director of Consolidation, 1979 All C J 333 :(1980 U. P T C NOC 40) it was held by brother K. P. Singh.
In case of no compliance with the aforesaid provisions consolidation authorities will have to assign good reasons as to why it is not practicable to follow it." 7. In Babu Singh v. Director of Consolidation, 1979 All C J 333 :(1980 U. P T C NOC 40) it was held by brother K. P. Singh. J. that the Deputy Director of Consolidation should indicate in his order why the chak should not be alloted to the petitioner on his original plot. The revisional Court should not disturb allotment made solely because they did not agree with order passed by appellate authority. Needless to say that the finding recorded by Deputy Director of Consolidation cannot be characterised as arbitrary or he set aside the order of appellate authority as he did not like the finding recorded by him. 8. In the result this petition fails and is dismissed. There shall be no order as to costs. It appears in pursuance of interim order passed by this Court which was discharged due to non-prosecution of the petition for not taking step which order has been recalled the petitioner has sown sugarcane crop which is standing over land in dispute. The delivery of possession therefore shall be made after the petitioner is permitted to remove sugarcane crop if it is standing over the land in dispute.