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1985 DIGILAW 526 (ALL)

Giriraj Kishore v. Deputy Director of Consolidation

1985-05-07

B.L YADAV

body1985
ORDER B.L Yadav, J. -This petition is directed against an order dated 27-11-1984 passed by the Deputy Director of Consolidation, Agra, Camp at Mathura, order dated 24-12-1983 passed by the Assistant Settlement Officer (Consolidation) and the order dated 20-8-1983 passed by the Consolidation Officer in proceedings under S. 9-A(2) of the U.P. Consolidation of Holdings Act (hereinafter referred to as the Act for the sake of brevity). The petitioner has prayed for a writ of certiorari quashing the aforesaid orders and staying proceedings pending before the consolidation authorities in respect of the plots in dispute as a civil suit which was previously instituted in respect of the plots in dispute was pending. 2. The case has got a chequered history. One Kr. Girwar Singh, a big zamindar of Jagdishpur Estate, died on 24-5-1971. His father Gajadhar had adopted a son Shyam Sunder whose son is Giriraj Kishore, the present petitioner. After the death of Kr. Girwar Singh a number of persons started claiming rights. The petitioner claimed right as a grandson of the deceased. He filed testamentary suit No. 6 of 1976 in this Court and respondent No. 4 filed testamentary suit Nos. 4 and 7 of 1975 claiming to be a son of real sister of Mr. Girwar Singh deceased and also set up a will dated 19-5-71. One Smt. Sharda Devi claiming to be the real sister of the deceased filed testamentary suit No. 1 of 1975. One Narendra Pal Singh also claimed as adopted son of Kr. Girwar Singh and filed testamentary suit No. 5 of 1976. The Administrator General filed testamentary suit No. 1 of 1973 claiming letters of administration. 3. All the aforesaid testamentary suits were decided together by the judgment and order of this Court dated 18-8-1977. By this judgment the will set up by Respondent No. 4 was held to be fictitious. In testamentary suit No. 7 of 1976 it was held that the testator Kr. Girwar Singh was not possessed of sound disposing mind on the date the will is alleged to have been executed in favour of Respondent No. 4. The other suits were dismissed except the suit filed by the Administrator General in which the letters of administration were issued to the Administrator General U.P. Against that judgment Special Appeals Nos. 3, 8, 7 of 1978 and Special Appeals Nos. 15, 18. The other suits were dismissed except the suit filed by the Administrator General in which the letters of administration were issued to the Administrator General U.P. Against that judgment Special Appeals Nos. 3, 8, 7 of 1978 and Special Appeals Nos. 15, 18. 9 and 117 of 1978 were filed and were dismissed by a Division Bench of this Court by a common judgment dated 23-10-81. 4. The petitioner, however, filed a civil suit on 12-1-1972 for a declaration that he was the heir of Kr. Girwar Singh deceased and in that suit respondent No. 4 and others who had filed testamentary suits were arrayed as defendants. This suit was in respect of agricultural holdings as also in respect of other properties. The defendants have filed written statements there and documentary evidence has also been filed and the said suit was pending when the consolidation operations commenced. The civil suit, thereafter, in respect of agricultural holdings was abated under S. 5(2)(a) of the Act. The parties filed objections under S. 9-A(2) of the Act claiming right and title over the agricultural properties of the deceased. Issue Not 5 was framed as to whether in the circumstances of the case, as the civil suit between the parties was already pending, can the proceedings before the Consolidation Officer be stayed. 5. The application of the petitioner for the stay of the consolidation proceedings was opposed by respondent No. 4 and others. The Consolidation Officer by order dated 20-8-83 held that the consolidation proceedings cannot be stayed and the said order was upheld in appeal and in revision. It is against these orders the petitioner has filed the instant writ petition. 6. At the admission stage counter and rejoinder affidavits were exchanged by the parties and it is convenient to dispose of the writ petition. 7. Sri S. K. Saxena, the learned counsel appearing for the petitioner, has urged that the civil court was seized with the similar matter pertaining to a number of properties which are non-agricultural and there the plaintiff was claiming to be an heir of the deceased and the Respondent No. 4 and other parties were also claiming as heirs on the basis of will and being sister's son of the deceased. Documentary evidence has been led on behalf of the petitioner, about 127 in number, and the petitioner has led oral evidence also and the documentary evidence has also been filed by the defendants and the oral evidence was also being led by the Respondent No. 4 and other defendants. Even cross examination of Sardar Singh, Respondent No. 4 was continuing. In all propriety and in the ends of justice proceedings before the consolidation authorities should remain stayed as there was apprehension of conflicting judgments being given by the Civil Court and the consolidation authorities on the same matter of heirship. Sri Saksena urged further that Respondent No. 4 was claiming rights on the basis of the will which was already disbelieved by this court in the testamentary suits and the special appeals. Respondent No. 4 also claimed as sister's son of the deceased but that was also negatived in the aforesaid testamentary suits and special appeals. A contradictory view in all these matters may be taken by the Consolidation Authorities and the Civil Court about heirship of the deceased. Further inconceivable situation may arise if two conflicting and contradictory findings were recorded about the persons to be entitled to succeed to the estate of the deceased. In this connection reliance was placed upon a case reported in Ram Sewak v. Dy. Director of Consolidation, Deoria, 1982 All WC 575 : 1982 All LJ 1116. 8. Sri S. N. Aggarwal, the learned counsel appearing for Respondent No. 4, urged that the proceedings before the Consolidation Authorities need not be stayed and the impugned orders were correct He relied upon Ram Chandra v. Dy. Director of Consolidation 1984 Rev. Dec. 4 : 1983 All LJ 116. 9. Sri Krishna Murari Sinha appearing for the Administrator General supported the arguments advanced by the learned counsel for the petitioner and urged that the Consolidation proceedings should be stayed under the peculiar facts and circumstances of the case. 10. Having heard the learned counsel for the parties, I am of the opinion that the petition should succeed. 9. Sri Krishna Murari Sinha appearing for the Administrator General supported the arguments advanced by the learned counsel for the petitioner and urged that the Consolidation proceedings should be stayed under the peculiar facts and circumstances of the case. 10. Having heard the learned counsel for the parties, I am of the opinion that the petition should succeed. S. 10 C.P.C. provides for the stay of the subsequently instituted suits between the parties if the matter in issue is directly and substantially the same in the previously instituted suit S. 151 C.P.C. provides for the inherent power of the Court and no procedure provided under the Civil P.C. would be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. But the difficulty is that the provisions of the Civil P. C. dO not apply to the proceedings under the Act. The broad principles, however, to secure the ends of justice can certainly be made applicable. 11. The Deputy Director of Consolidation has been given more comprehensive powers under S. 48 of the Act He can examine any record of a case decided or any proceedings taken by any subordinate authority for the purposes 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. The correctness and propriety of any order confer unlimited powers on the Deputy Director of Consolidation to pass any order which may be correct and he can also examine the propriety of any order. It is thus evident that the Deputy Director of Consolidation has not only to examine the legality or regularity of the proceedings but he has also to examine the correctness and propriety of any order. The regularity of the proceeding means whether correct procedure has been followed by the subordinate authorities in deciding the case and legality obviously means as to whether the orders of the subordinate authorities are legal whereas the correctness and propriety are certainly different from legality and regularity of the proceedings and an order can be said to be correct even it may not be strictly according to the procedure provided or it may not be strictly legal. Similarly the propriety confers still more wide powers on the Deputy Director of Consolidation. The propriety of an order may be entirely different than its legality or regularity or correctness and an order under particular circumstances may be perfectly proper even though it may not be strictly according to the procedure or the same may not be legal. 12. Similar provisions as of S. 48 of the Act are to be found under S. 3(3) of the U.P. (Temporary) Control of Rent and Eviction Act. 1947 and under S. 435 of the Criminal P.C. 1898 and also under S. 397 of the Criminal P.C. 1973. There are strings of authorities interpreting these statutory provisions. It is crystal clear that the court of Revision with such wide powers has jurisdiction to go into the questions of facts and see whether order or proceedings are proper or correct. If in determining the correctness, legalities or propriety of an order under revision other matters which are germane, have also to be considered by the revisional court. In the instant case I am satisfied that it was imperative on the revisional court to examine the correctness and the propriety of the orders passed by the subordinate authorities keeping in view the peculiar facts and circumstances of the case. 13. In the instant case (when) a civil suit has been abated under S. 5(2)(a) of the Act the consolidation authorities have to proceed to decide the matter and to record a finding. There is no denying of the fact that there is no provision under,the Act similar to S. 10 or S. 151 C.P.C. But the language used by the Legislature in S. 48 of the Act clearly indicates that the powers of the Director of Consolidation. Deputy Director of Consolidation are very comprehensive and he can pass any order keeping in view the facts and circumstances of the case. 14. In my opinion, consolidation authorities are entrusted with adjudication of the rights and interest of the parties and they should do complete justice between the parties. They have not to feel bound by the technical rules and procedure. It is also a fact (that while enacting a particular statute the Legislature remains conscious only about the difficulties and situations prevailing at that time or to those situations which may frequently occur. They have not to feel bound by the technical rules and procedure. It is also a fact (that while enacting a particular statute the Legislature remains conscious only about the difficulties and situations prevailing at that time or to those situations which may frequently occur. If some unforeseen situation arises in future for the purpose of a particular case the parties -approach the authorities with the implicit confidence that they would get complete justice and they never keep in mind that the court o authority may be bound by some rule or procedure and hence the court or authority would be unable to do justice in their case. 15. In this connection it is pertinent to mention a Latin Maxim "Adeaquae Frequentious Accident Jura" which obviously means that laws are adopted to those cases which more frequently occur and laws are to be and shall be framed with a view to such cases as are of frequent, rather than such as are of rare or incidental occurrence. (See Eastern Countries and Railway Co. v. Francis Marriage, (1860) 9 HLC 32 at P. 52 and again per Willes J in R v. Saddlers, (1863) 10 HLC 404 at P. 429. But the courts are expected to do complete justice between the parties even in those situations which are not expected to occur frequently and are unique in character. In the present case even though there is no provision for staying the proceedings before the consolidation authorities, but nevertheless the language used in S. 48 of the Act does indicate that even powers similar to S. 10 C.P.C. for the stay of suits or the inherent powers under S. 151 C.P.C. may not be there under the Act, but nevertheless if the situations so require the Deputy Director of Consolidation can certainly pass an order so as to meet the ends of justice and to do complete justice between the parties. 16. In Ram Sewak v. Dy. Director of Consolidation, Deoria on page 578 para 5 of 1982 All WC 575 : at p. 1119 of 1982 All LJ 1116 (supra) the Division Bench of this Court held that where a suit for specific performance of contract was pending in civil court, that order would prevail and would be binding and a mutation proceedings u/s. 12 of the Act need not be stayed. The relevant observations in Ram Sewak s case are set out below : "..... ...it cannot be urged as a matter of law that in every case where a suit for cancellation of sale deed or gift deed is pending no suit for specific performance has been filed, the consolidation authorities should stay their hands. Facts of a particular case may justify that order. Finalisation of consolidation proceedings does not affect the suit for cancellation or specific performance etc. In case consolidation proceedings are finalised in favour of A on strength of sale deed but the same is cancelled or suit for specific performance is decreed in favour of B no difficulty can arise and the name of 'B' can be substituted in place of 'A' and possession be delivered under rules. Normally. therefore proceedings before consolidation authorities should not be stayed." 17. Even from these observations it is clear that in particular circumstances of the case the consolidation authorities can be asked to stay their hands if the facts of particular case justify that order. The Division Bench was only considering the case for cancellation of sale deed and suit for specific performance of contract. 18. Ram Chandra v. Dy. Director of Consolidation, 1984 Rev. Dec. 4 : 1983 All LJ 1161 (supra) was a case based on entirely different facts. There the proceedings pending before the consolidation authorities were sought to be stayed entirely on different basis. In that case the view has been taken that it is not proper to stay the consolidation proceedings even though the civil suit may be pending. Division Bench case in Ram Sewak v. Dy. Director of Consolidation, Deoria, 1982 All LJ 1116 (supra) was not considered in Ram Chandra v. Deputy Director of Consolidation (supra). Ram Chandra v. Dy. Director of Consolidation (supra) is a case decided on the facts of that particular case and also on the basis of the cases which had been referred therein. 19. The Division Bench of this Court in Ram Sewak v. Dy. Director of Consolidation, Deoria (supra) has taken a particular view under the facts and the circumstances of the case and was of the view that even staying of the consolidation proceedings can be justified if the circumstances of the case so require. 19. The Division Bench of this Court in Ram Sewak v. Dy. Director of Consolidation, Deoria (supra) has taken a particular view under the facts and the circumstances of the case and was of the view that even staying of the consolidation proceedings can be justified if the circumstances of the case so require. In the instant case as the litigation was brought before this Court in testamentary suits and thereafter in special appeals and thereafter civil suit for declaration was filed which was already pending between the parties and the evidence on behalf of the plaintiff has been led and the evidence on behalf of the defendants was being continued meanwhile consolidation operations started. There was possibility of conflicting judgments if the plaintiff is held to be the heir in the civil suit and not as an heir in the consolidation proceedings. Further the powers under S. 48 of the Act are much wider even propriety and incorrectness of an order can be gone into. In the circumstances of the case the orders passed by the Consolidation Officer and the Assistant Settlement Officer (Consolidation) were not proper under the circumstances of the case. However, the Deputy Director of Consolidation was not conscious that the widest possible powers have been conferred on him while deciding the revision and he was fully competent to pass any order as the exigency of the situation of the particular facts of the case demands. 20. There is another Maxim "Argumentum ab inconvenienti plurimum valet in lege" which means that an argument drawn from inconvenience is forcible in law. In the instant case the facts of the case are so unique and I am sure that it is very rare to find such chequered litigation as earlier litigation was fought in the High Court and thereafter a civil suit was filed and in the meanwhile the consolidation operations commenced. It is not for his own sake that the plaintiff (the petitioner) had made an application and got an issue framed on the point as to whether the consolidation proceedings may be stayed under the facts and the circumstances of the case, rather it was for the benefit of the contesting respondents also that they may first devote their energy fully in the civil litigation and thereafter the consolidation authorities may decide the case in pursuance of the order of the Civil Court. It is on account of all these insurmountable difficulties that the application was moved for staying the proceedings before the consolidation authorities till the civil suit was decided. 21. In view of the discussions made hereinbefore I am of the opinion that in view of the wide and comprehensive powers conferred on the Deputy Director of Consolidation his decision was manifestly erroneous in law that the proceedings before the consolidation authorities cannot be stayed. Therefore, the impugned orders passed by the consolidation authorities being manifestly erroneous deserve to be quashed. 22. In view of the discussions made hereinbefore the petition succeeds and is allowed. The impugned orders dated 27-11-84, 24-12-83 and 20-8-1983 passed by the Deputy Director of Consolidation, Assistant Settlement Officer (Consolidation) and the Consolidation Officer respectively are hereby quashed. The proceedings before the consolidation officer between the parties in Case No. 683/684, Sardar Singh v. Administration are directed to remain stayed till the civil suit between the parties is decided finally. In the peculiar circumstances of the case there shall be no order as to costs.