Ram Jatan v. Bindeswari Prasad — 1988 DIGILAW 701 (ALL)

JUDGMENT M.P. Singh, J. 1. A person who has polluted his hands by being a party or privy to a fraudulent action shall not be allowed to approach the fountain of justice with his own infamy on his lips and obtain relief on the strength of such a dirty action. 2. A forged order dated 28-11-1975 alleged to have been passed by the Consolidation Officer, Civil Lines, Allahabad, is the foundation of the present writ petition. Categorical findings have been recorded by the Consolidation Officer and the Deputy Director of Consolidation that this order has never been passed by any Consolidation Officer in any proceeding and is the result of fraud played by the petitioner in collusion with staff of the consolidation authorities. The present writ petition has been filed against an order dated 24-12-1987 passed by the Deputy Director of Consolidation remanding the case to the Consolidation Officer to decide afresh in the light of the observations made therein. It may be stated here that in pursuance of this, a fresh order has been passed by the Consolidation Officer on 27-6-1988 holding that no order was passed on 28-11-1975 by the Consolidation Officer and the said order is a forged one. Against this order an appeal lies before the Settlement Officer Consolidation. In my opinion the writ petition has now become infructuous but since counsel for the petitioner has argued a number of points, the same are being dealt with. 3. The petitioner's case is that in case no. 10/137, Ram Jatan and others v. Mahadeo and others an order was passed by the Consolidation Officer on 28-11-1975 regarding Khatas No. 86, 99 and 100 of village Usmanpur, Pargana Mah, Tehsil Handia, District Allahabad He moved an application on 15-7-1986 under Section 52 (2) of the Consolidation of Holdings Act, hereinafter referred to as the Act, for giving effect to the order dated 28-11-1975. It was allowed ex-parte on 6-9-1986. As soon as the opposite parties came to know about this order, they moved an application on 18-9-1986 for setting aside the said order which was based on a forged order. It was allowed on 19-9-1986 and the ex-parte order dated 6-9-1986 was set aside. Against this order the petitioner filed an application before the Consolidation Officer on 29-9-1986 for recalling the same which was rejected on 17-10-1986. It was allowed on 19-9-1986 and the ex-parte order dated 6-9-1986 was set aside. Against this order the petitioner filed an application before the Consolidation Officer on 29-9-1986 for recalling the same which was rejected on 17-10-1986. This order has become final as it has not been challenged before the Settlement Officer Consolidation or the Deputy Director of Consolidation. Simultaneously against the same order dated 19-9-1986 the petitioner filed a Revision No. 11/87. The Deputy Director of Consolidation by his order dated 24-12-1987, after quashing the order dated 6-9-1986 remanded the case to the Consolidation Officer to decide afresh. The Consolidation Officer has decided the same on 27-6-1988. By means of the amendment application the petitioner has sought for quashing of this order of the Consolidation Officer as well but this application has been rejected by me on the ground that an appeal lies against that order. The Consolidation Officer was very much within his jurisdiction in deciding the matter on 27-6-1988 as there was no stay order granted by this Court after 13-3-1988. 4. Heard Sri A. C. Dutt, learned counsel for the petitioner and Shri Rajendra Prasad Srivastava, learned counsel for the respondents. It is one of these rare cases where there is no difficulty in confirming the orders of the Deputy Director of Consolidation dated 24-12-1987 and of the Consolidation Officer dated 19-9-1986 and 27-6-1988 in which it has been held that the petitioner has committed forgery in bringing into existence an order alleged to have been passed on 28-11-1975 by some Consolidation Officer. 5. The learned counsel for the petitioner has urged that in pursuance of the order of remand dated 24-12-1987 the Consolidation Officer could not have decided the matter and if he has done so he has committed contempt of this Court as the writ petition was pending in this Court. I see no force in this submission. Since there was no stay order in operation after 13-3-1988 the Consolidation Officer was justified in deciding the matter on 27-6-1988. He has committed no contempt. Mere pendency of the writ petition will not debar the Consolidation Officer to proceed with the case in pursuance of the remand order dated 24-12-1987. The Deputy Director of Consolidation has decided the matter after giving full opportunity to counsel for both the parties, details of which have been mentioned in the impugned order itself. He has committed no contempt. Mere pendency of the writ petition will not debar the Consolidation Officer to proceed with the case in pursuance of the remand order dated 24-12-1987. The Deputy Director of Consolidation has decided the matter after giving full opportunity to counsel for both the parties, details of which have been mentioned in the impugned order itself. He has recorded clear finding that on the alleged copy of the order dated 28-11-1975 there is neither signature of any Consolidation Officer nor there is any name mentioned nor the year is mentioned. Even stamps fixed on the same do not disclose the date and name of the stamp vendor and his registration number. The case no. 10/137 is not traceable in the record room. The order of Amaldaramad dated 6-9-1986 is based on a non-existing order on record. In addition to this order dated 26-6-1988, earlier in his order dated 17-10-1986, which has become final, a detailed finding has been recorded by the Consolidation Officer regarding fraud played by the petitioner in court. After perusing these two orders and the impugned order dated 24-12-1987, I am of the definite view that no such order dated 28-11-1975 was ever passed by any Consolidation Officer. There was no lis between the parties. There was no case registered as case No. 10/137. The alleged order dated 28-11-1975 is a forged order. 6. Another submission of learned counsel for the petitioner was that the Consolidation Officer has no power to recall the order dated 6-9-1986 and the order dated 19-9-1986 was without jurisdiction. According to him it is only a superior authority which could have quashed the said order. The submission appears to be devoid of force in as much as the order dated 6-9 -1986 was ex-parte and without issuing notice to the contesting respondents. Section 41 of the Consolidation of Holdings Act provides that unless otherwise expressly provided 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. Section 201 of the Land Revenue Act which is contained in Chapter IX thus has been made applicable to consolidation proceedings. 7. Section 201 of the Land Revenue Act which is contained in Chapter IX thus has been made applicable to consolidation proceedings. It provides that in all such cases if the party against whom judgment has been given appears either in person or by agent and shows good cause for his non-appearance and satisfies the officer making the order that there has been a failure of justice, such officer may upon such terms as to costs or otherwise as he thinks proper, review the case and alter or rescind the order according to the justice of the case Thus this SECTION which has been rightly made applicable by the Consolidation Officer gives him full power to recall the order dated 6-9-1986. Correctness of the order dated 19-9-1986 cannot be challenged by the petitioner before this court because his restoration application was rejected on 17-10-1986 which has become final. In case if the prayer of the petitioner is accepted that will lead to bringing into existence of two conflicting orders which is not permissible under law. The Consolidation Officer has jurisdiction to recall the ex-parte order dated 6-9-1986. 8. The contention of the counsel for the petitioner that the Consolidation Officer became bereft of the jurisdiction after passing the said order dated 6-9-1986 by allowing his application under Section 52 (2) of the Act, is also devoid of merit. He has relied upon a decision of the Supreme Court reported in Swadeshi Cotton Mills v. The Union of India, AIR 1981 SC 818 . He has particularly referred to paragraphs 85 to 89 of the said judgment and submitted that the non-observance of principle of natural justice is itself a prejudice to a person. The law laid down therein is the law of land but in the present case the order obtained by the petitioner on 6-9-1986 has been rightly set aside. It cannot be said that any prejudice has been caused fo him. The learned counsel for the petitioner has also made a reference to the decisions reported in Narasinga Gowda v. Subramanya Saralaya, AIR 1972 Mysore 346, Than Mal v. The Income Tax Officer, AIR 1958 Alld. 636 and Iqbal Singh v. Chanan Singh, AIR 1966 Punjab 165 to show that when the court has no jurisdiction, the decisions are nullities. The learned counsel for the petitioner has also made a reference to the decisions reported in Narasinga Gowda v. Subramanya Saralaya, AIR 1972 Mysore 346, Than Mal v. The Income Tax Officer, AIR 1958 Alld. 636 and Iqbal Singh v. Chanan Singh, AIR 1966 Punjab 165 to show that when the court has no jurisdiction, the decisions are nullities. Since I have already expressed my views that the Consolidation Officer has jurisdiction to pass order so the question of want of jurisdiction and the order being nullity does not arise. These authorities do not help the petitioner. 9. The other submission made by the learned counsel for the petitioner is that although the order of the Deputy Director of Consolidation dated 24-12-1987 is innocuous and was only an order of remand but the same suffers from lack of jurisdiction on the part of the Deputy Director of Consolidation inasmuch as in the revision filed by him for quashing the order dated 19-9-1986 he had no jurisdiction to quash the order dated 6-9-1986 which was in his favour. According to him the correctness of the order dated 6 -9-1986 was not to be adjudicated upon by the Deputy Director of Consolidation in Revision No. 11/87. This submission of the learned counsel is also without any force, inasmuch as the said order dated 6-9-1986 has already been set aside by the Consolidation Officer on 19-9-1986 and the Deputy Director of Consolidation by his impugned order has directed the Consolidation Officer to decide afresh. When he was deciding correctness of the said order dated 19-9-1986 he had every power to express his own views on the correctness of the order dated 6-9-1986. The jurisdiction has been exercised by him in accordance with law. 10. It was then submitted by the learned counsel for the petitioner that section 48 of the Act together with Rule 111 framed thereunder are complete Code for entertaining revisions according to which the respondents were debarred from making any submission against the order dated 6-9-1986. This submission is completely mis-conceived. Under section 48 of the Act, the entire record was before the Deputy Director of Consolidation and it was his duty to have satisfied himself as to the legality or propriety of any order. This submission is completely mis-conceived. Under section 48 of the Act, the entire record was before the Deputy Director of Consolidation and it was his duty to have satisfied himself as to the legality or propriety of any order. Section 48 of the Act is wide enough to give power to Deputy Director of Consolidation to investigate into the legality or propriety of any order in any proceedings. This question has correctly been decided by the Deputy Director of Consolidation in Revision No. 11/87 filed by the petitioner. Revision Nos. 927 and 928 filed by the opposite parties have been dismissed on 11-4-1988 on the ground that since the said order dated 6-9-1986 has already been quashed by the order dated 19-9-1986 and it did not exist any more the revisions were not maintainable. The respondents are not aggrieved by this order. I reject this contention as well. 11. The next argument made by the learned counsel for the petitioner is that the Deputy Director of Consolidation could not have exercised suo moto power to recall the order dated 6-9-1986. This submission also deserves to be rejected. While exercising the revisional powers in this case the Deputy Director of Consolidation has not exercised suo moto power in Revision No. 11/87 filed by the petitioner. He has exercised his power on the revision filed by the petitioner. 12. Sri Dutt has further submitted that first the order of the Consolidation Officer dated 6-9-1986 be restored, only then the respondents can challenge the same. I fail to understand the worth of this argument. When this order, which was ex-parte and illegal order, has already been set aside by the order dated 19-9-1986 there is no question of restoring the same. The next submission made by the counsel for the petitioner was that in view of the decision of this Court reported in Kamta Prasad v. Board of Revenue, 1985 RD 411, if the Amaldaramad has not been made in revenue records, the case will be supposed to be pending and publication of Notification under section 52 (1) of the Act will not debar the petitioner from moving such an application. The law laid down is clear on this question. The law laid down is clear on this question. But in the present case since it has been found that no order was ever passed by the Consolidation Officer on 28-11-1975, the moving of any application under section 52 (1) of the Act is of no relevance. 13. It was submitted by the learned counsel for the petitioner that the order dated 6-9-1986 has been recalled without giving him an opportunity. This submission has also no force. The defect, if there was any, has been cured by the order dated 19-9-1986. 14. Even assuming for the sake of argument that the impugned order dated 24-12-1987 suffers from any illegality but since substantial justice has been done between the parties and they have been given full opportunity to contest their cases by the Consolidation Officer before passing the detailed order dated 27-6-1988. In Bux Singh v. Joint Director of Consolidation, AIR 1966 Allahabad 156, it has been held that where orders impugned are equitable and substantial justice seems to have been done to the parties, the High Court would not be inclined to interfere in its writ jurisdiction merely on the ground that such orders are wrong in law. This proposition of law is based on earlier decisions reported in Parahu v. Deputy Director of Consolidation, 1964 AWR 155 and Begum A. H. Khan v. The Regional Transport Authority, Meerut, 1963 ALJ 909. 15. I am of the opinion that the impugned order suffers from no error apparent on the face of the record. In pursuance to the remand order of the Deputy Director of Consolidation dated 24-12-1987 a fresh order has been passed by the Consolidation Officer on 27-6-1988 rendering the writ petition infructuous. The Consolidation Officer has taken a serious view of the matter and has directed for initiation of criminal proceedings under the Indian Penal Code against the person found involved in the forgery. Since the order passed by the Consolidation Officer is appealable, I am not inclined to record any finding on the correctness of the same. The person found guilty must be adequately punished. 16. In the result, the writ petition fails and is dismissed with costs. Petition dismissed.