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Allahabad High Court · body

1992 DIGILAW 1389 (ALL)

Raj Moorat Pandey v. Deputy Director of Consolidation, Jaunpur

1992-10-16

B.L.YADAVA

body1992
JUDGMENT B.L. Yadava, J. - These three analogous petitions preferred under Article 226 of the Constitution of India, are directed against the judgment and order dated 30.1.1992 (Annexure III) to the petition, rendered by the Deputy Director of Consolidation of Holding Act 1953 (for short the Act) allowing the Revisions No. 2352/464 (Baij Nath etc. v. Harish Chandra etc.) and making consequential change in chak No. 270-A, Baij Nath and Vishwanath, and chak No. 396, Raj Murat, Chak No. 397 Ram Surat, and Chak No. 551, Harish Chandra. In these petitions the relief sought is for a writ or certiorari quashing the judgment and order dated. 30.1.1992. 2. Counter and re-joiner affidavits have been exchanged and the learned counsel for the parties agreed that the petitions itself may be decided on merit, that is why, I proceed to decide these three petitions by a common judgment on merits. 3. The parties of the petitions are co-sharers and some of them are member of the some family, but in a state imposed litigation under Section 9, 9-A and 20 of the Act, they have to contest each other. The controversy mainly centered round the allotment of different portions of a big plot No. 151 acres 15, 74 Acre situate in village Unch Gaon, Pergana Anguli, Tehsil Shahganj, District Jaunpur. As it was exceptionally a big plot consequently were there bound to be difference in the valuation in respect of different portion of this plot and some other plots including plot No. 252, 440 and 447 depending upon the nature of the land, availability of irrigation facilities and its proximity to the Abadi in the village. Assistant Consolidation Officer, assigned valuation of 10 paisa, 30 paise and 50 paisa, in respect of different portions, whereas it was changed at the stage of consolidation officer, decided the objections (Annexure II to the writ petition No. 15367 of 1992). and thereafter appeals preferred, were decided by the Assistant SEttlement Officer, Consolidation vide his judgment dated 14.5.1990 (Annexure II to the Writ petition No. 2352/464 (Baij Nath and other v. Harish Chand and other was leading revisions. This leading Revisions was party allowed by the Deputy Director of Consolidation under the impugned judgment dated 30.1.1992, relying upon the enquiry report of the Settlement Officer of Consolidation, dated 7-11-1990, in which fraud was proved in assigning valuation. A true copy of this report dated. This leading Revisions was party allowed by the Deputy Director of Consolidation under the impugned judgment dated 30.1.1992, relying upon the enquiry report of the Settlement Officer of Consolidation, dated 7-11-1990, in which fraud was proved in assigning valuation. A true copy of this report dated. 7-11-1990 has been filed as Annexure No. 2, to Writ petition No. 16556 of 24640 of 1992, (Harish Chandra v. Deputy Director of Consolidation and others) that report was forwarded earlier by the consolidation officer by his order dated 14.9.1990 (Annexure C.A. 6 in the writ petition No. 16556 of 1992 Raj Moorat Panday v. Deputy Director of Consolidation, Jaunpur and other). 4. Sarvashri Sankata Rai, Om Prakash Singh and J.B. Singh appeared for the petitioner and Shri Ram Prakash Misra appeared for the contesting respondents in these three petitions. 5. On behalf of the petitioner, it was contended that the Deputy Director of Consolidation has not assigned reasons for setting aside the findings of the Settlement Officer of Consolidation rather he has relied upon the inadmissible enquiry Report dated 7.11.1990 of the Settlement Officer of Consolidation about valuation of plot No. 151. After Revisions were filed Baij Nath etc. made a complaint that the valuation was changed by the D.D.C. submitted his enquiry report dated 7.11.1990 (Annexure C.A. 6) (Counter Affidavit, in writ petition No. 24640 of 1992 Harish Chandra v. D.D.C. and other (Annexure 2 in writ petition No. 16556 of 1992)No definite reasons have been given about the fraud being committed in assigning the valuation. The Deputy Director of Consolidation has started his judgment with the grievances of Baij Nath etc. in revisions No. 232/464 that from Udan Chak No. 399 it may be given on his original Plot No. 337 North South direction and valuation may be assigned to the well and some area may be kept out of the consolidation operation and Nali may be extended upon boundary of chak Road etc. and these grievances were not considered but just on the impression gathered from the enquiry report of Settlement Officer, Consolidation dated 7.11.1990, he allowed the Revision No. 2352/464 and made consequential change in other chaks including that of petitioner. 6. and these grievances were not considered but just on the impression gathered from the enquiry report of Settlement Officer, Consolidation dated 7.11.1990, he allowed the Revision No. 2352/464 and made consequential change in other chaks including that of petitioner. 6. On behalf of the contesting respondents it was urged by Sri R.P. Mishra that sufficient reasons as required were given by Deputy Director of Consolidation the grievances of the applicant in Revision as stated in the earlier part of the judgment were not pressed as parties agreed that Revisions may be decided on basis of findings of Settlement Officer Consolidation in the Enquiry Report dated 7-11-1990 particularly in respect of fraud. On the complaint of Baij Nath Pandey respondent No. 3 of the Writ Petition No. 16556 of 1992, an enquiry was held after informing the parties concerned and Assistant Settlement Officer Consolidation submitted his report dated 7.11.1990, which was admissible in law and it indicated the fraud has been committed in assigning lesser valuation to the portion, which was more fertile to get it assigned in the chak of the petitioner and the valuation was got enhanced in respect of the non-fertile area to get it allotted in the chak of other co-sharers including the respondents, it is to be emphasised that the fraud vitiates the entire proceedings, It is apparent that the parties came to an agreement as it stated in the order. The Deputy Director of Consolidation corrected the mistake in the allotment of the chak of the extent of incorrect valuation assigned to a particular portion of plot No. 151, were the fraud was obvious. A perusal of the impugned order makes it crystal clear that Raj Moorat Pandey chak holder No. 396 (Petitioner in writ petition No. 16556 of 1992 has got assigned the valuation of 90 paisa to a particular area 801/2 and that portion was given to him but the valuation was decreased to the corrected level of 30 paisa. Similarly, in the respect of the portion of the same plot No. 151 M. in respect of area 1.58 in place of 30 paisa, valuation a correct valuation of 50 paisa was assigned. Consequently, their was bound to occur change in the dimension of the area assigned. Similarly, in the respect of the portion of the same plot No. 151 M. in respect of area 1.58 in place of 30 paisa, valuation a correct valuation of 50 paisa was assigned. Consequently, their was bound to occur change in the dimension of the area assigned. Similarly, others co-sharers Ram Surat Panday chak holder No. 397 (Writ Petition No. 15367 of 1992) was given by valuation in respect of area, 88, but this valuation was excessive ad found by the Deputy Director of Consolidation, hence it was reduced to 50 paisa and other portion of plot No. 151 M. 30 paisa valuation, was enhanced to 50 paisa. Similarly, Harish Chandra Pandey (Writ Petition No. 24620 of 1992) was given a portion of plot No. 151 M.M. with an area of 1.59, with 10 paise valuation was assigned valuation of 50 paisa and in respect of other area with 30 paisa and 20 paisa valuation was assigned. Similarly, other area with 30 paisa valuation was changed to he corresponding area and correct valuation was assigned. In respect of other tenure holders including respondents valuation was changed according to the spot inspection and perusal of relevant papers etc. 7. As regards the petitioners' 1st submission that the Baij Nath Pandey's grievances in Revisions No. 1253/464 in respect of plot No. 399/398 must have been removed and the grievances about the valuation in respect of plot No. 428 in which well is situate and is respect of Nali but the same was not considered while deciding the revisions, it was urged by Sri R.P. Misra for the respondent that during the progress in the submission in all the connected Revisions, in fact argument was given up of behalf of the Revisionists, and after spot inspection Baij Nath Pandey. Vishwanath and Ram Soorat (Petitioner in writ No. 15367 of 1992 etc.) did not press their Revision on merits rather jointly agreed that he fraud committed by consolidation authorities, in assigning valuations to different areas of Plot No. 151 M, may be corrected. In that connection Baij Nath (Application in revision No. 1353/464) leading revision had made complaint before the predecessor-in-office of the Deputy Director of consolidation, which was on record, and that complaint was about the fraud committed at the behest of different tenure holders. In that connection Baij Nath (Application in revision No. 1353/464) leading revision had made complaint before the predecessor-in-office of the Deputy Director of consolidation, which was on record, and that complaint was about the fraud committed at the behest of different tenure holders. The Settlement Officer of Consolidation was directed to hold a detailed enquiry which was submitted by him on 7.11.1990 and the complaint was found to the correct and the revisions was ultimately decide on the basis of the result of the enquiry in respect of the fraud and on the basis of spot inspection. In view of comprehensive power under Section 48, D.D.C. correctly relied upon report dated 7.11.1990. It is obvious that grievances raised earlier was given up. There no question of not considering that argument which was given up in view of agreement and understanding between the parties. In view of the agreement between the parties sufficient reasons have been given. The leading Revision has been correctly allowed substantially and consequential changes have been made in other chaks and revisions of Harish Chandra (Writ No. 2464 of 1992) have been correctly dismissed. No party can be permitted to take advantage of the fraud. Substantial justice has been done by the impugned order, there is no justification for interference under Article 226 of the Constitution. 8. Having heard counsel for the parties, there are question that fall for adjudication. The first question is whether the grievances of the different applicants in the Revisions as indicated in the earlier part of the judgment of the Deputy Director of Consolidation, including grievance of Baij Nath etc, in revision No. 2352/464 (Baij Nath etc. v. Harish Chandra etc.) about their chak on plot No. 399 have been considered in the later part of the judgment. Whether the revision could have been decided on the basis of the enquiry report dated 7.11.1990, submitted by the Assistant Settlement Officer Consolidation, exhibits fraud in assignment of the valuation, whether reasons have been assigned in the impugned order of the Deputy Director of Consolidation. 9. As regards next point, a perusal of the order of Deputy Director of Consolidation, indicates that the grievances of the different applicants in the revision, even though discussed in the earlier part of the judgment/impugned order, was later on given up by them, as is clear from the following observations. 9. As regards next point, a perusal of the order of Deputy Director of Consolidation, indicates that the grievances of the different applicants in the revision, even though discussed in the earlier part of the judgment/impugned order, was later on given up by them, as is clear from the following observations. " mHk; i{kksa ds fo}ku vf/koDrkx.k dks lHkh ukxfjdksa us lquk x;k rFkk i=koyh pdz o Hkwfp= ,oa lEcfU/kr vfHkys[kksa dk fof/kor voyksdu fd;k x;kA LFky fujh{k.k Hkh fd;k x;kA fuxjkuhdrkZ cStukFk vkfu] fo'oukFk] jkelwjr }kjk 'ks"k fuxjkuh esa dgh xbZ ekaxksa ij cy u nsdj lkewfgd :i ls ;g dgk x;k fd pdcUnh vf/kdkjh mRrj ls xkVk la[;k 151 ds fofu,; vuqikr ds lEcU/k esa izfn"Vdj.k gsrq deZpkfj;ksa }kjk izkIr fd;k x;k gS mls nq:Lr dj fn;k tk;A bl lEcU/k esa fuxjkuhdrkZ cStukFk vkfn }kjk esjs iwokZf/kdkjh ds le{k ,d f'kdk;rh izkFkZuk i= izLrqr fd;k x;k gS tks 'kkfey i=koyh gSA mDr ifjokn ds lEcU/k esa cUnkscLr vf/kdkjh tkSuiqj lnj ls tkWap djkbZ xbZA c0v0p0 lnj us viuh tkWap vk[;k fnukad 06&11&1990 esa fuxjkuhdrkZ }kjk dh xbZ f'kdk;r dh iqf"V fd;k gSA vr% fuxjkuhdrkZ dks ;g ekWax mfpr izrhr gksrh gSA vr% rnuqlkj ;g rhuksa fuxjkuhdrkZ dh fuxjkuh Lohdkj dh xbZ vkSj 'ks"k ekWaxs [kkfjt dh xbZA " 10. A perusal of the aforesaid extract from the impugned order indicated that after having argued the revision to a considerable extent, applicants Baij Nath etc. in revision No. 2352/464 respondent No. 3 in the first writ petition No. 16556 of 1992, Vishwanath applicant in revision No. 173 (Vishwanath v. Haushila etc. respondent No. 4 in the first writ petition and Ram Surat, petitioner in the second writ petition No. 15367 of 1992, whereas Haushila respondent No. 9 in the second writ petition and the Baij Nath and Vishwanath were respondent No. 2 and 3 in the third writ petition No. 24640 of 1992. Ram Surat, Raj Moorat petitioner in the second writ petition, are respondent No. 7 and 8 in the third writ petition, have given up their grievances and rather agreed that on the basis of the enquiry report dated 7-11-1990, submitted by the Settlement Officer of Consolidation as fraud has been committed in assigning the valuation at the stage of consolidation Officer, in respect of Plot No. 151, hence consequences of the fraud in valuation may be rectified, that would satisfy their grievances in the revision. When there is an observation made in the impugned judgment or order regarding any facts that statement of fact regarding the proceeding in the court of law pertaining to the admission or contents or suggestion made by the party recorded in the judgment itself is conclusive and not open to contradiction as only the court recording that fact can rectify the error (See State of Maharashtra v. Ram Das Sri Niwas Nayat, AIR 1992 SC 1249 ) 11. These observation in the impugned rendered by the Deputy Director of Consolidation finally concluded the matter that the revisions agreed that a fraud was committed in assigning the valuation at the stage of consolidation officer, the same may be corrected and they have given up earlier grievances raised by him in the earlier part of the argument. In case, the Deputy Director of Consolidation was requested to decide the revision on the basis of the agreed statement made by the aforesaid parties including petitioners Raj Moorat Pandey in the second petition No. 15367 of (1992) there can not be injustice to the parties. The Deputy Director of Consolidation correctly decided the revision on the basis of the report dated 1-11-1990, submitted by the Settlement Officer Consolidation. 12. Coming to the second question, a perusal of the report dated 7-1-1990 submitted by Settlement Officer of Consolidation Annexure II in the first writ petition, would indicate that the statement were recorded during the enquiry and all the aspects pertaining to the fraud in assigning the valuation, were considered. The relevant observation Ex Abun Danticautela are set out. 12. Coming to the second question, a perusal of the report dated 7-1-1990 submitted by Settlement Officer of Consolidation Annexure II in the first writ petition, would indicate that the statement were recorded during the enquiry and all the aspects pertaining to the fraud in assigning the valuation, were considered. The relevant observation Ex Abun Danticautela are set out. " fo0v0 dk Hkwfp= ns[kus ls ;g izdV gksrk gS fd 50 iSlk fo0v0 mRrj if'pe dksus esa] 10 iSlk gS fd fo0v0 nf{k.k esa iwjc&if'pe yEckbZ esa fu/kkZfjr fd;k x;k izrhr gksrk gS vkSj 30 iSlk fo0v0 xkVs ds if'pe mRrjh dksus ij n'kkZ;k x;k gS l0p0v0 us fo0 vuq0 ds uD'ks esa vkdkj i= 2&d ds LrEHk 27 esa iSlk fn[kk;s x;s {ks=Qy ds vuqlkj uD'kksa esa vkd`r ugha cukbZ ftlds ifj.kke&Lo:i pdcUnh vf/kdkjh Lrj ij uD'ks ds vuqlkj {ks=Qy izfnf"Vdj.k esa xyrh lEHkkouk gqbZA esjs Lrj ij pd vihyksa dh lquokbZ ds le; pdnkj 270 tks ifjpkyd gs] dh xkVk la0 151 dk 2&73 ,dM+ {ks=Qy 10 iSls fo0v0 dk] 1&95 ,dM+ jdck 30 iSls fo0v0 dk] 1&62 ,dM+ jdck 50 iSls dh fo0v0 dh nj dk fn;k x;k gSA fofue; vuqikr ds Hkwfp= ds vuqlkj esjs Lrj ij ifjpkyd ds vuqlkj 30 iSls okyk jdck de feyuk pkfg;s vkSj 10 iSls okyk jdck vkSj c<+k;k tkuk pkfg;s rFkk 50 iSls dh nj okyk jdck pdnkj 581 esa vf/kd tkuk pkfg;s tcfd pdnkj 581 dks esjs Lrj xkVk la0 151 esa 1&59 ,dM+ 19 iSls dh nj dk] 0&80 fM0 jdck 30 iSls dh nj dk rFkk lk<+s 55 fM0 jdck 50 iSls dh nj dk feyk gSA esjs Lrj ij bu nksuksa pdh dh vkd`fr esa Hkh ifjorZu gqvk gS] blds igys mRrj nf{k.k cus Fks vkSj vc iwjc if'pe cuk;s x;s gSA fofu;e vuqikr ds Hkwfp= ds vuqlkj mlesa fe=&fHkUu nj ds fo0v0 ds jdcs dh n'kkZ;s u tkus ds dkj.k ;fn dksbZ izfnf"Vdj.k lEcU/kh =qfV jg xbZ gS rks vki Lrj ij Bhd dh tkuh gSA " 13. The aforesaid observation would indicate as to how fraud was committed at different levels in assigning valuation, which had adversely affected the allotment of area of different portion of plot No. 151 M. Even C.H. form 2 ka, etc. were also considered in arriving at the finding that the fraud was committed. 14. The aforesaid observation would indicate as to how fraud was committed at different levels in assigning valuation, which had adversely affected the allotment of area of different portion of plot No. 151 M. Even C.H. form 2 ka, etc. were also considered in arriving at the finding that the fraud was committed. 14. It is well known that fraud in common parlance means deceit fully using false representation to receive unjust advantage. It is committed by suppression of truth "Suppressio Veri" and by suggestion of falsehood. 15. In American Jurisprudence (2nd Volume 37 para 144 page 196 there is following statement about fraud : "Unquestionable, the concealment of material facts that are under circumstances, bound to disclose may constitute actionable fraud. Indeed, one of the fundamental tenants of Anglo-American law of fraud that fraud may be committed by suppression of truth (Suppressio Veri) as well as by suggestion of falsehood (suggestio falsi)" 16. it is obvious that the fraud is committed wither by suppression of truth or suggestion of falsehood in the present case, it appears that the fraud committed by the interested parties, was sought to be rectified by the Deputy Director of Consolidation. The Deputy of Consolidation has rectified the advantage derived by the chak holders, responsible for committing fraud. 17. It is basic idea of the justice that the party responsible for fraud should not be permitted to derive the advantage of the fraud. In Lazarus Estates Ltd. v. Basely, (1936) 1 All. ER 341, it was observed : "No court of this land will allow a person to keep on advantage which he has obtained by fraud, No judgment of court, No order of Minister be allowed to stand if it has been obtained by fraud. Fraud unravels every thing. The court is careful not to find fraud unless it is distinctly pleaded and proved but one it is proved, it vitiates judgment, contract and all transaction." 18. As fraud was proved to have been committed in view of the enquiry report submitted by Settlement Officer Consolidation, in my opinion the Deputy Director of consolidation was justified in taking that report into account, as that lead to the discovery of the truth and exposed falsity of the assertions made and the claim laid by the interested parties, particularly the petitioners. It has been stated by the Deputy Director of Consolidation, that he has also made spot inspection and looked into relevant record, it can not, therefore, be said that enquiry report dated 7-11-1990 was the only basis of judgment of the Deputy Director of Consolidation, Otherwise also it can be said that where the parties agreed that revisions may be decided on the basis of he enquiry report disclosing fraud, he was justified in deciding the revision on the basis of enquiry report and some other material. In case, the party would not have pressed for the disposal of the revision on merit by reference to the enquiry report, he would have decided the revisions according to the grievances raised in the earlier part of the judgment as the parties have given up their claim in accordance with the grievances raised. The Deputy Director of Consolidation was justified in deciding the revision keeping in view of the contents of the enquiry report. 19. Reverting to the third question as to whether reasons were given in the impugned order, have arrived at the conclusion. There is not denying the fact, as the Latim Maxim "CESSANTE RATIONE LEGIS CESSAT IPSA LEX" means that the reason is the soul of law. 20. The reason is the soul of law any without reason a particular judgment of law ceases. There can not be any doubt that the reason is the basis foundation of the judgment or the order but that reason ought to be based on the fact and circumstances of the case. Where the parties agreed that on the basis of the enquiry report, on the basis of which the fraud is alleged to have been committed, Revisions may be decided and advantage derived under the fraud may be set at naught. Decisions was given keeping in view of the enquiry report. The Deputy Director of Consolidation also made observation that he has made spot inspection. In this view of the matter if the revisions have been decided keeping in view oof the enquiry report, which reflected the fraud in assigning the valuation, it can not be said that the impugned order did not contain reason. The Deputy Director of Consolidation also made observation that he has made spot inspection. In this view of the matter if the revisions have been decided keeping in view oof the enquiry report, which reflected the fraud in assigning the valuation, it can not be said that the impugned order did not contain reason. The reason can not be treated in isolation, it has to be with reference to the fact and circumstance of the case, I am accordingly of the view that under the circumstances of the case reasons have been given to allow the Revisions No. 2352/464 which was leading Revisions and make consequential changes have been made under the impugned order in allotment of chak in reference to plot No. 151 M. 21. Coming to the question as to whether Deputy Director of Consolidation could rely upon the enquiry report dated 7-11-1990 under the law, suffice it to say that keeping in view the wide and comprehensive powers conferred by Section 48 (forty eight) on Deputy Director of Consolidation, in view of the language employed, having every wide sweep, he has been given power to satisfy himself as to regularity of the proceedings or to ascertain correctness or the property of he order. Consequently, he could have passed the appropriate order as he may think fit under the circumstances of the case. He could take additional, evidence or could depute some other authority to record evidence or hold an enquiry and submit the report, pertaining to certain aspects of the matter of controversy and the report is submitted with the reasons, that can be relied upon by Deputy Director of Consolidation. The report of Settlement Officer Consolidation dated 7-11-1990 was admissible in evidence and was correctly relied upon (see) Swastika Oil Mills v. H.B. Munshi and other, AIR 1968 SC 843 and Mst. Maheriby v. Director of Consolidation, 1969 RD 260 . There was no illegality in that report. 22. A perusal of the judgment of the Deputy Director of Consolidation indicates that revision preferred by Harish Chandra petitioner in writ petition No. 24640 of 1992 has been separately decided after recording sufficient reasons. I find no illegality in that part of the order. 23. Applying priori and posteri reasoning, and in view or discussion made herein. I do not find any error on the face of the record. I find no illegality in that part of the order. 23. Applying priori and posteri reasoning, and in view or discussion made herein. I do not find any error on the face of the record. Consequently, these connected petitions fails and are hereby dismissed, without making any order as to cost. Interim stay dated 4-5-1992, 13-7-1992 and 11-5-1992 as extended from time to time are vacated.