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Allahabad High Court · body

1995 DIGILAW 809 (ALL)

Damodar Prasad v. Deputy Director of Consolidation

1995-08-07

S.R.SINGH

body1995
JUDGMENT : S.R. Singh, J. The writ petition is directed against the judgment and order dated 26.10.1993 of the Deputy Director of Consolidation, Allahabad rendered in three connected revisions, one filed by the Petitioner, the second by Udai Narain and the third by Mahadeo. The Petitioner had filed revision being aggrieved by the appellate order dated 10.6.1992 u/s 21 of the Uttar Pradesh Consolidation of Holdings Act (in short the 'Act'). The revision filed by Mahadeo was against the order dated 23.11.1991 passed by the appellate authority in another appeal, and the revision preferred by Udai Narain was preferred against the order dated 21.2.1990 of the Consolidation Officer, whereby the Consolidation Officer had, keeping in view the location and purpose for which plot No. 402 was being used, excluded the same from the consolidation scheme. The Deputy Director of Consolidation by a common order dated 26.10.1993 allowed all the three revisions and directed alteration in respective chaks of the parties as per amendment chart attached to the order. The Petitioner felt aggrieved due to inclusion of his original plot No. 402/2 in the scheme for the purposes of rearrangement of holdings and its allotment to contesting Respondents and hence, the present petition. 2. Heard Sri S.N. Singh for the Petitioner and Sri Sankatha Rai for the Respondent Nos. 3 to 7 and 9. 3. Learned Counsel for the Petitioner urged that the revision against the order dated 21.2.1990 was highly belated in that it was filed about three years after the order was passed by the Consolidation Officer and the Deputy Director of Consolidation allowed the revision, set aside the order dated 21.2.1990 without examining the question as to whether the delay in filing the revision was, in the facts and circumstances of the case, sufficiently explained and without adverting himself to the reasons and grounds which impelled the Consolidation Officer to exclude plot No. 402/2 from the consolidation scheme and set it apart as chak-out. in reply, Sri Sankatha Rai urged that the Deputy Director of Consolidation has considered the matter at length and rightly set aside the order dated 21.2.1990 inasmuch as plot No. 402/2 was found cultivable on spot at the time of local inspection by the Deputy Director of Consolidation. in reply, Sri Sankatha Rai urged that the Deputy Director of Consolidation has considered the matter at length and rightly set aside the order dated 21.2.1990 inasmuch as plot No. 402/2 was found cultivable on spot at the time of local inspection by the Deputy Director of Consolidation. It was urged by Sri Sankatha Rai that only such lands could be excluded from the purview of rearrangement of holdings as are mentioned in the explanation to Sub-section (2) of Section 3 of the Act and it was impermissible to set apart cultivable lands as chak-out. 4. Having given my anxious consideration to the submissions made at the Bar, I am of the view that the order passed by the Deputy Director of Consolidation suffers from patent infirmity in that the Deputy Director of Consolidation has, while reversing the order dated 21.2.1990, adverted himself neither to the question of delay in filing the revision nor to the reasons and grounds on which plot No. 402/2 was excluded from the scheme and has conspicuously failed to consider the viewpoint of the Petitioner vis-a-vis the claim of Udai Narain for inclusion of the said plot in the scheme and allotment thereof in his chak in preference to the Petitioner. It is well settled that Section 48 of the Act, though couched in a language of wide amplitude, confers upon the Deputy Director of Consolidation only a supervisory power which is quite distinct in scope and ambit from an appellate power. (See Nanku Singh v. Deputy Director of Consolidation, Moradabad and Ors. 1993 RD 275 (HC) ; Ram Dular Vs. Dy. Director of Consolidation, Jaunpur and Others, (1994) 2 SCALE 338 and the decision rendered in Civil Misc. Writ Petition No. 29841 of 1992 Pandohi v. Deputy Director of Consolidation and Ors. decided on 26.10.1993). That being so, the Deputy Director of Consolidation has to advert himself to the reasons given by the subordinate consolidation authorities in their orders and meet the same in order to Justify the order being set aside in a revision u/s 48 of the Act. decided on 26.10.1993). That being so, the Deputy Director of Consolidation has to advert himself to the reasons given by the subordinate consolidation authorities in their orders and meet the same in order to Justify the order being set aside in a revision u/s 48 of the Act. The expression, "call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings, or as to the correctness, legality or propriety of any order other than interlocutory order passed by such authority in the case or proceedings," necessarily enjoins a duty upon the Deputy Director of Consolidation to examine and meet the reasons, if any, given by a subordinate consolidation authority in his order before such order is set aside in revision. It is evident from the order impugned in the writ petition that the Deputy Director of Consolidation has not dealt with the reasons and grounds given by the Consolidation Officer for excluding plot No. 402/2 from the purview of the consolidation scheme for the purpose of re-arrangement of the holdings as comprehended by Section 3(2) of the Act. The Deputy Director of Consolidation has also failed to address himself to the question of delay in filing revision. It is true that the power u/s 48 of the Act may be exercised suo moto and the question of delay in filing the revision loses its significance, once the record of the case decided is summoned but the present was not a case where the Deputy Director of Consolidation may have suo moto summoned the record of the case decided on 21.2.1990. 5. The submission of Sri Sankatha Rai that exclusion of cultivable lands from the purview of the 'consolidation scheme' within the meaning of the term as defined in Section 3(3B) of the Act is impermissible, cannot be countenanced. 'Consolidation' means re-arrangement of holdings in a unit amongst several tenure holders in such a way as to make their respective holdings more compact. It is no doubt true that cultivable lands are normally not excluded from the purview of re-arrangement of the holdings but nothing in the Act inhibits exclusion of a cultivable plot of land or holding from the consolidation scheme, that is to say, from re-arrangement of holding. It is no doubt true that cultivable lands are normally not excluded from the purview of re-arrangement of the holdings but nothing in the Act inhibits exclusion of a cultivable plot of land or holding from the consolidation scheme, that is to say, from re-arrangement of holding. The construction put upon the Explanation to Section 3(2) by Sri Rai being incoherent with the purport and import of the Explanation cannot be accepted. Even a cultivable 'land' or 'holding' as these terms are defined in the Act, may be set apart as chak-out, that is to say, may be excluded from the purview of 'consolidation scheme' depending upon its location, user, significance and potential value. in a given case, a tenure holder may suffer an Irreparable loss and injury in the event of such 'land' or 'holding' being included in the scheme and allotted to a third party for the value of such plot determined in terms of its exchange ratio may not be enough to adequately compensate the tenure holder in case it is allotted to a third person. Such 'land' or 'holding,' though otherwise fit for re-arrangement of holdings in a unit, has to be set apart as chak-out. The Deputy Director of Consolidation without adverting to this aspect of the matter was not justified in reversing the order dated 21.2.1990 merely because the plot in question was found cultivable on spot. 6. It may also be pertinent to observe that an order u/s 9B being appealable. Its challenge in revision without availing of the remedy of appeal would be destructive of a remedy under the Act. The order dated 21.2.1990 was certainly an order u/s 9B of the Uttar Pradesh Consolidation of Holdings Act. The Jurisdiction u/s 48 of the Act ought not to be exercised in a manner which may be destructive of a statutory remedy. This aspect of the matter also needs to be examined at the end of the Deputy Director of Consolidation. 7. In the facts and circumstances of the case, therefore, the order passed by the Deputy Director of Consolidation is, in my opinion, liable to be quashed. 8. Accordingly the writ petition succeeds and is allowed. The impugned order dated 26.10.1993 is quashed. 7. In the facts and circumstances of the case, therefore, the order passed by the Deputy Director of Consolidation is, in my opinion, liable to be quashed. 8. Accordingly the writ petition succeeds and is allowed. The impugned order dated 26.10.1993 is quashed. The Deputy Director of Consolidation is directed to re-admit the revisions and dispose them of in accordance with law and in the light of the observations made in this judgment after affording opportunity of hearing to the parties, expeditiously if possible, within a period of four months from the date of receipt of a certified copy of this order.