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2002 DIGILAW 109 (ALL)

DIBIYA v. SAHAYAK SANCHALAK CHAKBANDI

2002-01-18

R.H.ZAIDI

body2002
List is revised. None appeared for the respondent. I have heard learned counsel for the petitioner. 2. By means of this petition filed under Article 226 of the Constitution of India, petitioner prays for issuance of a writ, order or direction in the nature of certiorariquashing the order dated 6-4-1990 passed by Respondent No. 1 allowing the Revision filed by the contesting respondents. 3. The relevant facts of the case giving rise to the present petition, in brief, are that in the basic year, the land in dispute, i. e. ,plots No. 1102/1 and 1102/2 of village Bihuni Kalan, Tehsil Maudaha, District Hamipur was recorded in the name of the petitioner. Objections were filed by the father of Respondents No. 2 to 5 and Respondents No. 6 and 7. They have claimed that they were in adverse possession of the land in dispute for more than the prescribed period, as such they have perfected sirdarirights over the land in dispute. The name of the petitioner was, therefore, liable to be expunged. The objection filed by the pleaded respondents was contested by the petitioner, who has contended that the contesting respondents were never in possession over the land in dispute. The entries made in the revenue papers were illegal and were not made after following the procedure prescribed under the law. On the basis of illegal entries, they cannot claim any right in the land in dispute. Parties produced evidenced in support of their cases, oral and documentary. the Consolation Officer after hearing the parties and after perusing the material on the record, dismissed the objections of the respondents by his judgment and order dated 21-5-1985. Challenging the validity of the said order, the contesting respondents filed an appeal before the Settlement Officer, Consolidation. The Settlement Officer, Consolidation also affirmed the findings recorded by the Consolidation Officer and dismissed the appeal by his judgment and order dated 11-4-1986. The contesting respondents, thereafter, challenged the validity of the order passed by the Settlement Officer, Consolidation by filing a revision under Section 48 of the U. P. Consolidation of Holdings Act, for short the Act, before the Deputy Director of Consolidation. The Deputy Director of Consolidation reversed the findings recorded by the two authorities below, substituted his own findings for the findings recorded by them and allowed the revision by his judgment and order dated 6-4-1990. Hence the present petition. 4. The Deputy Director of Consolidation reversed the findings recorded by the two authorities below, substituted his own findings for the findings recorded by them and allowed the revision by his judgment and order dated 6-4-1990. Hence the present petition. 4. Learned counsel for the petitioner vehemently urged that the order passed by the Deputy Director of Consolidation is wholly illegal and without jurisdiction, it is beyond the scope of Section 48 of the Act. It was urged that the Deputy Director of Consolidation had no jurisdiction to reappraise the evidence on the record and to substitute his own findings for the findings recorded by the authorities below without holding the findings that the findings recorded by them were either illegal, incorrect, improper or perverse. No such findings have been recorded and the orders passed by the authorities below have illegally been set aside. Therefore, the order passed by the Deputy Director of Consolidation is liable to be quashed and the writ petition deserves to be allowed. 5. I have considered the submissions made by the learned Counsel for the petitioner and also perused the record. Section 48 of the Act provides as under:- "48. Revision and reference.- (1) The Director of Consolidation may 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 an interlocutor order passed by such authority in the case or proceedings, may, after allowing the parties concerned an opportunity of being heard, make such order in the case or proceedings as he thinks fit. (2) Powers under sub-section (1) may be exercised by the Director of Consolidation also on a reference under sub- section (3 ). (3) Any authority subordinate to the Director of Consolidation, may, after allowing the parties concerned an opportunity of being heard, refer the record of any case or proceedings to the Director of Consolidation for action under sub-section (1 ). Explanation.- (1) For the purposes of this section Settlement Officers, Consolidation, Consolidation Officers, Assistant Consolidation Officers Consolidator and Consolidation Lekhpals shall be subordinate to the Director of Consolidation. Explanation.- (1) For the purposes of this section Settlement Officers, Consolidation, Consolidation Officers, Assistant Consolidation Officers Consolidator and Consolidation Lekhpals shall be subordinate to the Director of Consolidation. Explanation.- (2) For the purpose of this Section the expression interlocutory order in relation to a case or proceeding, means such order deciding any matter arising in such case or proceeding or collateral thereto as does not have the effect to finally disposing of such case or proceedings. " 6. A reading of the aforesaid Section clearly reveals that the Deputy Director of Consolidation may call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purposes of satisfying himself as to the legality, correctness or propriety of the proceedings or of any order (other than any interlocutory order) passed by such authority in the case or proceedings may, after allowing the parties concerned an opportunity of being heard, make such order in the case or proceedings as he may thinks fit. In the present case, it is evident from the order passed the Deputy Director of Consolidation that he has nowhere held that the findings recorded by the authorities below were either illegal, incorrect or improper. He has reappraised the evidence as if he was acting as the Consolidation Officer or the Settlement Officer, Consolidation and without reversing the findings recorded by the authorities below in accordance with law, substituted his own findings for the findings recorded by them, which was legally not permissible. 7. In Gaya Din (D) through LRs & Ors. v. Hanuman Prasad (D) through LRs & Ors. ,reported in 2001 (1) JCLR 652 (SC); JT 2000 (Suppl. 3) SC 199, the Supreme Court was pleased to rule as under:- "11. The scope of the powers of the Deputy Director under the amended provision came up for consideration of this Court in Ram Dularv. The Deputy Director of Consolidation, Janunpur and Ors. ,jt 1994 (3) SC 341 : 1994 Suppl. (2) SCC 198. 3) SC 199, the Supreme Court was pleased to rule as under:- "11. The scope of the powers of the Deputy Director under the amended provision came up for consideration of this Court in Ram Dularv. The Deputy Director of Consolidation, Janunpur and Ors. ,jt 1994 (3) SC 341 : 1994 Suppl. (2) SCC 198. It was observed that in considering the correctness, legality or propriety of the order or correctness of the proceedings or regularity under Section 48 of the Consolidation Act, the Deputy Director of Consolidation could not assume the jurisdiction of the original authority as a fact- finding authority by appreciating for himself of those facts de-novo:he had to consider whether the legally admissible evidence had been considered by the authorities in recording a finding of fact or law or the conclusion reached by them was based on evidence or any patent illegality or impropriety had been committed or there was any procedural irregularity which would go to the root of the matter. That judgment was relied on in a recent judgment of this Court in Seshmani and Anr. v. Deputy Director of Consolidation, District Basti, U. P. and Ors. ,2000 (1) JCLR 680 (SC) : 2000 (2) SCC 523 . " "14. Thus, it is clear that notwithstanding the fact that Section 48 has been couched in wide terms, it only permits interference where the findings of the subordinate authority are perverse in the sense that they are not supported by the evidence brought on record or they are against the law or where they suffer from the vice of procedural irregularity. 8. In view of the aforesaid discussions and the law laid down by the Supreme Court in the case of Gaya Dins (supra), the impugned order dated 6-4-1990 passed by the Deputy Director of Consolidation deserves to be quashed and the writ petition deserves to be allowed. 9. The writ petition succeeds and is allowed. The order dated 6- 4-1990 passed by the Deputy Director Consolidation is hereby quashed. The case is remanded to the Deputy Director of Consolidation for decision afresh in the light of the observations made above. 10. 9. The writ petition succeeds and is allowed. The order dated 6- 4-1990 passed by the Deputy Director Consolidation is hereby quashed. The case is remanded to the Deputy Director of Consolidation for decision afresh in the light of the observations made above. 10. It is further observed that since the matter has become very old, therefore, it is directed that the revision shall be decided by the Deputy Director of Consolidation expeditiously preferably within a period of two months from the date a certified copy of this order is communicated to him after affording opportunity of hearing to the parties concerned and after following the procedure prescribed under the law for the same. 11. No orders as to costs. Petition allowed. .