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2002 DIGILAW 353 (ALL)

RAM PRATAP v. HARI SHANKER

2002-03-07

R.H.ZAIDI

body2002
R. H. ZAIDI, J. ( 1 ) BY means of this petition filed under Article 226 of the Constitution of India, petitioners pray for issuance of a writ, order or direction in the nature of certiorari quashing the order dated 9. 8. 1982 passed by the Deputy Director of Consolidation allowing the revision filed by the respondent No. 1 under Section 48 of the U. P. Consolidation of Holdings Act, for short, "the act". ( 2 ) THE relevant facts giving rise to the present petition, in brief, are that Khata No. 521 consisting of 15 gatas, of village Naroya, district Mirzapur. (for short the land in dispute) measuring 4 bighas and 4 biswas was recorded in the name of respondent No. 1 in the basic year. Initially, an objection was filed by Ram Roop, father of Lalchoo, respondent No. 2, regarding the land in dispute but the same was got dismissed. Subsequently, two objections were filed, one by Sita ram son of Raghunandan and other by Sheo Lochan son of Ganga, predecessor in interest of the petitioners, who claimed the cotenancy rights in the land in dispute and partition of their shares pleading that the land in dispute was acquired by Narpat alias Parvat, that after his death name of sukaloo was recorded as karta of the family, that thereafter name of Bhim was recorded and that in the same capacity, the name of Hari Shanker was recorded on the land In dispute. The objection filed by Sita Ram and another was opposed by the respondent No. 1, Hari Shanker, who has claimed that the land in dispute was acquired by his father and he was in exclusive possession of the same and the petitioners have got no concern with the land in dispute. In support of their cases, parties have produced evidence, oral and documentary before the consolidation Officer. The Consolidation Officer after going through the evidence on the record dismissed the objection filed by Hari Shanker. respondent No. 1, and upheld the claim of the petitioners by his judgment and order dated 12. 1. 1976. Aggrieved by the judgment and order passed by the Consolidation Officer. Hari Shanker filed an appeal before the Settlement Officer. Consolidation, which ultimately came before the Assistant Settlement Officer, Consolidation, who after hearing the parties and perusing the material on the record dismissed the same by his judgment and order dated 21. 1. 1976. Aggrieved by the judgment and order passed by the Consolidation Officer. Hari Shanker filed an appeal before the Settlement Officer. Consolidation, which ultimately came before the Assistant Settlement Officer, Consolidation, who after hearing the parties and perusing the material on the record dismissed the same by his judgment and order dated 21. 4. 1977. Aggrieved by the judgment and order passed by the settlement Officer. Consolidation. Hari Shanker filed a revision under Section 48 of the Act before the Deputy Director of Consolidation. The Deputy Director of Consolidation after re-appraising the entire evidence on the record substituted his own findings for the findings recorded by the authorities below and allowed the revision by his judgment and order dated 9. 8. 1982. Hence, the present petition. ( 3 ) THE contesting respondents filed counter-affidavit denying the facts stated in the writ petition and reiterated the facts stated before the authorities below in support of their claims. The petitioners also filed a rejoinder-affidavit in reply to the counter-affidavit. He has reasserted the facts stated in the writ petition after denying the facts stated in the counter-affidavit. ( 4 ) LEARNED counsel for the petitioners vehemently urged that the Deputy Director of consolidation has acted illegally and in excess of his Jurisdiction in re-appraising the evidence on the record and substituting his own findings for the concurrent findings recorded by the authorities below. The Judgment and order passed by the Deputy Director of Consolidation is, therefore, liable to be quashed. ( 5 ) LEARNED counsel for the petitioners in support of his submissions relied upon the decision of supreme Court in the case of Gaya Din (D) through L. Rs. , and others v. Hanuman Prasad (D)through L. Rs. , JT 2000 (Suppl 3) SC 199 and the decisions of this Court in the cases of Ram karan Shukla v. Deputy Director of Consolidation, Falehpur and others, 2001 (92) RD 695 and jangt Lal v. Deputy Director of Consolidation, Allahabad and others. 2002 (1) AWC 59 : 2002 (93) RD 35. ( 6 ) ON the other hand, learned counsel appearing for the contesting respondents supported the validity of the order passed by the Deputy Director of Consolidation. It was urged that the order passed by the Deputy Director of Consolidation is concluded by findings of fact, which were based on relevant evidence on the record. ( 6 ) ON the other hand, learned counsel appearing for the contesting respondents supported the validity of the order passed by the Deputy Director of Consolidation. It was urged that the order passed by the Deputy Director of Consolidation is concluded by findings of fact, which were based on relevant evidence on the record. The Deputy Director of Consolidation has taken into consideration the entire evidence on the record, thereafter rightly reversed the findings recorded by the authorities below and rightly allowed the revision. The writ petition was, therefore, according to him, liable to be dismissed. ( 7 ) I have considered the submissions made by the learned counsel for the parties and also perused the record. ( 8 ) IT is evident from the facts stated above that the Consolidation Officer and the Settlement officer Consolidation have recorded concurrent findings on all relevant issues involved in the case. Therefore, the findings were based on documentary as well as oral evidence on the record and could not be said to be perverse. The Deputy Director of Consolidation under Section 48 of the Act can interfere with the proceedings carried on by the authorities below or orders passed by them if they are found to be Illegal, incorrect or irregular. In the instant case, the Deputy Director of Consolidation has nowhere recorded any findings to the effect that the findings recorded by the authorities below were either Illegal or incorrect or improper or against the evidence on the record. He has acted simply as a Consolidation Officer or a Settlement Officer. Consolidation. He has reappraised the entire evidence and substituted his findings for the findings recorded by the authorities below and without setting aside the orders passed by the authorities below, reversed the findings recorded by them on which their orders were based. ( 9 ) SCOPE of Section 48 of the Act came to be considered before the Apex Court in the case of gaya Din (supra ). After considering all the relevant decisions of the said Court, 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 Dular v. Deputy Director of Consolidation, Jatmpur and others. JT 1994 (3) SC 341 : 1994 Suppl (2) SCC 198. The scope of the powers of the Deputy Director under the amended provision came up for consideration of this Court in Ram Dular v. Deputy Director of Consolidation, Jatmpur and others. 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 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 another u. Deputy Director of consolidation, District Basti, U. P. , and others. 2000 (2) AWC 1136 (SC) : JT 2000 (2) SCC 43 : 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 authorities 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. " ( 10 ) IN view of the law laid down by the Supreme Court in the aforesaid decision, this Court in the cases of Jangi Lal and Ram Koran Shukla (supra) has held that the Deputy Director of consolidation cannot act as a Consolidation Officer or a Settlement Officer, Consolidation. The deputy Director of Consolidation in view of the aforesaid decisions was not competent to re-appraise the evidence on the record and to substitute his own findings for the findings recorded by the authorities below. He had no jurisdiction to set aside the judgments and orders passed by the authorities below, which were based on concurrent findings of fact without reversing the findings recorded by them in accordance with law. He had no jurisdiction to set aside the judgments and orders passed by the authorities below, which were based on concurrent findings of fact without reversing the findings recorded by them in accordance with law. As stated above it has nowhere been held by the Deputy Director of Consolidation that the findings recorded by the consolidation Officer and the Assistant Settlement Officer. Consolidation were either illegal or incorrect or improper or perverse ; but he has reversed the said findings wholly arbitrarily and contrary to the provisions of Section 48 of the Act. ( 11 ) IN view of the aforesaid discussion, the present petition deserves to be allowed. The impugned order is liable to be quashed. ( 12 ) THE writ petition succeeds and is hereby allowed. The order dated 9. 8. 1982 passed by the deputy Director of Consolidation is hereby quashed. However, no order as to costs. .