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2014 DIGILAW 3514 (ALL)

Hari Bans v. D. D. C.

2014-11-26

SUDHIR AGARWAL

body2014
JUDGMENT Sudhir Agarwal, J.: - 1. Heard learned counsels for parties and perused the record. 2. It is contended that Deputy Director of Consolidation (hereinafter referred to as "DDC") has interfered with the orders passed by the Consolidation Officer and Settlement Officer (Consolidation) in respect to allotment of chak in utter violation of guidelines laid down in Section 19 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as "Act, 1953") and also without finding any flaw with the orders passed by authorities below by recording his view. 3. Learned counsel for petitioner very vehemently argued and raised the issue of jurisdiction of DDC in interfering with the concurrent decisions of the authorities below. Thus, it would be appropriate first to examine the scope of revisional power, to be exercised by DDC, under Section 48 of Act, 1953. 4. The Scheme of the statute contemplates a tentative plan, inviting objection from stake-holder, i.e. tenure holder, and, after considering the same, finalization of plan, i.e., allotment of Chaks. Thereagainst appellate power has been conferred upon SOC under Section 21(2) of Act 1953. The power which is exercised by DDC, is termed "Revision and reference" under Section 48 of Act, 1953. 5. The original Section 48, as enacted, initially read as under: "48. Revision.- Director of Consolidation may call for the record of any case if the Officer (other than the Arbitrator) by whom the case was decided appears to have exercised a jurisdiction not vested in him by law or to have failed to exercise jurisdiction so vested, or to have acted in the exercise of his jurisdiction illegally or with substantial irregularity and may pass such orders in the case as it thinks fit." 6. It was amended by substitution by U.P. Act No. 24 of 1956 as under: "48. Powers of Director of Consolidation to call for records and to revise orders.- The Director of Consolidation may call for the record of any case or proceeding if the Officer (other than the Arbitrator) by whom the case was decided or proceeding taken appears to have exercised jurisdiction not vested in him by law or to have failed to exercise jurisdiction so vested, or to have acted in the exercise of his jurisdiction illegally or with substantial irregularity and may pass such orders in the case as it thinks fit." (amendment in bold) 7. Within a short period, it was again amended by U.P. Amendment Act No.38 of 1958 as under: "48. Revision.- The Director of Consolidation may call for the record of any case decided or proceedings taken, where he is of opinion that a Deputy Director, Consolidation has - (i) exercised jurisdiction not vested in him in law, or (ii) failed to exercise jurisdiction vested in him, or (iii) acted in the exercise of his jurisdiction illegally or with substantial irregularity, and as a result of which, substantial injustice appears to have been caused to a tenure-holder and he may4, after affording reasonable opportunity of hearing to the parties concerned, pass such order in the case or proceeding as he thinks fit." (amendment in bold) 8. Section 48 as noted above came on statute book by way of Section 39 of U.P. (Amendment) Act No. VIII of 1963. Major amendment came to be made by U.P. Act No. 20 of 1982 inasmuch as, in sub section(1) the words "other than an interlocutory order" were inserted w.e.f. 10.11.1980. An Explanation was added by Act No. 4 of 1969 with retrospective effect. It was re-numbered as Explanation-(1) by Act No. 20 of 1982 w.e.f. 10.11.1980 and then Explanation(2) was added w.e.f. 10.11.1980. 9. Presently, Section 48 reads 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 interlocutory order] passed by such authority in the case of proceedings and may, after allowing the parties concerned an opportunity of being heard, make such order in the case of 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 subsection (1). Explanation (1) - For the purposes of this section, Settlement Officer, Consolidation, Consolidation Officers, Assistant Consolidation Officers, Consolidator and Consolidation Lekhpals shall be subordinate to the Director of Consolidation. Explanation (2). Explanation (1) - For the purposes of this section, Settlement Officer, 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 proceedings, means such order deciding any matter arising in such case or proceeding or collateral thereto as does not have the effect of finally disposing of such case or proceeding. Explanation (3).- The power under this section to examine the correctness, legality or propriety of any order includes the power to examine any finding, whether of fact or law, recorded by any subordinate authority, and also includes the power to re-appreciate any oral or documentary evidence." (emphasis added) 10. Section 48 as it was initially enacted came to be considered in Sher Singh (dead) Vs. Joint Director of Consolidation and others (1978) 3 SCC 172 and the Court observed that a bare reading thereof makes it clear that it is pari materia with Section 115 CPC which confines revisional jurisdiction of High Court to cases of illegal or irregular exercise or non exercise or illegal assumption of jurisdiction by subordinate Courts. If a subordinate court is found to possess jurisdiction to decide a matter, it cannot be said to exercise it illegally or with' material irregularity even it it decides the matter wrongly. Relying on the cases interpreting Section 115 CPC, the Court held that whatever revisional jurisdiction was available to High Court under Section 115, the same was the scope of revisional jurisdiction of DDC under Section 48. It has no jurisdiction to go into errors of facts. The Court said that an erroneous decision on a question of fact or law reached, by subordinate court which has no relation to question of jurisdiction of that court, cannot be corrected by High Court under Section 115 CPC and same would apply to DDC under Section 48 as it stood originally under Act 1953. The Court observed that consolidation authorities subordinate to Joint Director possess plenary jurisdiction and competent to go into the question of correctness or otherwise of entries in revenue records. If there are concurrent findings of fact of two Courts, which do not leave any ground, as observed above, with reference to revisional jurisdiction, interference by Joint Director of Consolidation would not be competent. If there are concurrent findings of fact of two Courts, which do not leave any ground, as observed above, with reference to revisional jurisdiction, interference by Joint Director of Consolidation would not be competent. In para 16 of the judgement the Court said as under: " Thus the subordinate Consolidation authorities not having acted illegally in exercising their jurisdiction, the Joint Director of Consolidation was not competent to interfere with their decisions." 11. Section 48 as amended in 1963 then came to be considered in Ramakant Singh Vs. Deputy Director of Consolidation, U.P. and others AIR 1975 All 126 but therein the Court confined its consideration to Section 48(1) only to the question, whether Deputy Director of Consolidation once has called for record, is it incumbent on him to decide the matter on merit or it can decline and dismiss the revision on any technical ground like lack of impleadment of proper party etc. 12. Amended section 48 in 1963, then came to be considered by Supreme Court in Shanti Prakash Gupta Vs. DDC 1981 SCC (Suppl) 73 and therein the Court observed that Section 48 as then stood, vide amendment of 1963, was wider than Section 115 CPC. However, it proceeded to hold that Director should not lightly interfere with discretion of C.O. unless the order sought to be reversed is palpably erroneous or likely to cause miscarriage of justice. To the same effect and imposing similar restriction, observations were made in Ram Dular Vs. Dy. Director of Consolidation (1994) Supp (2) SCC 198, which are under: " It is clear that the Director had power to satisfy himself as to the legality of the proceedings or as to the correctness of the proceedings or correctness, legality or propriety of any order other than interlocutory order passed by the authorities under the Act. But in considering the correctness, legality or propriety of the order or correctness of the proceedings or regularity thereof it cannot assume to itself the jurisdiction of the original authority as a fact-finding authority by appreciating for itself of those facts de novo. But in considering the correctness, legality or propriety of the order or correctness of the proceedings or regularity thereof it cannot assume to itself the jurisdiction of the original authority as a fact-finding authority by appreciating for itself of those facts de novo. It has to consider whether the legally admissible evidence had not been considered by the authorities in recording a finding of fact or law or the conclusion reached by it is based on no evidence, any patent illegality or impropriety had been committed or there was any procedural irregularity, which goes to the root of the matter, had been committed in recording the order or finding." 13. A slight different form of observation came to be made in Preetam Singh Vs. Assistant Director of Consolidation and others (1996) 2 SCC 270 where the Court said: "When the matter was in revision before the Assistant director (Consolidation), he had the entire matter before him and his jurisdiction was unfettered. While in seisin of the matter in his revisional jurisdiction, he was in complete control and in position to test the correctness of the order made by the Settlement Officer (Consolidation) effecting remand. In other words, in exercise of revisional jurisdiction the Assistant Director (Consolidation) could examine the finding recorded by the Settlement Officer as to the abandonment of the land in dispute by those tenants who had been recorded at the crucial time in the Khasra of 1359 Fasli. That power as a superior court the Assistant Director (Consolidation) had, even if the remand order of the Settlement Officer had not been specifically put to challenge in separate and independent proceedings. It is noteworthy that the Court of the Assistant Director (Consolidation) is a court of revisional jurisdiction otherwise having suo moto power to correct any order of the subordinate officer. In this situation the Assistant Director (Consolidation) should not have felt fettered in doing complete justice between the parties when the entire matter was before him. The war of legalistics fought in the High Court was of no material benefit to the appellants. A decision on merit covering the entire controversy was due from the Assistant Director (Consolidation). (para -6) (emphasis added) 14. Yet in Ram Avtar Vs. The war of legalistics fought in the High Court was of no material benefit to the appellants. A decision on merit covering the entire controversy was due from the Assistant Director (Consolidation). (para -6) (emphasis added) 14. Yet in Ram Avtar Vs. Ram Dhani, AIR 1997 SC 107 , the Court, in para 8, observed: "This Court has repeatedly pointed out that howsoever wide the power under statutory revision may be in contrast to Section 115 of the Code of Civil Procedure, still while exercising that power the authority concerned cannot act as a Court of appeal so as to appreciate the evidence on record for recording findings on question of fact." 15. These observations again put the things in the shape, bringing scope of jurisdiction under Section 48, nearer to jurisdiction as contained in Section 115 CPC. 16. Section 48(1) as it stood before its amendment in 1963 and subsequent thereto, both came to be noticed in Sheshmani and another vs. The Deputy Director of Consolidation, District Basti, U.P. and others 2000 (2) SCC 523 . Referring to earlier decision in Sher Singh Vs. Joint Director of Consolidation (supra) and Ram Dular Vs. DDC (supra), and, the intervening amendment, Court followed the observations made in Ram Dular, as noticed above, and then upheld order passed by DDC holding that orders of CO and Additional Settlement Consolidation Officer were against settled principles of law, therefore, DDC was justified in exercise of revisional power, for coming to a different conclusion. 17. It is in these circumstances, Legislature intervened by inserting Explanation-3 vide U.P. Act No. 3 of 2002, giving effect from 10.11.1980. In Karan Singh Vs. DDC 2003 (94) RD 382 , this Court, however, said that even after addition of Explanation-3, DDC cannot substitute its own finding in place of subordinate authorities. 18. In a recent decision in Jagdamba Prasad Vs. Kripa Shankar (2014) 5 SCC 707 , the Court has considered Section 48 as amended in 1963, but thereafter in para 15, following earlier decision in Sher Singh Vs. Joint Director of Consolidation (supra), has said as under: "15. According to the legal principle laid down by this Court in the case mentioned above, the power of the Revisional Authority under Section 48 of the Act only extends to ascertaining whether the subordinate courts have exceeded their jurisdiction in coming to the conclusion. Joint Director of Consolidation (supra), has said as under: "15. According to the legal principle laid down by this Court in the case mentioned above, the power of the Revisional Authority under Section 48 of the Act only extends to ascertaining whether the subordinate courts have exceeded their jurisdiction in coming to the conclusion. Therefore, if the Original and Appellate Authorities are within their jurisdiction, the Revisional Authority cannot exceed its jurisdiction to come to a contrary conclusion by admitting new facts either in the form of documents or otherwise, to come to the conclusion. Therefore, we answer point no. 1 in favour of the appellants by holding that the Revisional Authority exceeded its jurisdiction under Section 48 of the Act by admitting documents at revision stage and altering the decision of the subordinate courts." 19. It is thus difficult to observe that Explanation III to Section 48 has brought scope of revision at par with appellate jurisdiction so as to assess evidence on pure issue of fact and recording findings de novo. Revisional power is not a power of first or second appellate Court which are final Courts of fact. The findings recorded therein would be possible to be interfered under Section 48 only on the grounds, discussed in Ram Dular (Supra), Sheshmani (Supra) and Jagdamba Prasad (supra). 20. Recently, this Court has examined power of revisional authority in detail in Ram Udit Vs. D.D.C. & others (Writ S/S no. 885 of 2001) (Lucknow Bench), decided on 24.09.2014. This Court in para 26 of the jdugment, has observed: "....... From a bare and plain reading of Section 48(1) it is evident that Director of Consolidation has been given power to call for and examine any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself (i) to the regularity of the proceedings and (ii) to the correctness, legality or propriety of any order." 21. In view of above exposition of law and considering the facts and circumstances of the case, in my view the order impugned in this writ petition passed by DDC cannot sustain being beyond the scope of Section 48 of Act, 1953. In view of above exposition of law and considering the facts and circumstances of the case, in my view the order impugned in this writ petition passed by DDC cannot sustain being beyond the scope of Section 48 of Act, 1953. In the present case, revisional authority has neither examined regularity of the proceedings conducted by subordinate authority nor has examined correctness and propriety of such order but has, on his own, examined the facts as if it was considering the matter as original Court and has passed its order, which has the effect of upsetting the order passed by lower authority without pointing out any illegality or inaccuracy or incorrectness therein. 22. Looking to the scope of revisional jurisdiction of Deputy Director of Consolidation, as discussed above, such an approach on the part of Deputy Director of Consolidation is not permissible in law while exercising jurisdiction under Section 48 (1) of Act, 1953 and therefore, the impugned order, in my view, cannot sustain. 23. In the result, the writ petition is allowed. The order dated 20.8.1992 passed by Deputy Director of Consolidation is hereby set aside. Matter is remanded to Deputy Director of Consolidation to pass a fresh order in accordance with law.