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2016 DIGILAW 4094 (ALL)

BRAMH DEEN v. STATE OF U. P.

2016-12-19

ARUN TANDON, SANGEETA CHANDRA

body2016
JUDGMENT By the Court.—The learned Single Judge finding it difficult to agree with the law laid down by another Single Judge in the case of Hari Ram v. State of U.P. and others, 2005(98) RD 784, has framed following issues for consideration by a larger Bench : “(i) As to whether the circular issued by Consolidation Commissioner dated 24.12.2004 and the consequential letter issued by District Magistrate dated 23.5.2007 amount to creation of an additional forum which is not otherwise provided under the Act or Rules or merely a precautionary measure to check grabbing of State land? (ii) Whether consolidation authorities in exercise of powers under Section 11-C of the Act are competent to issue such circular to ensure the interest of State Government, Goan Sabha and local authority?” Under the order of the Hon’ble Chief Justice dated 25.10.2016, the reference has been referred to this Bench. 2. We have heard Sri Ashok Kumar Singh, counsel for the petitioners and the standing counsel on behalf of the State respondents. The facts in short relevant for deciding the Reference are as under: 3. According to the petitioners, an order dated 20th July, 2011 was passed by the Consolidation Officer Sahason, Allahabad under Section 9 of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the “Act, 1953”). Against the said order an appeal has been filed by the opposite party before the Settlement Officer Consolidation, Allahabad. The status of the appeal is not known. 4. In order to keep the records straight, we may record that opposite party Parmeshwardeen in proceedings under Section 9 of the Act, 1953 has not been made party to the present writ petition. 5. According to the petitioners, they made an application on 15th March, 2013 under Section 52 (2) of the Act, 1953 read with Rule 109 of the U.P. Consolidation of Holdings Rules, 1954 (hereinafter referred to as the “Rules, 1954”) for necessary Amaldaramad being made in the relevant records. Order to that effect is stated to have been passed by the Consolidation Officer on 15th March, 2013. Not being satisfied with the same, the opposite party is stated to have filed an appeal which was dismissed on 26th August, 2013. Against the appellate order a revision has been filed before the Deputy Director of Consolidation, which is stated to be pending but no interim order was granted therein. 6. Not being satisfied with the same, the opposite party is stated to have filed an appeal which was dismissed on 26th August, 2013. Against the appellate order a revision has been filed before the Deputy Director of Consolidation, which is stated to be pending but no interim order was granted therein. 6. After making of the aforesaid averments it has been contended that because of the circular of the Consolidation Commissioner, U.P. at Lucknow dated 24th December, 2004 followed by the letter of the District Magistrate dated 23rd May, 2007, there is likelihood of the orders of the Consolidation authorities being not given effect to without getting the orders scrutinized by the Deputy District Consolidation Officer/District Magistrate, this according to the petitioners is illegal, as it amounts to creation of a new forum for examination of the order passed by the Consolidation Authority under the Act, 1953. 7. With reference to the judgment of this Court in the case of Hari Ram (Supra) it is contended that the Consolidation Commissioner, U.P. Lucknow cannot create a forum contrary to the provisions of Act, 1953 and the Rules, 1954. 8. The learned Single Judge in the reference order has noticed that under Section 11-C of the Act, 1953, the responsibility to look after the interest of the State Government, Gram Sabha, local body or authority in the land holdings is upon the Consolidation Authority as well as upon the Collector, who has to maintain the map, filed book, record of rights as prepared during consolidation proceedings. Under reference order, it has been held that orders passed by the Consolidation Authorities subsequent to the issuance of notification under Section 52 (1) of Act, 1953 wherein land of State Government, Gram Sahba, Local Body or the Authority, be given effect to for the purposes of Amaldaramad etc. only with the sanction of the Collector/Chief Revenue Officer. The purpose being to ensure that interest of the land of the State Government/Gram Sabha/Local Body or the Authority is not put in jeopardy because of manufactured orders. 9. In the reference order, the learned Single Judge has held that this does not amount to creation of any new forum. It is only a precautionary measure. He has, therefore, found it difficult to agree with the law laid down by this Court in the case of Hari Ram (Supra). 10. 9. In the reference order, the learned Single Judge has held that this does not amount to creation of any new forum. It is only a precautionary measure. He has, therefore, found it difficult to agree with the law laid down by this Court in the case of Hari Ram (Supra). 10. We may at the very outset record that the learned counsel for the petitioners contended before us that the challenge to the circular of the District Magistrate, Allahabad dated 23rd May, 2007 is only to the extent it takes within its fold cases in which no land of the State Government/Gram Sabha/Local Body/Authority is involved. They are not aggrieved with the direction, if it is confined to the cases, where the land of the State Government/Gram Sabha/Local Body/Authority is to be adversely affected in garb of Amaldaramad. 11. Learned counsel for the petitioner has relied upon the observations made by this Court in the case of Hari Ram (Supra) to the effect that no additional forum could have been created under the Executive Circular of the Consolidation Commissioner, U.P. Lucknow dated 24th December, 2004. 12. We have considered the submissions made by the learned counsel for the petitioners and have examined the records of the present writ petition. 13. We may record that the letter of the District Magistrate, Allahabad dated 23rd May, 2007 impugned in the present writ petition has to be read with reference to the circular of the Consolidation Commissioner dated 24th December, 2004. This necessarily leads to the conclusion that the Amaldaramad of an order, on the application being made under Section 52(2) of Act, 1953 read with Rule 109 of the Rules, 1954 is to be affected only with the sanction of the Chief Revenue Officer, where the land of the State Government/Gram Sabha/Local Body/Authority is involved. If the Consolidation Authorities or the other Authorities have wrongly applied the said provision in a private dispute, wherein no land of the State Government/Gram Sabha/Local Body/Authority is involved, it is always open to the petitioners to contend before the Authority to not to apply the said Circular as it has no application in the facts of the case. 14. If the Consolidation Authorities or the other Authorities have wrongly applied the said provision in a private dispute, wherein no land of the State Government/Gram Sabha/Local Body/Authority is involved, it is always open to the petitioners to contend before the Authority to not to apply the said Circular as it has no application in the facts of the case. 14. Although the learned counsel for the petitioners has not addressed us on the Questions which have been referred to in respect of cases, where the land of the State Government/Gram Sabha/Local Body/Authority is involved, we find it fit and proper to answer the reference which has been made so that the controversy is laid to rest ones for all. 15. Relevant portion of the judgment of this Court in the case of Hari Ram (Supra) reads as follows: “2......Learned Counsel for the respondents have failed to point out any provision of law which empowers the Consolidation Commissioner to issue such executive instruction. Under Section 27 of the Act, it is duty of the consolidation authorities to maintain and update the revenue records as per the provisions contained in U.P. Land Revenue Act.” 16. We may record that the learned Single Judge in the case of Hari Ram (Supra) has not appreciated that the circular issued by the Consolidation Commissioner dated 24th December, 2004 is only for ensuring that the Amaldaramad of such orders of Consolidation Authorities is effected, which are existing on record and are not fraudulent or fabricated. It is only for this purpose that sanction of Revenue Authorities has been made necessary. 17. We are in agreement with the observation made by the learned Single Judge in his reference order, that the circular of the Consolidation Commissioner dated 24th December, 2004 does not create any forum nor any settled issue under the orders of Consolidation Authorities are to be reopened or reexamined. The purpose of the circular is only to ensure that the order qua which Amaldaramad is prayed for in fact exists on record and is a genuine order or not. 18. In our opinion, the learned Single Judge in the case of Hari Ram (Supra) was not correct in recording that a forum has been created under the said circular of the Consolidation Commissioner. 19. 18. In our opinion, the learned Single Judge in the case of Hari Ram (Supra) was not correct in recording that a forum has been created under the said circular of the Consolidation Commissioner. 19. We may mention that Section 48 of the Act, 1953 confers a suo moto power upon the Director of Consolidation to suo moto summon the records of any cases decided or proceedings taken by any sub-ordinate consolidation authority for the purposes of satisfying himself as to the regularity of the proceedings or as to the correctness, legality or propriety of any order made by such authority and to pass such orders as he may deem fit after affording opportunity of hearing to the parties concerned. This power under Section 48 of the Act, 1953 can also be exercised on a reference being made by the sub-ordinate consolidation authorities, which include Settlement Officers, Consolidation, Consolidation Officers, Assistant Consolidation Officers, Consolidator and Consolidation Lekhpals. Power under Section 48 of the Act, 1953 has been extended by means of Explanation-(3) to the same Section, which provides that the power extends to examine any finding whether of fact or law, and also includes the power to re-appreciate any oral or documentary evidence. 20. It will thus be seen that the Director of Consolidation has the power of superintendence in respect of all orders made by the sub-ordinate consolidation authorities. Even otherwise, he is the head of the Consolidation Department and the power to issue circulars for guidance of the sub-ordinate consolidation authorities has necessarily to be conceded to him. 21. It may be noticed that under the Government Notification/Revenue (A) Department Notification No. 5630-CH/I-A-351-1958 dated 23rd December, 1958, the Consolidation Commissioner has been appointed as ex-officio Director of Consolidation, meaning thereby that whatever are the powers conferred under the Act, 1953 upon the Director of Consolidation have necessarily been vested in the Consolidation Commissioner. It may also be recorded that under Section 42 of the Act, 1953, the State Government has been conferred a power to appoint such other officers and to confers such powers upon them as may be required to give effect the provisions of the Act, 1953. 22. It is, therefore, apparent that the circular which has been issued by the Commissioner dated 24th December, 2004 does not suffer from the vice of exercise of powers not vested in him. 22. It is, therefore, apparent that the circular which has been issued by the Commissioner dated 24th December, 2004 does not suffer from the vice of exercise of powers not vested in him. The circular dated 24th December, 2004 is held to be within his executive powers. 23. We record that the judgment of this Court in the case of Hari Ram (Supra) does not lay down correct law. The questions, which have been referred by the learned Single, are answered as under: “Question Nos. 1 and 2 are answered in-affirmative.” Let the the petition be placed before the learned Single Judge for deciding the same on merits.