Research › Search › Judgment

Allahabad High Court · body

2017 DIGILAW 1027 (ALL)

DROPADI DEVI v. DEPUTY DIRECTOR OF CONSOLIDATION, BAREILLY

2017-04-18

SUNEET KUMAR

body2017
JUDGMENT Hon’ble Suneet Kumar, J.—Heard learned counsel for the parties. 2. Petitioner is assailing the order dated 19 January 2017 passed by the first respondent, Deputy Director of Consolidation, Bareilly, whereby, the restoration application filed by the contesting respondents was allowed, thus recalling the earlier order dated 24 October 2016, thereby, readjusting the allotment of the chaks. 3. Learned counsel for the petitioner would submit that that both the contesting respondents have purchased a part of the plot No. 181. Petitioner is having 1/5 share, whereas, the contesting respondent is having 3/5 share. Earlier on 24 October 2016, the revisional authority, in a revision instituted by the petitioner, had amended the chaks after hearing the parties, therefore, it is urged that the subsequent order by the Deputy Director of Consolidation on merit tantamounts to review which authority he is lacking. 4. It is sought to be urged that petitioner had purchased the property facing the road side, therefore, was allotted chak on the road side. It appears that the contesting respondents filed a restoration application stating therein that the order was an ex parte order, whereas, an application alongwith the sale-deed was filed on 24 October 2016 by the petitioner and on the same date the order was passed, though the parties had agreed that the Deputy Director of Consolidation would make a spot inspection, thereafter, pass order. However, without making spot inspection, the earlier order was passed and hence, the restoration application. 5. In the impugned order the Deputy Director of Consolidation would note that the parties had agreed for spot inspection, however, that was not undertaken, therefore, after spot inspection and upon perusal of the respective sale-deeds, the adjustments of chaks have been made. It is further noted that the tube well and the house is part of the chak allotted to the contesting respondent which had become unaccessible, if the earlier order of allotment of chaks was permitted to be continued. 6. Learned counsel for the petitioner would submit that the Deputy Director of Consolidation would have no authority to review the order which was passed after hearing the parties and in support of his submission reliance has been placed on Full Bench decision rendered in Smt. Shivraji and others v. Deputy Director of Consolidation, Allahabad and others, 1997 (31) ALR 680. Learned counsel for the petitioner would submit that the Deputy Director of Consolidation would have no authority to review the order which was passed after hearing the parties and in support of his submission reliance has been placed on Full Bench decision rendered in Smt. Shivraji and others v. Deputy Director of Consolidation, Allahabad and others, 1997 (31) ALR 680. He would further submit that the sale-deed of the contesting respondent was not brought on record. 7. The proposition of law that is being sought to be advanced by the learned counsel for the petitioner cannot be disputed that the consolidation authorities under the Act do not have inherent right of substantive review. However, it is settled principle of law that every authority has a right of procedural review, in the event of prejudice being caused to the other side, on the fault of the Court, the judicial authority would have inherent authority to recall the order and rehear the parties. 8. Full Bench decision in Smt. Shivraji (supra) the Court held that it is not open to the consolidation authorities to review/recall their final orders passed in proceedings under U.P. Consolidation of Holdings Act, 1953 (Act) in exercise of inherent powers. The power of review has to be specifically conferred unless there is a provision in the Act permitting initiation of such proceedings. The question of applicability of procedure laid down in Chapter IX and X of the U.P. Land Revenue Act 1901 does not anger such an authority. 9. Learned counsel for the respondent would submit that there is no dispute in the proposition of law that is being raised by the learned counsel for the petitioner, however, would submit that the Court or Tribunal in some exceptional matters where order suffers from apparent error occurring in the judgment due to the own mistake of the Court, the error or mistake in the judgment/order can be corrected, even if there is no express statutory power of review on the principle that act of Court cannot do any harm to litigant. 10. 10. Reliance has been placed on the decision of the Supreme Court rendered in Jang Singh v. Brij Lal and others, AIR 1966 SC 1631 , to contend that there is no higher principle for guidance of the Court than the one that no act of Court should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court, he should be restored to the position he would have occupied but for that mistake. 11. Reliance was placed on a decision of this Court rendered in Paras Nath Singh v. Deputy Director of Consolidation and others, 1985 RD 71. 12. In the facts of the present case, the revisional authority recalled its earlier order upon noting that the records of the case would reflect that after conclusion of hearing, spot inspection was to be made for assessing the accessibility from road to the adjoining allotted chaks of the parties as per their respective sale-deeds, therefore, spot inspection was necessary before any order for final allotment of chaks could have been passed. 13. In the memo of the revision it was categorically stated that it was agreed between the parties that upon spot inspection Deputy Director of Consolidation would pass the order, however, the order was passed on the same date on which the petitioner filed her sale-deed which has rendered the allotted chak of the petitioner inaccessible from the road. 14. Supreme Court in Grindlays Bank Limited v. Central Government Industrial Tribunal, 1980 (Suppl) SCC 420, has made a distinction between the procedural review and substantive review. Relevant portion of paragraph 13 is extracted: “Furthermore, different considerations arise on review. The expression ‘review’ is used in two distinct senses, namely (1) a procedural review which is either inherent or implied in a Court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter sense that the Court in Narshi Thakershi’s, AIR 1970 SC 1273 , Thakershi v. Pradyumansinghji, case held that no review lies on merits unless a statute specifically provides for it. It is in the latter sense that the Court in Narshi Thakershi’s, AIR 1970 SC 1273 , Thakershi v. Pradyumansinghji, case held that no review lies on merits unless a statute specifically provides for it. Obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every Court or Tribunal.” 15. Similarly in Kapra Mazdoor Ekta Union v. Management of Birla Cotton Spinning and Weaving Mills Limited, 2005 (13) SCC 777 , the Court held that where a Court or quasi judicial authority having jurisdiction to adjudicate on merit proceeds to do so, its judgment or order can be reviewed on merit only if the Court or the quasi judicial authority is vested with power of review by express provision or by necessary implication. The procedural review belongs to a different category. In such a review, the Court or quasi judicial authority having jurisdiction to adjudicate proceeds to do so, but in doing so commits a procedural illegality which goes to the root of the matter and invalidates the proceeding itself, and consequently the order passed therein. Cases where a decision is rendered by the Court or quasi judicial authority without notice to the opposite party or under a mistaken impression that the notice had been served upon the opposite party, or where a matter is taken up for hearing and decision on a date other than the date fixed for its hearing, are some illustrative cases in which the power of procedural review may be invoked. In such a case the party seeking review or recall of the order does not have to substantiate the ground that the order passed suffers from an error apparent on the face of the record or any other ground which may justify a review. He has to establish that the procedure followed by the Court or the quasi judicial authority suffered from such illegality that it vitiated the proceeding and invalidated the order made therein, inasmuch the opposite party concerned was not heard for no fault of his, or that the matter was heard and decided on a date other than the one fixed for hearing of the matter which he could not attend for no fault of his. In such cases, therefore, the matter has to be re-heard in accordance with law without going into the merit of the order passed. The order passed is liable to be recalled and reviewed not because it is found to be erroneous, but because it was passed in a proceeding which was itself vitiated by an error of procedure or mistake which went to the root of the matter and invalidated the entire proceeding. 16. In my considered opinion, the contesting party was prejudiced by the fault of the revisional authority. The authority had assured the parties that before passing the final order, the spot would be inspected to determine the exact location of the allotted chaks and their accessibility to the road, however, without spot inspection, the order was passed which was subsequently recalled. 17. Learned counsel for the respondent has produced the sale-deed which would clearly show that the plot is accessible from the main road. 18. In the facts of the present case, it is admitted that Deputy Director of Consolidation had agreed on the consent of the parties that after inspection of the spot chaks would be carved, however, the inspection was not undertaken and merely on the sale-deed submitted by the petitioner the chak was carved which adversely prejudiced the contesting respondent as he became practically unaccessible to his allotted chak. It is not being disputed by the learned counsel for the petitioner that the spot inspection was not carried out by the revisional authority before readjustment of the chaks. 19. In the circumstances, learned counsel for the petitioner failed to point out any illegality, infirmity or jurisdictional error in the impugned order. 20. The petition being devoid of merit is, accordingly, dismissed. No cost.