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2019 DIGILAW 1197 (ALL)

Vijay Nath v. Deputy Director of Consolidation

2019-05-06

RAJIV JOSHI

body2019
JUDGMENT : Rajiv Joshi, J. Counter affidavit filed today is taken on record. 2. Heard Sri A.P. Tewari, learned counsel for the petitioners and Sri S.N. Tripathi, learned counsel for the respondents. 3. With the consent of learned counsel for the parties, the writ petition is being decided finally at the admission stage itself. 4. Present writ petition has been filed against the order dated 16.3.2019 passed by Deputy Director of Consolidation in Revision No. 501, whereby the revision was allowed setting aside the order dated 20.2.2016 passed by Consolidation Officer as well as order dated 7.4.2017 passed by Settlement Officer of Consolidation and remanded the matter to Consolidation Officer to decide it afresh. 5. Facts as reflect from record are that after the consolidation operation in the village, two objections were filed, one was filed by Lalmati, predecessor-in-interest of the petitioner and other by Kawalpati, predecessor-in-interest of respondent no.2. Both the objections were decided by Consolidation Officer vide order dated 20.2.2016 and determined the share of the parties to the extent of 1/2 in the property in dispute. During the pendency of the objection before the Consolidation Officer, Kawalpati had died and in her place respondent no.2 was substituted as her legal heir/representative. Being not satisfied with the order passed by Consolidation Officer, respondent no.2 filed an appeal under Section 11 (1) of U.P.C.H. Act (hereinafter referred to as Act), which was registered as Appeal No. 2714 and the same was dismissed by Settlement Officer of Consolidation vide order dated 7.4.2017. Against that order, a revision was filed on 24.4.2017 by respondent no.2 under Section 48 (1) of the Act. 6. During the pendency of the revision, Lalmati was died and in her place, petitioner was substituted as her legal heir/representative. The Deputy Director of Consolidation vide impugned order dated 16.3.2019 allowed the revision and set aside the order dated 7.4.2017 passed by Settlement Officer of Consolidation as well as order dated 20.2.2016 passed by Consolidation Officer and remanded the matter to the Consolidation Officer for deciding the same afresh after due opportunity to the parties,. 7. The order dated 16.3.2019 passed by the Deputy Director of Consolidation remanding the matter to the Consolidation Officer is impugned in the writ petition. 8. 7. The order dated 16.3.2019 passed by the Deputy Director of Consolidation remanding the matter to the Consolidation Officer is impugned in the writ petition. 8. Contention of learned counsel for the petitioner is that while remanding the matter, the Deputy Director of Consolidation has failed to exercise his jurisdiction vested in him in view of Explanation 3 of Section 48, which empowers the Deputy Director of Consolidation to decide the matter himself after appreciating the evidence available on record being a last court of fact. 9. On the other hand, learned counsel for the respondents supported the finding as recorded by the Deputy Director of Consolidation while remanding the matter to Consolidation Officer. 10. I have considered the rival submissions and perused the record. 11. Admittedly, the matter was remanded by the Deputy Director of Consolidation to Consolidation Officer vide impugned order, but the question arises for consideration in the writ petition is whether the Deputy Director of Consolidation in exercise of revisional power can upset the finding recorded by Consolidation Officer as well as Settlement Officer of Consolidation or not. 12. For that purpose, deciding the said issue, provisions of Section 48 of the Act, which was amended by U.P. Act No. 8 of 1963 is necessary to be considered. Before its amendment, Section 48 of the Act reads as under: "48. The 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." 13. Thereafter the aforesaid Section 48 of the Act has been amended by U.P. Act No. 8 of 1963 and after the amendment, Section 48 (1) reads as 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. 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 its 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". 14. By U.P. Act No. 20 of 1982 w.e.f. 10.11.1980, following explanation has been inserted after sub section 3 of Section 48 of the Act, which reads as under: "Explanation [1] For the purpose of this section, Settlement Officers, Consolidation, Consolidation Officers, Assistant Consolidation Officers, Consolidator and Consolidation Lekhpals shall be subordinate to the Director of Consolidation." 15. Thereafter again, Explanation 3 was inserted, which is as follows: "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." 16. After the insertion of Explanation 3 of Section 48 of the Act, it is apparent that the Deputy Director of Consolidation can examine the correctness, legality or propriety of any order which includes 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. From the said explanation, it is apparent that Deputy Director of Consolidation has full power to re-appreciate the evidence while deciding the matter by himself being the last court of fact. 17. In the case of Sheo Nand v. Dy. Director of Consolidation, Allahabad and others,1991 RevDec 213 (SC) , Hon'ble the Supreme Court has dealt with section 48(1) as amended in the year 1963 held as under:-- "The section gives very wide powers to the Deputy Director. It enables him either suo-motu on his own motion or on the application of any person to consider the propriety, legality, regularity and correctness of all the proceedings held under the Act and to pass appropriate orders. It enables him either suo-motu on his own motion or on the application of any person to consider the propriety, legality, regularity and correctness of all the proceedings held under the Act and to pass appropriate orders. These powers have been conferred on the Deputy Director in the widest terms so that the claims of the parties under the Act may be effectively adjudicated upon and determined so as to confer finality to the rights of the parties and the Revenue Records may be prepared accordingly." 18. Again in the case of Ram Dular v. Dy. Director of Consolidation, (1994) supp2 SCC 198 : MANU/SC/1004/1994 : , it has been held as under:-- "It is clearly 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. 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." 19. In the case of Shesh Mani and others v. Dy. Director of Consolidation, District Basti, U.P. and others,2001 RevDec 210 : MANU/SC/0107/2000 (SC), the scope of revisional jurisdiction under section 48 (after 1963 amendment) came up for consideration before Hon'ble the Apex Court, wherein it has been held as under:-- "It is difficult to accept the contempt of the appellants. The Consolidation Officer as well as the Assistant Settlement Consolidation Officer had ignored the sales certificate in favour of Ram Khelawan, predecessor of the respondents. To base a claim on adverse possession, it is not enough to allege that one is in possession of the land. The ingredients of adverse possession were missing as these were not alleged nor taken into consideration. To base a claim on adverse possession, it is not enough to allege that one is in possession of the land. The ingredients of adverse possession were missing as these were not alleged nor taken into consideration. The Consolidation Officer as well as the Assistant Settlement Consolidation Officer proceeded on a wrong premise and against the settled principles of law. The Deputy Director, Consolidation, therefore, was well justified in exercising his power of revision and coming to a different conclusion. The writ petition was rightly dismissed by the High Court and so also the review petition of the appellants." 20. In the case of Ram Nath (dead) through legal LRs. v. Deputy Director of Consolidation, Jaunpur and another, (2005) 98 RevDec 570 : MANU/UP/0157/2005 , this Court has held that while exercising the power of revision under Section 48 of the U.P.C. H. Act, Deputy Director of Consolidation possesses the powers to give his own findings by assigning reasons contrary to the findings given by the Court below. 21. For the foregoing reasons, it is apparent that Deputy Director of Consolidation after amendment of Act of 1963 have full power to re-appreciate the evidence being last court of fact and examine all the material evidence available on record. 22. I view of the above, the order remanding the matter to Consolidation Officer is not at all justified has been passed contrary to Explanation 3 of Section 48 (1) of the Act and failed to exercise its jurisdiction vested under the law. 23. Accordingly, the impugned order dated 16.3.2019 passed by the Deputy Director of Consolidation is set aside and the matter is remanded to the Deputy Director of Consolidation to decide the matter afresh within a period of four months from the date of production of certified copy of this order. 24. With the aforesaid observation, writ petition stands allowed.