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2020 DIGILAW 318 (ALL)

Ganga Pd. v. D. D. C.

2020-01-29

J.J.MUNIR

body2020
JUDGMENT : Order on Civil Misc. Intervening Application No.2 of 2019 1. This is an application on behalf of one Suresh Chandra Rawat, who has sought to intervene in these proceedings. The applicant could be heard under Chapter XXII Rule 5-A of the Rules of Court without formal impleadment as a party. However, when the case was called on, no one appeared on behalf of the applicant who is represented by Sri Anil Kumar Aditya, Advocate. 2. This application is, accordingly, rejected. Order on the Writ Petition 3. This writ petition has been filed challenging an order of the Deputy Director of Consolidation dated 04.08.1984, passed in Chak Revision No.580/878 Ram Niwas Vs. Khached Mal and Others, whereby the Revision aforesaid brought by the second-respondent has been allowed, disturbing the petitioner's chak, that was maintained to the petitioner's satisfaction until the appellate determination by the Settlement Officer of Consolidation. The petitioner's case is that Khasra No.854, admeasuring a total area of 0.93 acres, is part of his original holding to the extent of the entire area. In the said plot number, the petitioner had his Abadi being 0.11 acres whereas the remainder area of this plot, being 0.79 acres was utilized by the petitioner as his courtyard (Sehan) and also for the purposes of ingress and egress to his house. It is asserted by the petitioner that the rest of the area of Plot No.854, that is to say, other than that which is Abadi is unfit for cultivation. It is pointed out that in the provisional consolidation scheme, the petitioner's Abadi in 0.11 acres of Plot No.854, was excluded from consolidation operations as chak out land whereas the remainder of the area was proposed by the ACO to be included in the petitioner's Chak. 4. This proposal was objected to by the second-respondent before the C.O., and, further, in Appeal before the SOC under Section 21 of the U.P. Consolidation of Holdings Act, (for short 'the Act'). The Consolidation Officer decided the objections preferred by the second respondent, along with a number of others, relating to the village by a common order dated 05.03.1984. The petitioner's chak in Khasra No.854 was not disturbed. 5. The second-respondent, aggrieved by the order of the Consolidation Officer, Sahpau, District Mathura, preferred an appeal to the SOC, Mathura being Appeal No.1143 under Section 21(2) of the Act. The petitioner's chak in Khasra No.854 was not disturbed. 5. The second-respondent, aggrieved by the order of the Consolidation Officer, Sahpau, District Mathura, preferred an appeal to the SOC, Mathura being Appeal No.1143 under Section 21(2) of the Act. The appeal aforesaid was allowed in part resulting in some improvement of rights for Ram Niwas. Though, he was given land comprising Plot Nos.827, 828 and 853, the petitioner's Chak in Plot No.854 was not interfered with. 6. Aggrieved, the second-respondent went up in Revision to the Deputy Director of Consolidation, who heard and determined it by the impugned order dated 04.08.1984. The Revision was allowed drastically affecting the petitioner's Chak, by excluding from it an area of 0.79 acres. It makes for the entire area, according to the petitioner, that abuts his Abadi and is used by him as his courtyard (Sehan). 7. Though, no one has appeared on behalf of the contesting respondent No.2, the Court has looked into the counter affidavit filed on his behalf. The material allegations raising challenge to the impugned order are carried in paragraph No.3 of the writ petition. These have been met in paragraph No.4 of the Counter Affidavit. It is contended that the petitioner is not the sole tenure holder of Plot No.854, admeasuring 0.93 acres. The entire area is not his original holding. The petitioner is a co-sharer in Plot No.854, including the 0.11 acres of Abadi, that is a joint Abadi of Ramji Lal, Bhola and others with a 1/3rd share, Ganga Ram (1/3rd share), Ram Prakash and Ram Niwas (1/3rd share). It is not the exclusive holding of the petitioner either for the part that is Abadi, or the remainder of it that is agricultural, according to respondent No.2. The contesting respondent has also averred that doors of the petitioner's house do not open into Plot No.854 and the remainder of the area of the said plot is agricultural in nature, that has also been cultivated. It is pleaded that the door of the petitioner's house opens in the north. It is also asserted that the second-respondent's house is situate adjacent to the petitioner's where doors of all houses of the co-sharers open towards the north and not towards the south, that is to say, the site of the land in dispute. It has been denied that the land has been utilized as the petitioner's courtyard (Sehan). It is also asserted that the second-respondent's house is situate adjacent to the petitioner's where doors of all houses of the co-sharers open towards the north and not towards the south, that is to say, the site of the land in dispute. It has been denied that the land has been utilized as the petitioner's courtyard (Sehan). It has also been asserted that the case urged before this Court, that the land in dispute is the petitioner's courtyard (Sehan), was never urged before the Deputy Director of Consolidation. 8. Heard Sri Hemant Sharma, learned counsel for the petitioner. No one appears for the second-respondent or respondent Nos.3, 4 and 5. Sri Kailash Prakash Pathak, learned State Law Officer, has been heard on behalf of respondent No.1. 9. This Court has considered the submissions advanced by learned counsel for the petitioner and Sri Kailash Prakash Pathak, learned State Law Officer appearing on behalf of the State, who has defending the impugned order. 10. It may be true that the petitioner is not the sole tenure holder of Plot No.854, but the said fact does not figure in the order impugned, or the orders of the Authorities below. Assuming that the petitioner and respondent No.2, alongside the other respondents are co-sharers, the Deputy Director of Consolidation was required to consider petitioner's case that the area of Plot No.854, that has been entered in the second-respondent's Chak, is his courtyard (Sehan) and that it provides ingress and egress to his house. The second-respondent's case that the doors open to the other side, is also a case which the Deputy Director of Consolidation was required to consider. The order of the Deputy Director of Consolidation, however, shows that nothing of this kind has gone into consideration, while recording the order impugned. The order of the Deputy Director of Consolidation proceeds largely on a consideration of the fact that the second-respondent is a small tenure holder, and by the orders of the Authorities below, he has been given four Chaks. 11. No doubt, in accordance with the proviso to Clause (e) of sub-section (1) of Section 19 of the Act, a tenure holder is not to be allotted more than three Chaks, except with the approval in writing of the Deputy Director of Consolidation. 11. No doubt, in accordance with the proviso to Clause (e) of sub-section (1) of Section 19 of the Act, a tenure holder is not to be allotted more than three Chaks, except with the approval in writing of the Deputy Director of Consolidation. However, when the Deputy Director of Consolidation is seized of the matter, he may have good reason to depart from this restriction. That, however, is not the point on which the validity of the impugned order turns. The impugned order, in the opinion of this Court, is manifestly illegal as it does not consider the petitioner's case at all that the balance area of Plot No.854 (substantially) has been given away to the second-respondent, where the petitioner's courtyard (sehan) is located, as well as his way, that provides him ingress and egress to his house. There is, in fact, absolutely no consideration bestowed to the petitioner's case by the Deputy Director of Consolidation. The conclusions drawn are based on a one side consideration of the second-respondent's case. 12. In addition, the impugned order passed by the Deputy Director of Consolidation, also appears to be flawed for another reason. 13. This Court in Gulab Chand and Others Vs. DDC and Others, 2019 (6) ADJ 857 has held thus: “22. This Court is rather disconcerted to find that a reading of the judgment of the Consolidation Officer, the Assistant Settlement Officer, and particularly, the impugned order passed by the Deputy Director of Consolidation in Revision, read like three original judgments, all written in exercise of a concurrent jurisdiction. The judgment of a Revisional Court cannot proceed to address the issues laid before it by parties, deal with them and decide, for that is to be done by the Court or Authority of first instance. The judgment of a Revisional Court has to open, go through and end like a judgment of reappraisal of what the two Courts or Authorities below have done. The approach of reappraisal has to be supervisory, and not open appellate. May be, in the case of a revision under Section 48 of the Act, the standard of reappraisal is wider than that traditionally associated with exercise of Revisional jurisdiction. The approach of reappraisal has to be supervisory, and not open appellate. May be, in the case of a revision under Section 48 of the Act, the standard of reappraisal is wider than that traditionally associated with exercise of Revisional jurisdiction. But, all the same, a Revisional Court cannot decide and write its judgment as if it were a Court of first instance, without referring to and affirming or reversing the findings of the two Authorities below, in the context of the present Act. In the present case, the impugned judgment has precisely done that. It reads like an original judgment written in the third instance. It does not give any reason to disagree with what the Appellate Court has said, though it may have given its own reasons. In the context of dealing with criminal appeals and revisions, concerned about the trappings of an Appellate or Revisional Court's judgment or order, and how it should read and proceed, their Lordships of the Supreme Court In Re: To issue certain guidelines regarding inadequacies and deficiencies in criminal trials (Suo Motu Writ (Crl.) No.1 of 2017 vide order dated 30.03.2017, issued the following guidelines regarding the manner in which Appellate and Revisional Courts in criminal matters ought to write judgments, and what are the essentials to be adhered to while writing an Appellate or Revisional judgment. The said guidelines hold equally good in case of exercise of any Appellate or Revisional Authority by a Court or other Authority in any other jurisdiction. Guideline no.7 in Suo Motu Writ (Crl.) No.1 of 2017 (supra) reads thus: "7. Repetition of pleadings, evidence, and arguments in the judgments and orders of the Trial Court, Appellate and Revisional Courts be avoided. Repetition of facts, evidence, and contentions before lower Courts make the judgments cumbersome, and takes away the precious time of the Court unnecessarily. The Appellate/Revisional Court judgment/order is the continuation of the lower court judgment and must ideally start with " in this appeal/revision, the impugned judgment is assailed on the following grounds" or "the points that arise for consideration in this appeal/revision are". This does not of course, take away the option/jurisdiction of the Appellate/Revisional Courts to re-narrate facts and contentions if they be inadequately or insufficiently narrated in the judgment. Mechanical re narration to be avoided at any rate." 23. This does not of course, take away the option/jurisdiction of the Appellate/Revisional Courts to re-narrate facts and contentions if they be inadequately or insufficiently narrated in the judgment. Mechanical re narration to be avoided at any rate." 23. Particularly, relating to the jurisdiction of the Deputy Director of Consolidation under Section 48 of the Act, the aforesaid issue though in the context of a title matter was considered by this Court in Haridas and others vs. Deputy Director of Consolidation and another, 2005 SCC OnLine All 2263: 2005(98) RD 593, where dealing with the obligations of a Revisional court while writing its opinion, it was held thus: "8. It is well settled that, while setting aside the judgment of inferior Court or Tribunal a Revisional Court or higher Tribunal has to deal with the findings given by the inferior Court or Tribunal and is required to consider the entire evidence on record. Thus while recording the contrary findings the Deputy Director of Consolidation was under obligation to consider entire evidence on record and also to record reasons of differing with the findings of Consolidation Officer and Settlement Officer Consolidation. ....." (emphasis supplied) 14. The Deputy Director of Consolidation, while deciding a Revision cannot write his judgment like that of a Court exercising original jurisdiction. He has to write his judgments in the fashion of a Court of Revision. The powers of the Deputy Director of Consolidation, in view of the third proviso to Section 48 of the Act, have been immensely enlarged retrospectively w.e.f. 1980, that would apply in this case. Post amendment, the Deputy Director of Consolidation, exercises a most non conservative kind of revisional jurisdiction where he is a Court entitled to decided all question of fact and law, like a Court of regular appeal. But that notwithstanding, the obligation of a Revisional Court to exercise jurisdiction in the manner a Court of Revision is supposed to do, cannot be said to be done away with. As a Revisional Court, the Deputy Director of Consolidation is obliged to reappraise the reasoning of the Consolidation Officer and the SOC, and then reverse, affirm or modify the orders impugned before him. He cannot write his judgment in the fashion of a third Court of original jurisdiction, after the Consolidation Officer and the SOC have dealt with the matter as Authorities of original and Appellate jurisdiction. 15. He cannot write his judgment in the fashion of a third Court of original jurisdiction, after the Consolidation Officer and the SOC have dealt with the matter as Authorities of original and Appellate jurisdiction. 15. This Court finds the impugned order to be flawed on both counts. 16. Accordingly, this writ petition succeeds and is allowed in part. The impugned order dated 04.08.1984 passed by the Deputy Director of Consolidation in Revision No.580/878 Ram Niwas Vs. Khached Mal and Others is hereby quashed with a remit of the matter to the Deputy Director of Consolidation to decide the Revision afresh, bearing in mind what has been said in the body of this judgment, and after hearing all parties. The Deputy Director of Consolidation shall decide the Revision afresh within a period of six months from the date of receipt of a certified copy of this order. 17. There shall be no order as to costs.