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2021 DIGILAW 1300 (ALL)

Keshav v. D. D. C. Azamgarh

2021-10-29

ANJANI KUMAR MISHRA

body2021
JUDGMENT : [Anjani Kumar Mishra, J.] 1. Heard learned counsel for the parties on the recall application. 2. The order dated 29.1.2020 is recalled and I have heard counsel for the parties on the merits of the writ petition and perused the record. 3. The writ petition arises out of proceedings for allotment of chaks and seeks a writ of certiorari for quashing the order dated 20.9.1997 passed by the Deputy Director of Consolidation whereby the chak of the petitioner has been disturbed. 4. The contention of Shri Rahul Mishra, counsel for the petitioners is that the Deputy Director of Consolidation has himself modified the chak of the petitioners at the revisional stage. He submits that in case there was an illegality in the order passed by the Settlement Officer Consolidation, the Deputy Director of Consolidation could only have remanded the matter back to the appellate authority for reconsideration. The Deputy Director of Consolidation was not competent to substitute his findings as the revisional Court is a Court of limited jurisdiction and does not have power akin to a Court of appeal. 5. In support of his contention he has placed reliance upon the following two decisions. 6. Karan Singh and others v. Deputy Director of Consolidation, Aligarh and others, 2003 (1) AWC 630, wherein, in paragraph 7, it has been observed as follows : ''7. ....... In case the Deputy Director of consolidation was of the opinion that the findings recorded were bad in law, he could set aside the same after reappraisal of the evidence and could remand the case for decision afresh. .....'' 7. The Court further went on to hold that the order impugned before it suffered from a misreading of the evidence on record. 8. The other judgement relied upon is the judgment dated 25.11.2016 passed in Writ B No. 54395 of 2009 Ram Nivas and others v. Deputy Director of Consolidation and others. Paragraph 23 of this judgment reads as follows : ''23. 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. Paragraph 23 of this judgment reads as follows : ''23. 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 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.'' 9. In the case at hand, the order impugned, is dated 20.9.1997. Section 48 of the U.P. Consolidation of Holdings Act has undergone various amendments. The last amendment was by means of U.P. Act No. 3 of 2002, with effect from 10.11.1980. By this amendment Explanation [3] has been added to the said section. The said Explanation [3] reads 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 findings, whether of fact or law, recorded by any subordinate authority, and also includes the power to reappreciate any oral or documentary evidence.'' 10. From a bare reading of Explanation [3], incorporated in the year 2002 with effect from 10.11.1980, it is clear that it makes the revisional Court the last Court of fact. 11. The judgment in Karan Singh (supra) relied upon by counsel for the petitioners has not noticed or considered Explanation [3] to Section 48. 12. The judgment of the case of Ram Nivas has noticed the amendment in Section 48 of the U.P. Consolidation of Holdings Act but has gone on to hold that the power of the revisional Court is limited. This view has been taken relying upon the decision of the Apex Court in Jagdamba Prasad v. Kripa Shanker, 2014 (5) SCC 707 , wherein it appears that the revisional authority had admitted new facts either in the form of document or otherwise to come to a conclusion i.e. it had permitted and relied upon additional evidence to arrive at its conclusion. Such is not the position in the case at hand. This judgement has also placed reliance upon the decision of the Karan Singh, the first judgement cited by the counsel for the petitioners. Such is not the position in the case at hand. This judgement has also placed reliance upon the decision of the Karan Singh, the first judgement cited by the counsel for the petitioners. In this connection it has been observed as follows. ''In Karan Singh v. Deputy Director of Consolidation and others, 2003 (94)RD 382, this Court, however, said even after addition of Explanation-[3], DDC cannot substitute its own finding in place of subordinate authorities.'' 13. In view of the above observation, I have carefully scrutinized the judgement in the case of Karan Singh and, I do not find any reference therein to Explanation [3] added to Section 48 of the U.P. Consolidation of Holdings Act by U.P. Act No. 3 of 2002. It would be relevant to reiterate that this amendment has not been taken note of, by the Court, in the judgement in Karan Singh (supra), even in passing. The observation made in Ram Nivas is, therefore, unfounded. 14. The revisional power under Section 48 of the U.P. Consolidation of Holdings Act as it existed prior to the amendment made therein vide U.P. Act No. 3 of 2002 with effect from 10.11.1980 was considered by the Apex Court in the case of Ram Dular v. Deputy Director of Consolidation, Jaunpur, 1994 supplementary (2) SCC 198 and it was observed as follows : ''........in considering the correctness, legality or propriety of the order or correctness of the proceedings or regularity under Section 48 of the Consolidation Act, the Deputy Director of Consolidation could not assume the jurisdiction of the original authority as a fact-finding authority by appreciating for himself those facts de novo; he had to consider whether the legally admissible evidence had been considered by the authorities in recording a finding of fact or law or the conclusion reached by hem was based on evidence or any patent illegality or impropriety had been committed or there was any procedural irregularity, which would go to the root of the matter.......'' 15. Relying upon the aforesaid judgement as also other judgements, the Apex Court in Gayadin v. Hanuman Prasad and others, 2001 (1) SCC 501 , has held in paragraph 14 as follows : ''14. Relying upon the aforesaid judgement as also other judgements, the Apex Court in Gayadin v. Hanuman Prasad and others, 2001 (1) SCC 501 , has held in paragraph 14 as follows : ''14. Thus, it is clear that notwithstanding of the fact that Section 48 has been couched in wide terms, it only permits interference where the findings of the subordinate authority are perverse in the sense that they are not supported by the evidence brought on record or they are against the law or where they suffer from the vice of procedural irregularity.'' 16. From a perusal of the objects and reasons for enactment and consequential amendment of Section 48 of the Consolidation of Holdings Act by U.P. Act No 3 of 2002, it emerges that Explanation [3] has been added thereto, to clarify the position of law, in view of the law laid down in Gayadin (supra). 17. Thus Explanation [3] which has been added by U.P. Act No. 3 of 2002 with effect from 10.11.1980 is absolutely clear and does not call for any interpretation. It is settled rule of statutory interpretation that the words used in an enactment are to be given their literal meaning. It is not open for the Courts to read in something which does not emerge from a bare reading of a provision after giving the words used therein, there literal meaning. 18. In my considered opinion, Explanation [3] gives the Deputy Director of Consolidation power to reappreciate the evidence, both oral and documentary and to record its own findings of fact and of law, contrary to those recorded by any subordinate authority. Any interpretation to the contrary would necessarily entail reading something into the provision which is not contained therein. Moreover, it would be travesty of justice if the Deputy Director of consolidation is held competent to appreciate the oral and documentary evidence and upset the findings recorded by the subordinate authority and yet, is required to remand the matter back for fresh consideration. Such interpretation in my considered opinion, could not have been the object behind including the amendment in the Act and thereby prolonging the litigation between the parties. It needs to be borne in mind that the litigation generated by the U.P. Consolidation of Holdings Act is largely, forced litigation. Such interpretation in my considered opinion, could not have been the object behind including the amendment in the Act and thereby prolonging the litigation between the parties. It needs to be borne in mind that the litigation generated by the U.P. Consolidation of Holdings Act is largely, forced litigation. If a Court is competent to reappreciate the oral and documentary evidence and interfere with the findings recorded by the subordinate Courts, it necessarily implies that such Court also has the power to substitute its own finding after such reappreciation of the oral and documentary evidence. There exists nothing in the Act or the amendment itself to support any view to the contrary. 19. For the reasons given above, the petitioners are not entitled to any benefit under the judgements cited by them. 20. From the submissions made on the merits as also perusal of the grounds taken in the writ petition, it transpires that the petitioners seek to convey that by the order passed by the Deputy Director of Consolidation, they were deprived of their original holdings completely. This averment and import of the grounds in the writ petition is contrary to the finding returned by the Deputy Director of Consolidation himself. In the impugned order the Deputy Director of Consolidation has categorically stated that on account of the modifications being made by him in the chaks of the parties by the impugned orders, the parties will be shifted to their original holdings. This finding, returned by the Deputy Director of Consolidation, could have been challenged only by documentary evidence, especially the CH Form 23 of the petitioners. This has not been done. It is not open for the petitioners to claim that a finding returned in the impugned order is either illegal or perverse without bringing adequate documentary material on record, in support of such a contention. 21. Under the circumstances, therefore the order impugned even on its merits, is not liable to be interfered with. 22. In view of the foregoing discussion, this writ petition fails and is dismissed.