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Reserved
Writ Petition No.36 (Cons.) of 2010
Aboo Hurera and others ...Petitioners
Versus
Deputy Director of Consolidation,
Bahraich and others ...Opp.parties.
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Hon'ble Shri Narayan Shukla,J.
Heard Mr.Mohan Singh, learned counsel for the
petitioners, learned Standing Counsel as well as Mr.N.N.Jaiswal,
learned counsel for the opposite party No.3.
The petitioners have challenged the order dated 31st of
December, 2009, passed by the Deputy Director of Consolidation,
Bahraich, whereby he has set aside the order dated 19th of
February, 2007, passed by the Settlement Officer Consolidation,
inter alia on the ground that the order is without jurisdiction as
against the order passed by the Settlement Officer Consolidation,
which was interlocutory in nature the revision was not
maintainable. By means of order dated 19th of February, 2007, the
Settlement Officer Consolidation by setting aside the order dated
10th of December, 1997, passed by the Consolidation Officer
remanded the case to pass a fresh order on merit after providing
opportunity of hearing to the parties.
Briefly, the case set up by the petitioners is that the land of
Khata No.90, situated at village Salarpur, Pargana, Tehsil and
District Bahraich was initially recorded in the names of Doobar,
Mohd.Hussain and Habeeb sons of Subrati as well as Gulam
Rasool alias Ghulam Mohammad and Rafiq, both sons of Rasool
in basic year Khatauni. The total areas of the said Khata is 1.66
acre and 1/3rd part of the land was sold out by the aforesaid
Khatedars in favour of Mustaq Ahmad, father of the petitioner
No.1 and 2 and Mohd.Koya opposite party No.16 through
registered sale deed dated 16th of October, 1980. On the basis of
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the said sale deed they entered into possession over their
respective share of the land. It appears that their names were not
mutated in the revenue record and it remained recorded in the
names of sellers. During the course of consolidation proceedings
they filed objection under Section 9-A (2) of the U.P.C.H.Act
before the Consolidation Officer. Their submission is that instead
of deciding the said objection the Consolidation Officer passed
the order on 10th of December, 1997 to devolve the property on
the basis of right of succession, against which the purchasers filed
an appeal with 8 years delay, on the ground that they were not the
party in the proceeding and by the order impugned their rights
have been affected. The Settlement Officer Consolidation by
means of order dated 19th of February, 2007 allowed the
application for condonation of delay and remanded the matter to
the Consolidation Officer for a fresh order by setting aside the
order dated 10th of December, 1997. Being aggrieved with which
Mr.Gulam Mohammad and others filed a revision stating the facts
therein that against the order dated 10th of December, 1997 the
appeal filed by Mohd.Koya was rejected by means of order dated
17th of January, 2006. He also challenged the said order in the
revision. The revisional court also confirmed the order passed by
the court of appeal, therefore, the order passed by the Settlement
Officer Consolidation as well as Deputy Director of Consolidation
have the effect of resjudicata between the parties and there was no
question to recall the earlier order passed by the Consolidation
Officer and set aside the same.
The learned counsel for the petitioners submits that since in
the appeal and revision filed by Mr.Mohd.Koya, the petitioners
were not the parties, the orders passed therein have no effect of
resjudicata at least for the petitioners. In support of his
submissions he cited two cases i.e. (1) Mangal Das K.Desai
versus Shashikant R.Desai and others reported in 2000 (2)
UPLBEC 1417 and (2) Amarendra Komalam and another
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versus Usha Sinha and another reported in 2006 (24) LCD
323. He further submits that against the remand order passed by
the appellate court, the interference by the Revisional court is not
permissible. In support of his submission he relied upon the
following decisions:-
(1) Smt.Lal Dei through LRs and others versus Deputy
Director of Consolidation, Varavansi and others reported in
2005 (98) RD 520.
(2) Rajbir and others versus Dy.Director of Consolidation,
Meerut and others reported in 1999 (90) RD page 313.
(3) Ram Bhajan and others versus Deputy Director of
Consolidation, Allahabad and another reported in 2001 (19)
LCD 906.
(4) Dularey and others versus Dy. Director of Consolidation
and others reported in 2005 (99) RD 174.
On the other hand Mr.N.N.Jaiswal, learned counsel for the
opposite party No.3 raised objection against the maintainability of
the writ petition on the ground that once the order passed by the
Settlement Officer Consolidation was affirmed, it has the effect of
resjudicata between the parties. He further submitted that once
the order passed by the Consolidation Officer was affirmed by the
orders passed by the court of appeal and revisional court, it
merged into the order passed by the higher court and after merger
of the order with the order of the higher court, it was not open for
him to recall it and review the same. He further submits that it is
settled view that the consolidation courts have no jurisdiction to
review its order.
Upon perusal of the record, I find that the sale deed in
question was executed in favour of the petitioners’ father and
opposite party No.16 on 16th of October, 1980, but the names of
the purchasers were not recorded in the revenue record. During
the course of consolidation proceedings the Consolidation Officer
recorded the names of legal heirs of the sellers (deceased) on the
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basis of the right of succession, against which the purchasers i.e.
the petitioners’ father as well as the opposite party No.16 filed an
appeal. The petitioners’ father also moved an application for
recall of the order before the Consolidation Officer. Though the
appeal of the opposite party No.16 was dismissed, against which
a revision was also dismissed, but it appears that the court of
appeal allowed the appeal of the petitioners and remanded the
matter to the Consolidation Officer for a fresh decision, whereas it
is not in dispute that the matter had become final at the stage of
revisional court and if the petitioners were aggrieved with the
same, on the ground of non-joinder of party, definitely they could
have challenged the order passed by the Deputy Director of
Consolidation before this court by filing a writ petition, but they
did not do so, rather they succeeded to get the order dated 10th of
December, 1997 recalled, which was already merged into the
order passed by the Deputy Director of Consolidation, therefore, I
am of the view that the order passed by the Settlement Officer
Consolidation as well as the Consolidation Officer is without
jurisdiction.
The learned counsel for the petitioners also raised finger on
the jurisdiction of the Deputy Director of Consolidation, who has
interfered in the order passed by the Settlement Officer
Consolidation on the ground that under Section 48 of the
U.P.C.H.Act his jurisdiction is very limited and he could see only
the jurisdictional error, if any, committed by the Settlement
Officer Consolidation, but it could not enter into the merit of the
case. However, upon perusal of the order impugned I find that
since the order passed by the Consolidation Officer was already
merged into the order passed by the Deputy Director of
Consolidation, by allowing the application for recall of the order,
the Settlement Officer Consolidation has exercised the power,
which was not vested with it, therefore, the revisonal court has
rightly interfered in the order passed by the court of appeal. The
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Hon’ble Supreme Court has discussed the power of the revisional
consolidation authority as is provided under Section 48 of the
U.P.C.H.Act, 1953 in several cases, some of which are discussed
hereunder:-
(1) Gaya Din (D) through LRS. And others versus Hanuman
Prasad (D) Through LRS. And others reported in 2001 (1)
SCC 501. In this case the Hon’ble Supreme Court held that
Section 48 of U.P.C.H.Act, 1953 gives very wide powers to the
Deputy Director of Consolidation. The relevant paragraphs 10, 11
and 12 are reproduced hereunder:-
“10. There can be no doubt that under the
amended Section 48 of the Consolidation Act, the
revisional power of the Director of Consolidation
is not confined to errors of jurisdiction as was the
position under the unamended provision. The
power of the revisional authority now extends to
satisfying himself as to the regularity, correctness,
legality or propriety of any order other than an
interlocutory order. It is well settled that
conceptually the powers of a revisional authority,
even if couched in wide language, cannot be
equated with the powers of an Appellate Authority.
11. The scope of the powers of the Deputy Director
under the amended provision came up for
consideration of this Court in Ram Dular v. Dy.
Director of Consolidation, Jaunpur (1994 Supp.
(2)SCC 198). It was observed that 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
6facts 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 them 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. That judgment was relied on in a recent
judgment of this Court in Seshmani v. Dy. Director
of Consolidation, District Basti, U.P. {2000 (2)
SCC 523}.
12. It is true that in Sheo Nand v. Dy. Director of
Consolidation Allahabad ({2000 (3) SCC 103} this
Court observed: (SCC p.112, para 20) “(Section 48
of the Consolidation Act) 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.
These powers have been conferred on the Deputy
Director in the widest terms so that the claim 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.”
(2) Sheo Nand and others versus Deputy Director of
Consolidatio, Allahabad and others reported in 2000 (3) SCC
103. The Hon’ble Supreme Court held that Section 48 of the
U.P.C.H.Act, 1953 gives very wide powers to the Deputy Director
of Consolidation. The relevant paragraphs 20 and 21 are
reproduced hereunder:-
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“20. The section gives very wise 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. These powers
have been conferred on the Deputy Director in the
widest terms so that the claim 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.
21. Normally, the Deputy Director, in exercise of
his powers, is not expected to disturb the findings of
fact recorded concurrently by the Consolidation
Officer and the Settlement Officer (Consolidation),
but where the findings are perverse, in the sense
that they are not supported by the evidence brought
on record by the parties or that they are against the
weight of evidence, it would be the duty of the
Deputy Director to scrutinize the whole case again
so as to determine the correctness, legality or
propriety of the orders passed by the authorities
subordinate to him. In a case, like the present,
where the entries in the revenue records are
fictitious or forged or they were recorded in
contravention of the statutory provisions contained
in the U.P. Land Records Manual or other allied
statutory provisions, the Deputy Director would
have full power under Section 48 to reappraise or
re-evaluate the evidence-on-record so as to finally
determine the rights of the parties by excluding
forged and fictitious revenue entries or entries not
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made in accordance with law.”
(3) Ram Dular versus Dy. Director of Consolidation, Jaunpur
and others reported in 1994 Supp (2) SCC 198. The relevant
portion of paragraph 3 is reproduced hereunder:-
“3……………. 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 it is based on no evidence, any patent
illegality or impropriety had been committed or
there was any procedural irregularity, which goes to
the rest (sic root) of the matter, had been committed
in recording the order or finding……………”
(4) The Hon’ble Supreme Court followed the aforesaid decision in
the case of Seshmani and another versus Deputy Director of
Consolidation, District Basti, U.P.and others reported in 2000
(2) SCC 523.
Thus it is well established that the Deputy Director has
wide power to interfere in the order passed by the inferior
consolidation courts, therefore, I am of the view that the Deputy
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Director of Consolidation has rightly exercised his power in
interfering in the orders passed by the Settlement Officer
Consolidation. On merit of the case also I am of the view that
once the order passed by the Consolidation Officer is merged into
the order passed by the Deputy Director of Consolidation, it was
not open for the Consolidation Officer to recall the same. If he
was aggrieved with the order passed by the consolidation courts
on the ground that these orders prejudicially affect their right and
have been passed without joining them as party of the proceeding,
they could have challenged the order passed by the Deputy
Director of Consolidation before this court by filing a writ
petition, but until and unless the order passed by the Deputy
Director of Consolidation is set aside, it was not open for the
Consolidation Officer to reopen the proceeding and review his
order, therefore, I do not find any error in the order impugned.
The writ petition is dismissed.
Dated:27.1.2010
Banswar