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Allahabad High Court
Rayees & Ors. vs Deputy Director Of Consolidation … on 9 August, 2010
In the High Court of Judicature at Allahabad, Lucknow
Bench, Lucknow.

(A.F.R.)

Court No. - 19

Case :- CONSOLIDATION No. - 503 of 2010

Petitioner :- Rayees & Ors.
Respondent :- Deputy Director Of Consolidation Bahraich Camp Balrampur
&O
Petitioner Counsel :- N.N. Jaiswal
Respondent Counsel :- C.S.C.,Atul Kr. Singh,Jay Prakash Singh,R.N. Gupta

Hon'ble S.C. Chaurasia,J.

1. Heard Sri N.N.Jaiswal, learned counsel for the petitioners, Sri
G.S.Misra, learned Standing Counsel, Sri Jai Prakash Singh,
learned counsel for opposite party no. 3, Sri R.N.Gupta, learned
counsel for opposite party no. 4 and perused the record.

2. This writ petition under Article 226 of the Constitution of India
has been filed with the prayer that a writ, order or direction in the
nature of certiorari may be issued quashing the impugned order
dated 07-04-2010 passed by the opposite party no. 1, contained as
Annexure No. 13 to the writ petition.

3. Learned counsel for the petitioners has submitted that the order
passed by the Deputy Director, Consolidation in the month of
December 1971 in favour of the petitioners’ grand-father, Musahib
was incorporated in C.H. form no. 45 i.e. the final record of
consolidation. Thereafter, the notification under section 52(1) of
the U.P. Consolidation of Holdings Act was issued and
consolidation operations were closed. Learned counsel for the
petitioners is not in a position to disclose the exact date of
notification issued under section 52(1) of the said Act. He has
further submitted that an application dated 04-02-2009 under
section 48(3) of the Consolidation of Holdings Act moved on
behalf of opposite party no. 3, Kasim Ali in the court of Deputy
Director, Consolidation, Balrampur for cancelling the said entries
made in C.H. from No. 45, on the ground of alleged fraud, was not
maintainable and hence, the Deputy Director, Consolidation has
committed an illegality in exercise of its jurisdiction by allowing
the said application and cancelling the said entries. His contention
is that the impugned order dated 07-04-2010 passed by Deputy
Director, Consolidation, Bahraich camp at Balrampur is without
jurisdiction and hence, it deserves to be quashed. He has further
submitted that section 48(3) of the Consolidation of Holdings Act
relates to making reference, but, no reference was made by the
competent authority and hence, the impugned order deserves to be
quashed.

4. Learned counsel for opposite party no. 3 has submitted that the
mutation in the record in pursuance of the order passed in the
month of December 1971 by the Deputy Director,Consolidation
was made after about 35 years. On getting information about it, he
moved an application under section 48(3) of the U.P.
Consolidation of Holdings Act for cancelling the said entries,
because, the said entries were obtained by petitioners’ predecessor
by practising fraud on the court. His contention is that since the
fraud was practised in obtaining the said entries, learned Deputy
Director, Consolidation was perfectly justified in entertaining the
application under section 48(3) of the Consolidation of Holdings
Act and cancelling the said entries and there is no valid ground to
quash the impugned order.

5. Learned Standing Counsel has submitted that the land in dispute
was acquired by the State and it was recorded as road, but, by
practising fraud on the court, the said entries were obtained in
favour of petitioners’ predecessor. He has further submitted that
learned Deputy Director, Consolidation has not committed any
illegality in exercise of its jurisdiction in cancelling the said
entries.

6. Section 48 of the Consolidation of Holdings Act, 1953 may be
quoted as under :-

48. Revision and reference-(1) The Director of Consolidation may
call for and examine the record of any case decided or proceedings
taken by any subordinate authority for the purpose of satisfying
himself as to the regularity of the proceedings; or as to the
correctness, legality or propriety of any order(other than
interlocutory order) passed by such authority in the case of
proceedings and may, after allowing the parties concerned an
opportunity of being heard, make such order in the case of
proceedings as he thinks fit.

(2) Powers under sub-section (1) may be exercised by the Director
of Consolidation also on a reference under sub-section (3)

(3) Any authority subordinate to the Director of Consolidation
may, after allowing the parties concerned an opportunity of being
heard, refer the record of any case or proceedings to the Director
of Consolidation for action under sub-section (1)

Explanation (1)-For the purposes of this section, Settlement
Officers, Consolidation, Consolidation Officers, Assistant
Consolidation Officers, Consolidator and Consolidation Lekhpals
shall be subordinate to the Director of Consolidation.

Explanation (2)-For the purposes of this section the expression
‘interlocutory order’ in relation to a case or proceedings, means
such order deciding any matter arising in such case or proceeding
or collateral thereto as does not have the effect of finally disposing
of such case or proceeding.

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.

7. It has not been disputed at Bar that the powers of Director of
Consolidation have been delegated to the Deputy Director,
Consolidation, for exercising jurisdiction under section 48 of the
U.P. Consolidation of Holdings Act and the Director of
Consolidation and the Deputy Director, Consolidation are the
contemporary authorities as far as section 48 of the said Act is
concerned. Explanation (1) appended to section 48 of the said Act
provides that the Settlement Officers, Consolidation,
Consolidation Officers, Assistant Consolidation Officers,
Consolidator and Consolidation Lekhpals shall be subordinate to
the Director of Consolidation. It indicates that an application under
section 48(3) of the said Act can be moved before any of the courts
subordinate to the Director of Consolidation, as mentioned in
Explanation (1) as referred to above.

8. In view of section 48(3) of the said Act, any authority
subordinate to the Director of Consolidation may, after allowing
the parties concerned an opportunity of being heard, refer the
record of any case or proceedings to the Director of Consolidation
for action under sub-section (1).Thus, it is clear that any authority
subordinate to the Director of Consolidation only can refer the
record of any case or proceedings to the Director of Consolidation
for action, as provided in sub-section (3) of Section 48 of the said
Act. Admittedly, the Deputy Director, Consolidation exercising
powers of Director of Consolidation under section 48 of the said
Act was not an authority subordinate to the Director of
Consolidation and hence, the Deputy Director, Consolidation had
no jurisdiction to entertain the application under section 48(3) of
the said Act, moved on behalf of opposite party no. 3, Kasim Ali.
Since, the Deputy Director, Consolidation lacks jurisdiction to
entertain the said application, the order passed thereon, on any
ground whatsoever, is also without jurisdiction and hence, it
cannot be sustained.

9. Section 48(3) of the Consolidation of Holdings Act provides for
making a reference for action in appropriate cases, but, in the
instant case, no reference was made for taking action under sub-
section (1) of Section 48 of the said Act. Instead of it, application
under section 48(3) of the said Act was allowed and the entries in
question were cancelled.

10.From the perusal of sub-section (2) and (3) of Section 48 of the
said Act, it is clear that powers under sub-section(1) of Section 48
of the said Act can be exercised only when a reference is made by
the competent authority in accordance with sub-section (3) of
section 48 of the said Act.

11. Since, the impugned order dated 07-04-2010 passed by Deputy
Director, Consolidation on the application under section 48(3) of
the said Act moved on behalf of opposite party no. 3 is without
jurisdiction and it cannot be sustained and deserves to be quashed.

12.It is made clear that this court has not entered into the merits of
controversy between the parties.

13. A writ of certiorari is issued quashing the impugned order
dated 07-04-2010 passed by the opposite party no. 1, contained as
Annexure No. 13 to the writ petition. However, the opposite
parties nos. 2 to 4 are at liberty to approach the appropriate forum
for redressal of their grievances, if any.

14. With these observations/directions, the writ petition stands
disposed of finally at the admission stage.

Order Date:4.8.2010.

AKS


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