{"id":129210,"date":"2010-01-27T00:00:00","date_gmt":"2010-01-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/aboo-hurera-and-ors-vs-deputy-director-of-conslidation-on-27-january-2010"},"modified":"2016-03-05T18:57:05","modified_gmt":"2016-03-05T13:27:05","slug":"aboo-hurera-and-ors-vs-deputy-director-of-conslidation-on-27-january-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/aboo-hurera-and-ors-vs-deputy-director-of-conslidation-on-27-january-2010","title":{"rendered":"Aboo Hurera And Ors. vs Deputy Director Of Conslidation … on 27 January, 2010"},"content":{"rendered":"
Allahabad High Court<\/div>\n
Aboo Hurera And Ors. vs Deputy Director Of Conslidation … on 27 January, 2010<\/div>\n
                                 1\n\n                                                                Reserved\n               Writ Petition No.36 (Cons.) of 2010\n\nAboo Hurera and others                         ...Petitioners\n                              Versus\n\nDeputy Director of Consolidation,\nBahraich and others                            ...Opp.parties.\n                              ***\n\nHon'ble Shri Narayan Shukla,J.\n<\/pre>\n
      Heard Mr.Mohan Singh,              learned counsel for the
\npetitioners, learned Standing Counsel as well as Mr.N.N.Jaiswal,
\nlearned counsel for the opposite party No.3.\n<\/p>\n
      The petitioners have challenged the order dated 31st of
\nDecember, 2009, passed by the Deputy Director of Consolidation,
\nBahraich, whereby he has set aside the order dated 19th of
\nFebruary, 2007, passed by the Settlement Officer Consolidation,
\ninter alia on the ground that the order is without jurisdiction as
\nagainst the order passed by the Settlement Officer Consolidation,
\nwhich was interlocutory in nature the revision was not
\nmaintainable. By means of order dated 19th of February, 2007, the
\nSettlement Officer Consolidation by setting aside the order dated
\n10th of December, 1997, passed by the Consolidation Officer
\nremanded the case to pass a fresh order on merit after providing
\nopportunity of hearing to the parties.\n<\/p>\n
      Briefly, the case set up by the petitioners is that the land of
\nKhata No.90, situated at village Salarpur, Pargana, Tehsil and
\nDistrict Bahraich was initially recorded in the names of Doobar,
\nMohd.Hussain and Habeeb sons of Subrati as well as Gulam
\nRasool alias Ghulam Mohammad and Rafiq, both sons of Rasool
\nin basic year Khatauni. The total areas of the said Khata is 1.66
\nacre and 1\/3rd part of the land was sold out by the aforesaid
\nKhatedars in favour of Mustaq Ahmad, father of the petitioner
\nNo.1 and 2 and Mohd.Koya opposite party No.16 through
\nregistered sale deed dated 16th of October, 1980. On the basis of
\n                                   2<\/span><\/p>\n
the said sale deed they entered into possession over their
\nrespective share of the land. It appears that their names were not
\nmutated in the revenue record and it remained recorded in the
\nnames of sellers. During the course of consolidation proceedings
\nthey filed objection under Section 9-A (2) of the U.P.C.H.Act
\nbefore the Consolidation Officer. Their submission is that instead
\nof deciding the said objection the Consolidation Officer passed
\nthe order on 10th of December, 1997 to devolve the property on
\nthe basis of right of succession, against which the purchasers filed
\nan appeal with 8 years delay, on the ground that they were not the
\nparty in the proceeding and by the order impugned their rights
\nhave been affected.    The Settlement Officer Consolidation by
\nmeans of order dated 19th of February, 2007 allowed the
\napplication for condonation of delay and remanded the matter to
\nthe Consolidation Officer for a fresh order by setting aside the
\norder dated 10th of December, 1997. Being aggrieved with which
\nMr.Gulam Mohammad and others filed a revision stating the facts
\ntherein that against the order dated 10th of December, 1997 the
\nappeal filed by Mohd.Koya was rejected by means of order dated
\n17th of January, 2006. He also challenged the said order in the
\nrevision. The revisional court also confirmed the order passed by
\nthe court of appeal, therefore, the order passed by the Settlement
\nOfficer Consolidation as well as Deputy Director of Consolidation
\nhave the effect of resjudicata between the parties and there was no
\nquestion to recall the earlier order passed by the Consolidation
\nOfficer and set aside the same.\n<\/p>\n
      The learned counsel for the petitioners submits that since in
\nthe appeal and revision filed by Mr.Mohd.Koya, the petitioners
\nwere not the parties, the orders passed therein have no effect of
\nresjudicata at least for the petitioners.      In support of his
\nsubmissions he cited two cases i.e. (1) Mangal Das K.Desai
\nversus Shashikant R.Desai and others reported in 2000 (2)
\nUPLBEC 1417 and (2) Amarendra Komalam and another
\n                                  3<\/span><\/p>\n
versus Usha Sinha and another reported in 2006 (24) LCD\n<\/p>\n
323. He further submits that against the remand order passed by
\nthe appellate court, the interference by the Revisional court is not
\npermissible.   In support of his submission he relied upon the
\nfollowing decisions:-\n<\/p>\n
(1) Smt.Lal Dei through LRs and others versus Deputy
\nDirector of Consolidation, Varavansi and others reported in
\n2005 (98) RD 520.\n<\/p>\n
(2) Rajbir and others versus Dy.Director of Consolidation,
\nMeerut and others reported in 1999 (90) RD page 313.
\n(3) Ram Bhajan and others versus Deputy Director of
\nConsolidation, Allahabad and another reported in 2001 (19)
\nLCD 906.\n<\/p>\n
(4) Dularey and others versus Dy. Director of Consolidation
\nand others reported in 2005 (99) RD 174.\n<\/p>\n
      On the other hand Mr.N.N.Jaiswal, learned counsel for the
\nopposite party No.3 raised objection against the maintainability of
\nthe writ petition on the ground that once the order passed by the
\nSettlement Officer Consolidation was affirmed, it has the effect of
\nresjudicata between the parties. He further submitted that once
\nthe order passed by the Consolidation Officer was affirmed by the
\norders passed by the court of appeal and revisional court, it
\nmerged into the order passed by the higher court and after merger
\nof the order with the order of the higher court, it was not open for
\nhim to recall it and review the same. He further submits that it is
\nsettled view that the consolidation courts have no jurisdiction to
\nreview its order.\n<\/p>\n
      Upon perusal of the record, I find that the sale deed in
\nquestion was executed in favour of the petitioners’ father and
\nopposite party No.16 on 16th of October, 1980, but the names of
\nthe purchasers were not recorded in the revenue record. During
\nthe course of consolidation proceedings the Consolidation Officer
\nrecorded the names of legal heirs of the sellers (deceased) on the
\n                                  4<\/span><\/p>\n
basis of the right of succession, against which the purchasers i.e.
\nthe petitioners’ father as well as the opposite party No.16 filed an
\nappeal.   The petitioners’ father also moved an application for
\nrecall of the order before the Consolidation Officer. Though the
\nappeal of the opposite party No.16 was dismissed, against which
\na revision was also dismissed, but it appears that the court of
\nappeal allowed the appeal of the petitioners and remanded the
\nmatter to the Consolidation Officer for a fresh decision, whereas it
\nis not in dispute that the matter had become final at the stage of
\nrevisional court and if the petitioners were aggrieved with the
\nsame, on the ground of non-joinder of party, definitely they could
\nhave challenged the order passed by the Deputy Director of
\nConsolidation before this court by filing a writ petition, but they
\ndid not do so, rather they succeeded to get the order dated 10th of
\nDecember, 1997 recalled, which was already merged into the
\norder passed by the Deputy Director of Consolidation, therefore, I
\nam of the view that the order passed by the Settlement Officer
\nConsolidation as well as the Consolidation Officer is without
\njurisdiction.\n<\/p>\n
      The learned counsel for the petitioners also raised finger on
\nthe jurisdiction of the Deputy Director of Consolidation, who has
\ninterfered in the order passed by the Settlement Officer
\nConsolidation on the ground that under Section 48 of the
\nU.P.C.H.Act his jurisdiction is very limited and he could see only
\nthe jurisdictional error, if any, committed by the Settlement
\nOfficer Consolidation, but it could not enter into the merit of the
\ncase. However, upon perusal of the order impugned I find that
\nsince the order passed by the Consolidation Officer was already
\nmerged into the order passed by the Deputy Director of
\nConsolidation, by allowing the application for recall of the order,
\nthe Settlement Officer Consolidation has exercised the power,
\nwhich was not vested with it, therefore, the revisonal court has
\nrightly interfered in the order passed by the court of appeal. The
\n                                  5<\/span><\/p>\n
Hon’ble Supreme Court has discussed the power of the revisional
\nconsolidation authority as is provided under Section 48 of the
\nU.P.C.H.Act, 1953 in several cases, some of which are discussed
\nhereunder:-\n<\/p>\n
(1) Gaya Din (D) through LRS. And others versus Hanuman
\nPrasad (D) Through LRS. And others reported in 2001 (1)
\nSCC 501. In this case the Hon’ble Supreme Court held that
\nSection 48 of U.P.C.H.Act, 1953 gives very wide powers to the
\nDeputy Director of Consolidation. The relevant paragraphs 10, 11
\nand 12 are reproduced hereunder:-\n<\/p>\n
              “10. There can be no doubt that under the
\n      amended Section 48 of the Consolidation Act, the
\n      revisional power of the Director of Consolidation
\n      is not confined to errors of jurisdiction as was the
\n      position under the unamended provision.          The
\n      power of the revisional authority now extends to
\n      satisfying himself as to the regularity, correctness,
\n      legality or propriety of any order other than an
\n      interlocutory order.      It is well settled that
\n      conceptually the powers of a revisional authority,
\n      even if couched in wide language, cannot be
\n      equated with the powers of an Appellate Authority.\n<\/p><\/blockquote>\n
      11. The scope of the powers of the Deputy Director
\n      under the amended provision came up for
\n      consideration of this Court in Ram Dular v. Dy.
\n      Director of Consolidation, Jaunpur<\/a> (1994 Supp.
\n      (2)SCC 198). It was observed that in considering
\n      the correctness, legality or propriety of the order or
\n      correctness of the proceedings or regularity under
\n      Section 48 of the Consolidation Act, the Deputy
\n      Director of Consolidation could not assume the
\n      jurisdiction of the original authority as a fact-
\n      finding authority by appreciating for himself those
\n                                  6<\/span><\/p>\n
      facts de novo; he had to consider whether the
\n      legally admissible evidence had been considered
\n      by the authorities in recording a finding of fact or
\n      law or the conclusion reached by them was based
\n      on evidence or any patent illegality or impropriety
\n      had been committed or there was any procedural
\n      irregularity, which would go to the root of the
\n      matter. That judgment was relied on in a recent
\n      judgment of this Court in Seshmani v. Dy. Director
\n      of Consolidation, District Basti, U.P. {2000 (2)
\n      SCC 523}.\n<\/p><\/blockquote>\n
      12.   It is true that in Sheo Nand v. Dy. Director of
\n      Consolidation Allahabad<\/a> ({2000 (3) SCC 103} this
\n      Court observed: (SCC p.112, para 20) “(Section 48
\n      of the Consolidation Act) gives very wide powers
\n      to the Deputy Director. It enables him either suo
\n      motu on his own motion or on the application of
\n      any person to consider the propriety, legality,
\n      regularity and correctness of all the proceedings
\n      held under the Act and to pass appropriate orders.
\n      These powers have been conferred on the Deputy
\n      Director in the widest terms so that the claim of the
\n      parties   under    the Act     may   be   effectively
\n      adjudicated upon and determined so as to confer
\n      finality to the rights of the parties and the revenue
\n      records may be prepared accordingly.”\n<\/p><\/blockquote>\n
(2) Sheo Nand and others versus Deputy Director of
\nConsolidatio, Allahabad and others reported in 2000 (3) SCC\n<\/p>\n
103. The Hon’ble Supreme Court held that Section 48 of the
\nU.P.C.H.Act, 1953 gives very wide powers to the Deputy Director
\nof Consolidation.       The relevant paragraphs 20 and 21 are
\nreproduced hereunder:-\n<\/p>\n
                           7<\/span><\/p>\n
“20. The section gives very wise powers to the
\nDeputy Director. It enables him either suo motu on
\nhis own motion or on the application of any person
\nto consider the propriety, legality, regularity and
\ncorrectness of all the proceedings held under the
\nAct and to pass appropriate orders. These powers
\nhave been conferred on the Deputy Director in the
\nwidest terms so that the claim of the parties under
\nthe Act may be effectively adjudicated upon and
\ndetermined so as to confer finality to the rights of
\nthe parties and the revenue records may be prepared
\naccordingly.\n<\/p>\n
21. Normally, the Deputy Director, in exercise of
\nhis powers, is not expected to disturb the findings of
\nfact recorded concurrently by the Consolidation
\nOfficer and the Settlement Officer (Consolidation),
\nbut where the findings are perverse, in the sense
\nthat they are not supported by the evidence brought
\non record by the parties or that they are against the
\nweight of evidence, it would be the duty of the
\nDeputy Director to scrutinize the whole case again
\nso as to determine the correctness, legality or
\npropriety of the orders passed by the authorities
\nsubordinate to him.    In a case, like the present,
\nwhere the entries in the revenue records are
\nfictitious or forged or they were recorded in
\ncontravention of the statutory provisions contained
\nin the U.P. Land Records Manual or other allied
\nstatutory provisions, the Deputy Director would
\nhave full power under Section 48 to reappraise or
\nre-evaluate the evidence-on-record so as to finally
\ndetermine the rights of the parties by excluding
\nforged and fictitious revenue entries or entries not
\n                                     8<\/span><\/p>\n
      made in accordance with law.”\n<\/p>\n
(3) Ram Dular versus Dy. Director of Consolidation, Jaunpur
\nand others reported in 1994 Supp (2) SCC 198. The relevant
\nportion of paragraph 3 is reproduced hereunder:-\n<\/p>\n
             “3……………. It is clear that the Director had
\n      power to satisfy himself as to the legality of the
\n      proceedings or as to the correctness of the
\n      proceedings or correctness, legality or propriety of
\n      any order other than interlocutory order passed by
\n      the authorities under the Act. But in considering
\n      the correctness, legality or propriety of the order or
\n      correctness of the proceedings or regularity thereof
\n      it cannot assume to itself the jurisdiction of the
\n      original authority as a fact-finding authority by
\n      appreciating for itself of those facts de novo. It has
\n      to consider whether the legally admissible evidence
\n      had not been considered by the authorities in
\n      recording a finding of fact or law or the conclusion
\n      reached by it is based on no evidence, any patent
\n      illegality or impropriety had been committed or
\n      there was any procedural irregularity, which goes to
\n      the rest (sic root) of the matter, had been committed
\n      in recording the order or finding……………”\n<\/p><\/blockquote>\n
(4) The Hon’ble Supreme Court followed the aforesaid decision in
\nthe case of Seshmani and another versus Deputy Director of
\nConsolidation, District Basti, U.P.and others reported in 2000
\n(2) SCC 523.\n<\/p>\n
      Thus it is well established that the Deputy Director has
\nwide power to interfere in the order passed by the inferior
\nconsolidation courts, therefore, I am of the view that the Deputy
\n                                  9<\/span><\/p>\n
Director of Consolidation has rightly exercised his power in
\ninterfering in the orders passed by the Settlement Officer
\nConsolidation. On merit of the case also I am of the view that
\nonce the order passed by the Consolidation Officer is merged into
\nthe order passed by the Deputy Director of Consolidation, it was
\nnot open for the Consolidation Officer to recall the same. If he
\nwas aggrieved with the order passed by the consolidation courts
\non the ground that these orders prejudicially affect their right and
\nhave been passed without joining them as party of the proceeding,
\nthey could have challenged the order passed by the Deputy
\nDirector of Consolidation before this court by filing a writ
\npetition, but until and unless the order passed by the Deputy
\nDirector of Consolidation is set aside, it was not open for the
\nConsolidation Officer to reopen the proceeding and review his
\norder, therefore, I do not find any error in the order impugned.\n<\/p>\n
      The writ petition is dismissed.\n<\/p>\n
Dated:27.1.2010
\nBanswar\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Allahabad High Court Aboo Hurera And Ors. vs Deputy Director Of Conslidation … on 27 January, 2010 1 Reserved Writ Petition No.36 (Cons.) of 2010 Aboo Hurera and others …Petitioners Versus Deputy Director of Consolidation, Bahraich and others …Opp.parties. *** Hon’ble Shri Narayan Shukla,J. Heard Mr.Mohan Singh, learned counsel for the petitioners, learned Standing Counsel […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[9,8],"tags":[],"class_list":["post-129210","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"\nAboo Hurera And Ors. vs Deputy Director Of Conslidation ... on 27 January, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/aboo-hurera-and-ors-vs-deputy-director-of-conslidation-on-27-january-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Aboo Hurera And Ors. vs Deputy Director Of Conslidation ... on 27 January, 2010 - 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