Bhadiya vs Deputy Director of Consolidation and Others

Ran Vijai Singh, J.—Through this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the order dated 31.12.2012 passed by the Deputy Director of Consolidation (in short D.D.C.) in Revision No. 275/41/223, Satpal Singh and others v. Bhardaya, by which the restoration application for recall of the order dated 19.11.2012 filed by the respondents No. 2 and 3 has been allowed. While assailing this order, Sri Ranjeet K. Yadav, learned counsel for the petitioner contends that the order impugned is without jurisdiction as passing this order would mean review of the earlier order dated 19.11.2012 which is not in domain of the D.D.C. as power of review is not available him under the U.P. Consolidation of Holdings Act, 1953, (in short ''the Act'').

Refuting the submissions of learned counsel for the petitioner. Sri Ramesh Chandra Lal, learned counsel appearing for the respondents No. 2 and 3 has submitted that since the earlier order was passed without there being any spot inspection and was totally illegal order being against the situation on the spot, therefore, the D.D.C. has corrected the error committed by him. In his submissions, no infirmity can be attached with the order impugned.

However, learned counsel for the parties agree that this writ petition may be disposed of on its own merit without calling for a counter-affidavit. With the consent of learned counsel for the parties, the writ petition is taken up for final disposal.

After hearing, learned counsel for the parties, I find that the revision was filed by the respondents No. 2 and 3 in which after hearing them, the revision was dismissed on 19.11.2012. After dismissal of the revision, the respondents have filed an application for recall of the order on the ground that the aforesaid order was passed without there being any spot inspection and the said order is against the position on the spot. The D.D.C. has entertained the restoration application and corrected the error by making spot inspection and setting aside his earlier order.

It is not the case of the respondents that when earlier revisional order was passed, they were not heard meaning thereby the order dated 19.11.2012 was passed on merit after hearing learned counsel for the parties and if the Judgment was illegal, it could be challenged before the appropriate court. The remedy of restoration application was not available to the respondents as the order was not passed in their absence. In fact, the case was argued on their behalf, thereafter the revision was dismissed. Any afterthought that the order was passed without there being any spot inspection cannot confer the jurisdiction upon the D.D.C. to recall the order passed on merit and rectify the mistake committed by him. The action of the D.D.C., in my considered view, would amount the review of his earlier order dated 19.11.2012 which power he does not enjoy. A Full Bench of this Court, in the case of Smt. Shivraji (Decd.) through L.Rs. and Others Vs. Dy. Director of Consolidation and Others, , has held as under:

Any Tribunal exercising judicial or quasi-judicial power, which is not vested with power of review under the statute expressly or by necessary implication, has an inherent power of review of its previous order in any circumstances. In our view the decisions only lay down the proposition that a Tribunal exercising judicial or quasi-judicial power has the inherent power to correct a clerical mistake or arithmetical error in its order and has the power to review an order which has been obtained by practicing fraud on the Court, provided that injustice has been perpetrated on a party by such order. Therefore, these decisions should not be construed as laying down any proposition of law contrary to the well-settled principle of law that any order delivered and signed by a judicial or quasi-judicial authority attains finality subject to appeal or revision as provided under the Act and if the authority passing the order is not specifically vested with power of review under the statute, it cannot reopen the proceeding and review/revise its previous order.

Coming to the previsions of the U.P. Consolidation of Holdings Act, it is our considered view that the consolidation authorities, particularly the Deputy Director of Consolidation while deciding a revision petition exercises judicial or quasi judicial power and, therefore, his order is final subject to any power of appeal or revision vested in superior authority under the Act. The consolidation authorities, particularly the Deputy Director of Consolidation, is not vested with any power of review of his order and, therefore, cannot reopen any proceeding and cannot review or revise his earlier order. However, as a judicial or quasi judicial authority he has the power to correct any clerical mistake/arithmetical error, manifest error in his order in exercise of his inherent power as a Tribunal.

In view of the Full Bench judgment in the case of Smt. Shivraji (supra), since the D.D.C. is not vested with the power of review of his order, therefore. I am of the considered opinion that the order dated 31.12.2012 is without jurisdiction.

It is well-settled that any order passed in absence of jurisdiction is a nullity as the jurisdiction can neither be assumed nor presumed nor conferred or acquired by acquiescence of the parties. Reference may be given to the judgment of the Apex Court in M.D., Army Welfare Housing Organisation Vs. Sumangal Services Pvt. Ltd., : Sarup Singh and Another Vs. Union of India (UOI) and Another, , and a Division Bench of this Court in the case of Committee of Management Shri Jawahar Inter College and another v. State of U.P. and others, in Special Appeal No. 164 of 2012, decided on 25.1.2012. In the result, the writ petition succeeds and is allowed. The impugned order dated 31.12.2012 passed by D.D.C. (the respondent No. 1) is hereby quashed. However, allowing of this writ petition, will not preclude the respondents to challenge the revisional order in accordance with law.