Ram Pratap Singh and Another vs Dy. Director of Consolidation and Others

M.N. Shukla, J.—Two important questions have arisen for decision in this writ petition:

(1) Whether a decision by a Deputy Director of Consolidation in a revision filed u/s 48(1) of the U.P. Consolidation of Holdings Act (hereinafter referred to as the Act) can be set at nought by another Deputy Director of Consolidation in subsequent proceedings purporting to be in the nature of a reference under Sub-section (3) of Section 48 of the Consolidation of Holdings Act?

(2) Whether a decree passed on June 14, 1951 by a revenue court in a suit u/s 59 of the U.P. Tenancy Act can be cancelled by the consolidation authorities in such reference proceedings?

The Petitioners claim to be the Sirdars of plot No. 707 of village Deoria, Pargana Jhusi, district Allahabad. The contention of Respondents Nos. 2 and 4, Lal Bahadur Singh and Gaon Sabha of said village, is that the aforesaid plot is actually a tank and therefore no Sir-dari rights could accrue to the Petitioners with respect to the same and that it vested in the Gaon Sabha. On the other hand, the Petitioners have stated that prior to the date of vesting, one Syed Mohammad was the Zamindar of this land. The Petitioners filed a suit for declaration that they were hereditary tenants of the polt, and a decree was passed on 14-6-51, prior to the date of vesting, whereby the Petitioners were declared to be hereditary tenants of the plot. It was alleged that after the abolition of Zamindari the Petitioners became Sirdars of the plots and it was recorded as Sirdari holding of the Petitioners in the Khataunis of the year 136-65 F. Accordingly, when consolidation operations commenced in the village the Petitioners were recorded as Sirdars in the basic year. Respondents 2 and 3 filed objections u/s 9 of the Act to the effect that the entry in favour of the Petitioners should be expunged and their own names be recorded as Bhumidhars. These objections were dismissed by the consolidation authorities as time-barred. It appears that the objectors went up in appeal, although no appeal lay, and the Settlement Officer, Consolidation, remanded the case with the direction that the Consolidation Officer should give opportunity to the objectors to have their explanation considered with respect to the bar of limitation and that the Gaon Sabha was a necessary party. Thereafter the Gaon Sabha was impleaded in the case. It was held by the Consolidation Officer that the objections were beyond time and that the objectors had not made out a good case for condonation of delay. The objectors preferred a revision against this order and the revision was dismissed by the Deputy Director of Consolidation on 13-10-1970.

Even though the first phase of the proceedings apparently came to an end with the passing of the above order in revision, it appears that Lal Bahadur, Respondent No. 2, was not in a mood to be appeased and he tenaciously sought to reopen the proceedings. He made a miscellaneous application to the Deputy Director of Consolidation, praying that this land be declared as the property of the Gaon Sabha. On that application, Sri S.M. Sant, the then Deputy Director of Consolidation, passed the impugned order dated 20th March 1970 holding that neither Bhumidhari nor Sirdari rights could be acquired by any of the contesting parties in respect of the land in dispute and directing that the name of the Gaon Sabha be entered over the same. It is significant that in none of these proceedings the Gaon Sabha came forward to assert its rights. The contention of the Petitioners is that the rights of the parties were finally adjudicated by the previous order of the Consolidation Officer dated 13-10-1970 and the impugned order subsequently passed could not cancel or supersede the order passed in the earlier judicial proceedings which became final.

Sri K.B. Garg appearing for the Gaon Sabha strenuously tried to defend the impugned order on two main grounds: Firstly, he submitted that the Deputy Director of Consolidation was competent in the exercise of his powers of reference u/s 48(3) of the Act to pass such order. Secondly, he urged that in the previous order there was no adjudication of the rights of the parties and hence it could not act as a bar to the later proceedings. He also asserted that at all events there was no adverse order passed against the Gaon Sabha and hence its rights could again be decided by the Deputy Director of Consolidation. I am unable to accept any of these submissions.

It is evident that even assuming that the proceedings commenced by the miscellaneous application given by Lal Bahadur Singh were in the nature of reference proceedings, they were entirely illegal and the Deputy Director of Consolidation was not competent to pass the order dated 20th March 1972. Section 48(3) runs as follows:

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).

Under Sub-section (1) of Section 48, the jurisdiction of the Director of Consolidation or the Deputy Director of Consolidation, who enjoys the delegated powers, can be exercised only in regard to any case decided by any subordinate authority. From the sequence of events already given it is clear that the initial order dated 28-10-70 passed by the Consolidation Officer dismissing the objections filed by the objectors had merged in the final order dated 13-1-70. The prayer of Lal Bahadur Singh in making the miscellaneous application was in substance for setting aside the above mentioned order and that appears to have been precisely done, inasmuch as Sri Sant by his order under challenge set aside the previous order dated 13-10-70. In fact, Sri Sant makes no secret of exercising the powers u/s 48 and expressly observes in his order that he was thereby cancelling the previous orders passed in this connection. It is inconceivable that the Deputy Director of Consolidation, who passed the earlier order, may be construed as an authority subordinate to Sri M.S. Sant, who was also a Deputy Director of Consolidation. The Explanation to Section 48 is exhaustive as to the authorities who would be subordinate to the Director of Consolidation (or the Deputy Director of Consolidation with delegated powers) and it is not possible to treat one Deputy Director of Consolidation who passed the initial order as subordinate to the other Deputy Director of Consolidation who passed the later order. Therefore, on the very terms of Section 48(3), no such order could be validly passed.

Sri Garg relied on a decision of this Court in Brij Bhushan v. State of U.P. 1970 R.D. 469 decided by Hon. D.S. Mathur, J. wherein the Petitioner was held by the Consolidation Officer to be the Sirdar of the land which on further enquiry by the Settlement Officer, Consolidation was found to be a tank, and on a reference being made, the Deputy Director of Consolidation set aside the order of the Consolidation Officer and the Petitioner was held not to be a Sirdar. As the land was held to be a tank, it was held to vest in the Gram Samaj. In my opinion, the Respondent Gaon Sabha cannot derive any support from that case which was decided on entirely different facts. It is clear that in that case no appeal or revision had been filed against the basic order passed by the Consolidation Officer and later also a reference was made by the Settlement Officer, Consolidation, an authority subordinate to the Deputy Director, Consolidation. Hence, none of the twin obstacles present in the instant case arose, viz., the absence of a subordinate authority whose order could be set aside on reference and the danger of an order passed in proceedings of reference overriding a regular judicial order passed in appeal or revision in the presence of the same parties.

I am also unable to accede to the second ground urged by Sri Garg, merely because in the earlier proceedings the Deputy Director of Consolidation eventually dismissed the objections of respondents. 2 and 3 on the ground of limitations it does not cease to be conclusive. Section 48 nowhere enjoins that an order must be passed on merits. If an order is passed in the exercise of powers u/s 48(1) after examination of the case, such order is an order passed in a judicial proceedings and finality attaches to it.

There is no force even in the third ground canvassed before me by Sri Garg, viz. that in the order dated 13-10-70 there was really no decision prejudicial to the rights of the Gaon Sabha and consequently that order could not act as an impediment to any order being passed u/s 48 in favour of the Gaon Sabha. Two important aspects of the case must be noticed in order to repel this contention. Firstly, it is clear from the memo of grounds of revision filed as annexure to the rejoinder affidavit that the Gaon Sabha was arrayed as Respondent No. 3 and therefore the order in revision cannot be said to have been passed behind the back of the Petitioners. It was submitted by Sri Garg that the Gaon Sabha was merely impleaded as a Respondent in the revision and could not ventilate its independent rights in those proceedings and ask for any relief. This argument is devoid of substance. Whenever a party is impleaded in a judicial proceeding, it is incumbent upon it to assert its own legitimate legal rights and it can fail to do so at its own peril. Secondly, even if the Gaon Sabha did not assert its own rights before the re-visional authority on account of its laches, it was the imperative duty of the Consolidation Authorities themselves to protect the rights of the Goan Sabha and pass appropriate orders in its favour. This is the ratio of the Full Bench decision of this Court dated 26-4-76 in Civil Misc. Writ No. 321 of 1971, Amir Husain v. Deputy Director of Consolidation since reported in 1977 AWC 1. The rule was thus stated in the above case:

The insistence of Sri S.J. Hyder that the basic year entry can be modified only when an objection u/s 9(2) is filed appears to us to be without substance. The various provisions of the Act would show that a duty has been cast on the Consolidation Authorities to maintain correct record of persons entitled to the land. This purpose cannot be achieved if the name of a person entered in the basic year is permitted to continue despite the finding of the Consolidation Authorities that he does not have any right or semblance of title on the land. The purpose would be achieved more by recording the name of the State or Gaon Sabha inasmuch as according to the findings it is the State or the Gaon Sabha which is entitled to get the land.

The above observations leave no room for doubt that it was the duty of the Deputy Director of Consolidation to have passed an order in the previous revision for making an entry in favour of the Gaon Sabha with respect to the land in dispute if in his view the conclusion was justified that according to the legal position the land vested in the Gaon Sabha. The Deputy Director having failed to pass any such order, the order dated 13-10-70 was manifestly erroneous order and adverse to the rights of the Gaon Sabha. It was open to the Gaon Sabha to file a Writ Petition in this Court, but no such step was taken. In these circumstances, I fail to understand how the Gaon Sabha can get over the finality of the order passed by the highest consolidation authority in a judicial proceeding merely by contending that the initial order was an erroneous order. Even incorrect orders bind the parties if they are passed in judicial proceedings in the presence of the parties and are not beyond the competence of the authority passing such orders.

There are other cogent reasons for endorsing the impugned order. I find it impossible to hold that a party should be permitted to wriggle out of a judicial order which has become final by taking recourse to reference proceedings u/s 48(3) which are at best quasi judicial proceedings. Moreover, one cannot lose sight of the general principle of res judicata emphasised time and again in judicial decisions as governing the rights of the parties. In the case of Satyadhyan Ghosal and Others Vs. Sm. Deorajin Debi and Another, it was observed that:

The principle of res-judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily, it applies as between past litigation and future litigation. When a matter-whether on a question of fact or a question of law has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in Section 11 of the Code of Civil Procedure; but even where Section 11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct.

It was pointed out by Sri Bashir Ahmad, learned Counsel for the Petitioner, and in my opinion rightly, that the dispute-between the Petitioner and the Respondents was clinched by the previous decree passed in favour of the Petitioners as long back as 14-6-1951. Sri Sant in his order has sweepingly observed that the said decree was illegal, without disclosing any reason whatsoever for that opinion. Sri Garg made a strenuous effort to satisfy me that the aforesaid decree was not binding on the Goan Sabha in the later proceedings. This argument is wholly untenable. The decree was passed on 14-5-51, whereas the U.P. Zamindari Abolition and Land Reforms Act came into effect on 26-1-1951. The date of vesting of estates in the State Government, however, was 1st July 1952 by virtue of a notification u/s 4. In these circumstances, this decree must be deemed to be valid. So long as the effect of a decree is not taken away by a statute it is a perfectly valid decree and the considerations or the motives which might have prompted the parties to obtain such decree are wholly irrelevant. I am unable to comprehend the submission that this decree should be deemed to be vitiated in law as it was passed prior to the date of vesting. My attention was drawn by Sri Garg to the provisions of Section 132 which provides that Sirdari rights shall not accrue with respect to pasture lands or lands covered by water. The same section in its opening words says:

Without prejudice to the provisions of Section 19.

Therefore, the Petitioners having acquired Sirdari rights by virtue of valid decree, it was manifestly wrong on the part of Sri Sant to hold that the same was illegal.

The last point which the learned Counsel for the Gaon Sabha urged was that the decree dated 14-3-1951 was obtained fraudulently and therefore the Deputy Director of Consolidation was within his jurisdiction in cancelling the same and treating it as void. This contention is also not well-founded. It is debatable whether the Consolidation Authorities have jurisdiction to cancel a decision given by a competent court. In my opinion the force of decree can be taken away only by a statutory enactment or by filing a regular suit for its cancellation. Learned Counsel for the Gaon Sabha referred to a number of decisions of this Court in some of which a view had been expressed that the Consolidation Authorities were competent to decide as to whether a decree has been obtained by fraud - see Chet Ram v. Depury Director of Consolidation 1970 AWR 775 and Jagarnath v. Sita Ram 1969 AWR 435 . This question, however, must now be held to have been resolved by the Supreme Court in the case of Gorakh Nath Dube Vs. Hari Narain Singh and Others, in which a distinction has been drawn between a document which is invalid or void and one which is only voidable and has to be actually set aside because it has ceased to have legal effect. Hon. Beg, J. laid down the rule in these words:

We think that a distinction can be made between cases where a document is wholly or partially invalid so that it can be disregarded by any court or authority and one where it has to be actually set aside before it can cease to have legal effect. An alienation made in excess of power to transfer would be, to the extent of the excess of power, invalid. An adjudication on the effect of such a purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to rights or interests in land which are the subject matter of consolidation proceedings. The existence and quantum of rights claimed or denied will have to be declared by the consolidation authorities which would be deemed to be invested with jurisdiction, by the necessary implication of their statutory powers to adjudicate upon such lights and interests in land, to declare such documents effective or ineffective, but where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation, it could be urged that the Consolidation Authorities have no power to cancel the deed, and, therefore it must be held to be binding on them so long as it is not cancelled by a court having the power to cancel it.

Fraud may be of two varities: it may be practised upon the Court for the purpose of procuring a decree, or it may be perpetrated by one party on another in order to establish a legal claim. I am unable to understand as to how a fraud alleged to have been practised by one party on another can render void any decree obtained in litigation between these parties. It would at best be a voidable decree which can be avoided by the aggrieved party by instituting appropriate legal proceedings for its cancellation. This is clearly in conformity with the intendment of Section 10 of the Indian Contract Act. Moreover, on the facts of the present case, the allegation of fraud cannot: be made with any force. It is not intelligible at ail as to who perpetrated fraud on whom. The Zamindar was perfectly competent, prior to the date of vesting, to accept the Petitioners as the Sirdars of the land in dispute. None of the two parties to the decree has complained of any fraud in the case. Even in the course of the entire proceedings before Consolidation Authorities, either initially upto the stage of revision or even in the reference proceedings, no whisper was made about the alleged perpetration of fraud. It is remarkable that even in the counter-affidavit filed on behalf of the Gaon Sabha no specific charge of fraud had been levelled against the Petitioners. It is too late in the day now on the part of the Gaon Sabha to attack the decree of 1951 as fraudulently obtained and ask the court to treat it as devoid of legal effect.

Thus, on the facts of the case, the conclusion cannot be escaped that the impugned order was nothing short of a review of the previous order dated 13-10-1970 passed by the Deputy Director of Consolidation and according to the settled view of this Court the Act does not confer any power of review - see Ram Pyare Vs. Deputy Director of Consolidation and Others, , and hence the order under challenge is on the face of it illegal and without jurisdiction.

I, therefore, quash the order dated 20-3-1972 passed by the Deputy Director of Consolidation and allow this writ petition with costs.