Shiv Prasad vs Deputy Director of Consolidation and Others

Shitla Prasad Srivastava, J.—This petition was listed for admission on the last occasion. The matter was heard by me. The learned Counsel for the parties agree that as the parties have exchanged counter and rejoinder-affidavits this petition can be disposed of on merit instead of giving a formal admission to the writ petition. I have seen the documents and the judgment. In my opinion also, with the consent of learned Counsel for the parties, this petition can be disposed of finally without formally admitting it. I, therefore, heard learned Counsel for the parties on merit and the writ petition is being disposed of finally even at the admission stage.

The brief facts of the case are that during the course of consolidation proceeding at the stage of earvation of chak plot No. 106 was earmarked for khalihan. Respondent No. 3 Jayanti Prasad filed an objection before the Consolidation Officer to the effect that he has been allotted three chaks and one of the chaks may be formed on plot No. 106. The Consolidation there allowed this objection and made changes in the proposal and allotted plot No. 106 in the chak of the contesting Respondent. Number of appeal were filed against the judgment of the Consolidation Officer. The Petitioner also preferred an appeal against this judgment. All those appeals were disposed of by an order dated 17.11.83 by the Appellate authority (Settlement Officer of Consolidation). The appeals were allowed raid the order of the Consolidation Officer was set aside plot No. 106 was ordered lo be maintained as Khalihan after excluding it from the chak No. 81. Aggrieved by the order of the SOC dated 17.11.83, Jayanti Prasad contesting Respondent filed a revision before the Dy. Director of Consolidation. That revision was numbered as 140, Jayanti Prasad v. Shiv Prasad and Ors. This revision was dismissed by the D.D.C. on 8.3.84. The finding which was recorded by the D.D.C. in this revision was that plot No. 106 which was held as Khalihan at the stage, of Consolidation Officer and was given in the chak of Respondent No. 3 was not proper, therefore, it will be separated from that chak. It is admitted fact that no writ petition was filed against that order. As such the order in my opinion became final on the subject, ie., so far as declaration of plot No. 106 as Khalihan, and its exclusion from the chak No. 81 is concerned. It appears that two more revisions were filed, ie.. Revision Nos. 1094 and 1095 u/s 48 of the U.P. Consolidation of Holdings Act. The first revision was filed by Jayanti Prasad Respondent No. 3 whereas the second revision was filed by the Pradhan of Gaon Samaj against Jayanti Prasad. These two revisions were disposed of by the D.D.C. on 26.4.85. This is the order which is under challenge in the present writ petition.

The ground of attack in this petition is that the order dated 26.4.85 is in direct conflict with the order dated 8.3.84 which was passed in revision No. 140 filed by Jayanti Prasad and as a finding was recorded against Jayanti Prasad. He did not challenge in respect of exclusion of plot No. 106 from his chak No. 81 that finding become final and as such the Dy. Director of Consolidation had no jurisdiction on the second occasion, i.e., on 26.4.85 to take a contrary view and to change the plot No. 106 should be given in chak No. 81 in exchange. This order has also been challenged on merits placing reliance on the statement of witnesses etc.

Counter-affidavit has been filed in this case on behalf of Sri. Jayanti Prasad. In the counter-affidavit it has been stated that the Petitioner has no right to file the present writ petition against the order dated 26.4.85 the impugned order, as he is not affected by that order and the order was passed in favour of Land Management Committee and in the interest of village people. His further contention is that plot No. 106 was wrongly ear-marked for village Khalihan under the scheme as it was far away from the village and is a low lying land. There Is water pits and the Land Management Committee had passed a resolution against such allotment and as by the consent of the parties the Dy. Director of Consolidation vide impugned order has allotted this plot in the chak of Respondent No. 3 which is not going to effect the Petitioner and the order passed by the D.D.C. is also in the interest of public at large. Therefore, there is no infirmity or illegality in the order dated 26.4.85 passed by the Dy. Director of Consolidation. The order need not be quashed.

The Gaon Sabha also filed a counter-affidavit sworn by one Sri. Amin Chandra (Ex-Pradhan). In Para 5 of the affidavit it has been stated that the statement of Principles u/s 8A of the Act were proposed by the village people and the consolidation committee to earmark land for public purposes ii was considered that as the plot No. 106 was not fit for Khalihan as it was away from the village, and further that the A.C.O. without considering the view of the Consolidation Committee with some ulterior motive got this plot allotted for the purposes of Khalihan. An objection was filed by the members of the Land Management Committee. It is further stated that Jayanti Prasad filed a revision before the D.D.C. and an order was passed by the D.D.C. on 8.3.84 without summoning the Consolidation Committee concerned and without giving any opportunity of hearing to the Consolidation Committee, therefore, that order was not proper and further with a view to protect the interest of the village a second revision was filed in which the impugned order was passed. In this way the Gaon Sabha supported the impugned order. Rejoinder-affidavit has also been filed reiterating the facts stated in the writ petition.

Heard learned Counsel for the parties. A preliminary objection was raised by Sri. S.N, Jaiswal, learned Counsel for Respondent No. 3 Jayanti Prasad that the Petitioner has no locus standi to maintain the present writ petition, as by the impugned order his right has not been effected, therefore, the petition may be dismissed on this ground alone. In reply it was contended on behalf of the Petitioner that by an order dated 8.3.84 the revision of Respondent No. 3 was dismissed on merit therefore, he has no right to raise this preliminary objection. The order dated 8.3.84 is final so far as the interest of Respondent No. 3 is concerned. As such he has no log to stand and contest the present writ petition. In reply it has been vehemently urged by Sri. Jaiswal that as the Petitioner has impleaded Jayanti Prasad as a party in the present writ petition therefore, he has a right to content the present writ petition. As the parties have exchanged counter and rejoinder-affidavits it is not necessary for me to go into technicality of the petition, hence I am disposing the controversy on merit.

From the perusal of the writ petition and the order passed by the D.D.C. on 8.3.84 and that of the impugned order dated 26.4.85 it is apparent that the entire controversy is within a narrow campus, ie., to say it relates to plot No. 106 and chak No. 81. Admittedly plot No. 106 was ear-marked for Khalihan, ie., the land for public utility. The question as emerged at the very stage of proceeding in consolidation was as to whether this plot should remain as Khalihan or it should be given in exchange in the chak of Respondent No. 3 Jayanti Prasad. It is true that the consolidation proceeding is a proceeding for allotment of chaks, that is a final settlement of land scattered at so many places, therefore, it is a final settlement for all the purposes and the right and interest of the parties are determined keeping in view the rules framed for the purpose and also equity in certain circumstances, it cannot be disputed that the Khalihan is a property earmarked for public interest. Whether it should be a particular piece of land or not this has to be seen by the Consolidation authorities keeping in view the public interest at large, and the parties have no right to file objection. The finding recorded by the S.O.C. on 17.11.83 was to the effect that the Consolidation Officer has committed an error in law in allotting plot No. 106 which was ear-marked as Khalihan, in the chak of Jayanti Prasad and that finding of fact was confirmed by the D.D.C. on 8.3.84 in a revision filed by Respondent No. 3 himself and since he did not challenge that order by way of filing a writ petition, that finding become final so far as it related to the exclusion of plot No. 106 from his chak No. 81. It appears that two other revisions were filed. Though from the perusal of the order, it is apparent that the D.D.C. has not mentioned any date of order against which he was deciding the revision but as the Counsel for the parties have urged that the said revision was filed against the order dated 17.11.83 as plot No. 106 has been taken into consideration along with chak No. 81.1 am of the opinion that if it is a fact that the D.D.C. was deciding the two revisions, one filed by Jayanti Prasad and the other filed by the present Petitioner against the order dated 17.11.83, he had no jurisdiction to do so. From the perusal of the order dated 8.3.84 it is apparent that the findings of fact have been recorded by two authorities in respect of plot No. 106 holding it to be khalihan and it is vested as land of public interest. This finding of fact could not have been set aside by the D.D.C. by the impugned order u/s 48(3) of the U.P. Consolidation of Holdings Act as the parties who were aggrieved by the order of the S.O.C. have a right to file revision before the D.D.C. challenging the propriety, and legality of the order passed by the S.O.C. which was already filed and decided on 8.3.84, therefore second revision was In Abdul Janaid v. Dy. Director of Consolidation. 1972 All LJ 435, it was observed:

Section 48 does not confer any right on a party to file an application in revision: it confers a power of the specified authority for the sake of keeping the inferior authorities within bounds. For that purpose he may call for the record of an inferior authority and examine it and pass an appropriate order. Having regard to the object underlying Section 48 it appears lo us that once the record has been called for by the specified authority, he should not ordinarily refuse to examine the record and to check whether the inferior authority has gone wrong. So long as the record has not been called for, a person who makes an application u/s 48 may be said to be an actor on the scene. But when the record has been called for it appears to us that he ceased to be an actor on the scene. The specified authority who has called for the record and pass such an order which will advance justice.

Section 48 of the Consolidation of Holdings Act runs as under:

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 passed by such authority in the case or proceeding and may, after allowing the parties concerned an opportunity of being heard, make such order in the case or proceedings as he thinks fit.

Section 48 of Consolidation of Holdings Act has been discussed by the Court in Full Bench Ramakant Singh Vs. Deputy Director of Consolidation, U.P. and Others, . as under:

Section 48 gives power to the Director of Consolidation to call for and examine the record and thereafter after allowing the parties concerned an opportunity of being heard to make such order as he may deem fit. It Is discretionary with the Director of Consolidation to call for the record and to examine it, but the discretion has to be exercised on Judicial principles. Consequently, where on perusal of certain material the Director of Consolidation decides to call for the record he cannot ordinarily form a different opinion on being informed that all the necessary parties have not been impleaded or that the application was made beyond time. We can, therefore, say that examination of the record should follow the summoning thereof and if on examination of the record it appear necessary to exercise the revisional jurisdiction hearing has to be given to the parties. Where the Director of Consolidation exercises the jurisdiction suo motu no party has the right to make submissions before him at the first Instance, but if the Director of Consolidation intends to interfere with the order he must give a reasonable opportunity of hearing to the persons concerned. In this view of the matter it can be laid down as a safe guiding principle that once the record has been called for it should be examined by the Director of Consolidation to form an opinion whether it is a fit case for the exercise of the revisional jurisdiction. This opinion he shall have to form irrespective of whether the application moved by the party was within time or all the necessary parties have not been impleaded or the application is defective. However, where the application is within time and is not at all defective, the party can say that he should be given a hearing before the Director of Consolidation decides not to exercise the revisional jurisdiction. This is the main difference between the exercise of revisional jurisdiction at the instance of a party and the suo motu exercise of such jurisdiction.

Since Respondent No. 1 was the main actor of the scene in the revision, therefore, it is incumbent upon the D.D.C. to peruse the file of the Consolidation Officer, Settlement Officer and the file of earlier revision while deciding in the case on merit. It cannot be disputed that when these two revisions were heard by the appellate authority, i.e., D.D.C. the file was not summoned from the Court of S.O.C. Therefore, it was necessary for the D.D.C. exercising revisional jurisdiction to decide every factual controversy involved in the case. He should have perused the findings recorded by the subordinate authorities on earlier occasion. It was duty of Respondent No. 3 (Jayanti Prasad) to point out to the D.D.C. that a revision was filed by him against the same order which was dismissed on 8.3.84. If it was not brought lo the notice of the D.D.C. and the file of first revision was not before the D.D.C, in my opinion the material fact was concealed while these two revisions were decided by the D.D.C. as he was not informed about the order passed by the S.O.C. on 17.11.83 which has become final in respect of plot No. 106. Whatever may be the facts and circumstances, it is clear on the face of the record that the order passed by the D.D.C. on second occasion is without jurisdiction as he could not set aside or modify the order passed by D.D.C. which was delivered by him on 8.3.84 as it was not an appellate authority nor the impugned order was passed by him in exercise of power of review. Therefore, the order dated 26.4. 85 is without jurisdiction and can be said to be exercise of jurisdiction in arbitrary manner. Non-mentioning of the order against which the revisions were filed or the order which was to be quashed by the D.D.C. clearly shows that either the correct facts were not brought to the notice of the D.D.C. or the facts were concealed by any interested party. To my mind the order dated 8.3.84 will also operate as res- judicta. Obviously, Revision No. 140 was filed by Jayanti Prasad which was dismissed on merit on 8.3.84 so far as the Respondent No. 3 Jayanti Prasad is concerned. This order is binding on him.

Learned Counsel for the Gaon Sabha has urged that as he was not a party to the revision No. 140, therefore, he is not bound by the order dated 26.4.85 and it was not in the interest of the Gaon Sabha that plot No. 106 should be declared as Khalihan and an objection was filed by the Gaon Sabha that Instead of plot No. 106 some other plot should be proposed for the use of Khalihan, therefore, the order dated 26.4.85 does not have an effect of res judicata and the Gaon Sabha has a right to file second case against the order of valuation. Therefore, D.D.C. had jurisdiction to decide the controversies afresh on the revision filed by the Gaon Sabha. It was urged by learned Counsel for the Petitioner in reply to the submission of the Gaon Sabha that plot No. 106 was a controversial plot and even if the Gaon Sabha has not preferred a revision against the order dated 17.11.83 and even, for the sake of argument the Gaon Sabha may be impleaded as Respondent in the revision filed by the Petitioner, the order has an effect of binding on the Gaon Sabha as the Gaon Sabha was watching the proceeding from very beginning and the interest of public at large was involved. Therefore, as the question of land of public utility was decided by the order dated 8.3.84, this order has also binding effect on the Gaon Sabha.

After hearing learned Counsel for the Gaon Sabha as well as Sri. B.D. Mandhyan on the validity of the order so far as the Gaon Sabha is concerned, I am of the view that without going to the technical objection raised by Sri. Mandhyan and since the controversy involved in this case in being decided on merit, the argument advance by the learned Counsel for Gaon Sabha that as the Gaon Sabha was party in revision No. 140 and the D.D.C. has exercised sub-power, has no substance. The matter was decided afresh by the D.D.C. and the question that Gaon Sabha was party to the earlier revision or not does not arise. The order dated 8.3.84 has a binding effect on Gaon Sabha also as it relates to one and the same plot, that is plot No. 106. Moreover this plot was declared as Khalihan, Le., the land of public utility and the Gaon Sabha through its Land Management Committee has a right to save the property in the proceeding under the U. P. Consolidation of Holdings Act and objection was filed by the Land Management Committee which was not accepted by the Consolidation authorities and the final order was passed by the D.D.C. and plot No. 106 was suitably earmarked for Khalihan even if the Land Management Committee was not party to the first revision, that order will also operate as res judicata against the Gaon Sabha because the dispute which was to be decided was with regard to plot No. 106.

The learned Counsel for the Gaon Sabha has cited a case Parbhu v. Dy. Director of Consolidation, Gorakhpur and Ors. 1964 ALJ 240. and urged that where in a revision the Deputy Director of Consolidation, acted In excess of jurisdiction vested in him u/s 48 of the U.P. Consolidation of Holdings Act, but his order was proper, equitable and a just order and that order should not be interfered with in the writ petition. I have gone through this decision, and I am of the view that the decision cited by the Gaon Sabha is not applicable to the present case.

Sri. S.N. Jaiswal, the learned Counsel for Respondent No. 2 has urged that on the basis of the order passed by the D.D.C. dated 26.4.85 that he. has received possession of plot No. 106 and in exchange, handed over the possession of plot No. 154 to the Land Management Committee, therefore, suitable order may be passed to exchange the plots again as the order dated 26.4.85 has been quashed. The Petitioner will suffer irreparable loss and he will be looser of plot No. 154 and plot No. 106 also which has been given to him. If it is fact the Petitioner may apply before the Consolidation authority for exchange of plots as mentioned by him.

Accordingly, under the facts and circumstances of the case, I quash the order dated 26.4.85 passed by Respondent No. l and allow the writ petition but there is no order as to costs.