Som Datt vs Deputy Director of Consolidation,Saharanpur and Others

B. Dikshit, J.—A short question which arise for consideration in this writ * petition is as to whether a judgment passed on the concession of parties in an appeal in respect of allotment of chaks could be assailed by one of the party to concession in revision filed under Section 48 of U.P. Consolidation of �Holdings Act on the ground that there was no written compromise between the parties and, therefore, the adjustment made in appeal could not be upheld for want of written compromise. According to statement of fact incorporated in order, the petitioner and contesting opposite parties agreed and the appellate authority adjusted chalks accordingly by recording concession made by parties in its judgment passed by Assistant Settlement Officer Consolidation, which the petitioner has challenged in revision filed under Section 48 of U.P. Consolidation of Holdings Act which has given rise to this writ petition. The revision was opposed by contesting opposite party on the � round that neither any consent was given y contesting opposite party before Assistant Settlement Officer Consolidation nor any written compromise is available on the file of Assistant Settlement Officer Consolidation . The Deputy Director of Consolidation allowed revision on the ground that Assistant Settlement Officer Consolidation should have taken consent of contesting opposite party in writing and it went wrong in passing order on the basis that parties agreed. The revisional authority heW that there was no compromise in writing, hence the matter could be examined cjn merits and then after examining the revision on merits, he set aside the adjustmeilt made by Settlement Officer Consolidation and allowed revision. As counter anjd rejoinder affidavits have been exchanged and as the writ petition is likely to take iome time for admission or deciding the dase on merits, it was made clear to counsel for parties that the revision is beiftg heard on merits and will be disposed ofifmally at stage of admission in accordance with rules of the Court.

The learned counsel for petitioner argued that the adjustment made on the concession of parties before Settlement Officer Consolidation in appeal could not be challenged before revisional authority. According to learned counsel, it is a consent order based on what parties agreed to during arguments. As the order was passed in appeal on the basis of concession made by parties, the bpposite party could not be given any relief in the revision. According to learned counsel for petitioner as contesting opposite party was challenging statement of fact incorporated in order and where as tlje contesting opposite party claims that no Such concession was made, remedy of contesting opposite party, if any, could be to challenge the consent order before same authority and not before revisiosnal authority in revision under Section 48 of U.P. Consolidation of Holdings Act.

The learned counsel for (sic) why contended that a compromise between parties under U.P. Consolidation of Holdings Act is to be in writing and as there was no written compromise, the revisional authority could set aside the order and adjustment made in appeal and revisional authority was therefore well within his power in not accepting consent given by opposite party and rightly decided the revision on merits.

It is well settled that statement of fact appearing in the judgment of a Court below as to what happened before Court below cannot be challenged in appeal or revision and the statement of fact incorporated in judgment is to be taken to be correct unless both parties to litigation agree that it was not so (See State of Bihar v. Mahabir Lal, AIR 1964 SC 377. Same principle of law will apply to statement of fact incorporated in judgment of Consolidation Authority. Referring to the remedy available to such a person, the Apex Court held, �if the record of a Court is to be assailed a review in that Court and not SLP or appeal in the Supreme Court is the remedy.� There cannot be any different view for seeking remedy in this respect for the party before any Court or tribunal subordinate to this Court in this respect. Consolidation Authorities discharging functions similar to Courts, adjudicating disputes, have to proceed accordingly and, therefore, it was not open to contesting opposite party to challenge the concession made in appeal before the Deputy Director of Consolidation in revision. The opposite parties could approach Assistant Settlement Officer Consolidation and point out that no concession for making adjustment was made by him. As the contesting oppositeparty did not take recourse to such remedy before Assistant Settlement Officer Consolidation, the setting aside of such an order passed in appeal by exercising revisional power by Deputy Director of Consolidation is bad in law . The Deputy Director, Consolidation exceeded his revisional power conferred on him under Sec. 48 of the Act in doing so.

For aforesaid reasons.the petition succeeds and is allowed, the order dated 17896 passed by Deputy Director of Consolidation (Annexure7 to the writ petition) is quashed and that of Assistant Settlement Officer Consolidation, Saharanpur dated 1721989 passed in appeal No. 2241 is restored. The writ petition is allowed. No order as to the costs.