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Judgment
Sabhajeet Yadav, J.—By this petition, the petitioners have challenged the judgment and order dated 8.1.2010, passed by Deputy Director of Consolidation, Azamgarh in Misc. Case No. 62, Dayanand Rai and Ors. v. State of U.P. and Ors. u/s 48(3) of U.P.C.H. Act, hereinafter referred to as the Act, whereby the provisional consolidation scheme of village Bibipur, Pargana and Tehsil Nizamabad, district Azamgarh prepared by Assistant Consolidation Officer, namely Sri Dal Singar Tiwari has been cancelled and another Assistant Consolidation Officer has been directed to make fresh provisional consolidation scheme of the unit in question and complete the same by 30.6.2010 and Settlement Officer of Consolidation, Azamgarh has also been directed to take disciplinary action against Sri Dal Singar Tiwari the Assistant Consolidation Officer, Consolidator and Lekhpal concerned. The aforesaid order has been passed by Deputy Director of Consolidation, Azamgarh purporting to be u/s 48(3) of U.P.C.H. Act on the complaints of some chak holders of the village thereupon after making spot inspection and taking statements of villagers and aggrieved persons Settlement Officer of Consolidation had recommended for cancellation of provisional consolidation scheme of the unit prepared by Assistant Consolidation Officer.
Heard Sri R.N. Singh, learned senior counsel and Sri Sankatha Rai assisted by Sri J.P. Singh for the petitioners and Sri Kripa Shanker Singh for the respondent No. 9.
Sri R.N. Singh learned Counsel for the petitioners has contended that the impugned order has been passed by Deputy Director of Consolidation under the garb of the provision of Section 48(3) of U.P.C.H. Act, cancelling the provisional consolidation scheme of the village prepared by the Assistant Consolidation Officer under the provisions of Section 19A of the Act, whereas proper course of the action for aggrieved chak holders against provisional consolidation scheme was to file objection before Consolidation Officer u/s 20(2) of the Act and aggrieved chak holders have further opportunity to file appeal against the decision of Consolidation Officer before the Settlement Officer of Consolidation, u/s 21(2) of the Act, and further remedy of revision before Deputy Director of Consolidation u/s 48(1) of the Act is available to the aggrieved chak holders of the village. In such circumstances it was not open to the Deputy Director of Consolidation to pass impugned order u/s 48(3) of the Act, merely on complaints of some chak holders of the village, by making an enquiry thereon.
Learned Counsel for the petitioners further submitted that the Deputy Director of Consolidation under the provisions of Act is statutory functionary as such he can exercise only those powers and perform those functions which are specifically conferred upon him under the provisions and scheme of the Act. He has no plenary power under the scheme of the Act whereby the other provisions of the said Act can be made unworkable and scheme of the Act can be defeated. From the tenor of the impugned order, it appears that Deputy Director of Consolidation has passed impugned order as if he was exercising any supervisory administrative powers, upon the subordinate consolidation authorities whereas under the scheme of the Act no such administrative power is conferred upon him, as such impugned action taken by him is ultra vires the aforesaid provisions of the Act.
It was further contended by Sri R.N. Singh that it is no doubt true that power conferred upon Deputy Director of Consolidation u/s 48 of the Act is somewhat supervisory in nature and such power can be exercised by him as revisional court and/or authority against the decisions of subordinate consolidation authorities, and similar power can also be exercised by him but only on a proper reference made by the subordinate authority wherein record of any case or proceedings is referred to him under Sub-section (3) of Section 48 for his decision/action under Sub-section (1) of Section 48 of the Act, but the impugned order passed by Deputy Director of Consolidation is neither covered nor referable to the provisions of Section 48(3) of the Act, thus it is beyond the scope of authority under law as such arbitrary and is without jurisdiction, therefore cannot be sustained.
Contrary to it, Sri Kripa Shanker Singh, learned Counsel appearing on behalf of respondent No. 9 in support of the impugned order has submitted that the same has been passed by Deputy Director of Consolidation on complaints of several persons of the village who are chak holders in proposed consolidation scheme, after holding an enquiry thereon and after affording an opportunity of hearing to the several chak holders of the village and those chak holders who have supported the existing provisional consolidation scheme of the village prepared by Assistant Consolidation Officer namely Sri Dal Singar Tiwari.
While elaborating and substantiating his arguments Sri Kripa Shanker Singh has submitted that on receipt of various complaints the Deputy Director of Consolidation had directed the Settlement Officer of Consolidation to hold an enquiry and examine the matter who in pursuant thereto had examined several chak holders of the village and made local spot inspection, '' thereafter, recommended for cancellation of provisional consolidation scheme prepared by Assistant Consolidation Officer, namely Sri Dal Singar Tiwari. In the said report, he had pointed out that the provisional consolidation scheme prepared by Assistant Consolidation Officer was outcome of malpractices, manipulations and was full of illegalities of such a nature which could not possibly be cured otherwise except by the cancellation of provisional consolidation scheme prepared by Assistant Consolidation Officer and since the aforesaid recommendation was made by Settlement Officer of Consolidation after making spot inspection of the village and hearing the villagers who were chak holders of the village as such aforesaid recommendation could be treated to be a reference within the meaning of Section 48(3) of the Act. Therefore, while cancelling the said provisional consolidation scheme it cannot be said that the impugned order passed by the Deputy Director of Consolidation is arbitrary and beyond the scope of its authority under law. As such the order passed by Deputy Director of Consolidation cannot be faulted with on that score.
He has further contended that at any view of the matter since while cancelling the provisional consolidation scheme prepared by Assistant Consolidation Officer, namely Sri Dal Singar Tiwari, the Deputy Director of Consolidation has directed another Assistant Consolidation Officer to prepare fresh provisional consolidation scheme of the village in question, therefore, no person can claim that they have any right to be heard before cancellation of said provisional consolidation scheme as no vested right of any person can be said to be impaired by impugned order passed by the Deputy Director of Consolidation. He further submitted that after preparation of fresh provisional consolidation scheme of the village in question in pursuance of the impugned order passed by Deputy Director of Consolidation, the aggrieved chak holders would have right to file objection u/s 20(2), appeal u/s 21(2) and revision u/s 48(1) of the Act, as such the impugned order passed by Deputy Director of Consolidation cannot be legitimately questioned by the petitioners at this stage, as it cannot be said that any vested right of the petitioners are impaired by now and that they are aggrieved persons and entitled to challenge the same before this Court.
He has further contended that not only this, but while cancelling the aforesaid provisional consolidation scheme the Deputy Director of Consolidation has directed another Assistant Consolidation Officer to prepare the fresh provisional consolidation scheme of the village and complete the exercise by 30th June, 2010. As such, assuming that the impugned order passed by Deputy Director of Consolidation is of administrative in nature even then since it has removed/cured all pervasive gross illegalities crept in the existing provisional consolidation scheme of the village in question, restoration of which would perpetuate the said illegalities, and would ultimately defeat the aims and object of the consolidation scheme, therefore, this Court should refuse to exercise its discretionary jurisdiction under Article 226 of the Constitution of India.
In order to appreciate rival contentions of the parties it would be useful to extract the impugned order dated 8.1.2010, passed by Deputy Director of Consolidation, Azamgarh as under:
foxr 9-11-2009 bZ0 dks xzke chchiqj rIik dksBk ds fuoklh n;kuUn jk; vkfn vusd xzkeokfl;ksa }kjk bl vnkyr ds le{k bl vk''k; dh f''kdk;r izLrqr dh x;h Fkh fd {ks=h; lgk;d pdcUnh vf/kdkjh Jh ny flaxkj frokjh dHkh Hkh xkao esa ugha x;s vkSj pdcUnh dkZ iwjk gks x;k A xzke lHkk dh yxHkx nl ch?kk Hkwfe Hkh yksxksa ds pdksa esa izLrkfor dj nh x;h gS A lM+d ds Hkw[k.M+ksa ds lkFk Hkh Hkkjh NsM+&NkM+ fd;k x;k gS A vr% vfu;ferrk dh tkWap djds izHkkoh dk;Zokgh dh tk;s A dkykUrj esa ifrjke ;kno] lHkk ukjk;u jk; o ''kSys''k dqekj jk; lfgr xzke iz/kku ,oa pdcUnh lfefr dh v/;{kk Jherh vUrjkth us Hkh ,-lh-vks- Jh frokjh ds p� fuekZ.k dks fujLr djus dh ;kpuk izLrqr dh A f''kdk;r dh xEHkhjrk dks ns[krs gq, v/kksgLrk{kjh }kjk iwjs izdj.k dh tkWap djus gsrq i=kad 24@jhM+j@fnukad 12-11-2009 bZ- ds tfj;s cUnkscLr vf/kdkjh pdcUnh] vktex dks funsZ''k Hkstk x;k] ftlesa m-iz- ljdkj ds jktdh; vfHkdj.k dk i{k rF;ksa lfgr Li"V gks ldsA
cUnkscLr vf/kdkjh pdcUnh] vktex+ us mDr xzke esa nks fnu tkdj LFky fujh{k.k djds lHkh i{kksa dh ckrksa dks lqurs gq, viuh foLr`r tkaWp vk[;k fnukad 7-12-2009 bZ0 dks bl vnkyr ds le{k izLrqr fd;k gS A mDr vk[;k izkIr gksus ij bl vnkyr ls pdcUnh lfefr ds lHkh inkf/kdkjh;ksa dks viuk i{k izLrqr djus gsrq lwpuk izsf"kr dh x;h A foxr 22-12-2009 dks pdcUnh lfefr ds dqy ikWap inkf/kdkjh;ksa esa ls rhu inkf/kdkjhx.k �e''k% xzke iz/kku Jherh vUrjkth] lnL;k] Jherh izfeyk nsoh ,oa Jh vaxn jke us mifLFkr gksdj vius c;ku vafdr djk;s A ,d vfUre volj nsus ij ,d vU; lnL; Jh c`tiky ''kekZ us Hkh fnukad 30-12-2009 dks mifLFkr gksdj viuk c;ku ntZ djk;k] tcfd ,dek= inkf/kdkjh Jh ladBk jk; lwpuk ikus ds ckotwn c;ku nsus gsrq gkftj ugha gq, A izrki ujk;u jk; iq= Jh fuokl us bl vk''k; dk nkok 29-12-2009 dks is''k fd;k Fkk fd Jh vaxn jk; us mDr xzke ds okMZ ua- 8 ls vius xzke iapk;r lnL;rk ls foxr 15-5-2008 bZ- dks R;kxi= ns fn;k Fkk] tks 19-7-2008 bZ- dks Lohd`r gks pqdk gS A vr% og vc pdcUnh lfefr ds Hkh inkf/kdkjh ugha jgs] vr% mudk c;ku vf/kdkj {ks= ls ,oa fof/k&fo:) gksus ls vxzk� gS A nwljh vksj loZJh izrki ujk;u] ;qf/kf"Bj jk;] ds''kjh ujk;u] vjfoUn dqekj jk;] mek ''kadj jk; o nhu iky jk; vkfn us n;kuUn jk; vkfn }kjk mBkbZ x;h f''kdk;rksa dks fujk/kkj crkrs gq, viuk fyf[kr dFku 12-11-2009 bZ- dks izkr% 10 cts ls 12 cts ds e/; vk;ksftr ^^turk n''kZu** ds n''kZu v/kksgLrk{kjh ds lkFk izLrqr fd;k Fkk bls Hkh ,l-vks-lh- dks tkWap gsrq Hkstk x;k FkkA
cUnkscLr vf/kdkjh pdcUnh] vktex+ viuh tkWap vk[;k esa fy[krs gS fd xzke chchiqj o"kZ 1981 bZ- ls pdcUnh izf�;k esa py jgk gS A izFke ckj bl xzke dk pd fuekZ.k fnukad 14-06-1990 dks lEiUu gqvk Fkk A pd vkifRr;ksa ds fuLrkj.k ds ckn ,l-vks-lh- Lrj ls xzke dh pd vihyksa dh lquokbZ ds nkSjku fnukad 30-05-2005 bZ- dkks vfu;ferrk,a ik;s tkus ds dkj.k xzke iqu% ekfy;r Lrj ij izR;kofrZr dj fn;k x;k A ,-lh-vks- }kjk fnukad 5-6-2009 bZ- ls pd fuekZ.k dk dk;Z fd;k x;k A /kkjk 20 dk izdk''ku fnukad 6-11-2009 bZ- dks n''kkZ;k x;k gS A dqy 467 pdnkjksa okys bl xzke esas mDr pdcUnh ds vUnj o 90 pd pdcUnh ls i`Fkd j[ks x;s A ,d pd dh la[;k 300] nks pdks dh la[;k 57] rhu pdksa dh la[;k 9 o pkj pdksa dh la[;k ,d gS rFkk dqy 87 mM+ku pd cuk fn;s x;s gS A 25 izfr''kr ls vf/kd {ks=Qy dh deh okys pdnkjksa ds la[;k 17 gS A mDr pd xBu dk LFkyh; fujh{k.k djrs gq, ekSds ij dk''rdkjksa dh leL;k;ksa dks lqudj vkxs fy[k jgs gS fd Hkw[k.M la[;k 206 esa ekSds ij lqjs''k jk; dh eM+bZ o isM+ gS] ftls nwljs pdnkj ds pd esa izfo"V dj fn;k x;k gS A Hkw[k.M la[;k 207 esa ekSds ij ckWal dh [kwVh o iqjkuk ckx gS] bldh 100 iSls dher yxk nh x;h gS A Hkw[k.M la[;k 203 Jh izdk''k o fnus''k vkfn dk gS] blesa 10 fo''ok dh ekfy;r yxkdj mek''kadj o lw;Zeq[kh vkfn dk mM+ku pd cSBk fn;k x;k gS A Hkw[k.M la[;k 116 jdck 1-005 dM+h@ckx dk uEcj gS] blesa pkj i{kdjksa dk 1@4] 1@4 va''k gS] fdUrq bl iwjs uEcj ij ;qf/kf"Bj jk; o ckcwjk; dk pd cuk fn;k gS A blh ixkj Hkw[k.M la[;k 117 eaas Hkh vU; fgLlsnkjksa dks u nsdj dsoy ;qf/kf"Bj jk; dks pd ns fn;k x;k gS A Hkw[k.M la[;k 215 vfHkys[kkas esa 0-365 dM+h ntZ gS tcfd ekSds ij flQZ 0-050 dM+h gS rFkk ''ks"k {ks=Qy lM+d esa pyk x;k gS A blds ckotwn bls nq:Lr u djrs gq, iwjk 0-365 dM+h jdck pdnkj ''kEHkwukFk iq= eaxy dks 70 iSls dh jsV ls fdukjs dh Hkwfe ij ,ykV dj fn;k x;k gS A blh izdkj pdnkj 143 ds pd mM+ku cuk fn;s x;s gS vkSj 100 iSls dh ekyf;r 70 iSls esa unh ds fdukjs esa ns nh x;h gS pdnkj la[;k 213 dks edku ds fdukjs ewy xkVs ij pd iwjk ugh fn;k x;k gS o ,d pd mM+ku cuk fn;k x;k gS A Hkw[k.M la[;k 201 ekSds ij ckx ds Lo:i esa gS fdUrq bl ij pd cu x;k gS] tcfd ;g ikWap [kkrsnkjksa ds uke lh-,p-&18 �pd ckgj� gksuk pkfg, Fkk A Hkw[k.M la- 123 esa ekSds ij lqjsUnz ukFk jk; dk uydwi ik;k x;k] tks gfj''kadj vkfn ds pd esa pyk x;k gS A blds vykok Hkw[k.M la[;k 121 ds nf{k.kh esM+ ls ukyh o jkLrk fn;k tkuk pkfg, Fkk] tks ugh fn;k x;k gS A Hkw[k.M la[;k 88 Jherh nsoh o ;qf/kf"Bj vkfn dk gS A ;qf/kf"Bj viuk pd vU;= cuok fy;s gS A Jherh nsoh dh vkjs ls Hkw[k.M la0 82 ds HkwLokeh dh lgefr ds pd ekWaxk x;k Fkk] ftls ,-lh-vks- Jh frokjh }kjk ugha fn;k x;k A Hkw[k.M la0 50 o 51 fnus''k iq= jke ujk;u dk rugk uEcj gS tks lM+d ds fdukjs fLFkr gS] fdUrq bl ij yxHkx 0-500 dM+h dk pd v''kksd vkfn pdnkjksa dk xyr :i ls cuk fn;k x;k gS A vuqlwfpr tkfr dh cLrh esa tkus ds fy, mUgs dksbZ jkLrk ugh fn;k x;k gS A Hkw[k.M la- 53 lM+d ds fdukjs dk gS] tks ''kelsj vkfn dk gS] fdUrq bUgs ;gkWa ls gVkdj ;qf/kf"Bj jk; dk pd 0-560 dM+h dk cuk fn;k x;k gS A Hkw[k.M la- 13 dh 20 iSls dh ekfy;r 12 ua- 60 iSls dh nj ls izfo"V dj nh xbZ gS A Hkw[k.M la- 6 Jherh nsoh dk gS] budk pd bl Hkw[k.M ij cuk rks gS] fdUrq nf{k.k vksj johUnz o vf[kys''k vkfn dks xyr :Ik ls lM+d ls yxkdj pd ns fn;k x;k gS A Hkw[k.M la- 45 jdck 0-239 dM+h lM+d ds fdukjs gS] tgkWa ls ewy [kkrsnkj dks gVkdj nwljs pdnkj dks cSBk fn;k x;k gS A mifjof.kZr fo"k; ds vk/kkj ij ,l-vks-lh- vius fu"d"kZ esa fy[krs gS fd mDr rF;ksa ls Li"V gS fd lgk;d pdcUnh vf/kdkjh �,-lh-vks-� Jh ny flaxkj frokjh }kjk vfoosdiw.kZ rjhds ls pd fuekZ.k fd;k x;k gS ftlls d`"kdksa esa vlUrks"k O;kIr gks x;k gS A dqN O;fDr;ksa }kjk vU; pdnkjksa ds gkfu dh dher ij pdcUnh izf�;k ds ykHkksa dk iz;ksx xyr jhfr ls vius i{k es fd;k x;k gS A xzke eas xqVcUnh Hkh gS] d`"kdksa dk ,d oxZ pdcUnh izf�;k dks blds vkxs ckus ds i{k esa gS A ogha nwljk oxZ mijof.kZr vfu;ferrkvksa dks ns[krs gq, pd fuekZ.k fujLr djds u;s fljs ls pd fuekZ.k dh ekWax dj jgk gS A ,l-vks-lh- dk dFku gS fd xqVcUnh ds ifjos''k esa ,-lh-vks- Jh frokjh dh vkSj Hkh vf/kd lko/kkuh ,oa laosnu''khyrk ls dk;Z djuk pkfg, Fkk] tks muds }kjk ugha fd;k x;k pd fuekZ.k ds nkSjku lgk;d pdcUnh vf/kdkjh Jh ny flaxkj frokjh }kjk xq.koRrk dk;e ugh j[kh tk ldhA
izrki ujk;.k jk; o ;qf/kf"Bj jk; vkfn vusd xzkeh.kksa us vkosnu fnukad 12-11-2009 bZ0 esa v/kksgLrk{kjh ds le{k gkftj gksdj lkjh f''kdk;rks dks fujk/kkj crkrs gq, nkok fd;k Fkk fd ,-lh-vks- Lrj ls pd fuekZ.k dh dk;Zokgh lqpk: ax ls lEiUUk gqbZ gS o pd m)j.k forfjr fd;k x;k gS] mlds ckn voS/k ekax j[kus okys dfri; fxus pqus O;fD;ksa dk futh LokFkZ u gy gks ldus ds dkj.k o fujk/kkj vkjksi yxkrs gq, f''kdk;rh izkFkZuk&i= fn;s gSa A mudk mn~ns''; dsoy pdcUnh izf�;k dks ckf/kr djuk gSA vr% f''kdk;rksa dks fujLr djds izf�;k dks pdcUnh vf/kdkjh Lrj ij vkxs ckrs gq, pd vkifRr;ksa ij lquokbZ djds mudk fu;ekuqlkj fuLrkj.k dk funsZ''k fn;k tk;s A xzke iz/kku Jherh vUrjkth us bl vkosnu ij Hkh viuh lgefr izdV djrs gq, vius eqgj ds lkFk gLrk{kj vafdr fd;s gS A fnukad 16-12-2009 bZ- dks xzke iz/kku Jherh vUrjkth o pdcUnh lfefr ds lnL; loZJh c`tiky ''kekZ] izfeyk nsoh ,oa ladBk jk; us uksVjh ''kiFk&i= rS;kj djk;k Fkk] ftls v/kksgLrk{kjh ds le{k fnukad 21-12-2009 bZ- dks is''k fd;k Fkk] ;|fi buesa ls ladBk jk; dks NksM+dj vU; rhuksa inkf/kdkj;ksa us vxys gh fnu fnukad 22-12-2009 bZ- dks iqu% v/kksgLrk{kjh ds le{k gkftj gksdj bl vk''k; dk c;ku vafdr djk;s gS fd mudk 16-12-2009 bZ0 dk dfFkr ''kiFk&i= xyr o QthZ ekuk tk;s A blls Li"V gks jgk gS f dbl xzke ds dqy ikWap inkf/kdkjh;ksa esa ls pkj yksx fdlh ,d n`+ er ds ugha gS] f''kdk;rdrkZ ds i{k ds lkFk vkus ij os mUgh dh Hkk"kk cksyrs gq, muds eUrO; ij viuh lgefr izdV dj nsrs gSa] ogh f''kdk;r dk [k.Mu djus okys i{k ds lkFk vkus ij os iwjh f''kdk;r dks xyr crkrs gq, pdcUnh izf�;k dks vkxs ckus dh ckr djus yxrs gS] bl fojks/kkHkklh euksHkko ds izdVhdj.k ls Kkr gks jgk gS fd os LFkkuh; Lrj ij nksuks i{kksa ds fdlh Hkh fojks/k ls [kqn dks cpk;s j[kuk pkg jgs gS A pwafd xzke Lrj ij pdcUnh lfefr iwjs pdcUnh izf�;k ds nkSjku ,d csfld bdkbZ ds :i esa dk;Z djrh gS vr% bl iwjs izdj.k ij pdcUnh lfefr ds inf/kdkjh;ksa dk eUrO; izkIr djus gsrq mUgs v/kksgLrk{kjh }kjk c;ku gsrq cqyk;k x;k FkkA
cUnkscLr vf/kdkjh pdcUnh] vktex<+ }kjk viuh tkWap vk[;k fnukad 7-12-2009 bZ- esa vfu;ferrk dk tks foLr`r fooj.k izLrqr fd;k x;k gS] mlls Li"V gks x;k gS fd pd fuekZ.k djus okys lgk;d pdcUnh vf/kdkjh Jh ny flaxkj frokjh us pd fuekZ.k djrs le; LFky ij tkdj Hkw[k.M+ks dh HkkSfrd fLFkfr voyksdu vkSj vkx.ku fof/kfo/kku iwoZd dHkh ugha fd;k vU;Fkk fdlh ds vkoklh; Hkou] eM+bZ ckx] ckWal [kwWaVh] futh uydwi fdlh vU; pdnkj ds pd esa izfof"V u gks tkrs A pkj i{kdkjks ds iwjs va''k ;qf/kf"Bj jk; ds pd ds :i esa ifj.kr u gksrs] Hkw[k.M la- 215 ds 0-050 dMh jdcs dks NksM+ dj lM+d esa lekfgr gks pqds 0&315 dM+h jdcs dks Hkh ''kkfey djds iwjs 0&0365 dM+h {ks=Qy dks ''kEHkwukFk ds pd ls ,ykV dj fn;k tkrk] iwjk xzke dsoy 467 pdksa dk gS] tks cgqr cM+k ugha ekuk tk ldrk] blds ckotwn ;gkWa 87 mM+ku pd cuk fn;s ftudk vkSfpR; izekf.kr dj ikuk vR;Ur dfBu gS] blh izdkj 25 izfr''kr ls vf/kd {ks=Qy dh deh okys 36 pdnkj ,oa o`f) okys 17 pdnkjksa ds gksus dk Hkh dksbZ rdZ le> ls ijs gS A LFky ij ckx gksus ds ckotwn xk0ua0 201 dk lh-,p- 18 u fd;k tkuk nks"kiw.kZ gS] blh izdkj xk0ua0 82 ds Hkwfe/kj dh lgefr ds laKku ysdj pd u cukuk vis{kkvksa ds vuq:Ik LFky ij ukyh ekxZ u NksM+k tkuk] vuqlwfpr tkfr dh cLrh dks jkLrs ls oafpr dj nsuk] lM+d ds fdukjs ds ewy uEcj ls pdnkjksa dks gVkdj dfri; yksxks dks vuqfpr ykHk nsrs gq, ogkWa pd vkoafVr dj nsuk u dsoy pdcUnh izf�;k ds iz;kstu ,oa mn~ns'';ksa dks foQy dj ns jgk gS A vfirq lM+d eq[; ekxZ ds fdukjs ds ewy uEcjksa dks muds gh ewy [kkrsnkjksa ds pd esa izfof"V dj nsus vFkok pd ckgj j[kus fo"k;d 1981 bZ0 ds ''kklukns''k@ek0 pdcUnh vk;qDr ds funsZ''kks dh Hkh [kqyh vogsyuk gS A bl izdkj fcuk LFkyh; voyksdu ,oa fo''ys"k.k fd;s ,-lh-vks- Jh frokjh }kjk bl xzke esa pd fuekZ.k dj nsus ls pd fuekZ.k dh iwjh izf�;k nwf"kr gks xbZ gS] Jh frokjh }kjk iwjh lR;fu"Bk ls vius nkf;Roks dk fuoZgu ugha fd;k x;k gS] muds }kjk pd fuekZ.k esa cjrh x;h mDr O;kid Lrj dh vfu;ferrk,Wa dnkfpr bl lhek rd ugha gS fd mu ij izkIr gksus okyh pd vkifRr;ksa dk fuLrkj.k dj nsus ek= ls iwjh pd fuekZ.k izf�;k nks"keqDr ,oa fueZy gks tk,axh] cfYd mDr O;kid vfu;ferrkvksa dks ns[krs gq, ,-lh-vks- Jh ny flaxkj frokjh fd;s x;s pd fuekZ.k dks iw.kZ :i ls fujLr djds fdlh vU; ,-lh-vks- ls u;s fljs ls le;c) jhfr ls pd fuekZ.k dks izf�;k dks iw.kZ djk;k tkuk U;k;ksfpr izrhr gks jgk gSA
vkns''k
xzke chchiqj ijxuk o rglhy futkekckn tuin vktex<+ esa lgk;d pdcUnh vf/kdkjh Jh ny flaxkj frokjh }kjk fd;s x;s lEiw.kZ pd fuekZ.k dks fujLr fd;k tkr gS vkSj lgk;d pdcUnh vf/kdkjh Jh lwju izlkn dks bl xzke dk u;s fljs ls pd fuekZ.k djus gsrq vf/kd`r djrs gq, funsZ''k fn;k tkrk gS fd og ,-lh-vks- Lrj dk lEiw.kZ pd fuekZ.k dk dk;Z foyEcre 30-6-2000 bZ- rd gj n''kk esa iw.kZ djsa A cUnkscLr vf/kdkjh pdcUnh vktex<+ dks funsZ''k fn;k tkrk gS fd nks"kh lgk;d pdcUnh vf/kdkjh ds fo:) dBksj n.MkRed dk;Zokgh gsrq vkjksi fojfpr djrs ,d lIrkg ds vUnj foHkkxh; dk;Zokgh dh i=koyh is''k djsa] blds vykok nks"kiw.kZ ,d fuekZ.k dh bl iwjh izf�;k esa lafyIr jgs nks"kh pdcUnhdrkZ ,oa ys[kiky ds fo:) Hkh dBksj vuq''kklukRed dk;Zokgh lqfuf''pr dh tk;s A ,-lh-vks- Jh lwju izlkn dks mDr dk;Z le; ls iw.kZ djus ,oa dk;ksZ dh ''kr&izfr''kr xq.koRrk cuk;s j[kus gsrq LoPN Nfo ds deZB pdcUnhdrkZ ,oa ys[kiky miyC/k djk;s tk; A le;= ij muds dk;ksZ dk fu;fer :i ls vuqJo.k Hkh fd;k tk; A vuqikyukFkZ vkns''k dh izfr cUnkscLr vf/kdkjh pdcUnh] vktex<+ o lgk;d pcUnh vf/kdkjh Jh lwju izlkn dks rRdky izsf"kr dh tk; A vkns''k dh ,d&,d izfr Mh-Mh-lh-] ,l-vks-lh-] lh-vks- o ,-lh-vks- dksVZ esa vuqjf{kr j{kd iafTtdkvkas ij Hkh j[krs gq, pdcUnh lfefr ds v/;{k@xzke iz/kku dks Hkh bl vk''k; ls lqyHk djk nh tk; fd og bl vkns''k dh equknh fof/kor iwjs xzke esa djk nsa A vko;''d dk;Zokgh ds mijkUr i=koyh lfPpr dh tk;A
fnukad 8-1-2010 bZ0
From a careful reading of the impugned order dated 8.1.2010, passed by Deputy Director of Consolidation it is clear that it was passed by him on the basis of report of Settlement Officer of Consolidation dated 7.12.2009 and after hearing the members of consolidation committee, complainants and other persons of the village who have come forward in support of provisional consolidation scheme prepared by Assistant Consolidation Officer namely Sri Dal Singar Tiwari. In the impugned order. Deputy Director of Consolidation has narrated the contents of the report of Settlement Officer of Consolidation, who had submitted it after making spot inspection of the village and after affording opportunity of hearing to the chak holders and persons, who had made complaints in respect of various illegalities committed by the Assistant Consolidation Officer while preparing provisional consolidation scheme. The Deputy Director of Consolidation has found that in the said report, Settlement Officer of Consolidation had narrated various irregularities and illegalities committed by Assistant Consolidation Officer while preparing provisional consolidation scheme of the village which could not be rectified and cured in individual objections, which may be filed against said provisional consolidation scheme and he has further found that the illegalities and irregularities were of such a nature which could not be cured otherwise except by cancellation of entire provisional consolidation scheme of the village prepared by Dal Singar Tiwari, therefore in order to remove and cure the aforesaid illegalities and irregularities, the Deputy Director of Consolidation has cancelled the entire provisional consolidation scheme of the village while directing another Assistant Consolidation Officer for preparation of fresh provisional consolidation scheme of the village which is intended to be completed by 30.6.2010.
Now first question arises for consideration is that as to whether the writ petition filed by petitioners at this stage is maintainable? and/or as to whether the petitioners are aggrieved persons entitled to challenge the impugned order passed by Deputy Director of Consolidation at this stage?
In this connection, it is to be noted that by impugned order dated 8.1.2010, passed by Deputy Director of Consolidation he has cancelled the entire provisional consolidation scheme of the village in question prepared by Assistant Consolidation Officer u/s 19A of the Act with a further direction to another Assistant Consolidation Officer to prepare a fresh provisional consolidation scheme of the unit. It is further significant to be noted that against the provisional consolidation scheme the aggrieved chak holders of the village have right to file objection before consolidation officer u/s 20(2) of the Act and thereafter any person aggrieved by the order/decision of Consolidation Officer is entitled to file appeal u/s 21(2) of the Act before Settlement Officer of Consolidation and thereafter has right to prefer revision before Deputy Director of Consolidation u/s 48 of the Act. But in instant case, since the provisional consolidation scheme of the unit prepared by Assistant Consolidation Officer namely Sri Dal Singar Tiwari has been cancelled by Deputy Director of Consolidation with a further direction to another Assistant Consolidation Officer to prepare fresh provisional consolidation scheme of the village u/s 19A of the Act, therefore, no question arises for filing objection before Consolidation Officer u/s 20(2) against said cancellation for simple reason that preparation of fresh provisional consolidation scheme of the village is still under contemplation and after preparation of fresh provisional consolidation scheme the aggrieved chak holders would be entitled to file an objection u/s 20(2), appeal u/s 21(2) and revision u/s 48 of the Act thus the rights and interest of petitioners have yet not been impaired by impugned action of Deputy Director of Consolidation causing any genuine grievance so as to entitle them to approach this Court under Article 226 of the Constitution seeking writ of certiorari.
In this connection, it would also be useful to. refer some decisions of Hon''ble. Apex Court hereinafter, wherein the Hon''ble Apex Court has considered the content and import of words "person aggrieved" entitled to file appeal, revision and a writ petition under Article 226 of the Constitution of India.
In Bar Council of Maharashtra Vs. M.V. Dabholkar and Others, while dealing with the content and scope of expressions "aggrieved person" to maintain an appeal u/s 38 of Advocates Act, a Seven-Judges Constitution Bench of Hon''ble Apex Court held that where a right of appeal to Courts against an administrative or judicial decision is created by statute, the right is invariably confined to a "person aggrieved" or a person who claims to be aggrieved. The meaning of words "an aggrieved person" may vary according to the context of statute. One of the meaning is that a person will be held to be aggrieved by a decision if that decision is materially adverse to him. Normally one is required to establish that one has been denied or deprived of something to which one is legally entitled in order to make one "an aggrieved persons." Again a person is aggrieved if a legal burden is imposed upon him. The meaning of words "a person aggrieved" is sometimes given restricted meaning in certain statute which provide remedies for the protection of private legal rights. The restricted meaning requires denial or deprivation of legal rights. A more liberal approach is required in the background of statutes which do not deal with property rights but deal with professional conduct and morality. The role of the Bar Council under the Advocates'' Act is comparable to the role of a guardian in professional ethics. The words "person aggrieved" in Sections 37 and 38 of the Act are of wide import and should not be subjected to a restricted interpretation of possession or denial of legal rights or burdens or financial interests. The test is whether the words "person aggrieved" include "a person who has a genuine grievance because an order has been made which prejudicially affects his interests.
In Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed and Others, in para 34 of the decision the Hon''ble Apex Court has held as under:
This Court has laid down in a number of decisions that in order to have the locus standi to invoke the extraordinary jurisdiction under Article 226, an applicant should ordinarily be one who has a personal or individual right in the subject-matter of the application, though in the case of some of the writs like habeas corpus or quo warranto this rule is relaxed or modified. In other words, as a general rule, infringement of some legal right or prejudice to some legal interest inhering in the petitioner is necessary to give him a locus standi in the matter. (See The State of Orissa Vs. Madan Gopal Rungta, The Calcutta Gas Company (Proprietary) Ltd. Vs. The State of West Bengal and Others, ; Ram Umeshwari Suthoo v. Member, Board of Revenue, Orissa (1967) 1 SCA 413 ; Dr. Satyanarayana Sinha Vs. S. Lal and Company (P) Ltd.,
In Ghulam Qadir Vs. Special Tribunal and Others, the Hon''ble Apex Court has again reiterated the earlier view taken by Apex Court and held that "there is no dispute regarding the legal proposition that right under Article 226 of the Constitution of India can be enforced only by an aggrieved person except in the cases where writ prayed for is for habeas corpus or quo warranto. Another exception in the general rule is the filing of writ petition in public interest."
Applying the aforesaid principle of law laid down by Hon''ble Apex Court in given facts and circumstances of the case, I am of the considered opinion that since vide impugned order passed by Deputy Director of Consolidation while cancelling the provisional consolidation scheme of the village in question, a fresh provisional consolidation scheme is intended to be prepared by another Assistant Consolidation Officer, thereafter aggrieved person would be entitled to file objection against said fresh provisional consolidation scheme of the village, u/s 20(2) of the Act, therefore, at this stage the right and interest of petitioners cannot be held to be prejudiced or impaired and further it cannot be held that they have any genuine grievance against impugned action accordingly it cannot be held that the petitioners are ''aggrieved persons'', entitled to file instant writ petition at this stage.
Now next question arises for consideration is that as to whether the impugned order passed by Deputy Director of Consolidation is covered by the provisions of Section 48(3) of Act or as to whether the impugned action taken by him is ultra vires, the aforesaid provisions of Act being beyond the scope of authority under law and without jurisdiction?
In this connection it would be appropriate to examine the provisions of Section 48 of the Act which is being reproduced in extenso as under:
[48. Revision and reference.--(1) 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 (other than an interlocutory order) passed by such authority in the case or proceedings, and may, after allowing the parties concerned an opportunity of being heard, make such order in the case or proceedings as he thinks fit.
(2) Power under Sub-section (1) may be exercised by the Director of Consolidation also on a reference under Sub-section (3).
(3) 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).]
[Explanation (1)].--For the purposes of this section, Settlement Officers, Consolidation, Consolidation Officers, Assistant Consolidation Officers, Consolidator and Consolidation Lekhpals shall be subordinate to the Director of Consolidation.]
[Explanation (2)].-For the purposes of this section the expression ''interlocutory order'' in relation to a case or proceedings, means such order deciding any matter arising in such case or proceeding or collateral thereto as does not have the effect of finally disposing of such case or proceeding.]
From a careful reading of the aforesaid provisions of Act it is clear that under Sub-section (1) of Section 48 of the Act, the Director of Consolidation is empowered to call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purposes of satisfying himself as to the regularity of proceedings ; or as to the correctness, legality or propriety of any order (other than interlocutory order) passed by such authority in the case or proceedings and after allowing the parties concerned an opportunity of being heard, he can make such order in the case or proceeding as he thinks fit. Sub-section (2) further provides that the power conferred upon the Director of Consolidation may be exercised by him also on a reference under Sub-section (3) and Sub-section (3) provides that 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).
Thus, from a joint reading of aforesaid Sub-sections of Section 48 of the Act, it is clear that any subordinate authority to the Director 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) thereupon Director of Consolidation would be entitled to exercise his power u/s 48 (1) of the Act. The power conferred upon Director/Deputy Director of Consolidation under Sub-section (1) of Section 48 is of wide amplitude wherein he can examine the record of any case decided or proceedings taken by any subordinate authority for the purposes of the satisfying himself as to the regularity of proceedings, or as to the correctness, legality or propriety of any order (other than interlocutory order) passed by such authority in the case or proceedings. Therefore, in my opinion, the revisional power, can be exercised by the Director/Deputy Director of Consolidation to examine the regularity of any proceeding taken by the subordinate authorities and to examine, the correctness, legality or propriety of any order (other than interlocutory order) passed by such authority in the case decided by him. The exercise of said power cannot be confined to examine correctness legality or propriety of any order passed by such authority in the case decided by him alone. The expressions "regularity of the proceedings" used under Sub-section (1) of Section 48 of the Act is also of the wide import, which may embrace in it, the preparation of provisional consolidation scheme of unit or the village by Assistant Consolidation Officer u/s 19A of the Act, as one of the such proceedings, therefore, while exercising the revisional power, which can also be exercised by Deputy Director of Consolidation on a reference, he was fully competent to cancel the provisional consolidation scheme prepared by the Assistant Consolidation Officer which was found by him irregular, and could not be otherwise corrected except by cancellation in its entirety. Thus, the impugned action taken by Deputy Director of Consolidation was well within the ambit of his authority under law and cannot be held to be beyond the scope of authority under law.
Now next question arises for consideration is that as to whether the impugned order was passed by Deputy Director of Consolidation on a proper reference made to him if not what would be legal consequence of it? And even if the impugned order is not in conformity of the provisions of Section 48(3) of the Act, as to whether this Court can still refuse to exercise its extraordinary writ jurisdiction under Article 226 of the Constitution? In this connection it is to be noted that from the perusal of the impugned order passed by Deputy Director of Consolidation it is clear that same was passed on a report of Settlement Officer of Consolidation dated 7.12.2009 which was based upon the complaints made to Deputy Director of Consolidation pointing out various irregularities and illegalities committed by the Assistant Consolidation Officer while preparing provisional consolidation scheme of the village in question. The aforesaid report was submitted by Settlement Officer of Consolidation after making local spot inspection of the village and hearing of the complainants, members of the consolidation committee and those persons who had supported the provisional consolidation scheme prepared by Assistant Consolidation Officer. Thus, the aforesaid report of Settlement Officer of Consolidation dated 7.12.2009 was in respect of the illegalities committed by Assistant Consolidation Officer while preparing provisional consolidation scheme of the village which was a proceeding before him u/s 19A of the Act, as such in my considered opinion the said report of Settlement Officer of Consolidation is nothing but only a reference to Deputy Director of Consolidation u/s 48(3) to take action thereon u/s 48(1) of the Act in respect of regularity of the said proceeding.
Further from the perusal of impugned order passed by Deputy Director of Consolidation it is clear that on receipt of said report of Settlement Officer of Consolidation which is to be termed as reference, the Deputy Director of Consolidation has passed impugned order after hearing the complainants, member of consolidation committee and other persons including some petitioners therefore, while passing the impugned order, in my considered opinion, substantial compliance of the provision of Section 48(3) of the Act has been done by the Deputy Director of Consolidation, accordingly the same cannot be held to faulty on account of any technical infirmity in the said order. As already indicated hereinbefore that in pursuant to the impugned order since preparation of a fresh provisional consolidation scheme of the village is under contemplation against which aggrieved chak holders of the unit would have opportunity of filing objection, appeals and revisions at appropriate forums, therefore, any failure of hearing to all chak holders of the village under existing provisional scheme before its cancellation in my considered opinion cannot be faulted with.
There is yet another reason which has impelled me for taking the aforesaid view in the matter. From the record it transpires that vide impugned order the Deputy Director of Consolidation has cancelled the provisional consolidation scheme prepared by Assistant Consolidation Officer on the ground that the illegalities and irregularities in the said provisional consolidation scheme were all pervasive and were of such a nature which could not be corrected or rectified by superior consolidation authorities in individual objections, appeals and revisions which could be preferred against the said provisional consolidation scheme, except cancellation of entire provisional consolidation scheme prepared by said Assistant Consolidation Officer. Therefore, if the impugned order passed by the Deputy Director of Consolidation is quashed or set aside, the earlier position of all pervasive illegalities and irregularities crept in the existing provisional consolidation scheme would be restored, and aforesaid illegalities would be perpetuated, resulting which the provisions of consolidation scheme would be defeated. In this view of the matter, also I am inclined to interfere in the impugned order passed by Deputy Director of Consolidation.
In this connection, it would be useful to refer a decision of Hon''ble Apex Court rendered in M.C. Mehta Vs. Union of India (UOI) and Others, wherein the Hon''ble Apex Court after referring its earlier decisions rendered in Mohammad Swalleh and Others Vs. Third Addl. District Judge, Meerut and Another, and Godde Venkateswara Rao Vs. Government of Andhra Pradesh and Others, in para 18 and para 19 of the said decision observed as under:
We shall initially refer to two cases where discretion was exercised not to grant relief and the first one was a case where relief was refused even though there was breach of natural justice. The first one is Godde Venkateswara Rao Vs. Government of Andhra Pradesh and Others, There the Panchayat Samithi, in exercise of its statutory powers passed a resolution on 25.8.1960 to locate a primary health centre at Dharmajigudem. Later, it passed another resolution on 29.5.1961 to locate it at Lingapalem. On a representation by villagers of Dharmajigudem. Government passed orders on 7.3.1962 setting aside the second resolution dated 29.5.1961 and thereby restoring the earlier resolution dated 25.8.1960. The result was that the health centre would continue at Dharmajigudem. Before passing the orders dated 7.3.1962, no notice was given to the Panchayat Samithi. This Court traced the said order of the Government dated 7.3.1962 to Section 62 of the Act and if that were so, notice to the Samithi u/s 62(1) was mandatory. Later, upon a review petition being filed. Government passed another order on 18.4.1963 cancelling its order dated 7.3.1962 and accepting the shifting of the primary centre to Lingapalem. This was passed without notice to the villagers of Dharmajigudem. This order of the Government was challenged unsuccessfully by the villagers of Dharmajigudem in the High Court. On appeal by the said villagers to this Court, it was held that the latter order of the Government dated 18.4.1963 suffered from two defects, it was issued by Government without prior show cause notice to the villagers of Dharmajigudem and Government had no power of review in respect of Government orders passed u/s 62(1). But that there were other facts which disentitled the quashing of the order dated 18.4.1963 even though it was passed in breach of principles of natural justice. This Court noticed that the setting aside of the latter order dated 18.4.1963 would restore the earlier order of Government dated 7.3.1962 which was also passed without notice to the affected party, namely, the Panchayat Samithi. It would also result in the setting aside of a valid resolution dated 29.5.1961, passed by the Panchayat Samithi. This Court refused relief and agreed that the High Court was right in not interfering under Article 226 even if there was violation of natural justice. Subba Rao, J. (as he then was) observed (p. 189) (of SCR) : (at pp. 837 of AIR) as follows:
Both the orders of the Government, namely, the order dated March 7, 1962 and that dated April 18, 1963, were not legally passed: the former, because it was made without giving notice to the Panchayat Samithi, and the latter, because the Government had no power u/s 72 of the Act to review an order made u/s 62 of the Act and also because it did not give notice to the representatives of Dharmajigudem village.
His Lordship concluded as follows:
In those circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the Government dated April 18, 1963? If the High Court had quashed the said order, it would have restored an illegal order- it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise its extraordinary discretionary power in the circumstances of the case.
The above case is clear authority for the proposition that it is not always necessary for the Court to strike down an order merely because the order has been passed against the petitioner in breach of natural justice. The Court can under Article 32 or Article 226 refuse to exercise its discretion of striking down the order if such striking down will result in restoration of another order passed earlier in favour of the petitioner and against the opposite party, in violation of principles of natural justice or is otherwise not in accordance with law.
We would next refer to another case where, though there was no breach of principles of natural justice this Court held that interference would be the restoration of another order which was not legal. In Mohammad Swalleh and Others Vs. Third Addl. District Judge, Meerut and Another, which arose under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, the prescribed authority dismissed an application filed by the landlord and this was held clearly to be contrary to the very purpose of Section 43(2) (rr) of the Act. The District Court, entertained an appeal by the landlord and allowed the landlord''s appeal without noticing that such an appeal was not maintainable. The tenant filed a writ petition in the High Court contending that the appeal of the landlord before the District Court was not maintainable. This was a correct plea. But the High Court refused to interfere. On further appeal by the tenant, this Court accepted that though no appeal lay to the District Court, the refusal of the High Court to set aside the order of the District Judge was correct as that would have restored the order of the prescribed authority, which was illegal.
The view taken by Hon''ble Apex Court in aforesaid case, in my considered opinion, supports the view taken by me hereinbefore, therefore, in any view of the matter assuming that the impugned order passed by Deputy Director of Consolidation may not be strictly in conformity of the provisions of Section 48(3) of the Act, or otherwise found to be contrary to law even then, I am not inclined to exercise extraordinary discretionary jurisdiction under Article 226 of the Constitution in favour of the petitioner for the simple reason that on quashing of the impugned order, the provisional consolidation scheme prepared by Assistant Consolidation Officer, Sri Dal Singar Tiwari would be restored resulting which all pervasive illegalities crept in provisional consolidation scheme of the village, which has been cancelled by Deputy Director of Consolidation, would be restored and would be perpetuated. Thus, it is fit case where this Court should refuse to exercise discretionary writ jurisdiction in favour of the petitioner.
In view of the aforesaid discussion, writ petition is devoid of merits, accordingly same is hereby dismissed.
However, dismissal of writ petition shall not preclude the Assistant Consolidation Officer from preparing fresh provisional consolidation scheme of the village by 30.6.2010 as directed by Deputy Director of Consolidation.