Allahabad High Court
Rajbir And Others vs Deputy Director Of Consolidation, ... on 10 March, 1999
Equivalent citations: 1999(2)AWC1359, 1999 ALL. L. J. 1143, 1999 AIHC 3218, (1999) 36 ALL LR 484, (1999) 2 ALL WC 1359, (1999) REVDEC 313, 1999 ALL CJ 1 429
Author: M.L. Singhal
Bench: M.L. Singhal
JUDGMENT M.L. Singhal, J.
1. I have heard the learned counsel for the petitioners, and the respondent Nos. 4 and 5. With the consent of the learned counsel appearing for the parties, the writ petition is decided at the admission stage.
2. This is a petition under Article 226 of the Constitution of India for issuance of writ of certiorari quashing the judgment and order dated 17th February, 1999, passed by the Deputy Director of Consolidation, Meerut, respondent No. 1, and the judgment and order dated 26th July, 1997, rendered by the Settlement Officer (Consolidation), Meerut respondent No. 2, (Annexures-'5' and '4' respectively to the writ petition).
3. One Smt. Murti Devi was the owner of the disputed Chak No. 821, according to the petitioners she executed a Will in their favour on 10th July, 1987, according to the respondent Nos. 3 and 4 Virendra Singh and Mahendra Singh she had executed a Registered Will in their favour on 9th July, 1987, one day prior to the alleged Will in favour of the petitioners. Both the petitioners and the respondents, on the basis of the Will alleged in their favour, applied for mutation of their names. The Consolidation Officer, Meerut by his judgment dated 12th July, 1993 accepted the claim of the petitioners, and ordered for mutation of the petitioners' name. Aggrieved by the said judgment of the Consolidation Officer, the respondent Nos. 3 and 4 preferred appeal before the Settlement Officer (Consolidation), Meerut. The Settlement Officer (Consolidation). Meerut remanded the case to the Consolidation Officer, Meerut. Both the petitioners and respondent Nos. 4 and 5 had grievance against the said order, preferred revisions before the Deputy Director of Consolidation, Meerut, who by a common judgment rejected the petitioners' revision and accepted the revision preferred by the respondent Nos. 4 and 5 and directed for mutation of the names of the respondent Nos. 4 and 5 over the disputed plots. The petitioners having grievances against the said order have preferred this writ petition.
4. The aforesaid facts have not been disputed by the learned counsel appearing for the parties. The argument of the learned counsel for the petitioners is that the order of remand passed by the Settlement Officer (Consolidation). Meerut is an interlocutory order and as such, is not amenable to revision in view of the specific bar envisaged in Section 48 of U. P. Consolidation of Holdings Act. 1953 (hereinafter referred to as the Act only), and as such, the order passed by the Deputy Director of Consolidation. Meerut is without jurisdiction. Further, in the revision petition, the Deputy Director of Consolidation reappreciated the evidence on the record, for recording findings on question of fact, which is not open to him. The learned counsel placed reliance upon the decision of Supreme Court in Ram Avtar v. Ram Dhani, 1997 (2) SCC 263. On the contrary, Shri M.K. Tripathi, learned counsel appearing for the respondents argued that the revision petition is maintainable, and further, the reappreciation of evidence on the record was open to the Deputy Director of Consolidation. The learned counsel relied upon the decision of the Supreme Court in Preetam Singh v. Assistant Director of Consolidation. 1996 RD 192, and of this Court in Ram Veer Singh v. Deputy Director of Consolidation, Moradabad, 1999 RD 29 and Man Mohan Gopal v. Gram Sabha, Agra Kalan, 1984 RD 208.
5. Section 48 of the Act, which speaks about revision and reference runs 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) Ins. by U. P. Act 20 of 1982 (w.e.f. 20.11.1980), passed by such authority in the case or proceedings, may, after allowing the parties concerned an opportunity of being heard, make such order in the case or proceedings as he thinks fit.
(2) Powers 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 subsection (1)."
6. A perusal of Section 48 of the Act clearly reveals that a revision against the interlocutory order is clearly barred. An order of remand is an interlocutory order, as clearly held by Supreme Court in Kshistish Chandra v. Commissioner of Ranchi, AIR 1981 SC 707 and two Benches of this Court earlier in the case of Badri Pandey v. Padarath, 1996 RD 58 (Hindi Section), and Ajab Singh v. Joint Director of Consolidation, 1996 RD 104, in the case of Preetam Singh v.
Assistant Director of Consolidation (supra), the matter was in revision before the Assistant Director of Consolidation, their Lordships of the Supreme Court observed that when the matter was in revision before the Assistant Director of Consolidation, he had the entire matter before him and his jurisdiction was unfettered. White in seisin of the matter in its revisional jurisdiction, he was in complete control and in position to test the correctness of the order made by the Settlement Officer (Consolidation) affecting remand. In exercise of revisional jurisdiction, the Assistant Director of Consolidation could examine the finding recorded by the Settlement Officer (Consolidation), in view of the evidence available on the record, when the entire matter was before him. In the case of Preetam Singh v. Assistant Director of Consolidation (supra), the Supreme Court did not hold that the order of remand is interlocutory order or otherwise. In the case of Kshistish Chandra v. Commissioner of Ranchi (supra), there is clear finding of the Supreme Court that an order of remand is an interlocutory order. The provision barring revision against an interlocutory order in Section 48 of the Act was added by U. P. Act 20 of 1982 (w.e.f. 10th November. 1980). The matter in Preetam Singh v. Assistant Director of Consolidation (supra), as revealed by the facts of the case appearing in the Law Report was decided much prior to the insertion of embargo on revision against interlocutory order in Section 48 of the Act. The decision of Supreme Court in Preetam Singh v. Assistant Director of Consolidation (supra), does not help the learned counsel for the respondents. A revision against an interlocutory order not being maintainable, the judgment delivered by the Deputy Director of Consolidation, impugned in the revision before him is without jurisdiction and as such is not sustainable. 7. Since the petition succeeds on the maintainability of the revision,
It is not necessary to enter into another contention raised by the learned counsel for the petitioners, whether it was open to the Deputy Director of Consolidation to re-appreciate the evidence and to record the findings of fact.
8. In the result, the writ petition succeeds, and is hereby allowed. The judgment and order dated 17.2.1999 passed by the Deputy Director of Consolidation, Meerut is hereby quashed, the Consolidation Officer. Meerut shall decide the matter in dispute afresh in pursuance of the remand order dated 26.2.1997 passed by the Settlement Officer (Consolidation), Meerut.