Allahabad High CourtBharat Singh (D.) Through L.Rs. vs Deputy Director Of Consolidation And ... on 20 August, 2004Equivalent citations: 2005(1)AWC957, 2005 A I H C 2308, (2004) 97 REVDEC 522 (2005) 1 ALL WC 957, (2005) 1 ALL WC 957Author:Krishna MurariBench:Krishna MurariJUDGMENT
 

Krishna Murari, J.1. Heard Sri B.D. Mandhyan learned senior counsel assisted by Sri Satish Mandhyan appearing for the petitioner and Sri S. K. Mehrotra appearing for the respondents.2. By means of the present writ petition filed underArticle 226of the Constitution of India, the petitioner has prayed for quashing of the order dated 31.10.1976, 5.6.1978 and 16.9.1980 passed by Consolidation Officer, Settlement Officer of Consolidation and Deputy Director of Consolidation respectively.3. The dispute relates to khata No. 44 situate in village Sherpur Khanajad Pur, District Saharanpur. In the basic year, the said khata was recorded in the name of respondent No. 4 Smt. Kalawati. During partal, possession of one Phullu Singh son of Sri Atma Ram was recorded over the said khata. The petitioner filed objection underSection 9-A (2)of the Consolidation of Holdings Act (hereinafter referred to as the Act) on the ground that Atma Ram had entered into an agreement to sell the land in his favour and the suit for specific performance filed by him was decreed by the civil court and a registered sale deed was executed by the Court on 6.6.1975. Two more objections were filed by one Smt. Shakuntala Devi on the ground that she is purchaser of 1/3 share of the khata in dispute from respondent No. 4 Smt. Kalawati and another by one Smt. Kanta Devi on the ground that she had perfected her rights by adverse possession.4. The Consolidation Officer vide judgment dated 31.10.1976 rejected all the three objections. The objection of the petitioner was rejected on the ground that sale deed, executed after the commencement of Consolidation operation, was not valid and the suit before civil court ought to have abated. Appeal filed by the petitioner was also dismissed by the Settlement Officer of Consolidation oh the ground that the sale deed was obtained during the Consolidation operation without permission from the Settlement Officer of Consolidation and as such was void. Aggrieved, the petitioner filed a revision before Deputy Director of Consolidation. During the pendency of the revision objection was raised by respondent No. 4 Smt. Kalawati that Smt. Shakuntala had died and no substitution application has been filed and certain persons being necessary parties were not impleaded as parties to the revision. The petitioner moved a substitution application to bring on record the heirs of the deceased Smt. Shakuntala but the same was not entertained by the Deputy Director of Consolidation on the ground that it was filed at the stage of argument. The Deputy Director of Consolidation further held that since Smt. Kanta Devi and heirs of deceased Atma Ram were not impleaded as such revision is not maintainable.5. It has been urged by the learned counsel for the petitioner that Deputy Director of Consolidation has wrongly refused to entertain the substitution application only on the ground that it was moved at the stage of arguments. It has further been urged that since Smt. Kanta Devi had not filed any appeal after the dismissal of the objection by the Consolidation Officer and the heirs of the deceased Atma Ram had not even filed any objection before the Consolidation Officer as such they were not necessary parties to the revision. In any view of the matter, even if Deputy Director of Consolidation was of the opinion that they were necessary parties, he ought to have issued notices suo motu or provided time to the petitioner to implead them. The view taken by the Deputy Director of Consolidation is hypertechnical and cannot be sustained.6. Sri S. K. Mehrotra appearing for the respondents has contended that the Deputy Director of Consolidation has rightly dismissed the revision for want of substitution and non-impleadment of necessary parties.7. I have considered the arguments advanced by the learned counsel for the parties and perused the record. The revisional power has been conferred upon the Deputy Director of Consolidation bySection 48of the Act, which reads as under :"48. Revision and reference. --(1) The Director of Consolidation may call for and examine the record of any case decided for 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 interlocutory order) passed by such authority in the case of proceedings and may, after allowing the parties concerned an opportunity of being heard, make such order in the case of 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 Sub-section (1).8. A perusal of aforesaid provision goes to show that it does not confer any right on any party to the proceeding before subordinate authorities to approach the Deputy Director of Consolidation by way of revision, rather it clothes the Deputy Director of Consolidation with the power to call for and examine the record of any case decided or proceedings taken by subordinate authorities, to satisfy himself as to the regularity of the proceedings or legality, correctness or propriety of any order. Only exception is that such powers cannot be exercised with regard to an interlocutory order.9. A Division Bench of this Court in case of Abdul Zunaid v. Deputy Director of Consolidation and Ors., 1972 ALJ 435 while interpreting the provision ofSection 48 (1)of the Act has held as follows :"Section 48 does not confer any right on a party to file an application in revision.--It confers a power on 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 to 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 under Section 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 ceases to be an actor on the scene. The specified authority who has called for the record becomes the actor on the scene. Accordingly he should examine the record and pass such an order which will advance justice."10. The same view has been taken by a learned single Judge in the case ofGaon Sabha v. Deputy Director, Consolidation and Anr., 1999 (2) AWC 1009.11. Thus, it is clear that power of Deputy Director of Consolidation conferred by Section 48 (1) are very wide and can be exercised suo motu. In view of the observation made by the Division Bench in the case of Abdul Zunaid v. Deputy Director of Consolidation (supra) once the record has been called for, the Deputy Director of Consolidation should not dismiss the revision on mere technicalities but should proceed to examine the record on merits and pass appropriate order to secure the ends of justice.12. There is another aspect of the matter, the Deputy Director of Consolidation is the last Court and looking into the finality attached to determination of the rights of the parties in consolidation proceedings, it is desirable that he should effectively, adjudicate the rights of the parties rather than enter into technicalities of the procedural irregularities. The effort should be to secure the proper adiministration of justice by determining the rights of the parties on merits rather than to dismiss their claim for mere procedural defects.13. The Apex Court in the case ofShiv Nand and Anr. v. Deputy Director of Consolidation, Allahabad and Ors., 2000 (3) SCC 103, has observed as follows :"20. The section gives very wide powers to the Deputy Director. It enables him either suo motu on his own motion or on the application of any person to consider the propriety, legality, regularity and correctness of all the proceedings held under the Act and to pass appropriate orders. These powers have been conferred on the Deputy Director in the widest terms so that the claims of the parties under the Act may be effectively adjudicated upon and determined so as to confer finality to the rights of the parties and the revenue records may be prepared accordingly."14. A perusal of the impugned judgment of Deputy Director of Consolidation goes to show that substitution application with regard to deceased Smt. Shakuntala was not entertained only on the ground that it was filed after start of argument. In my view, the reason given by Deputy Director of Consolidation for not accepting substitution application is totally absurd and against all cannons of established principles.15. The second reason for dismissing the revision as not maintainable on the ground that Smt. Kanta Devi and the heirs of Atma Ram were not impleaded as parties to the revision is also unsustainable. Smt. Kanta Devi filed objections claiming rights on the basis of adverse possession. Her objections were dismissed by the Consolidation Officer with a finding that she has failed to produce any oral or documentary evidence with regard to her possession. She never filed any appeal or revision against said order of the Consolidation Officer which became final as against her. After the judgment of Consolidation Officer there remained no lis between Smt. Kanta Devi and the petitioner, hence she was not a necessary party. Similarly, the heirs of Atma Ram never even filed any objection before the Consolidation Officer thus they were also not necessary parties.16. From perusal of the judgment of Deputy Director of Consolidation, it is clear that the revision was at the stage of arguments and thus entire record of the case would have been before him and it was not proper for him to have dismissed the revision on technical grounds, as held by Division Bench in the case of Abdul Zunaid (supra).17. From the foregoing discussions the impugned order passed by Deputy Director of Consolidation cannot be sustained and is liable to be set aside.18. In the result, the writ petition succeeds and is allowed in part. The order of Deputy Director of Consolidation dated 16.9.1980 (Annexure-4 to the writ petition) is quashed. The matter is remanded back to the Deputy Director of Consolidation for decision afresh after notice to the heirs of the deceased Smt. Shakuntala, respondent No. 2.19. It is made clear that no opinion has been expressed by me on the merits, of the claim of the petitioner or the legality of the orders passed by Consolidation Officer and Settlement Officer. The claim of the petitioner shall be considered and decided by the Deputy Director of Consolidation on its own merits in accordance with law.