Allahabad High Court
Umesh Chandra Asthana And 3 Others vs Deputy Director Of Consolidation-Ii, … on 16 April, 2025
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:21419
Court No. - 7
Case :- WRIT - B No. - 333 of 2025
Petitioner :- Umesh Chandra Asthana And 3 Others
Respondent :- Deputy Director Of Consolidation-Ii, Hardoi And Others
Counsel for Petitioner :- Prashant Pandey,Virendra Prakash Pandey
Counsel for Respondent :- C.S.C.,Dilip Kumar Pandey
Hon'ble Saurabh Lavania,J.
1. Heard Shri Prashant Pandey, learned counsel for the petitioners, Shri Hemant Kumar Pandey, learned Standing Counsel for the State and perused the record.
2. Issuance of notice to opposite party Nos.4 to 19 is hereby dispensed with liberty to the opposite party Nos. 4 to 19 to file an appropriate recall application of this order, if aggrieved by this order. It is for the following reason (s) :-
(a) without entering into the merits of the case, in the light of settled principle related to power of Deputy Director of Consolidation (in short “D.D.C.”) under Section 48 of the U.P. Consolidation of Holdings Act, 1953 (in short “Act of 1953”), this Court is remanding the matter to D.D.C. for deciding the same on merits;
(b) issuance of notice would unnecessary delay the proceedings in issue; and
(c) the settled principle related to power of D.D.C. under Section 48 of the Act of 1953 could not be refuted by the present opposite parties.
3. The instant petition has been preferred seeking following main relief:-
“(i) issue, a writ order or direction in the nature of Certiorari quashing the impugned order dated 31.1.2025, passed by the opposite party No.1 and order dated 19.2.2016, passed by the opposite party No.2, contained in Annexure No.1 and 2 to this writ petition.
(ii) issue, a writ order or direction in the nature of Mandamus commanding the respondents not to create any hindrance in peaceful possession of petitioners over the land in question in any manner.”
4. By means of this petition, the petitioner has assailed the order dated 31.01.2025, passed in Revision No.0086 of 2019 (Umesh Chandra Bahadur Versus Ram Kumar), under Section 48 (1) of the Act, 1953, whereby the opposite party No.1/Deputy Director of Consolidation-II, Hardoi (in short ‘DDC’), remanded the matter back to the Consolidation Officer concerned for deciding the case afresh after providing opportunity of hearing to the parties to the litigation. The relevant portion of the order dated 31.01.2025 is quoted hereunder for ready reference:-
“मैंने पत्रावली का विधिवत अवलोकन किया। पत्रावली के अवलोकन से स्पष्ट है कि चकबन्दी अधिकारी ने खाता संख्या 105 के गा०सं० 87/1मि०/1.040, 88/1/0.300, 133/0.380 आदि गाटे ग्रामसमाज से खारिज होकर कृष्णचन्द्र, उमेशचन्द्र, सुरेशचन्द्र, रमेशचन्द्र पुत्रगण लोकेन्द्र बहादुर के नाम सं०भू० अंकित किया है तथा ग्रामसमाज की आपत्ति निरस्त की गई है। च०अ० के आदेश के अवलोकन से स्पष्ट है कि च०अ० के आदेश में कहीं भी यह स्पष्ट नहीं है कि पक्षों को सुनकर गुण-दोष पर निर्णय पारित किया गया है।
मैंने ब०अ०च० के आदेश का भी अवलोकन किया। ब०अ०च० ने आदेश में लिखा है कि च०अ० द्वारा सरसरी तौर पर आदेश पारित किया गया है। ग्रामसमाज का नाम निरस्त किया गया है कोई विवेचना भी नहीं की गयी है कि थानगांव की उक्त भूमि कब लोकेन्द्र बहादुर के नाम अंकित थी और उनका नाम निरस्त होने के बाद, किसके आदेश से ग्रामसमाज में निहित हुई। ब०अ०च० ने यह भी लिखा है कि उक्त भूमि परगनाधिकारी के आदेश दिनांक 21.09.1987 के द्वारा ग्रामसमाज में निहित हुई है, परन्तु उक्त आदेश किस दिनांक को निरस्त किया गया का कोई उल्लेख नहीं है। जबकि च०अ० ने अपने आदेश में उक्त आदेश दिनांक 01.09.1993 को निरस्त किये जाने का उल्लेख किया है। ग्राम में दिनांक 11.11.1993 को धारा-9 के उपरान्त स०च०अ० के समक्ष आपत्ति प्रस्तुत की गई थी तब उसके उपरान्त तहसील में दिनांक 01.06.1993 को दौरान चकबन्दी जो आदेश पारित किया गया वह क्षेत्राधिकार विहीन है। पत्रावली पर ऐसा कोई भी साक्ष्य उपलब्ध नहीं है कि उक्त परगनाधिकारी सण्डीला के वाद संख्या 191 धारा-222बी0/209 जो०च०अधि० में दिनांक 01.06.1993 के उपरान्त अन्तिम निर्णय कब पारित किया गया। च०अ० ने अपने आदेश में ग्रामसमाज से भूमि खारिज करके का आदेश किया है तथा पत्रावली में सामान्य तिथियां 24.03.2000 तक की अंकित की गई है। जबकि आदेश 28.04.2000 को पारित किया गया है। पत्रावली पर 28.04.2000 के लिये कोई तिथि नियत नहीं है और न ही कोई फर्देएहकाम उपलब्ध है।
उक्त आधारों पर ही ब०अ०च० ने पक्षों से साक्ष्य सबूत लेकर गुण-दोष के आधार पर निर्णय हेतु वाद को प्रत्यावर्तित किया है। ब०अ०च० द्वारा पारित आदेश से किसी पक्ष को कोई हानि नहीं है। उभय-पक्षों को साक्ष्य एवं सुनवाई का समुचित अवसर प्राप्त है। ऐसी दशा में ब०अ०च० के आदेश में किसी भी प्रकार के हस्ताक्षेप की आवश्यकता नहीं प्रतीत होती है। तद्नुसार प्रस्तुत निगरानी निरस्त किये जाने योग्य है। उपरोक्त विवेचना के आधार पर आदेश हुआ कि-
आदेश
निगरानी संख्या-34/2025 उमेशचन्द्र आदि बनाम रामकुमार आदि ग्राम-थानगांव, परगना-कल्यानमल, तहसील सण्डीला, जिला हरदोई निरस्त की जाती है। पत्रावली पर यदि कोई स्थगन आदेश हो तो निरस्त किया जाता है। अवर न्यायालय की पत्रावली वापस भेजी जाये।
पत्रावली बाद आवश्यक कार्यवाही दाखिल-दफ्तर हो।”
5. From the order impugned dated 31.01.2025, including the above quoted portion of the same it is apparent that the D.D.C. has to provide only proper opportunity of hearing to the parties to the litigation and thereafter he has to pass a reasoned order on each issue.
6. While assailing the impugned order dated 31.01.2025, learned counsel for the petitioners stated that the order of remand, under challenge, dated 31.01.2025 is unsustainable in the eye of law, in view of the various pronouncements/judgments and language considered under Section 48 of the Act of 1953. As such, indulgence of this Court is required in the matter.
7. In continuation, it is further stated that all the material was available before the Deputy Director of Consolidation and the Act, 1953 itself provides wide power to the Deputy Director of Consolidation, as appears from the language considered under Section 48 of the Act of 1953, including the explanation (s) therein and he ought to have decided the case of the parties on merits after providing proper opportunity of hearing to them. Thus, the opposite party No.1 erred in law and fact while passing the order impugned dated 31.01.2025.
8. Sri Hemant Kumar Pandey, learned Standing Counsel for the State/opposite party No.1 assisted this Court on the issue involved in the present petition. He also could not dispute the power of opposite party No.1 under Section 48 of the Act of 1953.
9. Considered the submissions advanced by the learned counsel for the parties and perused the record.
10. In order to decide the present petition, this Court feels it appropriate to reproduce Section 48 of the Act of 1953, which is 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, 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 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 proceeding, means such order deciding any matter arising in such case or proceeding or collateral thereto as does not have the effect to finally disposing of such case or proceeding.
[Explanation (3). – The power under this section to examine the correctness, legality or propriety of any order includes the power to examine any finding, whether of fact or law, recorded by any subordinate authority, and also includes the power to re-appreciate any oral or documentary evidence.]
11. At this stage, it is also appropriate to refer various pronouncements on the scope/power of Deputy Director of Consolidation under Section 48 of the Act of 1953.
12. In the judgment dated 24.09.2014 passed by this Court in the case of Ram Udit v. D.D.C. reported in MANU/UP/1768/2014, this Court considering the Scheme of the Act of 1953 and Section 48 observed as under:-
“10. The Scheme of the statute contemplates a tentative plan, inviting objection from stake-holder, i.e. tenure holder, and, after considering the same, finalization of plan, i.e., allotment of Chaks. There against appellate power has been conferred upon SOC under Section 21(2) of Act 1953. The power which is exercised by DDC, is termed “Revision and reference” under Section 48 of Act, 1953.
11. The original Section 48, as enacted initially, read as under:
“48. Revision.-Director of Consolidation may call for the record of any case if the Officer (other than the Arbitrator) by whom the case was decided appears to have exercised a jurisdiction not vested in him by law or to have failed to exercise jurisdiction so vested, or to have acted in the exercise of his jurisdiction illegally or with substantial irregularity and may pass such orders in the case as it thinks fit.”
12. It was amended by substitution by U.P. Act No. 24 of 1956 as under:
“48. Powers of Director of Consolidation to call for records and to revise orders.-The Director of Consolidation may call for the record of any case or proceeding if the Officer (other than the Arbitrator) by whom the case was decided or proceeding taken appears to have exercised jurisdiction not vested in him by law or to have failed to exercise jurisdiction so vested, or to have acted in the exercise of his jurisdiction illegally or with substantial irregularity and may pass such orders in the case as it thinks fit.”
(amendment in bold)
13. Within a short period, it was again amended by U.P. Amendment Act No. 38 of 1958 as under:
“48. Revision.-The Director of Consolidation may call for the record of any case decided or proceedings taken, where he is of opinion that a Deputy Director, Consolidation has –
(i) exercised jurisdiction not vested in him in law, or
(ii) failed to exercise jurisdiction vested in him, or
(iii) acted in the exercise of his jurisdiction illegally or with substantial irregularity, and as a result of which, substantial injustice appears to have been caused to a tenure-holder and he may 4, after affording reasonable opportunity of hearing to the parties concerned, pass such order in the case or proceeding as he thinks fit.”
(amendment in bold)
14. Section 48 underwent a minor amendment vide Section 39 of U.P. (Amendment) Act No. VIII of 1963. An Explanation was added by Act No. 4 of 1969 with retrospective effect. Major amendment came to be made by U.P. Act No. 20 of 1982 inasmuch as, in sub section(1) the words “other than an interlocutory order” were inserted w.e.f. 10.11.1980. The explanation inserted in 1969 was re-numbered as Explanation- (1) by Act No. 20 of 1982 w.e.f. 10.11.1980 and then Explanation(2) was added w.e.f. 10.11.1980.
15. Presently, Section 48 reads 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 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 subsection (1).
Explanation (1)-For the purposes of this section, Settlement Officer, Consolidation, Consolidation Officers, Assistant Consolidation Officers, Consolidator and Consolidation Lekhpals shall be subordinate to the Director of Consolidation.
Explanation (2). For the purpose 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.
Explanation (3).-The power under this section to examine the correctness, legality or propriety of any order includes the power to examine any finding, whether of fact or law, recorded by any subordinate authority, and also includes the power to re-appreciate any oral or documentary evidence.”
(emphasis added)
16. Section 48 as it was initially enacted came to be considered in Sher Singh (dead) Vs. Joint Director of Consolidation and others MANU/SC/0514/1978 : (1978) 3 SCC 172. The Court observed that a bare reading show that it is pari materia with Section 115 CPC which confines revisional jurisdiction of High Court to cases of illegal or irregular exercise or non exercise or illegal assumption of jurisdiction by subordinate Courts. If a subordinate court is found to possess the jurisdiction to decide a matter, it cannot be said to exercise it illegally or with’ material irregularity even it decides the matter wrongly. Relying on the cases interpreting Section 115 CPC, the Court held that whatever revisional jurisdiction was available to High Court under Section 115, the same was the scope of revisional jurisdiction of DDC under Section 48 and it has no jurisdiction to go into errors of facts. The Court said that an erroneous decision on a question of fact or of law reached by subordinate court which has no relation to question of jurisdiction of that court, cannot be corrected by High Court under Section 115 CPC and same would apply to DDC under Section 48. The Court further observed that consolidation authorities subordinate to Joint Director possess plenary jurisdiction and competence to go into the question of correctness or otherwise of entries in revenue records. If there are concurrent findings of fact of two Courts, which do not leave any ground, as observed above, in revisional jurisdiction, interference by Joint Director of Consolidation would not be competent. In para 16 of the judgment, the Court said:
“Thus the subordinate Consolidation authorities not having acted illegally in exercising their jurisdiction, the Joint Director of Consolidation was not competent to interfere with their decisions.”
17. Section 48 as amended in 1963 then came to be considered in Ramakant Singh Vs. Deputy Director of Consolidation, U.P. and others MANU/UP/0026/1975 : AIR 1975 All 126 but therein the Court while considering Section 48(1), to the question, whether Deputy Director of Consolidation, once has called for record, is it incumbent on him to decide the matter on merit or it can decline and dismiss the revision on any technical ground like lack of impleadment of proper party etc.
18. Amended section 48 in 1963, then came to be considered in Shanti Prakash Gupta Vs. DDC 1981 SCC (Suppl) 73. Therein the Court observed that Section 48 as then stood, vide amendment of 1963, was wider than Section 115 CPC. However, it proceeded to hold that Director should not lightly interfere with discretion of C.O. unless the order sought to be reversed is palpably erroneous or likely to cause miscarriage of justice. To the same effect and imposing similar restriction, observations were made in Ram Dular Vs. Dy. Director of Consolidation MANU/SC/1004/1994 : (1994) Supp(2) SCC 198 as under:
“It is clear that the Director had power to satisfy himself as to the legality of the proceedings or as to the correctness of the proceedings or correctness, legality or propriety of any order other than interlocutory order passed by the authorities under the Act. But in considering the correctness, legality or propriety of the order or correctness of the proceedings or regularity thereof it cannot assume to itself the jurisdiction of the original authority as a fact-finding authority by appreciating for itself of those facts de novo. It has to consider whether the legally admissible evidence had not been considered by the authorities in recording a finding of fact or law or the conclusion reached by it is based on no evidence, any patent illegality or impropriety had been committed or there was any procedural irregularity, which goes to the root of the matter, had been committed in recording the order or finding.”
19. A slight different observation came to be made in Preetam Singh Vs. Assistant Director of Consolidation and others MANU/SC/0742/1996 : (1996) 2 SCC 270 where the Court said:
“When the matter was in revision before the Assistant director (Consolidation), he had the entire matter before him and his jurisdiction was unfettered. While in seisin of the matter in his revisional jurisdiction, he was in complete control and in position to test the correctness of the order made by the Settlement Officer (Consolidation) effecting remand. In other words, in exercise of revisional jurisdiction the Assistant Director (Consolidation) could examine the finding recorded by the Settlement Officer as to the abandonment of the land in dispute by those tenants who had been recorded at the crucial time in the Khasra of 1359 Fasli. That power as a superior court the Assistant Director (Consolidation) had, even if the remand order of the Settlement Officer had not been specifically put to challenge in separate and independent proceedings. It is noteworthy that the Court of the Assistant Director (Consolidation) is a court of revisional jurisdiction otherwise having suo moto power to correct any order of the subordinate officer. In this situation the Assistant Director (Consolidation) should not have felt fettered in doing complete justice between the parties when the entire matter was before him. The war of legalistics fought in the High Court was of no material benefit to the appellants. A decision on merit covering the entire controversy was due from the Assistant Director (Consolidation). (para-6)
(emphasis added)
20. Yet in Ram Avtar Vs. Ram Dhani, MANU/SC/0034/1997 : AIR 1997 SC 107, the Court, in para 8, observed:
“This Court has repeatedly pointed out that howsoever wide the power under statutory revision may be in contrast to Section 115 of the Code of Civil Procedure, still while exercising that power the authority concerned cannot act as a Court of appeal so as to appreciate the evidence on record for recording findings on question of fact.”
21. These observations again put the things in the shape bringing the scope of jurisdiction under Section 48 nearer to jurisdiction as contained in Section 115 CPC.
22. Section 48(1) as it stood before its amendment in 1963 and subsequent thereto, both came to be noticed in Sheshmani and another vs. The Deputy Director of Consolidation, District Basti, U.P. and others MANU/SC/0079/2000 : 2000(2) SCC 523. Referring to earlier decision in Sher Singh Vs. Joint Director of Consolidation (supra) and Ram Dular Vs. DDC (supra) and the intervening amendment, the Court followed the observations made in Ram Dular, as noticed above and then upheld the order passed by DDC holding that orders of CO. and Additional Settlement Consolidation Officer were against settled principles of law, therefore, DDC was justified in exercise of revisional power, for coming to a different conclusion.
23. It is in these circumstances, Legislature intervened by inserting Explanation-3, by U.P. Act No. 3 of 2002, giving effect from 10.11.1980 but in Karan Singh Vs. DDC 2003(94) RD 382 this Court said that even after addition of Explanation-3, DDC cannot substitute its own finding in place of subordinate authorities.
24. Recent decision in Jagdamba Prasad Vs. Kripa Shankar MANU/SC/0274/2014 : (2014) 5 SCC 707 which has also considered Section 48 as amended in 1963, in para 15, following the earlier decision in Sher Singh Vs. Joint Director of Consolidation (supra) it has said:
“15. According to the legal principle laid down by this Court in the case mentioned above, the power of the Revisional Authority under Section 48 of the Act only extends to ascertaining whether the subordinate courts have exceeded their jurisdiction in coming to the conclusion. Therefore, if the Original and Appellate Authorities are within their jurisdiction, the Revisional Authority cannot exceed its jurisdiction to come to a contrary conclusion by admitting new facts either in the form of documents or otherwise, to come to the conclusion. Therefore, we answer point no. 1 in favour of the appellants by holding that the Revisional Authority exceeded its jurisdiction under Section 48 of the Act by admitting documents at revision stage and altering the decision of the subordinate courts.”
25. It is thus difficult to observe that Explanation III to Section 48 has brought the scope of revision at par with the appellate jurisdiction so as to assess the evidence on pure issue of fact and recording findings de novo. Revisional power is not a power of first or second appellate Court which are final Courts of fact and findings recorded therein would be possible to be interfered under Section 48 on the ground discussed in Ram Dular (Supra), Sheshmani (Supra) and Jagdamba Prasad (supra).
26. Impugned orders in these matters are all subsequent to 1980 and, therefore, could be governed by aforesaid provision as it is. Sub Section (1) of Section 48 in effect deals revisional power while sub sections (2) and (3) relate to reference made by an authority subordinate to Director of Consolidation. From a bare and plain reading of Section 48(1) it is evident that Director of Consolidation has been given power to call for and examine any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself (i) to the regularity of the proceedings and (ii) to the correctness, legality or propriety of any order.”
13. In the judgment dated 18.06.2015 passed in Writ Petition No. 436 (Consolidation) of 2015 (Prem Nath and others vs. D.D.C., Barabanki and others), this Court observed as under:-
“Appeal under Section 11 and Revision under Section 48 of Act 1953 are two distinct statutory remedies. The scope of the two remedies is also different. Powers of revision under Section 48 and appeal under Section 11 are distinct. The appellate powers are of wider amplitude. Howsoever wide the power under Section 48 may be, even after amendment made in the year 2002, it does not permit the revisional authority to summon the records and decide the merits of an appeal pending before the SOC under Section 11 without the appellate authority having passed any order deciding the appeal or an order deciding any matter which has the effect of disposing of the appeal. Such action is destructive of the statutory remedy of appeal under the Act 1953. No doubt, the DDC has suo moto powers under Section 48 but it does not mean that he can call for the record of appeal pending before the SOC and decide the same on merits without the appellate authority having decided the same. Reference may be had in this regard to a decision of this Court in the case of Ranjeet and others Vs. Dy. Director of Consolidation Ballia and others reported in 1999(90) RD 363 wherein during pendency of appeal against an order of subordinate authority a revision was filed before the DDC under Section 48 against the same order. Reliance was placed by the respondents therein upon various decision including a Full Bench decision of this Court in the case of Ramakant Singh Vs. Deputy Director of Consolidation, reported in 1974 (suppl.) RD 262. This Court, after considering the said Full Bench and other decisions, held as under:–
“6. The facts of these three cases relied upon by the learned counsel for the respondent no. 2 are different, in all these three cases the appeal before the Settlement Officer was not pending, in the instant case, as seen above the appeal and cross-appeals were pending before the Settlement Officer (Consolidation), the petitioners specifically urged before the Deputy Director of Consolidation that in view of the pendency of the appeal, the revision was not maintainable. The present case is a case where the jurisdiction exercised by the Deputy Director of Consolidation is destructive of the statutory remedy of appeal and it is a fit case which calls for interference in petitions under Articles 226/227 of the Constitution of India.”
In another case reported in [2007 (102) RD 250] Chhakku Ram and others Vs. Deputy Director of Consolidation, Varanasi and others a revision was filed under Section 48 challenging the order of SOC dismissing the appeal on the ground of limitation. The issue was as to whether while considering validity of the order passed by the SOC the revisional authority could have considered and decided the merits of the controversy also. This Court again after considering the Full Bench decision in Ramakant Singh‘s case (supra) held as under:–
“3. Counsel for the respondents Sri Sankatha Rai assisted by Sri Pradip Rai made two submissions on the point of maintainability. First that even if the Deputy Director of Consolidation has not given any specific finding regarding the condonation of delay the delay would be deemed to have been condoned by him when he entered into the merits of the case. On this point he relied a decision in M. B. Shah V. B. N. Agarwal (AIR 2002 SC 451). This decision has no application to the present case. It is not in dispute that the revision, which was filed by respondent No. 2 was within time against the order of the Settlement Officer Consolidation. It was the appeal before the Settlement Officer Consolidation, which had been dismissed on the ground of limitation. It is also submitted that the record of the case was before the Deputy Director of Consolidation and he could, therefore, decide the case on merits. In support reliance is placed upon the Full Bench decision of this Court in Ramakant Singh V. Deputy Director of Consolidation (AIR 1975 Alld. 126). In that case the question referred was whether after the record is called for under section 48 the Deputy Director of Consolidation can dismiss the revision for non-impleadment of a necessary party in the memorandum of revision or he can decide the case after hearing the party not impleaded. It was held that after the record has been examined the Deputy Director of Consolidation can exercise the revisional jurisdiction suo moto and take appropriate decision after hearing the affected parties. The Full Bench further holds that if the revision application is not defective the exercise of the revisional jurisdiction shall be at the instance of the parties and not suo moto. In the present case the revision was not defective. The exercise of jurisdiction was therefore at the instance of the petitioner and not suo moto. The Deputy Director of Consolidation was therefore required to examine the correctness of the order of the Settlement Officer Consolidation dismissing the appeal on the ground of limitation, which was the order challenged and not the merits of the chak allotment. Counsel for the petitioners relied upon a decision of this Court in Bashir Ahmad Khan V. Deputy Director of Consolidation, Ghazipur and others (2005(98) RD 378) in which this Court in similar circumstances has taken the view that the proper course for the Deputy Director of Consolidation in a revision against an order of Settlement Officer Consolidation dismissing the appeal on the question of limitation is to examine the correctness of that order. It appears from the facts and circumstances of this case too the proper course to be adopted by the Deputy Director of Consolidation was to examine the correctness of the order of the Settlement Officer Consolidation, which he failed to do. As regards the merits also I find that the order of the Deputy Director of Consolidation cannot be sustained. The contention of the learned counsel for the petitioners is that the loss, which would be occasioned to the petitioners by the modification in the chaks made by the Deputy Director of Consolidation has not been considered. Reliance is placed upon the averments made in paragraph 6 of the writ petition in which it is stated that there is a house of the petitioner No. 2 adjoining plot No. 368. If it be true that the petitioner No. 2 does have his house adjoining plot No. 368 it would be a circumstance in favour of the petitioner No. 2 for allotment of a chak near his abadi. No opinion, however, is being expressed by this Court upon this point as it is proposed to remand the case to the Deputy Director of Consolidation for fresh decision.”
In the case at hand there has been no adjudication by the SOC either of the appeal in entirety or of any matter/issue. Even after amendment in the year 2002 and addition of explanation 3 to Section 48 the revisional authority is not empowered to adopt the course of action as done by him in this case. Explanation 3 only empowers him to enter into the question of fact to examine any finding recorded by the subordinate authority whether on fact or law and in this context it includes the power to re-appreciate the evidence for the purpose of examination of correctness, legality or propriety of any such finding. It does not mean that the revisional authority can call for the records of the appellate authority and decide the appeal himself in exercise of his revisional powers without any finding having been recorded by the appellate authority or appeal itself having been decided. Reference may be made in this regard to the pronouncement made by this Court in the case of Karan Singh (Dead) Through L. Rs. Vs. Deputy Director of Consolidation, Aligarh and others, reported in [2003(94) RD 382 wherein after noticing the decision of the apex court in Gaya Deen (D) through L.Rs and others Vs. Hanuman Prasad (D) through L. Rs and others reported in [2001 (92) RD 79 (SC) as also the amendment of 2002 the Court held in para 6 as under:–
“…… The amendment of Section 48 of the Act has widened the scope of the powers of the Deputy Director of Consolidation. It has given power to him to reappraise the evidence but it nowhere provided that the Deputy Director of Consolidation will have jurisdiction to reverse the findings recorded by the authorities below and can substitute his own findings. The Apex Court in Gaya Din (D) through L.Rs. and others Vs. Hanuman Prasad (D) through L.Rs. and others [(2001(92) RD 79 (SC)] specifically laid down that the Deputy Director of Consolidation has got no jurisdiction to act as the Consolidation Officer or the Settlement Officer Consolidation, otherwise there will remain no difference in the powers of the Consolidation Officer, the Settlement Officer Consolidation and the Deputy Director of Consolidation while dealing with the cases originally, in appeal and revision. In case the Deputy Director of Consolidation was of the opinion that the findings recorded were bad in law, he could set aside the same after reappraisal of the evidence and could remand the case for decision afresh.”
Reference may also be made to another decision of this Court in the case of Bashir Ahmad Khan (D) through L. Rs. V. Deputy Director of Consolidation and others reported in 2005(1) AWC 924 (Alld) wherein the question which arose for consideration was regarding jurisdiction of the revisional authority to decide a revision challenging the order of the appellate authority dismissing the appeal on the ground of limitation, on merits. A learned single Judge of this Court referring to a Division Bench judgment of this Court in the case of Tirath V. Joint Director of Consolidation reported in 1985 RD 276 held as under:–
“10. A Division Bench of this Court vide judgment in the case of Tirath V. Deputy Director of Consolidation (supra), answered the question in negative. While repealing the contention that authority exercising the power under Section 48 of the Act have very wide power including suo moto power and can look into the record and if there is any defect it can be corrected by him, it was observed by the Division Bench as follows:
“In this view of the matter, the revisional authority was called upon to examine the record of the case as it pertain to the appeal before appellate authority. The principal reason given by the appellate authority for dismissing the appeal was that it was barred by time. The revisional authority had to see whether the order was justified in law or not. It had to examine whether any application has been made for condonation of delay and whether any adequate reason has been given for the same or not, and whether the order dismissing the appeal as time barred was justified in the circumstances of the case and we would observe here that in a revision under Section 48 (1) of the Act where there is no defect in the revision itself to merit its rejection in limine, the revisional authority has to confine itself to the decision in the appeal and the ground given for the decision in that order. We are further of the opinion that it was not open to the revisional authority to go into the question of merits while exercising the powers conferred under Section 48 (1) in the above circumstances.”
The law laid down by the Division Bench in the case of Tirath V. Deputy Director of Consolidation (supra) is squarely applicable to the facts of this case.
11. In the present case also the order passed by Settlement Officer Consolidation was not an adjudication of the claim of the parties on merits, but an order dismissing the appeal as barred by limitation. The Deputy Director of Consolidation without considering the legality or otherwise, of the order passed by the Settlement Officer Consolidation and without setting aside his findings straightway proceeded to decide the revision on merits. It was incumbent upon the Deputy Director of Consolidation to have considered the order of Settlement Officer Consolidation refusing to condone the delay in filing the appeal on its own merit and if satisfied about the sufficiency of the ground for delay ought to have set aside the order of the Settlement Officer Consolidation dismissing the appeal as time barred and remand the case back to him to be decided on merits. It was not open to him to proceed and decide the revision on merits.”
Thus clearly the scope of revision under Section 48 and that of appeal under Section 11 being different and two separate statutory remedies having been provided, there being no adjudication of the appeal nor of any substantial issue involved therein by the appellate authority, it was not open for the Deputy Director of Consolidation to decide the merits of the pending appeal in exercise of his powers under Section 48. It was clearly not the scope of revision except to the limited extent pointed out hereinabove. The entire dispute was not available for adjudication before the revisional authority. The revision itself was not maintainable as the orders impugned were purely interlocutory.”
14. This Court in the judgment dated 30.04.2019 passed in the case of Gulab Chand v. D.D.C. reported in 2019 SCC OnLine All 4756 has observed as under:-
“14. This Court has given a thoughtful consideration to rival submissions advanced on both sides. It is true, no doubt, that powers of the Deputy Director of Consolidation under Section 48 of the Act have always been regarded as wide, though inhibited in some regard, being a Court of Revision. The import of the powers of the Deputy Director of Consolidation under Section 48 of the Act as they have been always understood has been succinctly laid down by the Supreme Court in Sheo Nand v. Deputy Director of Consolidation, Allahabad, (2000) 3 SCC 103, where in para graphs 20 & 21 of the report, it has been held:
“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.
21. Normally, the Deputy Director, in exercise of his powers, is not expected to disturb the findings of fact recorded concurrently by the Consolidation Officer and the Settlement Officer (Consolidation), but where the findings are perverse, in the sense that they are not supported by the evidence brought on record by the parties or that they are against the weight of evidence, it would be the duty of the Deputy Director to scrutinise the whole case again so as to determine the correctness, legality or propriety of the orders passed by the authorities subordinate to him. In a case, like the present, where the entries in the revenue records are fictitious or forged or they were recorded in contravention of the statutory provisions contained in the U.P. Land Records Manual or other allied statutory provisions, the Deputy Director would have full power under Section 48 to reappraise or re-evaluate the evidence-on-record so as to finally determine the rights of the parties by excluding forged and fictitious revenue entries or entries not made in accordance with law.”
15. The Supreme Court in the case of Sheo Nand vs. D.D.C., Allahabad, (2000) 3 SCC 103 also said that, “it would be the duty of the Deputy Director to scrutinise the whole case so as to determine the correctness, legality or propriety of the orders passed by the authorities subordinate to him.” Paragaraphs 20 to 22 of the aforesaid judgment are extracted herein below :-
“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.
21. Normally, the Deputy Director, in exercise of his powers, is not expected to disturb the findings of fact recorded concurrently by the Consolidation Officer and the Settlement Officer (Consolidation), but where the findings are perverse, in the sense that they are not supported by the evidence brought on record by the parties or that they are against the weight of evidence, it would be the duty of the Deputy Director to scrutinise the whole case again so as to determine the correctness, legality or propriety of the orders passed by the authorities subordinate to him. In a case, like the present, where the entries in the revenue records are fictitious or forged or they were recorded in contravention of the statutory provisions contained in the U.P. Land Records Manual or other allied statutory provisions, the Deputy Director would have full power under Section 48 to reappraise or re-evaluate the evidence-on-record so as to finally determine the rights of the parties by excluding forged and fictitious revenue entries or entries not made in accordance with law.
22. If, therefore, during the course of the hearing of the revision filed by the appellant under Section 48 of the Act, the Deputy Director reopened the whole case and scrutinised the claim of the appellants in respect of two other villages, it could not be said that the Deputy Director exceeded his jurisdiction in any manner. It will be noticed that while scrutinising the evidence-on-record, the Deputy Director had noticed that the entries were fictitious and in recording some of the entries in the revenue records in favour of the appellants, statutory provisions including those contained in the U.P. Land Records Manual were not followed. In that situation, the Deputy Director was wholly justified in looking into the legality of the entire proceedings and disposing of the revision in the manner in which he has done.”
16. Regarding the scope of the revisional powers of the Deputy Director of Consolidation under Section 48 of the Act, 1953 this Court in Ram Jeet v. Deputy Director of Consolidation, Jaunpur and others, Writ – B No. 42465 of 1999, decided on 31.05.2013, observed as under:-
“17. ……….. Supreme Court in Ram Dular v. DDC, 1994 Supp (2) SCC 198, Preetam Singh v. DDC, (1996) 2 SCC 270, Sheo Nand v. DDC, (2000) 3 SCC 103, Gulzar Singh v. DDC, (2009) 12 SCC 590 has consistently held that Deputy Director of Consolidation has very wide power to decide issue relating to fact and law both under Section 48 of the Act after re-appreciating the evidence on record. Apart from it Explanation III has been added in Section 48 of the Act with retrospective effect from 10.11.1980 which provides that the power under this Section to examine the correctness, legality or propriety of any order includes the power to examine any finding, whether of fact or law, recorded by any subordinate authority and also includes the power to re-appreciate any oral or documentary evidence. The case law relied upon by the counsel for the petitioner does not hold a good law and contrary to the decision of the Supreme Court.”
17. As in this case, the remand order passed by Deputy Director of Consolidation is in issue, this Court also feels it appropriate to refer some judgments on this aspect.
18. In the case of Bashir Ahmad Vs. DDC reported in 1986 RD 164, it has been held that an order remanding the case to the Consolidation Officer when the entire evidence was before him was not proper and the DDC should have decided the matter himself as he was exercising very comprehensive power under section 48 of the Act.
19. In the judgment rendered in the case of Ram Autar and others vs. Deputy Director of Consolidation and others, 1991 Supp (1) SCC 552, the Supreme Court has observed that the High Court should have remanded the matter to the Deputy Director of Consolidation and not to the Consolidation Officer as that would have saved the parties from fighting at three stages and would have expedited the final disposal of the matter. The question before the Supreme Court was with regard to the objections under Section 9-A of the U.P. Consolidation of Holdings Act being decided by the Consolidation Officer in favour of one party against which, the other party went in appeal. In the appeal, the objections that were rejected by the Consolidation Officer, were said to be valid objections and were allowed. The appellants after unsuccessfully moving the Deputy Director of Consolidation in revision filed a writ petition before the High Court, which was dismissed by the Writ Court and the appellants thereafter filed an appeal, which was also dismissed by the Division Bench. The Supreme Court observed that the case of the respondents was that no notice was ever sent to them at the final stage when the order was passed in favour of the appellants and without hearing the order being ex-parte, ought to have been set aside and the matter was rightly remanded. The Supreme Court, however, observed that the High Court should have remanded the matter to the Deputy Director of Consolidation and not to the Consolidation Officer as that would have saved the parties from fighting at three stages before the revenue officers and would have expedited the final disposal of the case.
20. Further, the Supreme Court in the judgment passed in the case of Ashwin Kumar Patel vs. Upendra J. Patel, AIR 1999 SC 1125, observed that exercising power of remand is a luxury exercise of jurisdiction. The Court should refrain from remanding the case and should make endeavour to decide the case finally instead of remanding the case.
21. This Court again in the case of Bhagwat Prasad Vs. DDC reported in 2006 RD (101) 383 has held that the revisional court is fully empowered to examine the findings on fact or on law and there is no need to remand the case. Under the circumstances, directions were issued to the revisional court to decide the revision itself. Same view has been taken in the case of Pheku Vs. DDC reported in 2007 RD (103) 402.
22. In the Case of Sitaram Vs. DDC reported in 2007 RD (102) 113, this Court set aside the order of remand and directed the DDC to decide the matter himself after taking additional evidence, if necessary.
23. In the case of Babu Lal Vs. DDC reported in 2008 RD (104) 521, this Court has held that order of remand is to be resorted to in very exceptional cases/ circumstances as it consumes precious time of the Court and causes monetary loss to both sides, besides unwarranted harassment.
24. In the case of Sheikh Nathu Vs. DDC, (2009) 106 RD 96, this Court has found that the Consolidation Officer and the Settlement Officer of Consolidation on the basis of the material available on record held the objection of the respondents to be meritless. The DDC remanded the matter without setting aside the findings of the subordinate authorities. This Court, therefore, held that this order of remand amounted to giving a fresh lease of life to the litigation and that remand order should not be passed in a routine manner.
25. In Deena Nath and others vs. Deputy Director of Consolidation and others, 2010 (110) RD 584, wherein it has been held that an order of remand cannot be treated as an interlocutory order within the meaning of Explanation-2 of Section 48 of the Act and a revision was maintainable and also observed that since the entire record was available, instead of remanding the matter, it should have been decided on merits by the revisional court.
26. A coordinate Bench of this Court in Writ-B No.4377 of 2014 (Santosh Kumar vs. D.D.C. and others), decided on 29.1.2014, has observed that in case the order of the Settlement Officer of Consolidation suffered from errors, the Deputy Director of Consolidation could have considered the matter on his own and passed suitable orders instead of remanding the case. The remand of the case causes delay and prolongs litigation as well as harassment to the parties.
27. A coordinate Bench of this Court in Vijay Nath and others vs. Deputy Director of Consolidation and others, 2019 (9) ADJ 85, has observed that after insertion of Explanation 3 to Section 48 of the Act, the Deputy Director of Consolidation is empowered to examine any finding whether of fact or law recorded by the subordinate authority and also to reappreciate any oral or documentary evidence. This Court has observed that instead of remanding the matter to the Consolidation Officer, the Deputy Director of Consolidation should have exercised his jurisdiction under Section 48 (3) and should have decided the matter on merits.
28. In the judgment dated 06.05.2014 passed in Writ-B No. 23608 of 2014 (Ram Sewak and others vs. D.D.C. and others), this Court refused to interfere in the order of remand after observing as under:-
“It is admitted case that two separate wills were set up by the parties. The objection was decided by the Asstt. Consolidation Officer (The ACO) on the basis of a compromise. It is settled legal position that the Asstt. Consolidation Officer is empowered to pass order only on the basis of conciliation and not on merits. Under these circumstances, it can be safely stated that the validity of the wills set up was not examined by the ACO when he passed the order on the basis of compromise. In this connection, it is also relevant to note that the compromise was not accepted as a whole.
The order passed on the basis of compromise was challenged by means of a reivision without any intermediate appeal having been preferred. The DDC remanded the matter for a decision afresh after affording opportunity to the parties to adduce evidence.
From the narration of the above facts, it is clear that no evidence was led by the parties. Even if, evidence, if any, was filed, no occasion arise for appreciation of the same. Moreover, in view of the fact that the parties were settling their dispute by means of an alleged compromise there was no occasion for them to have adduced evidence as regards their respective claims on merits.
Explanation-3 to section 48 of the Act empowers the DDC to reappreciate the evidence on record and further empowers him to record a finding contrary to one that has been recorded by the Court below. However, in the instant case that there has been no previous appreciation of evidence . Therefore, the DDC cannot be said to have failed to exercise his jurisdiction to reappreciate the evidence in the absence of any appreciation of the same by the subordinate courts.
Under these circumstances, I am of the opinion that the order of remand is not liable to be interfered with.
In my considered opinion, there is another reason on account of which the order passed by the DDC requires no interference.
While deciding WP No. 42 (Cons) of 2007; Hari Lal & others Vs. DDC, Barabanki which involved a similar controversy, I have recorded as under:
“Even otherwise, it is evident from the scheme of the Act itself that the orders passed by the first court, namely, the Assistant Consolidation Officer or Consolidation Officer, whether in title proceedings or in allotment proceedings, are subject to appeal before the SOC and, thereafter, subject to the revisional jurisdiction of the DDC under section 48 of the Act. It is also well settled that the right of appeal is a statutory right and no appeal can be filed unless the statute provides for the same. However, once the statute provides for an appeal against any order passed in the proceedings under the Act, which is further subject to the revisional jurisdiction under section 48, in case the contention of the learned counsel for the respondent is accepted, the petitioners would stand deprived of their right to appeal or revision, as is provided under the Act. Since this statutory remedy of appeal is provided under the Act, allowing the order of the DDC to stand, in my opinion, it would deprive the petitioners not only of the statutory remedy of appeal but also a subsequent revision, which for all practical purposes is a second appeal available to a party under the scheme of the Act. In any case, every party should be provided at least one appeal in the proceedings in view of the scheme of the Act itself, and this requirement would stand fulfilled if the matter is remanded to the SOC for a fresh decision. Against the order passed by the SOC, the aggrieved party will have the remedy of filing a revision, a second innings, which would be in accordance with the general scheme of the Act itself. In view of the same and also in view of the fact that the DDC has passed the order without considering the case of the petitioners and without adverting to the evidence filed by them, the impugned order is liable to be set aside”.
Thus, is the facts and circumstances of this case, setting aside the order of remand and directing the DDC to decide the case himself would, in my considered opinion, amount to doing violence to the basic scheme of the Act itself.”
29. In the case of Sheo Pujan Vs. Deputy Director of Consolidation and others, MANU/UP/0992/1992 : 1993 (91) ALJ 769, it has been held as under :-
“7. This Court in its decision in the case of Manbhawati Devi v. Deputy Director of Consolidation U.P., 1969 RD 425 had clarified that the term ‘opportunity of being heard’ is capable of being interpreted liberally as including an opportunity to lead additional evidence where a party is able to make out a reasonable ground for permitting it. The question about the jurisdiction of the consolidation authority to admit additional evidence had come up for consideration before the court in the case of Bihari v. State, decided by the Division Bench reported in 1973 Rev. Dec. 342 wherein the principles enunciated in the decision of the Apex court in the case of Arbind Kumar Singh v. Nand Kishore Prasad 1968 SC 1227 were held applicable to the proceedings under S. 48 of the U.P. Consolidation of Holdings Act. There can be no justification for not applying the said principles to the proceedings under S. 11 of the U.P. Consolidation of Holdings Act which contemplate vesting of a jurisdiction on the appellate authority which cannot be held to be lesser than the jurisdiction envisaged under S. 48 of the U.P. Consolidation of Holdings Act. I may, however, add in this connection that the salutory principles contained in Order XLI Rule 27 of the Code of Civil Procedure should be kept in mind while exercising the discretion to entertain the additional evidence at the appellate or revisional stage.”
30. In the case of Bihari Vs. The State of U.P. and Ors., MANU/UP/0176/1973 : AIR 1973 All 507, it has been held has under :-
“2. The main contention of the appellant before us was that the documents which were sought to be filed before the Deputy Director Consolidation as additional evidence were very material for a correct and proper decision of the case and the Deputy Director, Consolidation committed a manifest error of law and in fact refused to exercise jurisdiction vested in him in rejecting the said application. A certified copy of the order dated July 27, 1963 passed by the Deputy Director, Consolidation dismissing the application for additional evidence was filed in the writ petition and from its perusal it appears that the said application was dismissed on two grounds:–
1. That the admission of the documents at such a late stage will materially change the case of the parties; and
2. That in Section 48 of the Consolidation of Holdings Act there was no provision for entertaining fresh evidence at the revisional stage.
The learned counsel for Rupai respondent urged that the Deputy Director, Consolidation was right in dismissing the application for additional evidence and that both the grounds given by him for dismissing it were justified. He raised certain other technical objections which we shall deal later. In so far as the first ground mentioned by the Deputy Director, Consolidation for dismissing the application aforesaid is concerned we are of the opinion that the Deputy Director, Consolidation committed a manifest error of law in taking the view that by filing the documents the appellant wanted to materially change his case. As already pointed out above the consistent case of the appellant throughout was that of the plots in dispute Badal was the exclusive tenant and he being the adopted son of Badal inherited these plots and his name was rightly recorded in the village papers. Copies of the documents sought to be filed as additional evidence before the Deputy Director, Consolidation have been filed along with the writ petition. We have perused these documents. Two of such documents are a compromise application in a suit and the decree passed on its basis. The other document is copy of an application made by Rupai respondent himself as guardian of the appellant who was then minor for mutating his name over the plots in dispute. The earlier two documents were sought to be filed to show that on partition effected by compromise the plots in dispute were allotted exclusively in the share of Jasai father of Badal. The said compromise was filed in a suit under Section 37 of the Agra Tenancy Act 1926 for partition of holdings between Jasai father of Badal on the one hand and Ghure father of respondent Rupai on the other. The third document, namely, the application for mutation contains averments that the plots in dispute belonged to Badal, that the appellant was adopted son of Badal and was thus entitled to be mutated over these plots. These documents were apparently filed as evidence of the fact that of the plots in dispute Badal was exclusive tenant and the appellant being his adopted son rightly inherited these plots exclusively. This has been the case of the appellant from the inception and if in order to prove this case he wanted to file the documents aforesaid it cannot be said by any stretch of imagination that by filing these documents the appellant wanted to set up a new case at the revisional stage. The first ground on which these documents were rejected therefore clearly is not sustainable.
3. Now we propose to deal with the second ground on which the aforesaid application was dismissed, namely, additional evidence could not be admitted at the revisional sage. Learned Counsel for Rupai respondent on the authority of State of Kerala v. K.M.C. Abdullah MANU/SC/0265/1964 : [1965] 1 SCR 601 urged that before the Deputy Director, Consolidation could accept additional evidence he had first to consider the case without such evidence and to independently come to a finding that the requirements of Section 48 of the Consolidation of Holdings Act were made out and it was only if he was satisfied that grounds for interference under Sec. 48 were made out that he could direct further inquiry by accepting additional evidence. We have perused that judgment with care but are unable to subscribe to the view enunciated by the learned counsel for the respondent. In the aforesaid case their Lordships were considering the scope of Sec. 12 of the Madras General Sales Tax Act (Act IX of 1939). Sub-clause (2) of Sec. 12 provided that the Deputy Commissioner may call for and examine the record of any order passed or proceeding recorded under the provisions of that Act by any officer subordinate to him for the purpose of satisfying himself as to the legality or the propriety of such order or as to the irregularity of such proceeding and may pass such order with respect thereto as he thinks fit. It was held that power to pass such order as the revisional authority thinks fit may in some cases include power to make or direct such further inquiry as the Deputy Commissioner may find necessary for rectifying the illegality or impropriety of the order or irregularity in the proceeding and that it was not right baldly to propound that in passing an order in the exercise of his revisional jurisdiction the Deputy Commissioner must in all cases be restricted to the record maintained by the officer subordinate to him and can never make inquiry outside that record. It was further held that it could not be said that a provision which confers upon the appellate or revising authority power to make such enquiry as such appellate or revising authority considers necessary in itself amounts to enlarging the revisional or appellate jurisdiction. What is the true import of the aforesaid decision is to be found from a subsequent decision of the Supreme Court itself namely Swastic Oil Mills Ltd. v. H.B. Munshi MANU/SC/0317/1967 : [1968] 2 SCR 492, wherein it was held:–
“Whenever a power is conferred on authority to revise an order the authority is entitled to examine the correctness, legality and propriety of the order and to pass such suitable order as the authority may think fit in the circumstances of the particular case before it. When exercising such powers, there is no reason why the authority should not be entitled to hold an enquiry or direct an enquiry to be held and for that purpose, admit additional material.” Referring to the aforesaid case it was further held:–
“In fact in Sec. 12(2) of the Madras General Sales Tax Act the Deputy Commissioner when exercising his powers, was to call for the record of the order or proceeding before passing any order which he thought fit, so that there was an expression used which could have been interpreted as limiting his powers to the examination of the record only without holding any further enquiry, and, yet, this court held that the Deputy Commissioner could not be restricted to the record and was empowered to make an enquiry outside that record.”
4. The question in regard to the jurisdiction of a revising authority to accept additional evidence again came up for consideration before the Supreme Court in Arbind Kumar Singh v. Nand Kishore Prasad, MANU/SC/0129/1968 : [1968] 3 SCR 322. In the said case the scope of the powers contained in Sec. 64-A of the Motor Vehicles Act,1939 as amended by Bihar Act XVII of 1950 came up for consideration. It was held:
“The expression ‘pass such orders as it thinks fit’ is not restricted to the passing of orders which are final in character. If for the purpose of doing complete justice between the parties the authority who hears the revision petition is satisfied that it is necessary to call for additional evidence, he may call for such evidence. There is no bar in the Act or the rules against an appellate or revising authority taking into consideration additional evidence brought on the record, if the authority requires additional evidence to be brought on the record or allows it to be brought on the record to do complete justice between the parties.”
5. The provisions of Section 48 of the U.P. Consolidation of Holdings Act are in pari materia with the various provisions which came up for consideration before the Supreme Court in the aforementioned cases. Interpreting the provisions of Sec. 48 itself this Court has held that the Deputy Director, Consolidation has jurisdiction to entertain additional evidence. See Manbhawati Devi v. Deputy Director, Consolidation [1969 A.L.J. 730.] , Mst. Mahri v. Deputy Director, Consolidation [1969 R.D. 260 (H.C.) (AH)]; Baij Nath Singh v. Deputy Director, Consolidation [1969 R.D. 397 (H.C.) (All)]; and Mir-chi v. Deputy Director, Consolidation [1971 R.D. 201 (H.C.) (All)] .
6. We are, therefore, of the opinion that the Deputy Director, Consolidation had power to admit additional evidence. He refused to exercise the jurisdiction vested in him on the erroneous view that he had no jurisdiction to entertain additional evidence.
7. Learned counsel for Rupai respondent then urged that in fact by filing the compromise application and decree passed on its basis in the suit for partition of holdings under Sec. 37 of the Agra Tenancy Act the appellant was trying to set up the plea of res judicata and since that plea had not been raised by him at any earlier stage of the proceedings additional evidence could not be entertained to substantiate such a plea. In support of this he relied upon Ram Kinker Rai v. Tufani Ahir, MANU/UP/0238/1930:AIR 1931 All 35. It is true that additional evidence can be taken only in support of a point which has already been raised but in our opinion the aforesaid case is not applicable to the facts of the instant case. Here as already observed above it has been the consistent case of the appellant that of the plots in dispute Badal was the exclusive tenant and that he being the adopted son of Badal his name was rightly recorded in the village papers. It is in support of this case that the appellant sought to file additional evidence and he was not trying either to set up a new case or prove any new case by producing additional evidence.”
31. In the case of Abdul Junaid Vs. Dy. Director of Consolidation and Ors., MANU/UP/0330/1972, it has been held as under :-
“2.Rule 111 of the Consolidation of Holdings Rules is framed Under Section 54 of the Consolidation of Holdings Act. Before March 25, 1964 it read: “An application Under Section 48 of the Act shall be drawn up and presented by the Applicant or his pleader to the Director or to such other officer as he may appoint on his behalf. It shall be accompanied by a copy of the decree or the order in respect of which the application is made and by a copy of judgment, if any, upon which the decree or the order is founded. Copies of decrees or orders or judgments of other subordinate authorities shall not be required to be filed unless, for special reasons, filing of these documents is also considered necessary by the Director.” That rule has stood for long. Presumably in the belief that that rule was still operating on May 16, 1964, the Petitioner filed along with the memorandum of revision only a copy of the judgment of the SO. He did not file a copy of the order of the CO. The filing of a copy of the order of the CO was, it appears, necessary on May 16, 1964 (we express no opinion on this point), for Rule 111 on that date assumed this shape: “An application Under Section 48 of the Act shall be presented by the Applicant or his duly authorised agent to the Distt. Dy. DC within 30 days of the order against which the application is directed. It shall be accompanied of the Judgment and order in respect of which the application is preferred. Copies of judgments and orders, if any, of other subordinate authorities in respect of the dispute shall also be filed with the application.” Acting under this provision, the Dy. Director dismissed the revision of the Petitioner summarily on the ground that he had failed to file a copy of the order of the CO.
3. The petition came up for hearing before a learned single Judge. It was urged before him that the last part of the amended rule is directory and not mandatory. But the argument ran counter to a decision of an another learned single Judge in Smt. Shanti v Brij Lal (CMW No. 1506 of 1968 Dt. May 16, 1969). Accordingly he referred the case to a larger Bench. Hence the case before us.
4. For reasons to be stated presently, we are of opinion that it is not necessary to express any opinion on the question whether the last part of the amended Rule 111 is mandatory or directory. It is admitted by counsel for the parties before us that the record of the inferior authorities had been called for by the Dy. Director. It is further admitted that the record was before him and that he dismissed the revision in limine, as stated earlier after hearing the argument of counsel for the parties. In these circumstances we are of opinion that the Dy. Director should not have dismissed the revision in limine. Section 48(1) provides that 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 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. 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 ceased 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.
5. The view which we are taking finds support from J.P. Ojha v. R.R. Tandon MANU/UP/0120/1962:[A.I.R. 1962 All. 485.]. In that case a revision was dismissed at the stage of hearing by the District Judge on the ground that it was presented by a counsel without filing a vakalatnama. A learned single Judge said that after the record had been called for, the District Judge should not have dismissed the revision on a technical ground. In Om Pragash v. Moti Lal [1958 A.L.J. 210.] Chief Justice Mootham said: “The Court has called for the record of these cases for the sole purpose of enabling it to determine whether it shall exercise its revisional powers.” This remark would suggest that the revising authority calls for the record of a case when he is prima facie satisfied that it is just and proper to examine the record of the case for the purpose of exercising the revisional powers and for doing justice. So after he has sent for the record, he should not, in our view, dismiss the revision on a mere technical ground. After all, he can and should interfere suo motu to do justice.
6. The revising authority should not ordinarily dismiss the revision for mere procedural defects for procedure “is but the machinery of the law after all — the channel and means whereby law is administered and justice reached. It strangely departs from its proper office when, in place of facilitating, it is permitted to obstruct and even extinguish, legal rights, and is thus made to govern where it ought to subserve.” (See Henry J.B. Kendall v. Peter Hamilton (1879) 4 AC 504. In Ma Shwe Mya v. Maung Mo Hnaung MANU/PR/0130/1921 : AIR 1922 PC 249 Lord Buckmaster said: “All rules of Courts are nothing but provisions intended to secure the proper administration of justice and it is therefore essential that they should be made to serve and be subordinate to that purpose.” In Hanifunnisa v. Chunni Lal MANU/UP/0192/1921 : AIR 1921 All. 321 this Court said:
“The Courts do not sit as disciplinary bodies to punish parties for inept procedure when their right is clear and no misunderstanding, surprise or prejudice can occur to the other side.” In the instant case the record had come. The order of the Consolidation Officer, which was not filed by the Petitioner, was before the revising authority. He could have read that order. The other party suffered no prejudice by the omission of the Petitioner to file a certified copy of the order of the Consolidation Officer.”
32. In the case of Preetam Singh (Dead) by LRS and others Vs. Assist. Director of Consolidation and others, (1996) 2 SCC 270, it has been held as under :-
“6. When the matter was in revision before the Assistant Director (Consolidation), he had the entire matter before him and his jurisdiction was unfettered. While in seisin of the matter in his revisional jurisdiction, he was in complete control and in position to test the correctness of the order made by the Settlement Officer (Consolidation) effecting remand. In other words, in exercise of revisional jurisdiction the Assistant Director (Consolidation) could examine the finding recorded by the Settlement Officer as to the abandonment of the land in dispute by those tenants who had been recorded at the crucial time in the Khasra of 1359 Fasli. That power as a superior court the Assistant Director (Consolidation) had, even if the remand order of the Settlement Officer had not been specifically put to challenge in separate and independent proceedings. It is noteworthy that the Court of the Assistant Director (Consolidation) is a court of revisional jurisdiction otherwise having suo motu power to correct any order of the subordinate officer. In this situation the Assistant Director (Consolidation) should not have felt fettered in doing complete justice between the parties when the entire matter was before him. The war of legalistic fought in the High Court was of no material benefit to the appellants. A decision on merit covering the entire controversy was due from the Assistant Director (Consolidation).”
33. Section 38 and 39 of the Act, 1953, being relevant, are extracted herein under :-
“38. Powers to enforce attendance of witnesses and in certain matters – (1) [The Director of Consolidation and Deputy Director Consolidation] [Inserted by U.P. Act No. 38 of 1958.], Settlement Officer Consolidation, Consolidation Officer and Assistant Consolidation Officer shall have all such powers and rights and privileges as are vested in a Civil Court on the occasion of any action, in respect of the following matters –
(a) The enforcing of the attendance of witnesses and examining them on oath, affirmation or otherwise and the issue of a commission or request to examine witnesses abroad;
(b) compelling anyone for the production of any document;
(c) the punishing of persons guilty of contempt, and a summon signed by such officer may be substituted for and shall be equivalent to any formal process capable of being issued in any action by a Civil Court for enforcing the attendance of witnesses and compelling the production of document.
(2)[* * *] [Deleted by U.P. Act No. 38 of 1958.]
39. Powers for production of documents, etc.- (1) Subject to any conditions or restrictions that may be prescribed, the [Director of Consolidation, Deputy Director Consolidation], Settlement Officer Consolidation, Consolidation Officer or Assistant Consolidation Officer may, by written order, require any person to produce such documents, papers and registers or to furnish such information as he may deem necessary for the proper exercise of his powers or the proper discharge of his duties under this Act.
(2) Every person required to produce any document, paper or register or to furnish an information under this section shall be deemed legally bound to do so within the meaning of Sections 175 and 176 of the Indian Penal Code.”
34. In view of the law, referred above, on the issue of power of Deputy Director of Consolidation under Section 48 of the Act, 1953 as also regarding justification of remand of a case by Deputy Director of Consolidation, this Court considered the order impugned dated 31.01.2025 and a bare perusal thereof, reflects that for the purposes of remanding the case to the Consolidation Officer, the opposite party No.1 has pointed out some errors in the order (s) impugned before him, which to the view of this Court, ought to have been looked into in exercise of power under Section 48 of the Act, 1953 by the opposite party No.1 himself, as entire material was available before him for which, as per law enunciated on the power of Deputy Director of Consolidation, he was empowered to look into. In nutshell, Section 48 of the Act, 1953 provides ample power to examine the correctness/legality/propriety of any order which includes the power to examine any finding, whether of fact or law, recorded by any subordinate authority so as the power to re-appreciate any oral or documentary evidence.
35. For the reasons aforesaid, this Court is of the view that interference in the impugned order is required.
36. Accordingly, the writ petition is allowed impart. The order impugned dated 31.01.2025, passed by the opposite party No.1 is hereby quashed. The matter is remanded back to the opposite party No.1/Deputy Director of Consolidation-II, Hardoi to decide the matter afresh after affording proper opportunity of hearing to the parties to the litigation, preferably within a period of six months from the date of production of certified copy of this order, if there is no other legal impediment in this regard.
37. While conducting the proceedings, the Authority concerned is directed to avoid unnecessary adjournments to either party.
Order Date :- 16.04.2025
Jyoti/-
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