R.H. Zaidi, J.
1. In both these petitions, common questions of law and fact are Involved, they were, as desired by the learned counsel for the parties, heard together and are being disposed of by this common judgment. Writ Petition No. 27585 of 1992 shall be the leading case.
2. By means of this petition filed under Article 226 of the Constitution of India, petitioners pray for issuance of a writ, order or direction in the nature of certiorari quashing the order dated 22.6.1992 passed by the Deputy Director of Consolidation, allowing the revision filed by the contesting respondents under Section 48 of the U. P. Consolidation of Holdings Act, for short, 'the Act'.
3. The relevant facts of the case giving rise to the present petition, in brief, are that the land comprised in Khata No. 150 of village Pagar Tappa Naval. Pargana Nagar Pashchim, Tehsil Harraiya, district Basti, (hereinafter referred to as 'the land in dispute') was recorded in the basic year in the name of Lautoo son of Ramai. At the time of partal, the petitioners were stated to be in possession. Lautoo filed an objection claiming that he was as sirdar in possession of the land in dispute. He did not deposit ten times land revenue to acquire Bhumi Dhari rights nor executed any sale deed with respect to the land in dispute in favour of the petitioners and that as he came to know about the said sale-deed and order of mutation passed on the basis of the same in favour of the petitioners, he filed an objection before the revenue court. A suit for declaration under Section 229B of U.P.Z.A. and L.R. Act is also alleged to be filed. In the meanwhile, the village where the land in dispute was situated came under the operation of the Act, therefore, the cases which were pending before the revenue courts stood abated. Before the Assistant Consolidation Officer, an objection was filed, It was prayed that the names of the petitioners be expunged from the revenue papers and the name of Lautoo should be recorded over the land in dispute. On the other hand, objection/written statement was filed by the petitioners claiming that Lautoo has executed a registered sale-deed in their favour on 26.6.1971 after receiving valuable consideration for the same in accordance with law on the basis of which they were owners in possession of the land in dispute and their names were liable to be mutated in the revenue papers. As there was dispute between the parties with respect to the land in dispute which could not be resolved before the Assistant Consolidation Officer, the case was, therefore, referred to the Consolidation Officer for decision by the Assistant Consolidation Officer. The Consolidation Officer, on the basis of the pleadings of the parties, framed re levant/necessary Issues. The parties produced evidence in support of their cases, oral and documentary and also filed the reports of the hand-writing and fingerprint experts in their favour. The Consolidation Officer, after hearing the parties and perusing the material on the record, recorded findings on all relevant issues in favour of the petitioners. In brief, it was held that Lautoo, after receiving valuable consideration firstly obtained bhumidhari sanad and thereafter willingly executed the registered sale deed in respect of the land in dispute in favour of the petitioners and also delivered possession over the same to them, they were as such owners in possession of the land in dispute. Having recorded the said findings, the Consolidation Officer decided the case in favour of the petitioners by his judgment and order dated 27.4.1981. From the material on record, it appears that during pendency of the case Lautoo has died leaving behind the contesting respondents, Vanshraj and others (brother's sons). The contesting respondents, therefore, aggrieved by the judgment and order passed by the Consolidation Officer filed an appeal before the Settlement Officer, Consolidation. Even before the Settlement Officer, Consolidation, it was asserted by the contesting respondents that no sale deed was executed by Lautoo in favour of the petitioners and the sale-deed in question was a fraudulent and forged document. The findings recorded by the Consolidation Officer and the order passed by him to the contrary were, therefore, liable to be set aside. On the other hand, petitioners had supported the validity of the order passed by the Consolidation Officer. The Settlement Officer, Consolidation, after hearing the parties, affirmed the findings recorded by the Consolidation Officer on all relevant issues and dismissed the appeal filed by VanshraJ and others by his judgment and order dated 21.12.1989. The contesting respondents thereafter preferred a revision under Section 48 of the Act before the Deputy Director of Consolidation. The Deputy Director of Consolidation allowed the revision by judgment and order dated 22.6.1992, hence the present petition by the petitioners.
4. The writ petition was admitted. Notices were directed to be issued to the contesting respondents and interim order was also granted by this Court. On receipt of the notices, the contesting respondents filed counter-affidavit in reply to which rejoinder-affidavit was also filed by the petitioners.
5. Learned counsel for the petitioners vehemently urged that the Consolidation Officer and the Settlement Officer. Consolidation have recorded concurrent findings of fact on the relevant question involved in the case including on the question of execution of a sale deed by Lautoo. The Deputy Director of Consolidation did not reverse the said finding in accordance with law ignoring the entire oral and documentary evidence, by means of a cryptic judgment reversed the orders passed by the authorities below which was contrary to the provisions of Section 48 of the Act. It was further urged that the Deputy Director of Consolidation has exceeded his jurisdiction in reappraising the evidence, particularly the reports of hand-writing and finger-print experts and illegally reversed the orders passed by the authorities below. Therefore, the judgment and order passed by respondent No. 1 was as such liable to be quashed.
6. On the other hand, learned counsel appearing for the contesting respondents have supported the validity of the order passed by the Deputy Director of Consolidation. It was urged that the Deputy Director of Consolidation could, in exercise of his powers under Section 48 of the Act, look into the question of fact involved in the case and could reverse the findings recorded by the authorities below. The Deputy Director of Consolidation was, therefore, right in reversing the findings recorded by the authorities below and in allowing the revision. The writ petition had no merit and the same was, therefore, liable to be dismissed. Learned counsel for the parties have also cited certain decisions in support of their contentions, which will be dealt with at appropriate places.
7. 1 have considered the submissions made by the learned counsel for the parties and also carefully perused the record.
8. It is not disputed that originally the land in dispute was owned by Lautoo son of Ramai. Lautoo is alleged to have executed a registered sale deed with respect to the land in dispute after receiving valuable consideration and after obtaining bhumidhari sanad in favour of the petitioners on the basis of which the names of petitioners were mutated in the revenue papers. Lautoo filed an objection before the revenue court challenging the validity of the order of mutation. In the meanwhile, the village where the land in dispute is situated, came under the operation of the Act and the proceedings before the revenue court stood abated and the dispute in the form of objections came before the consolidation authorities at the instance of the parties. On the basis of the pleadings of the parties, the Consolidation Officer framed necessary issues, the parties produced evidence, oral and documentary in respect of their cases. The Consolidation Officer after hearing the parties and perusing the evidence on the record, recorded clear and categorical findings on all relevant issues in favour of the petitioners and allowed their objections. It was held that Lautoo executed a registered sale deed in respect of the land in dispute in favour of the petitioners after receiving valuable consideration in accordance with law and delivered them possession over the land in dispute, they were as such owners in possession of the same and ultimately decided the case in favour of the petitioners. The findings recorded by the Consolidation Officer were affirmed by the Settlement Officer. Consolidation in an appeal filed by the contesting respondents against the judgment and order passed by the Consolidation Officer. The Settlement Officer, Consolidation also affirmed the findings recorded by the Consolidation Officer and dismissed the appeal. It was also held that Lautoo never applied for cancellation of bhumidhari sanad. The matter thereafter, in the form of revision, went before the Deputy Director of Consolidation at the instance of the contesting respondents under Section 48 of the Act. Section 48 of the Act provides as under :
Section 48 of the Act reads as under : (Only relevant quoted).
'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.'
9. A reading of the aforesaid Section clearly shows that the Deputy Director of Consolidation in exercise of powers under the aforesaid Section can see the correctness, legality and propriety of any order passed by the authorities below except interlocutory orders and after allowing the parties concerned the opportunity of being heard may make such order in the case or proceeding as he may think fit.
10. Learned counsel for the petitioners in support of his submissions placed reliance upon a decision of the Apex Court in the case of Gaya Din v. Hanwnan Prasad, 2001 (1) AWC 344 (SC) ; JT 2000 (Suppl 3) SC 199.
11. In Gaya Din's case (supra), the scope of Section 48 of the Act came to be considered before the Apex Court. The Apex Court, taking into consideration the relevant decisions on the point, was pleased to rule as under :
'11. The scope of the powers of Deputy Director under the amended provision came up for consideration of this Court in Ram Dular v. Deputy Director of Consolidation, Jaunpur and others, JT 1994 (3) SC 341 : 1994 Suppl (2) SCC 198. It was observed that in considering the correctness, legality or propriety of the order or correctness of the proceedings or regularity under Section 48 of the Consolidation Act. the Deputy Director of Consolidation could not assume the jurisdiction of the original authority as a fact-finding authority by appreciating for himself of those facts de novo he had to consider whether the legally admissible evidence had been considered by the authorities in recording a finding of fact or law or the conclusion reached by them was based on evidence or any patent illegality or impropriety had been committed or there was any procedural irregularity which would go to the root of the matter. That judgment was relied on in a recent judgment of this Court in Seshmani and another v. Deputy Director of Consolidation, District Basti, U. P. and others, 2000 (2) AWC 1136 (SC) ; JT 2000 (2) SC 43 : 2000 (2) SCC 523'
'14. Thus, it is clear that notwithstanding the fact that Section 48 has been couched in wide terms, it only permits interference where the findings of the subordinate authority are perverse in the sense that they are not supported by the evidence brought on record or they are against the law or where they suffer from the vice of procedural irregularity.'
12. Thus, according to the law laid down by the Apex Court in the above noted case, the Deputy Director of Consolidation could not assume the jurisdiction of original authority as a fact-finding authority by appreciating for himself of those facts de novo, he had to consider whether the legally admissible evidence had been considered by the authorities in recording the findings of fact or law or the conclusion reached by them was based on evidence or any patent illegality or impropriety had been committed or there was any procedural irregularity which would go to the root of the matter. It was also held that Section 48 only permits interference with the findings of the subordinate authority if they were perverse in the sense that they are not supported by the evidence brought on the record or they are against the law or where they suffer from the vice of procedural irregularity.
13. In the present case, the Deputy Director of Consolidation did not record any finding that the findings recorded by the authorities below on the questions of fact or law involved in the case were either incorrect or illegal or improper or they were not based on any relevant evidence on the record. He after ignoring all oral and documentary evidence on the record, by a cryptic Judgment, simply remarked about the reports of the finger-print experts and acting as original authority, reappraised the said reports and arbitrarily relied upon the report submitted by the expert of the contesting respondents, reversed the concurrent findings and allowed the revision contrary to the provisions of Section 48 of the Act, which was, in the light of the decision of the Apex Court, referred to above, not permissible.
14. Learned counsel appearing for the contesting respondents referred to and relied upon the decisions of the Supreme Court in support of his submission in Sheshmani and another v. Deputy Director of Consolidation, Basti, 2000 (2) AWC 1136 (SC) ; JT 2000 (2) SC 43 ; 2000 (2) SCC 523 and in Sheo Nand and others v. Deputy Director of Consolidation, Allahabad, 2000 (2) AWC 1276 (SC) ; AIR 2000 SC 1141. The aforesaid cases have been decided on the facts of those cases. Both these decisions including the decision of Ram Dular's case have already been considered by the Supreme Court in Gaya Din's case (supra) and after duly considering all these decisions, the Supreme Court has laid down law as stated above. I, therefore, do not think it necessary to comment upon the said decisions in the present case. The judgment and order passed by the Deputy Director of Consolidation is, thus, wholly illegal and without jurisdiction and the same deserves to be quashed. The submissions made by learned counsel for the contesting respondents, therefore, cannot be accepted.
15. In view of the above noted discussions, the present petition is liable to succeed.
16. The present writ petition succeeds and is hereby allowed. The judgment and order dated 22.6.1992 passed by the Deputy Director of Consolidation is hereby quashed. No order as to costs.
17. Order impugned in the connected Writ Petition No. 45759 of 1992 dated 13.10.1995 was based upon the order dated 22.6.1992, noted above and was a consequential order, therefore, same is also quashed and said writ petition is also allowed.