Hoti Singh Vs. Deputy Director of Consolidation, Aligarh and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/478350
SubjectProperty
CourtAllahabad High Court
Decided OnApr-02-1999
Case NumberC.M.W.P. No. 17381 of 1984
Judge Lakshmi Bihari, J.
Reported in1999(2)AWC1768
ActsUttar Pradesh Consolidaition of Holdings Act, 1953 - Sections 48, 48(1) and 53; Uttar Pradesh Consolidaiton of Holdings Rules, 1954 - Rule 111; Limitation Act, 1963 - Sections 5
AppellantHoti Singh
RespondentDeputy Director of Consolidation, Aligarh and Another
Appellant AdvocateB.D. Mandhyan,;S.C. Mandhyan and;Vinod Sinha, Advs.
Respondent AdvocateS.C.,;G.N. Verma and;Raj Singh, Advs.
Cases ReferredIn Ram Pati v. Deputy Director of Consolidation
Excerpt:
property - time barred application of revision - section 48 of u. p. consolidation of holdings act, 1953 and rule 111 of u. p. consolidation of holdings rules, 1954 - order of settlement officer, consolidation - deputy director of consolidation examine the relevant documents suo moto - deputy director of consolidation can exercise revisional jurisdiction suo moto on information received from others or an application made by aggrieved party - limitation period applies for application by party and not on suo moto jurisdiction - held, deputy director of consolidation committed no error in examining case on merits and recording his own findings. - - ' 10. the full bench after considering section 48 of the act and rule 111 of the rules as well as certain decisions, concluded as follows :after the record has been called for by the deputy director of consolidation under section 48 of the u. regarding the full bench decision, it was held that the petitioner failed to show that the revision was admitted and records called for.lakshmi bihari, j.1. this writ petition is directed against judgment dated 6.11.1984 passed by learned deputy director of consolidation, allowing the revision filed by contesting respondent no. 2.2. it appears that the petitioner and contesting respondent no. 2 entered into an agreement for mutual exchange of chaks between themselves. an application under section 53 of the u. p. consolidation of holdings act, 1953 (for short the act) was filed before the settlement officer. consolidation. the settlement officer, consolidation by his order dated 22.2.1984 allowed the said application and directed that chak nos. 208 and 124 be amended in accordance with the amended chart forming part of the judgment. aggrieved against the said judgment, respondent no. 2, man singh filed a revision under section 48 of the act before the deputy director of consolidation. the deputy director of consolidation by his judgment dated 6.11.1984 allowed the revision, set aside the judgment of the settlement officer, consolidation and directed that the chaks be amended as shown in the chart forming part of the judgment. but the chart has not been filed along with the copy of the judgment dated 6.11.1984. feeling aggrieved, the petitioner has filed the present writ petition.3. i have heard learned counsel for the parties and perused the record.4. the learned counsel for the petitioner has submitted that the judgment of the settlement officer, consolidation was passed on 22.2.1984, whereas the contesting respondent filed the revision before the deputy director of consolidation on 22.4.1984, i.e., after expiry of the period of limitation as prescribed under rule 111 of the u. p. consolidation of holdings rules, 1954 and that no application undersection 5 of the limitation act for condoning the delay was filed along with the revision. he, accordingly, submitted that the deputy director of consolidation committed an error in allowing the revision and setting aside the order of the settlement officer, consolidation and not dismissing it on the ground of limitation.5. the learned counsel for the respondents, on the other hand, submitted that once the deputy director of consolidation perused the record and heard the parties, the question of limitation became irrelevant. he has placed reliance on a full bench decision of this court in rama kant singh v. deputy director of consolidation. 1974 alj 834.6. here it is relevant to refer tothe provisions of section 48 (1) of the act. it runs as follows:'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 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.'7. a perusal of the aforesaid section shows that it is discretionary for the revisional authority to call for the record and to examine it. but the discretion has to be exercised on sound judicial principles. under this section, the revisional authority may exercise its powers either suo motu or on the application of an aggrieved party.8. the period of limitation for filing revision under section 48 of the act has been provided in rule 111 of the u. p. consolidation of holdings rules, 1954. according to the said rule, an application under section 48 of the act shall be presented within 30 days of the order against which the application is directed.9. the said rule came up for consideration before a full bench of this court in the case of rama kant singh (supra). in that case, the following question was referred to the full bench :'whether after the record has been called for by the deputy director of consolidation under section 48 of the u. p. consolidation of holdings act, it is open to him to dismiss the revision on the ground that a necessary party has not been impleaded in the memorandum of revision or he should examine the record and pass such an order which will advance justice after hearing the person who has not been impleaded?'10. the full bench after considering section 48 of the act and rule 111 of the rules as well as certain decisions, concluded as follows :'after the record has been called for by the deputy director of consolidation under section 48 of the u. p. consolidation of holdings act, he should examine the record to decide whether it was a fit case for exercise of the revisional jurisdiction suo motu. such opinion shall have to be formed even where the application in revision moved by a party is defective, having been made beyond the prescribed period of limitation or all the necessary parties have not been impleaded.'in paragraph 6 of the report, the full bench observed as follows :'it shall be noticed that exercise or non-exercise of the revisional jurisdiction depends solely upon the director of consolidation. he can exercise this power suo motu on information received from others or on an application made by an aggrieved party. limitation has been prescribed under rule 111 of the u. p, consolidation of holdings rules for an application in revision made by a party and not for the suo motu exercise of revisional jurisdiction. consequently, even if a revision application has been made beyond the prescribed period of limitation,the director of consolidation is not debarred from exercising such jurisdiction suo motu which would generally be on information given by others. the information given by the subordinate authorities is on a reference made under sub-section (3). in other words, therefore, the director of consolidation still has the jurisdiction to exercise the revitstional jurisdiction even though the application made by the parties is barred by limitation or is defective.'in paragraph 7 of the report, it was observed that where on perusal of certain material the director of consolidation decided to call for the record, he could not ordinarily form a different opinion on being informed that all the necessary parties had not been impleaded or that the application had been made beyond time.11. in the present case, the deputy director of consolidation proceeded to examine the relevant file and other documents and after hearing the parties, came to the conclusion that the chafes were not amended according to the agreement and, therefore, he held that the order of the settlement officer. consolidation was not maintainable. he accordingly allowed the revision and set aside the order of the settlement officer, consolidation. a perusal of the impugned order shows that the deputy director of consolidation has merely given effect to the agreement entered into between the parties.12. applying the principles of law laid down in the full bench case of this court, to the facts of the present case, it must be held that the deputy director of consolidation has not committed any error of law much less apparent on the face of the record in allowing the revision after perusing the record and hearing the parties.13. in ram pati v. deputy director of consolidation, 1995 rd 358, on which the learned counsel for the petitioner has placed reliance. it was contended on behalf of the petitioner that the revisionalauthority committed an apparent error of law in not granting benefit of section 5 of the limitation act. it was further contended that the entire records were before the revislonal authority and he ought to have decided the revision on merits and should not have dismissed it on the ground of limitation. after considering the respective arguments of the parties, this court observed that the petitioner had not brought on record his petition and the accompanying affidavit seeking condonation of delay and that no documentary evidence was brought on record by the petitioner to support his alleged continued illness. regarding the full bench case, it was observed that the petitioner had no where stated as to on what date revision application was admitted and records called for.14. in ram pati's case (supra). the submission of the petitioner that the revislonal authority committed an apparent error of law in not granting the benefit of section 5 of the limitation act, was not accepted by the court. regarding the full bench decision, it was held that the petitioner failed to show that the revision was admitted and records called for. therefore, the full bench decision was held to be of no help to the petitioner.15. thus, the aforesaid case is distinguishable on facts and, therefore, is of no help to the petitioner in the present case. thus, there is no force in the aforesaid contention of the learned counsel for the petitioner.16. the learned counsel for the petitioner further submitted that there was no condition in the agreement regarding the area of chaks and he, accordingly, submitted that the deputy director of consolidation committed an error in making the adjustment of the chaks on the basis of the difference in the areas of the chaks. a perusal of paragraph 3 of the agreement, which has been annexed as annexure-1 to the writ petition, shows that it was agreed between the parties that remaining area of chaks of man singh may be adjusted from plot nos. 8, 7, 28, 29, 30 and 31. thus, theaverments made in paragraph 3 of the agreement falsify the submission of the learned counsel for the petitioner.17. the learned counsel for the petitioner next submitted that respondent man singh, having entered into the agreement, should not have challenged the order of the settlement officer, consolidation. it is relevant to point out here that in the impugned order, the deputy director of consolidation has observed that the area of chak of the revisionist had become less and the area of the chafe of the opposite party had increased and concluded that the chaks were not amended in accordance with the agreement. therefore, the respondent no. 2 has rightly challenged the order of the settlement officer, consolidation, as he felt aggrieved against the order of the settlement officer, consolidation. thus, there is no force in this submission of the learned counsel for the petitioner.18. lastly, the learned counsel for the petitioner submitted that after the deputy director of consolidation set aside the order of the settlement officer. consolidation, he should have remanded the case. in my opinion, the deputy director of consolidation has committed no error in examining the case of the parties on merits and recording his own finding. thus, there is no force in this submission also of the learned counsel for the petitioner.19. in view of the discussion made above, there is no merit in this writ petition and it is, accordingly, dismissed with costs.
Judgment:

Lakshmi Bihari, J.

1. This writ petition is directed against Judgment dated 6.11.1984 passed by learned Deputy Director of Consolidation, allowing the revision filed by contesting respondent No. 2.

2. It appears that the petitioner and contesting respondent No. 2 entered into an agreement for mutual exchange of chaks between themselves. An application under Section 53 of the U. P. Consolidation of Holdings Act, 1953 (for short the Act) was filed before the Settlement Officer. Consolidation. The Settlement Officer, Consolidation by his order dated 22.2.1984 allowed the said application and directed that chak Nos. 208 and 124 be amended in accordance with the amended chart forming part of the judgment. Aggrieved against the said Judgment, respondent No. 2, Man Singh filed a revision under Section 48 of the Act before the Deputy Director of Consolidation. The Deputy Director of Consolidation by his judgment dated 6.11.1984 allowed the revision, set aside the judgment of the Settlement Officer, Consolidation and directed that the chaks be amended as shown in the chart forming part of the judgment. But the chart has not been filed along with the copy of the Judgment dated 6.11.1984. Feeling aggrieved, the petitioner has filed the present writ petition.

3. I have heard learned counsel for the parties and perused the record.

4. The learned counsel for the petitioner has submitted that the judgment of the Settlement Officer, Consolidation was passed on 22.2.1984, whereas the contesting respondent filed the revision before the Deputy Director of Consolidation on 22.4.1984, i.e., after expiry of the period of limitation as prescribed under Rule 111 of the U. P. Consolidation of Holdings Rules, 1954 and that no application underSection 5 of the Limitation Act for condoning the delay was filed along with the revision. He, accordingly, submitted that the Deputy Director of Consolidation committed an error in allowing the revision and setting aside the order of the Settlement Officer, Consolidation and not dismissing it on the ground of limitation.

5. The learned counsel for the respondents, on the other hand, submitted that once the Deputy Director of Consolidation perused the record and heard the parties, the question of limitation became irrelevant. He has placed reliance on a Full Bench decision of this Court in Rama Kant Singh v. Deputy Director of Consolidation. 1974 ALJ 834.

6. Here it is relevant to refer tothe provisions of Section 48 (1) of the Act. It runs as follows:

'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 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.'

7. A perusal of the aforesaid Section shows that it is discretionary for the revisional authority to call for the record and to examine it. But the discretion has to be exercised on sound judicial principles. Under this section, the revisional authority may exercise its powers either suo motu or on the application of an aggrieved party.

8. The period of limitation for filing revision under Section 48 of the Act has been provided in Rule 111 of the U. P. Consolidation of Holdings Rules, 1954. According to the said rule, an application under Section 48 of the Act shall be presented within 30 days of the order against which the application is directed.

9. The said rule came up for consideration before a Full Bench of this Court in the case of Rama Kant Singh (supra). In that case, the following question was referred to the Full Bench :

'Whether after the record has been called for by the Deputy Director of Consolidation under Section 48 of the U. P. Consolidation of Holdings Act, it is open to him to dismiss the revision on the ground that a necessary party has not been impleaded in the memorandum of revision or he should examine the record and pass such an order which will advance justice after hearing the person who has not been impleaded?'

10. The Full Bench after considering Section 48 of the Act and Rule 111 of the Rules as well as certain decisions, concluded as follows :

'After the record has been called for by the Deputy Director of Consolidation under Section 48 of the U. P. Consolidation of Holdings Act, he should examine the record to decide whether it was a fit case for exercise of the revisional jurisdiction suo motu. Such opinion shall have to be formed even where the application in revision moved by a party is defective, having been made beyond the prescribed period of limitation or all the necessary parties have not been impleaded.'

In paragraph 6 of the report, the Full Bench observed as follows :

'It shall be noticed that exercise or non-exercise of the revisional Jurisdiction depends solely upon the Director of Consolidation. He can exercise this power suo motu on information received from others or on an application made by an aggrieved party. Limitation has been prescribed under Rule 111 of the U. P, Consolidation of Holdings Rules for an application in revision made by a party and not for the suo motu exercise of revisional jurisdiction. Consequently, even if a revision application has been made beyond the prescribed period of limitation,the Director of Consolidation is not debarred from exercising such jurisdiction suo motu which would generally be on information given by others. The information given by the subordinate authorities is on a reference made under sub-section (3). In other words, therefore, the Director of Consolidation still has the jurisdiction to exercise the revitstional jurisdiction even though the application made by the parties is barred by limitation or is defective.'

In paragraph 7 of the report, it was observed that where on perusal of certain material the Director of Consolidation decided to call for the record, he could not ordinarily form a different opinion on being informed that all the necessary parties had not been impleaded or that the application had been made beyond time.

11. In the present case, the Deputy Director of Consolidation proceeded to examine the relevant file and other documents and after hearing the parties, came to the conclusion that the chafes were not amended according to the agreement and, therefore, he held that the order of the Settlement Officer. Consolidation was not maintainable. He accordingly allowed the revision and set aside the order of the Settlement Officer, Consolidation. A perusal of the impugned order shows that the Deputy Director of Consolidation has merely given effect to the agreement entered into between the parties.

12. Applying the principles of law laid down in the Full Bench case of this Court, to the facts of the present case, it must be held that the Deputy Director of Consolidation has not committed any error of law much less apparent on the face of the record in allowing the revision after perusing the record and hearing the parties.

13. In Ram Pati v. Deputy Director of Consolidation, 1995 RD 358, on which the learned counsel for the petitioner has placed reliance. It was contended on behalf of the petitioner that the revisionalauthority committed an apparent error of law in not granting benefit of Section 5 of the Limitation Act. It was further contended that the entire records were before the revislonal authority and he ought to have decided the revision on merits and should not have dismissed it on the ground of limitation. After considering the respective arguments of the parties, this Court observed that the petitioner had not brought on record his petition and the accompanying affidavit seeking condonation of delay and that no documentary evidence was brought on record by the petitioner to support his alleged continued illness. Regarding the Full Bench case, it was observed that the petitioner had no where stated as to on what date revision application was admitted and records called for.

14. In Ram Pati's case (supra). the submission of the petitioner that the Revislonal Authority committed an apparent error of law in not granting the benefit of Section 5 of the Limitation Act, was not accepted by the Court. Regarding the Full Bench decision, it was held that the petitioner failed to show that the revision was admitted and records called for. Therefore, the Full Bench decision was held to be of no help to the petitioner.

15. Thus, the aforesaid case is distinguishable on facts and, therefore, is of no help to the petitioner in the present case. Thus, there is no force in the aforesaid contention of the learned counsel for the petitioner.

16. The learned counsel for the petitioner further submitted that there was no condition in the agreement regarding the area of chaks and he, accordingly, submitted that the Deputy Director of Consolidation committed an error in making the adjustment of the chaks on the basis of the difference in the areas of the chaks. A perusal of paragraph 3 of the agreement, which has been annexed as Annexure-1 to the writ petition, shows that it was agreed between the parties that remaining area of chaks of Man Singh may be adjusted from plot Nos. 8, 7, 28, 29, 30 and 31. Thus, theaverments made in paragraph 3 of the agreement falsify the submission of the learned counsel for the petitioner.

17. The learned counsel for the petitioner next submitted that respondent Man Singh, having entered into the agreement, should not have challenged the order of the Settlement Officer, Consolidation. It is relevant to point out here that in the impugned order, the Deputy Director of Consolidation has observed that the area of chak of the revisionist had become less and the area of the chafe of the opposite party had increased and concluded that the chaks were not amended in accordance with the agreement. Therefore, the respondent No. 2 has rightly challenged the order of the Settlement Officer, Consolidation, as he felt aggrieved against the order of the Settlement Officer, Consolidation. Thus, there is no force in this submission of the learned counsel for the petitioner.

18. Lastly, the learned counsel for the petitioner submitted that after the Deputy Director of Consolidation set aside the order of the Settlement Officer. Consolidation, he should have remanded the case. In my opinion, the Deputy Director of Consolidation has committed no error in examining the case of the parties on merits and recording his own finding. Thus, there is no force in this submission also of the learned counsel for the petitioner.

19. In view of the discussion made above, there is no merit in this writ petition and it is, accordingly, dismissed with costs.