Sadiq Hussain v. Additional District Magistrate (Finance)

Heard Sri S.S, Negi, learned coun­sel for the petitioner and Sri Vinay Kumar holding the brief of Sri Abdul Wahid, learned counsel for the re­spondents.

2. By the present writ petition, the petitioner has prayed for a writ of certiorari quashing the order dated 08-01-1991 passed by the respondent no. 1.

3. Briefly stated, the objections have been filed by the respondents no.

2 and 3 under Section 9-A(2) of the Consolidation of Holdings Act. The Consolidation Officer vide his order dated 3rd February, 1990 allowed the objections of the respondents no. 2 and

3 and thereby allowed his claim.

4. Learned counsel for the peti­tioner has submitted that in good faith, he gave necessary papers and required money for filing the appeal but the ap­peal was not filed in time and on mak­ing an inquiry, the petitioner could not get anything in connection of filing of his appeal. The petitioner took back the papers and he filed the appeal before the Settlement Officer Consolidation on 29-05-1990. He also filed an applica­tion under Section 5 of the Limitation act duly supported with an affidavit. The petitioner has explained the cause of delay.

5. The Settlement Officer Consoli­dation after considering the bonafides of the petitioner's illiteracy condoned the delay in filing the appeal by order dated 18-08-1990.

6. Against the said order, the re­spondent no. 2 filed a revision before the Deputy Director of Consolidation. The revisional court allowed the revi­sion.

7. It is well established that the revisional court sitting in a revisional ju­risdiction should not interfere the juris­diction under Section 48' of the Con­solidation of Holdings in para materia with Section 115 of the Code of Civil Procedure and the Settlement Officer was having satisfied and condoned the delay, there was no error of jurisdiction so as to interfere under Section 48 of the Consolidation of Holdings Act.

8. It is also settled law that in the matter of condoning the delay a liberal approach should be taken and further in the consolidation matters villagers are the resident of the village and they are illiterate and as such in such mat­ter, a liberal approach should have been taken in condoning the delay. Technicalities of law should not come in the way of dispensation of justice while deciding the application filed under Section 5 of the Limitation act.

9. It is also well established that the Chaks which are being consolidated under the consolidation scheme are be­ing beneficial legislation meant for the public at large and if the orders are passed depriving them from hearing, it will be unjust and violation of the prin­ciples of natural justice for which U.P. Consolidation of Holdings Act was en­acted. Even the preamble of the Act provides for the consolidation of agri­cultural land for the development of ag­riculture and as such the petitioner hav­ing been deprived from hearing the matter requires that it should be heard on merits.

10. Relying upon the judgment of M. V. Elisabeth and others vs. Harwan Investment JT 1992 (2) SC 65 in Ram Murti Vs. Deputy Director of Consoli­dation 1995 RD 249 High Court of Allahabad has held as under :

"It may be notice that the Deputy Director of Consolidation was exer­cising revisional power under Sec­tion 48 as distinguished from an appellate power. Section 48 of the U.P. Consolidation of Holdings Act, 1953 is no doubt couched in a lan­guage of wide amplitude but that does not mean that the Deputy Di­rector of Consolidation may act as an appellate Court. In K. A. Anthappai u. C. Ahammed JT 1992 (4) SC 65 the Supreme Court was considering the scope of revisional power of the High Court under Sec­tion 20 of Kerala Building (Leases and Rent Control) Act, 1965 where under the High Court can "call for and examine the records relating to any order passed or pro­ceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings and may pass such order in reference thereto as it thinks fit" a provision similar to the one contained in Section 48 of the U.P Consolidation of Holdings Act, 1953. It was held as under :

"It is no doubt true that the scope of the revisional jurisdiction con­ferred under Section 20 is wider than that conferred under Section 115, C.RC. but at the same time a revision under Section 20 cannot be equated with an appeal. Moreover, the revisional power conferred un­der Section 20 also embraces an order passed by the appellate au­thority. While considering the provi­sions conferring revisional power couched in a language similar to that contained in Section 20 of the Act this court has laid down that the power conferred on the High Court is essentially a power of superin­tendence and despite wide language employed, the High Court should not interfere with the finding of fact of the subordinate court merely be­cause it does not agree with the said findings see Dattonpani Gopalvarao Deva Ratte v. Vithabrao Maruthirao Jagangawal 1975 Suppl. SCR 67, Mis Raja Laxmi Dyeing Works and others v. Rangaswami Chhetiar AIR 1980 SC 1253. The Supreme Court further held :

"The revisional court must be reluc­tant to embark upon an independ­ent reassessment of the evidence and supplant a conclusion of its own, so long as evidence on the record admitted of an supported the one reached by the Court below. Rajuir v. S. Chokesi & Co. 1989 (1) SCC 19 at Page 37.

11. Relying upon the judgment of Apex Court in Ram Dular u. Dy. Direc­tor of Consolidation, Jaunpur and oth­ers, 1994 RD 290, in Ranbir Singh and others Vs. Dy. Director of Consolida­tion, Muzaffarnagar and others 1997(88) RD Page 191 High Court of Allahabad has held as under :

"Learned counsel for the petitioner submitted that the S.O.C. had held that the alleged agreement dated 26-10-1961 was not acted upon and this was a finding of fact which could not be validly reversed by the D.D.C. Learned counsel for the pe­titioner has relied on a decision of the Supreme Court in Ram Dular v. Dy. Director of Consolidation, Jaunpur and others 1994 RD 290. The Supreme Court in that decision held that *the Deputy Director of Consolidation cannot interfere with the findings of fact recorded by the S.O.C. This view has been followed by this Court in Krishna Pratap Singh v. Deputy Director of Consoli­dation 1996 (87) RD 216."

12. In the case of Ram Avtar and others Vs. Ram Dhani and others (1997) 2 SCC 263, the Apex Court has held as under :

"We are surprised as to how the Deputy Director while exercising the revisional power entered into all questions of fact and came to the conclusion on pure conjecture that the appellants before this Court shall be deemed to be in possession of the lands since 1932. 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 court of appeal so as to reappreciate the evidence on record for recording findings on questions of fact."

13. In view of the above, the or­der dated 08-01-1991 passed by the Deputy Director of Consolidation is quashed. The matter is sent back to the Settlement Officer Consolidation for de­ciding the case on merits.

14. Writ petition is allowed. No or­der as to costs.

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