Guljar Singh & Ors vs Deputy Director Consolidation & Ors

Guljar Singh and Ors. .... Appellants

Versus

Deputy Director Consolidation and Ors. .... Respondents

WITH

C.A.No.2577/2009 @ SLP)No.1214 of 2005 and C.A.No2579/2009 @ SLP) No.5328 of 2005

JUDGMENT

TARUN CHATTERJEE,J.

1. Leave granted.

2. This appeals are directed against the judgment and final order

dated 19th of November, 2004 of the High Court of Uttaranchal at

Nainital in W.P.Nos. 1231 (M/S), 1083(M/S) and 1084(M/S) of 2004

whereby, the High Court had dismissed the writ petitions and affirmed

the order dated 20th of October, 2004 passed by the Deputy Director

of Consolidation (in short D.D.C.), Udham Singh Nagar.

3. The relevant facts, which would assist us in appreciating the

controversy involved are narrated in a nutshell, which are as follows:

1

Mohan Singh, Bhan Singh and Ram Singh jointly purchased an

area of 302 Bighas in the village of Jagannathpur, Tehsil Kashipur,

and District Udham Singh Nagar (hereinafter referred to as `the

property in dispute'), out of which the share of Mohan Singh was

recorded as 101 Bighas. Thereafter, all these persons together with

three other persons, namely, Saudagar Singh, Sohan Singh and Atma

Singh acquired 1486 Bighas and 6 Biswas by a lease deed executed by

Zaminder Radhey Shayam in their favour. In the said deed, share of

Mohan Singh was specified as 464 Bighas. Therefore, in total, Mohan

Singh claimed his share in the property in dispute as 565 Bighas in

respect of the aforesaid lands. Various objections and counter

objections were filed by other co-sharers disputing the claim of

Mohan Singh. In the Khatauni of 1359 F, the names of 14 persons

were recorded as tenure holders. The tenure holders moved an

application in the year 1959 before the Sub-Divisional Officer, stating

therein that 17 tenure holders divided the property in dispute in 1951

and from that time, they were in possession according to their

division, but their names had not been recorded in the revenue records

according to their divisions and possession. It was alleged that they

prayed for correction of their names in the revenue records according

to amicable arrangement. The Sub-Divisional Officer allowed their

2 application, but in spite of that, it was claimed that their names were

not entered in the relevant revenue records. Thereafter, correction

proceedings started in the concerned village and the matter came up

before the Asstt. Recording Officer, and Mohan Singh (the father of

the appellants) filed an application on 11th of January, 1963 before the

Asstt. Recording Officer to give effect to the order passed by the Sub-

Divisional Officer on the basis of the amicable arrangement arrived at

between the parties. The Assistant Recording Officer passed an order

directing to make entries in accordance with the order of the Sub-

Divisional Officer. In spite of that, according to the appellants, the

revenue records were not corrected and the property in dispute was

kept as separate Khatas in the name of different tenure holders.

Thereafter, Ram Singh and others also filed an application before the

Consolidation Officer praying that the Khatas be divided in pursuance

of the order passed by the Sub-Divisional Officer. Mohan Singh,

however, alleged that the present entries in the revenue record must be

maintained. It was the claim of Mohan Singh that he was ignorant

about the order of the Sub-Divisional Officer, which was passed on

the basis of the alleged amicable arrangement entered into by the

parties and also claimed ignorance about the application which was

alleged to have been filed by him before the Assistant Recording

3 Officer, thus refuting the claim of the Respondents that he was a party

to the proceedings before the Assistant Recording Officer. The

Consolidation Officer allowed the claim of Mohan Singh to the effect

that his total share in the aforesaid land was 564 Bighas, but he

directed that since Mohan Singh had co-opted his son, nephews,

brothers, and widow of his brother as co-tenants in his share, his share

was reduced. The appellants thereafter filed two appeals against the

order of the Consolidation Officer. The appeal filed by the appellants

was dismissed by the Settlement Officer (Consolidation), whereas the

appeal filed by Hari Singh and others was allowed. The Settlement

Officer (Consolidation) while allowing the appeal of Hari Singh and

others had set aside the order of the Consolidation Officer and

directed that the entries in the record of rights may be prepared in

accordance with the order of the Sub-Divisional Officer dated 31st of

August, 1959. The appellants thereafter had filed two revision

petitions against the order of the Settlement Officer (Consolidation)

and both the said petitions were rejected by the DDC on 7th of July,

1975. Mohan Singh, the father of the appellants then challenged the

aforesaid orders before the High Court of Allahabad by way of Writ

Petition No. 7625 of 1975. While disposing of the writ petition setting

4 aside the order of DDC and remanding the case back to DDC, the

High Court made the following observations :-

"This effect is apparent from the order of the Settlement Officer (Consolidation) which has been affirmed by the DDC, that the order of the Consolidation Officer has been set aside and without recording his own finding on the point indicated above, he has directed to implement the order of the Sub-Divisional Officer on 31.8.1959. This, on the face of it, is illegal. The order passed in a mutation proceeding has no evidentiary value in Court or Authority, deciding the title of the partition merit. It was necessary for the Settlement Officer (Consolidation) and the DDC to consider and decide the case on merit and to pass the specific order. The orders of the Settlement Officer (Consolidation) and the DDC and manifestly erroneous in law and are not liable to be maintained. Although the order of the Settlement Officer (Consolidation) is also illegal, but the justice will be met if the case is decided by the Director of Consolidation has the jurisdiction to consider the case of the parties on the facts as well as law."

4. After remand by the High Court at Allahabad, the DDC allowed

the revision petition of the appellants by his order dated 20th of

October, 2004 and the entries of Bandobast and consolidation were

cancelled and the shares of the parties were decided in the manner

indicated in the said order. From a bare reading of this order of DDC,

it would be evident that the DDC while deciding the matter afresh, all

the questions directed to be considered by the Allahabad High Court

in the writ petition were duly considered after appreciating the

5 evidence and the respective cases made out by the parties and the

DDC finally came to the conclusion that the order of Consolidation

Officer and the Assistant Settlement Officer (Consolidation) must be

set aside and the entries of Bandobast and consolidation must be

cancelled. This is seen from the above order that all questions were

duly decided and evidence, oral and documentary, were duly

considered and after that the aforesaid findings were arrived at by the

DDC. A thorough examination of the findings arrived at by the DDC

would show that there was no question to be left out and for any

reason whatsoever, the findings were not arrived at in a perverse

manner or the findings were arbitrary in nature. The appellants

thereafter filed a writ petition being aggrieved by the order of the

DDC before the High Court of Uttaranchal, at Nainital. It may be

mentioned that when the order of DDC was passed, after remand, in

view of the U.P. Re-organisation Act, 2000 the writ petition then

could only be filed before the High Court at Uttaranchal and

accordingly the appellants, feeling aggrieved, filed a writ application

impugning the order of DDC before the High Court of Uttaranchal at

Nainital. The High Court by the impugned judgment had affirmed the

order of the DDC and feeling aggrieved, the appellants have filed this

appeal by way of a special leave in this Court under Article 136 of the

6 Constitution, which on grant of leave, was heard in the presence of the

learned counsel appearing on behalf of the parties.

5. We have heard the arguments of the parties and perused the

materials on record. We have also examined the impugned order of

the High Court and also the orders passed by the authorities in respect

of which challenge was made before the High Court in the Writ

Petitions. After going through the judgment of the High Court, it is

imperative to note that all the facts leading to the dispute of this case

have been extensively deliberated in the High Court and the same had

reiterated in its judgment that the DDC had complied with the

judgment of the High Court of Allahabad in its order after following

the observations and directions made by it. It is well settled that we

are entitled to interfere with the judgment of the High Court under

Article 136 of the Constitution only when there is gross irregularity in

the judgment of the High Court or any substantial grounds of law

which are of public importance have been raised in such a petition. If

these conditions are not satisfied, it would not be open to this Court to

interfere with the concurrent findings of the High Court as well as of

the DDC in the exercise of our discretionary power under Article 136

of the Constitution.

7

6. In our view, the concurrent findings of fact arrived at by the

authorities and affirmed by the High Court would clearly show that

such findings were arrived at on consideration of all materials placed

before the court and after giving proper hearing to the parties. Such

findings of fact, in our view, cannot be interfered with in the exercise

of our power under Article 136 of the Constitution. Therefore, the

instant appeal is liable to be dismissed for the reasons given

hereinunder.

7. From the record, it appears that the DDC, after remand, by the

High Court of Allahabad in a writ application to decide the dispute

between the parties afresh had considered all the evidence of the

present case and evidence on record by following such directions of

the High Court, and other materials on record and accordingly, had set

aside the order of the Consolidation Officer and the Assistant

Settlement Officer, Consolidation, Kashipur, and thereby cancelled

the entries of Bandobast and consolidation. Keeping the findings

arrived at by the DDC which was affirmed by the High Court and

while doing so, the High Court made the following observations :

8

"This Court is of opinion that every time in such a old case it is not just and proper to quash the orders on technical grounds and force the litigants to go back again and again to litigate on the same point. In other words now in this round of litigation, after 25 years of the order passed by the Allahabad High Court, this Court should not go beyond examining if the directions of the Allahabad High Court were complied with by the DDC in disposing of the revision afresh or not."

8. Thus being so observed, the Uttaranchal High Court went on to

note that the perusal of the order dated 20th of October, 2004, showed

that the DDC had then recorded the findings as to the claims of the

parties keeping in view of the directions of the Allahabad High Court.

Therefore, the High Court was correct to observe that the DDC had

complied with the order of the Allahabad High Court and dismissed

the petition of the appellants. It is very important for the disposal of

this case to refer again to the relevant portion of the judgment of the

High Court to elaborate this observation made by the Court.

"Learned counsel for the appellants of all the three writ petitions argued before me that share of one or the other is being shown to be less than what they had claimed. It is further argued by all the appellants that as to their share, claims were not properly considered. I may remind it here that this Court is exercising its jurisdiction in supervisory-cum-revisional power and cannot decide the intricate questions of facts relating to shares. Rather, from the perusal of the impugned order, it is clear that in a detailed judgment of 14 pages learned Dy. Director of Consolidation has given reasons for its findings on shares of each one of the parties. In the

9 circumstances, it cannot be said that the Dy. Director of Consolidation has not complied with the directions of Allahabd High Court while disposing of the writ petition."

9. It has been rightly pointed out by the High Court that the High

Court in the exercise of its revisional-cum-supervisory power cannot

go into the intricate details of facts and decide the questions raised

therein. We are in agreement with these views of the High Court,

except that in exceptional cases such orders which are based on

perversity and arbitrariness could be interfered with by the High

Court. After a long period of litigation ranging for almost 50 years,

the DDC had decided according to the shares of the parties after

complying with the observations made by the Allahabad High Court

as had been noted by the High Court in its impugned judgment and it

is not proper to set aside the orders on technical grounds and force the

litigants to go back again and again to litigate on the same point. In

any view of the matter, we are not in a position to observe that there

was anything for the High Court to interfere with the order of the

DDC, as it appears from the observations made by the Allahabad High

Court that the DDC will decide the dispute and consider all aspects of

the matter and the entire materials including the oral and documentary

evidence on record.

10

10. From the order dated 20th of October, 2004, passed by the

DDC, it is clear to us as to how the parties had got the shares given to

them by the DDC. Learned counsel for the appellants argued that the

DDC had wrongly shown some of the plots being submerged into the

river bed. This Court is not in a position to disbelieve what the DDC

had stated unless firm evidence to the contrary is on record. The

appellants had not been able to produce any evidence to satisfy this

contention.

11. The Learned Counsel for the appellants also raised a contention

that after the creation of the separate State of Uttaranchal, Additional

District Magistrate, Udham Singh Nagar had no jurisdiction to

exercise power of the DDC. We do not agree to this contention as

well. This is because all the notifications issued by the Govt. of Uttar

Pradesh are applicable to the state of Uttaranchal under Section 86 of

UP Reorganization Act, 2000 read with Section 88 of the said Act.

Sections 86 and 88 which are necessary for our purpose are

reproduced below :

"86. Territorial extent of laws:- The provisions of Part II shall not be deemed to have affected any change in the territories to which the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1961 (U.P. Act 1 of 1961) and any other law in force immediately before the appointed day, extends or applies, and territorial references of any such law to the State of Uttar Pradesh

11 shall, until otherwise provided by a competent Legislature or other competent authority be construed as meaning the territories within the existing state of Uttar Pradesh before the appointed day.

88. Power to construe laws:- Notwithstanding that no provision or insufficient provision has been made under Section 87 for adaptation of a law made before the appointed day, any court, tribunal or authority, required or empowered to enforce such law may, for the purpose of facilitating its application in relation to the State of Uttar Pradesh or Uttaranchal, construe the law in such manner, without affecting the substance, as may be necessary or proper in regard to the matter before the court, tribunal or authority."

12. From the reading of the aforesaid two provisions, it would not

be possible for us to hold that the Additional District Magistrate,

Udham Singh Nagar had no jurisdiction to exercise power of the

DDC.

13. It was next contended that the order of the DDC, Udham Singh

Nagar dated 20th of October, 2004 was passed in contravention of the

directions issued by the High Court of Allahabad as stated herein

earlier. As has been already mentioned above, the High Court at

Uttaranchal correctly noted that the order passed by the DDC was not

in contravention of the directions of the Allahabad High Court. The

DDC had taken into consideration the observations made by the

Allahabad High Court and after perusing all the material documents

12 and contentions of the parties, passed the order dated 20th of October,

2004. Thus the contention that the DDC had not taken into

consideration the order of the Allahabad High Court cannot be

accepted and accordingly rejected.

14. It was next contended that the order of the Sub-Divisional

Officer, Kashipur, passed on 31st of August, 1959 under Sections 33

and 39 of the UP Land Revenue Act, could not be relied on and form

the basis of the order passed by the DDC and the same cannot modify

and disturb the basic year entries as recorded in the Khata of the

appellants. We do not find any ground to uphold this contention. It

has to be noted that the proceedings started under the UP

Consolidation of Holdings Act, and the allocation of Chaks were

made pursuant to the orders passed by the Consolidation Officer and

the DDC, after duly considering the claims of the parties. It is well

settled that the DDC is conferred with wide powers under the Act to

adjudicate the issue posed before him. In order to elaborate this point,

it is essential to refer to the case of Sheo Nand & Ors vs. Deputy

Consolidation Allahabad and Ors. 2000 (3) SCC 103. In the said

case, this Court, referring to Section 48 of the Act had noted that:

"The Section gives very wide powers to the Deputy Director. It enables him suo motu on his own motion or on the (application of any person to consider the

13 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.

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 scrutinize 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 record 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 re- appraise or re-evaluate the evidence on record so as to finally determine the rights of the parties by excluding forged or fictitious revenue entries or entries not made in accordance with law.

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 scrutinized 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 scrutinizing the evidence on record, the Deputy Director had noticed that the entries were fictitious and in recording some of the entries in the revenue record in favour of the appellants, statutory provisions including those contained in U.P. Land

14 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."

15. From the above-quoted observations of this Court, it is clear

that the DDC has wide range of discretionary powers mandated under

the Act by which he could proceed to modify even the basic year

entries if found to be wrongly derived at. Therefore, the contention

that the DDC could not have modified the basic year entries was not

correct. It appears to us that the Khatuani prepared in the Bandobast

was incorrectly made and the courts below including the DDC had

been duly conferred with power under the Act to correct the same. In

fact, the Assistant Recording Officer, Kashipur had passed an order in

1963 to correct the entries as per the order of the Sub-Divisional

Officer, Kashipur dated 31st of August, 1959 but the same was not

complied with.

16. The learned counsel for the appellants also contended that

relying on Section 11A of the Act, any objection for the first time

could not be entertained by the authorities. We do not agree with this

submission of the learned counsel for the appellants. We have already

observed that the respondents had not accepted the order passed by

the Settlement Officer, Consolidation, Kashipur and they had filed

15 their separate objections to this regard, hence, the contention could not

be said to be correct and, therefore, it should be rejected. Further

more, a reading of the application dated 6th of July, 1959 would

clearly show that the parties had appeared before the authorities below

before the remand of the case to the DDC which would be evident

from Annexure R2.

17. It is evident from the perusal of the order of the Allahabad High

Court while passing the order of remand that the several issues which

were raised by the parties were fully considered and finally directed

the DDC to follow the procedures for coming to a proper conclusion

afresh on merits. Since the High Court at Allahabad clearly directed

the DDC to decide the matter on merits and in compliance with the

said direction, the DDC considered all the entire materials, oral and

documentary, on record to decide the matter, we do not find any

excess jurisdiction exercised either by the DDC or by the High Court

in coming to a finding arrived at by them.

18. The DDC after complying with the observations made by the

Allahabad High Court had taken all steps to determine whether the

consolidation process was proper or not. On this count also, we are

unable to agree with the contentions of the learned counsel for the

appellants. It may be noted that many of the original parties to the

16 consolidation proceedings had died over the period of time. At this

stage on consideration of the impugned judgment of the High Court as

well as of the DDC, we find that there is no evidence or material on

record to contradict or upset the findings of the High Court which

affirmed the findings of the DDC. In this connection, reliance can be

placed to a decision of this Court in the case of Vishnu Kamath vs.

Ahmad Syed Ishaque, [AIR 1955 SC 283] in which this Court

observed that:

"The finality given to the decision of the Settlement Officer (Consolidation) does not follow that it cannot be questioned in the writ jurisdiction of the High Court where there is an error apparent on the face of the record"

19. The observations made by this Court as above that there must

be an error apparent on the face of the record affirms our observation

that for an appeal to be allowed in such a situation such as this, a high

standard must be met in the way of evidence produced to support the

case of the appellants as noted herein earlier. All the materials and

issues discussed in their petition were elaborately discussed and

argued before the High Court of Uttaranchal which had affirmed the

findings of the DDC and found no infirmity therein.

17

20. Lastly it was contended that the DDC exceeded his jurisdiction

contrary to the decision of the Allahabad High Court. The Allahabad

High Court, as has been mentioned above, directed the DDC to decide

the case on merits. It has not come to our notice that the Allahabad

High Court, in any way, specified the way the merits of the case

should be determined. We, therefore, believe, based on the review of

his findings that he did the best he could do in performing his duty as

had been mandated by the Allahabad High Court.

21. Based on the reasons mentioned above, we do not find any

infirmity in the impugned judgment of the Uttaranchal High Court and

thus feel it unnecessary to interfere with the same.

22. The appeals are thus dismissed. There will be no order as to

costs.

...............................J. [ARIJIT PASAYAT]

NEW DELHI; ...............................J. APRIL 15, 2009. [TARUN CHATTERJEE]

18 19