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Section 48 of the U.P. Consolidation of Holdings Act – excess use of revision power – Production of Will deed – at revisional stage – re appreciation of total evidence and reversing the settled orders of lower authorities under sec.48 of Consolidation Act which was confirmed by High court is not correct – Apex court set aside the order of High court and Director of consolidation = SHRI JAGDAMBA PRASAD (DEAD) THR. LRS. & ORS. APPELLANTS VS. KRIPA SHANKAR (DEAD) THR. LRS.& ORS. … RESPONDENTS J U D G M E N T = 2014 ( Apr.Part ) judis.nic.in/supremecourt/filename=41384

 Section 48 of the U.P. Consolidation  of  Holdings  Act – excess use of revision power – Production of Will deed – at revisional stage – re appreciation of total evidence and reversing the settled orders of lower authorities under sec.48 of Consolidation Act which was confirmed by High court is not correct – Apex court set aside the order of High court and Director of consolidation =

 

The appellants filed objections before the Consolidation  Officer  for

the deletion of the name of one Bhukhali (father of the  respondents)  since

the appellants allege that this name has been fictitiously mentioned in  the

revenue records pertaining to Khata no.  63  of  Village  Badhaiya,  Pargana

Kewai. The plot Nos. 552, 570 and 574 in the present  case,  are  registered

in  the  names  of  the  landowners  Mahadev,  Shambhu  Nath  and   Bhukhali

respectively. Mahadev and Shambhu Nath belong to  the  same  family  whereas

Bhukhali was the resident of another village.

 

3.    Objections were initially filed by the  appellants  whose  father  was

1/3rd share holder of the land which was recorded in the name  of  Bhukhali-

the father of the respondents. Mahadev and Shambhu  Nath,  the  other  share

holders of the land conceded to the rights of the appellants.  Rajpati-  the

son of Bhukhali, was also made a party to the  proceedings  but  neither  he

filed any objection nor he claimed his rights  over  the  land  in  question

before the Consolidation Officer.

 

4.    Objections were however, filed by the Respondent nos. 1 and 2 who  are

the son and daughter of Bhukhali  and  are  his  legal  heirs  who  are  the

beneficiaries of the ‘Will’ executed by Bhukhali in their  favour.  However,

the said ‘Will’ was never produced by the Respondent nos. 1  and  2  at  any

stage before the authorities/court.

 

5.    The Consolidation Officer vide  order  dated  13.7.1971  accepted  the

objections of the appellants and deleted  the  name  of  Bhukhali  from  the

revenue records by declaring that the entry of his name in the  records  was

forged since Respondent nos. 1 and 2 failed to produce  the  alleged  ‘Will’

executed by Bhukhali in their favour. The respondents failed to produce  any

other document to prove their title on the land in question.

 

6. Aggrieved by the Order of the Consolidation Officer,  Respondent  nos.  1

and 2 filed an appeal before the Assistant Settlement Officer. The same  was

dismissed=

 Even at this  stage,  no  Will  or  other  documents  were  produced  by

Respondent nos. 1 and 2 to substantiate their plea that Bhukhali  had  given

the land in question to them through Will or otherwise.

 

  whether in passing the impugned order, the  Joint  Director

        of Consolidation, exceeded the limits of the jurisdiction conferred

        on him under Section 48 of the 1953 Act. For a proper  decision  of

        this question, it is necessary to advert to Section 48 of the  1953

        Act as it stood on the relevant date before its  amendment  by  Act

        VIII of 1963:

     “Section 48 of the U.P. Consolidation  of  Holdings  Act.—  The

             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.”

  5. As the above section is pari materia with  Section  115  of  the

        Code of Civil Procedure, it will be  profitable  to  ascertain  the

        scope of the revisional jurisdiction of the High Court. It  is  now

        well-settled that the revisional jurisdiction of the High Court  is

        confined to cases of illegal or irregular exercise or  non-exercise

        or illegal  assumption  of  the  jurisdiction  by  the  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 if it decides the  matter  wrongly.

        In other words, it is not open to the High Court  while  exercising

        its jurisdiction under Section 115 of the Code of  Civil  Procedure

        to correct errors of fact howsoever gross or  even  errors  of  law

        unless the errors have relation to the jurisdiction of the court to

        try the dispute itself.”

                           (Emphasis laid by this Court)

 

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.

16. Having said that the  Revisional  Authority  exceeded  its  jurisdiction

under Section 48 of the Act, we have to hold that the High  Court  erred  in

concurring with the findings of  the  Revisional  Authority  by  failing  to

observe  that  the  Revisional  Authority  has  exceeded  its   jurisdiction

conferred upon it under the Act. 

The High Court further erred  by  recording

its reason by interpreting the facts of the case. The appellants  had  moved

the High Court by way of a Writ Petition. 

Therefore, it is pertinent for  us

to mention the findings of this Court in the case of Tata Cellular v.  Union

of India[2] which has been reiterated in the case  of  Heinz  India  Private

Ltd. & Anr. v. State  of  Uttar  Pradesh  &  Ors.[3]  This  Court,  in  Tata

Cellular case made the following observation:

 

              “77. The duty of the  court  is  to  confine  itself  to  the

              question of legality. 

Its concern should be :

              1. Whether a decision-making authority exceeded its powers?

              2. Committed an error of law,

              3. committed a breach of the rules of natural justice,

              4. reached a decision which no reasonable tribunal would have

              reached or,

              5. abused its powers.

 

Therefore, it is not for the court  to  determine  whether  a

              particular  policy  or  particular  decision  taken  in   the

              fulfilment of that policy is fair. 

It is only concerned  with

              the manner in which those  decisions  have  been  taken.  The

              extent of the duty to act fairly will vary from case to case.

              Shortly put, the grounds upon which an administrative  action

              is subject to control by judicial review can be classified as

              under :

              (i)  Illegality  :  This  means   the   decision-maker   must

              understand correctly the law  that  regulates  his  decision-

              making power and must give effect to it.

              (ii) Irrationality, namely, Wednesbury unreasonableness.

              (iii) Procedural impropriety.”

 

Therefore, the  High  Court  has  failed  to  observe  that  the  Revisional

Authority exceeded its jurisdiction under Section 48 of the Act and  it  has

further erred in concurring with the decision of  the  Revisional  Authority

on factual grounds which is beyond the jurisdiction of it.

 

Answer to Point No. 3

17.  Having answered point nos. 1 and 2 in favour of the appellants,  it  is

now pertinent to mention as to what relief the appellants are entitled to.

 

      On the basis of the factual and legal material  evidence  produced  on

record, we uphold the decision of the Appellate Authority  rendered  by  the

Assistant  Settlement  Officer  and  set  aside  the  Orders  of  both   the

Revisional Authority and the High Court. The appeal is allowed  accordingly,

but without costs.

2014 ( Apr.Part ) judis.nic.in/supremecourt/filename=41384

GYAN SUDHA MISRA, V. GOPALA GOWDA

NON REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4457 OF 2005

 

SHRI JAGDAMBA PRASAD (DEAD) THR. LRS. & ORS. APPELLANTS
VS.
KRIPA SHANKAR (DEAD) THR. LRS.& ORS. … RESPONDENTS

 

 

 
J U D G M E N T

 
V.GOPALA GOWDA, J.

 
This appeal is filed by the appellants questioning the correctness of
the judgment and final Order dated 2.9.2003 passed by the High Court of
Judicature at Allahabad in Civil Misc. Writ No. 4688 of 1974, urging
various facts and legal contentions in justification of their claim.

Necessary relevant facts are stated hereunder to appreciate the case
of the appellants and also to find out whether the appellants are entitled
for the relief as prayed in this appeal.

2. The appellants filed objections before the Consolidation Officer for
the deletion of the name of one Bhukhali (father of the respondents) since
the appellants allege that this name has been fictitiously mentioned in the
revenue records pertaining to Khata no. 63 of Village Badhaiya, Pargana
Kewai. The plot Nos. 552, 570 and 574 in the present case, are registered
in the names of the landowners Mahadev, Shambhu Nath and Bhukhali
respectively. Mahadev and Shambhu Nath belong to the same family whereas
Bhukhali was the resident of another village.

3. Objections were initially filed by the appellants whose father was
1/3rd share holder of the land which was recorded in the name of Bhukhali-
the father of the respondents. Mahadev and Shambhu Nath, the other share
holders of the land conceded to the rights of the appellants. Rajpati- the
son of Bhukhali, was also made a party to the proceedings but neither he
filed any objection nor he claimed his rights over the land in question
before the Consolidation Officer.

4. Objections were however, filed by the Respondent nos. 1 and 2 who are
the son and daughter of Bhukhali and are his legal heirs who are the
beneficiaries of the ‘Will’ executed by Bhukhali in their favour. However,
the said ‘Will’ was never produced by the Respondent nos. 1 and 2 at any
stage before the authorities/court.

5. The Consolidation Officer vide order dated 13.7.1971 accepted the
objections of the appellants and deleted the name of Bhukhali from the
revenue records by declaring that the entry of his name in the records was
forged since Respondent nos. 1 and 2 failed to produce the alleged ‘Will’
executed by Bhukhali in their favour. The respondents failed to produce any
other document to prove their title on the land in question.

6. Aggrieved by the Order of the Consolidation Officer, Respondent nos. 1
and 2 filed an appeal before the Assistant Settlement Officer. The same was
dismissed vide Order dated 28.1.1972. Rajpati, son of Bhukhali, who was
made party to the proceedings, also filed a belated appeal after about one
year of passing of the Order dated 13.7.1971 on the ground that he had no
knowledge about the said Order. The said appeal of Rajpati was dismissed by
a separate Order dated 11.12.1972.

7. Respondent nos. 1 and 2 thereafter, filed a Revision Petition before the
Revisional Authority i.e. the Deputy Director of Consolidation, Allahabad
against the Order of the Assistant Settlement Officer dated 28.1.1972.
However, the Respondent nos. 1 and 2 produced certified copies of documents
executed in 1934 pertaining to auction sale of the land in question before
the Revisional Court. The auction sale is in favour of Bhukhali which shows
that the share of the appellants’ father was purchased by Bhukhali in the
year 1934. The Revisional Authority, by placing reliance on this document
of auction sale, vide order dated 30.4.1974 reversed the Order of the
Consolidation Officer and allowed the revision petition of the Respondent
nos. 1 and 2 stating that the entering of Bhukhali’s name in revenue
records of the land in question had been registered as a co-owner even
after the abolition of zamindari. Therefore, through this Order, the Court
upheld the claim of the respondents that Bhukhali had purchased the share
of appellants’ father in an auction sale.

However, the appeal of Rajpati was dismissed by the Revisional
Authority on the ground that he had not preferred any objections before the
Consolidation Officer claiming his title as a legal heir of Bhukhali over
the land in question.

8. Even at this stage, no Will or other documents were produced by
Respondent nos. 1 and 2 to substantiate their plea that Bhukhali had given
the land in question to them through Will or otherwise.

9. The appellants, being aggrieved by the Order of the Revisional
Authority dated 30.4.1974, filed a Writ Petition No. 4688 of 1974 before
the High Court of Judicature at Allahabad on the ground that the Revisional
Authority could not have accepted the secondary evidence at the stage of
revision and reversed the concurrent findings of the Appellate Authority.

10. The learned Single Judge of the High Court dismissed the Writ
Petition filed by the appellants on the ground that the appellants have not
been able to prove the ownership and title over the land on expunction of
the name of Bhukhali from the revenue records. The learned Single Judge
further observed that the rights of Bhukhali in respect of the land in
question cannot be negatived on the basis of the documents pertaining to
Auction Sale of 1934 produced by respondents Nos. 1 and 2 before the
Revisional Authority in favour of Bhukhali.

It was further observed by the learned Single Judge that Rajpati, the
son of Bhukhali is still alive and even if the Will on the basis of which
Respondent nos. 1 and 2 are claiming their right is not accepted, the
rights of Bhukhali, which accrued to him on the basis of the auction sale,
have to pass on Rajpati who is the natural legal heir and in no case,
rights of Bhukhali can pass on to the respondent Nos. 1 and 2.

11. It is contended by Ms. Sangeeta Bharti, the learned counsel for the
appellants that the learned Revisional Authority failed to take into
consideration that the appellants were in continuous possession over the
land in question even prior to 1934. It is further contended that the
Revisional Authority exceeded its jurisdiction under Section 48 of the U.P.
Consolidation of Holdings Act, 1953 (in short ‘The Act’) in entertaining
additional documents for the first time without any explanation as to why
these documents were not produced by them earlier in the proceedings.
Further, the certified copies produced by the respondent Nos. 1 and 2 are
only secondary evidence and have to be proved before they could be
considered by the Revisional Authority, particularly, when the concerned
documents were not produced before the Original and Appellate Authorities.

12. The learned counsel on behalf of the respondents, on the other hand,
contends that the Revisional Authority rightly placed reliance upon the
document of auction sale and came to the conclusion that the title of the
land vests on Bhukhali and therefore the same are conferred upon his legal
representatives. Hence, the finding of fact recorded by the Revisional
Authority has been rightly concurred by the High Court in the impugned
judgment.

13. Based on the rival factual and legal contentions raised by the
parties, the following points would arise for our consideration :

1. Whether the Revisional Authority exceeded its jurisdiction under
Section 48 of the Uttar Pradesh Consolidation of Holdings Act, 1953 in
entertaining additional document at revision stage?

2. Whether the High Court was correct in concurring with the findings
of the Revisional Authority?

3. What order the appellants are entitled to?

Answer to Point No. 1

14. Section 48 of the Act is pari materia to Section 115 of the Code of
Civil Procedure, 1908. It is pertinent to mention at this point the
decision of this Court given in the case of Sher Singh v. Joint Director
of Consolidation & Ors.[1] The relevant paragraphs read as under:
“4. The principal question that falls for our determination in this
case is whether in passing the impugned order, the Joint Director
of Consolidation, exceeded the limits of the jurisdiction conferred
on him under Section 48 of the 1953 Act. For a proper decision of
this question, it is necessary to advert to Section 48 of the 1953
Act as it stood on the relevant date before its amendment by Act
VIII of 1963:
“Section 48 of the U.P. Consolidation of Holdings Act.— The
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.”
5. As the above section is pari materia with Section 115 of the
Code of Civil Procedure, it will be profitable to ascertain the
scope of the revisional jurisdiction of the High Court. It is now
well-settled that the revisional jurisdiction of the High Court is
confined to cases of illegal or irregular exercise or non-exercise
or illegal assumption of the jurisdiction by the 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 if it decides the matter wrongly.
In other words, it is not open to the High Court while exercising
its jurisdiction under Section 115 of the Code of Civil Procedure
to correct errors of fact howsoever gross or even errors of law
unless the errors have relation to the jurisdiction of the court to
try the dispute itself.”
(Emphasis laid by this Court)

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.

Answer to Point No. 2
16. Having said that the Revisional Authority exceeded its jurisdiction
under Section 48 of the Act, we have to hold that the High Court erred in
concurring with the findings of the Revisional Authority by failing to
observe that the Revisional Authority has exceeded its jurisdiction
conferred upon it under the Act. The High Court further erred by recording
its reason by interpreting the facts of the case. The appellants had moved
the High Court by way of a Writ Petition. Therefore, it is pertinent for us
to mention the findings of this Court in the case of Tata Cellular v. Union
of India[2] which has been reiterated in the case of Heinz India Private
Ltd. & Anr. v. State of Uttar Pradesh & Ors.[3] This Court, in Tata
Cellular case made the following observation:

“77. The duty of the court is to confine itself to the
question of legality. Its concern should be :
1. Whether a decision-making authority exceeded its powers?
2. Committed an error of law,
3. committed a breach of the rules of natural justice,
4. reached a decision which no reasonable tribunal would have
reached or,
5. abused its powers.
Therefore, it is not for the court to determine whether a
particular policy or particular decision taken in the
fulfilment of that policy is fair. It is only concerned with
the manner in which those decisions have been taken. The
extent of the duty to act fairly will vary from case to case.
Shortly put, the grounds upon which an administrative action
is subject to control by judicial review can be classified as
under :
(i) Illegality : This means the decision-maker must
understand correctly the law that regulates his decision-
making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety.”
Therefore, the High Court has failed to observe that the Revisional
Authority exceeded its jurisdiction under Section 48 of the Act and it has
further erred in concurring with the decision of the Revisional Authority
on factual grounds which is beyond the jurisdiction of it.

Answer to Point No. 3
17. Having answered point nos. 1 and 2 in favour of the appellants, it is
now pertinent to mention as to what relief the appellants are entitled to.

On the basis of the factual and legal material evidence produced on
record, we uphold the decision of the Appellate Authority rendered by the
Assistant Settlement Officer and set aside the Orders of both the
Revisional Authority and the High Court. The appeal is allowed accordingly,
but without costs.

 

………………………………………………………………………J.
[GYAN SUDHA MISRA]

 
……………………….J.
[V. GOPALA GOWDA]
New Delhi, April 4, 2014

———————–
[1] (1978) 3 SCC 172

[2] (1994) 6 SCC 651

[3] (2012) 5 SCC 443

 

———————–

 
15

 

 

 

 

 

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