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Saturday, April 5, 2014

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

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[1]    (1978) 3 SCC 172

[2]    (1994) 6 SCC 651

[3]    (2012) 5 SCC 443



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