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
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.
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.
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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