# 1. 1995 R.D. Page 534 Damodar Prasad v. Deputy Director of Consolidation, Allahabad and others

- **Citation:** (2002) 2 ILRA 303
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-01-31
- **Case number:** Civil Misc. Writ Petition No. 1056 of 2002
- **Bench:** Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/1-1995-r-d-page-534-damodar-prasad-v-deputy-director-of-consolidation-allahabad-39822
- **Pages:** 7

## Headnote

U.P. Consolidation of Holdings Act-1953-
Section 48- Power Revision- whether the
Dy.
Director
of
consolidation
can
entertain the Revision directly against
appealable order? Held- in view of
difference of decisions of different Single
Judges- let the question be referred
before larger bench.

Held- Para 14

From the above discussion, it is clear
that although the language of Section 48
is in very wide term and does not admit
any exception to the effect that the
power of revision cannot be invoked
against an appealable order passed by
the Consolidation Officer if the appeal
has not been filed but in view of
conflicting views of different learned
Single
Judges
on
the
aforesaid
controversy it has become necessary to
refer this matter to Hon'ble the Chief
Justice for constituting a larger Bench to
resolve
the
conflict
between
the
conflicting decisions of different Learned
Single Judges of this Court.
Case law discussed
1995 RD-534
1998 (89) RD 578
1999 (90) RD 363
2000 RD-608

## Text

2 All] Faujdar Vs. Deputy Director of Consolidation, Azamgarh and others
303
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31ST JANUARY, 2002

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 1056 of 2002

Faujdar

...Petitioner
Versus
Deputy
Director
of
Consolidation,
Azamgarh and others
 ...Respondents

Counsel for the Petitioner:
Sri Ram Niwas Singh
Sri V.K.S. Chandel

Counsel for the Respondents:
S.C.

U.P. Consolidation of Holdings Act-1953-
Section 48- Power Revision- whether the
Dy.
Director
of
consolidation
can
entertain the Revision directly against
appealable order? Held- in view of
difference of decisions of different Single
Judges- let the question be referred
before larger bench.

Held- Para 14

From the above discussion, it is clear
that although the language of Section 48
is in very wide term and does not admit
any exception to the effect that the
power of revision cannot be invoked
against an appealable order passed by
the Consolidation Officer if the appeal
has not been filed but in view of
conflicting views of different learned
Single
Judges
on
the
aforesaid
controversy it has become necessary to
refer this matter to Hon'ble the Chief
Justice for constituting a larger Bench to
resolve
the
conflict
between
the
conflicting decisions of different Learned
Single Judges of this Court.
Case law discussed
1995 RD-534
1998 (89) RD 578
1999 (90) RD 363
2000 RD-608

(Delivered by Hon'ble Ashok Bhushan, J.)

1. One of the questions which has
arisen in the writ petition is as to whether
the Deputy Director of Consolidation
while
exercising
jurisdiction
under
Section 48 of the U.P. Consolidation of
Holdings Act, 1953 (hereinafter to be
referred as "the Act") can directly hear the
revision against an order passed under
section 9A of the Act. The submission of
the counsel for the petitioner Sri R.N.
Singh is that the Deputy Director of
Consolidation has no jurisdiction to
entertain a revision under Section 48 of
the Act directly against the order passed
under Section 9A. He has submitted that
there is provision of appeal under Section
11 of the Act hence revision can neither
be filed nor can be entertained by the
Deputy Director of Consolidation. In
support of his submission the counsel for
the petitioner has placed reliance on the
following decisions:-

1.
1995 R.D. Page 534 Damodar
Prasad
vs.
Deputy
Director
of
Consolidation, Allahabad and others.

2.
1998 (89) R.D. page 578 Santosh
Kumar and others vs. U.P. Sanchalak
Chakbandi, Faizabad and others.

3.
1999 (90) R.D. page 363 Ranjeet
and others vs. Deputy Director of
Consolidation Ballia and others.

4.
2000 R.D. page 608 Hari Har Ram
vs. Deputy Director of Consolidation
Ballia and others
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
304
5.
Judgment dated 28.9.1999 passed in
writ petition No.26527 of 1999 Rama
Shanker Singh and others vs. Deputy
Director of Consolidation, Varanasi
and another.

2. In Damodar Prasad's case
(supra) learned single Judge has taken the
view that an order passed under Section
9-B being appealable even challenged in
revision without availing of the remedy of
appeal, could be destructive of a remedy
under the Act. Paragraph 6 of the
aforesaid judgment is extracted below:-

"6. It may also be pertinent to
observe that an order under Section 9-B
being appealable, its challenge in revision
without availing of the remedy of appeal
would be destructive of a remedy under
the Act. The order dated 21.02.1990 was
certainly an order under Section 9-B of
the U.P. Consolidation of Holdings Act.
The jurisdiction under Section 48 of the
Act ought not to be exercised in a manner
which may be destructive of a statutory
remedy. This aspect of the matter also
needs to be examined at the end of the
Deputy Director of Consolidation."

3. In Santosh Kumar's (supra) it
was held by the learned single Judge that
the revision should not have been
entertained
directly
by
the
Deputy
Director of Consolidation. It was held by
the learned Single Judge in the judgment:-

"It has been urged by the learned
counsel for the petitioners that although
language of Section 48 is very wide
which empowers the Deputy Director of
Consolidation to revise any order and the
proceedings taken by any subordinate
authority and may call for the record for
satisfying as to the regularity of the
proceedings or as to the correctness,
legality or propriety of any order passed
by such authority in the case or
proceedings, may, after allowing parties
concerned of being heard, make such
order in the case or proceedings as he
thinks fit but Section 11 of the said Act
which is applicable to the proceedings
under Section 12 provides an appeal
against
the
orders
passed
by
the
Consolidation
Officer
and
therefore,
revision should not have been entertained
directly by the Deputy Director of
Consolidation. In view of the above, it is
directed that the Deputy Director of
Consolidation shall not dispose of the said
revision preferred by opposite party No. 2
and shall direct him to prefer an appeal
under Section 11 of the Consolidation of
Holdings Act."

4. In Ranjeet's case (supra) again
the learned Single Judge took the view
relying on the case of Santosh Kumar that
challenge in revision under Section 48 of
the Act without availing the remedy of
appeal is destructive of statutory remedy.
It was held in paragraph 6 of the
judgement:-

"6. The facts of these three cases
relied upon by the learned counsel for the
respondent No. 2 are different, in all these
three
cases
the
appeal
before
the
Settlement Officer was not pending, in the
instant case, as seen above the appeal and
cross- appeals were pending before the
Settlement Officer (Consolidation), the
petitioners specifically urged before the
Deputy Director of Consolidation that in
view of the pendency of the appeal, the
revision was not maintainable. The
present case is a case where the
jurisdiction exercised by the Deputy
Director of Consolidation is destructive of
2 All] Faujdar Vs. Deputy Director of Consolidation, Azamgarh and others
305
the statutory remedy of appeal and it is a
fit case which calls for interference in
petitions under Articles 226/227 of the
Constitution of India."

5. In Hari Har Ram and Ram
Shanker Singh's cases learned Single
Judge of this Court took the view that the
order passed by the Deputy Director of
Consolidation
in
revision
preferred
directly
against
the
order
of
the
Consolidation
Officer,
is
not
maintainable.

6.

Section
48
of
the
U.P.
Consolidation of Holdings Act as it was
originally enacted provided:-

"Section
48
(Revision):-
The
Director of Consolidation may call for the
record of any case if the Officer, (other
than the arbitrary) by whom the case was
decided, appears to have exercised a
jurisdiction not vested; in whom by slaw
or to have failed to exercise jurisdiction
so vested, or to have acted in exercise of
his
jurisdiction
illegally
or
with
substantial irregularity and may pass such
orders in the case as it may think fit."

7. After several amendments finally
Section 48 was substituted by U.P.
Amendment Act No. VIII of 1963.
Section 48 as it now stands in the statute
book provides:-

"48. Revision and reference, ----
(1) The Director of Consolidation may
call for an examine the record of any case
decided or proceedings taken by any
subordinate authority for the purpose of
satisfying himself as to the regularity of
the proceedings; or as to the correctness,
legality or propriety of any order (other
than interlocutory order) passed by such
authority in the case of proceedings and
may, after allowing the parties concerned
an opportunity of being heard, make such
order in the case of proceedings as he
thinks fit.

(2) Powers under sub-section (1)
may be exercised by the Director of
Consolidation also on a reference under
sub section (3)

(3) Any authority subordinate to the
Director of Consolidation may, after
allowing
the
parties
concerned
an
opportunity of being heard, refer the
record of any case or proceedings to the
Director of Consolidation for action under
sub-section (1).

Explanation (1) For the purposes of
this section, Settlement Officers of
Consolidation, Consolidation Officers,
Assistant
Consolidation
Officers,
Consolidator and Consolidation Lekhpals
shall be subordinate to the Director of
Consolidation.

Explanation (2) For the purposes of
this section the expression 'interlocutory
order' in relation to a case or proceedings,
means such order deciding any matter
arising in such case or proceedings or
collateral thereto as does not have the
effect of finally disposing of such case or
proceeding."

8. Looking to the plain and simple
language of Section 48 sub-section (1)
which provides that the Director of
Consolidation may call for and examine
the record of any case decided or
proceedings taken by any subordinate
authority makes it clear that this Section
empowers the Director of Consolidation
to revise orders passed by any subordinate
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
306
authority. The explanation (1) of Section
48 provides that for the purpose of this
Section
Settlement
Officers
of
Consolidation, Consolidation Officers,
Assistant
Consolidation
Officers,
Consolidator and Consolidation Lekhpals
shall be subordinate to the Director of
Consolidation. Thus Section 48 (1) read
with Explanation (1) clearly contemplate
the power of revision with Deputy
Director against any case decided or
proceedings taken by any subordinate
authority as explained in Explanation (1).
The provision of Section 48 as amended
clearly contemplate exercise of power of
revision by Director against the order of
any subordinate authority without any
exception. The Division Bench of this
Court in 1972 R.D. page 80 Mst.
Kailashi vs. Dy. Dir. of Consolidation
and others held that Section 48 of the
U.P. Consolidation of Holdings Act
confers power upon the Deputy Director
of Consolidation to reach on facts and law
every kind of order passed by any
subordinate consolidation authority. The
Division Bench held that:-

"The
Consolidation
Officer
condoned the delay in filing an objection
under Section 9, U.P. Consolidation of
Holdings Act, the other side feeling
aggrieved filed a revision. The Deputy
Director went into the merits and held
that there was no sufficient explanation
for the delay. On this ground he allowed
the revision and set aside the order
condoning the delay. Learned counsel for
the applicant has urged that the Deputy
Director had no jurisdiction to go into the
merits
of
the
application
for
the
condonation of delay. Section 48 of the
U.P. Consolidation of Holdings Act
confers powers upon the Deputy Director
to reach on facts and law every kind of
order
passed
by
a
subordinate
consolidation
authority.
The
order
condoning the delay was subject to the
revisional powers under Section 48 of the
Act."

9. The above observations of the
Division Bench supports the view that the
Deputy Director of Consolidation can
revise every order passed by any
subordinate
consolidation
authority.
Learned
counsel
for
the
petitioner
submitted that the observations of the
Division Bench in the above case is only
obiter. He has submitted that the question
which has been raised in the present writ
petition was not before the Division
Bench hence the Division Bench cannot
be held to be authority for the proposition.
He has submitted that the order condoning
the delay in filing objection under Section
9 does not fall within the scope of order
under Section 9 or 10 and was not an
appealable order hence the Deputy
Director interfered in the aforesaid order.
He submitted that the said judgment is not
an authority for the proposition that even
if the order under Section 9 is appealable,
revision can be entertained.

10. There are series of decisions of
this Court by various single Judges taking
the view that the revision is not
maintainable under Section 48 of the Act
before
the
Deputy
Director
of
Consolidation directly against an order
passed by the Consolidation Officer. In
following judgments different learned
Single Judges of this Court has taken the
aforesaid view:-

1.
1979 R.D. page 308 Ram Das and
another
vs.
Deputy
Director
of
Consolidation and others.
2 All] Faujdar Vs. Deputy Director of Consolidation, Azamgarh and others
307
2.
1982 R.D. page 78 Hori Lal vs.
Deputy
Director
of
Consolidation,
Allahabad and others.

3. 1985 All.L.J. 1343 Ram Saran vs.
Assistant Director of (Consolidation)
and others.

4.
1990 R.D. page 160 Ram Surat and
others vs. Gram Sabha, Nagar, Haraiya
Mirzapur and others.

11. In Ram Das's case (supra), the
learned Single Judge of this Court held
that normally revision should not be filed
directly against an order if appeal lies but
there is no bar express or implied either
under section 21 or under section 48
prohibiting the direct revision. It was held
in the aforesaid judgment:-

"The order was also challenged as
being without jurisdiction as the opposite
party did not prefer any appeal against the
order of the Consolidation Officer. It is
true that normally revision should not be
filed directly against an order, if appeal
lies, but there is no bar express or implied
either under Section 21 or Section 48
prohibiting a direct revision. Even the rule
111 which provides limitation for filing
revision; lays down that 'an application
under Section 48 shall be presented by the
applicant or his duly authorized agent to
the
District
Deputy
Director
of
Consolidation within 50 days of the order
against which the application is directed.
It removes any doubt if there be any, and
permits filing of revision against any
order."

12. In the case of Hori Lal (supra) it
was
held
that
the
Director
of
Consolidation if he finds on facts and
circumstances of the case that the order
passed by the Consolidation Officer or
Assistant Consolidation Officer suffers
from any maifest error of law he can very
well interfere with such order in exercise
of powers under Section 48 (1).

13. In Ram Saran's case (supra) the
learned Single Judge has elaborately
considered the effect of amendment made
in Section 48 by U.P. Act No. VIII of
1963 it was held in the aforesaid case in
paragraphs 6,10 and 11:-

"6. Thus, in my opinion, a person,
ever if he is not a party in the proceedings
but is aggrieved by an order passed under
S. 9-A of the Act can invoke the revisional
jurisdiction of the Deputy Director of
Consolidation even without filing an
appeal against the order. The Deputy
Director
of
Consolidation,
after
summonsing the record and giving
opportunity of hearing to the parties
would pass such orders as may be deemed
fit
and
proper
on
the
facts
and
circumstances of the case. In this view of
the matter I find that the revision filed by
the petitioner against the impugned order
dated 17.3.1982 passed by the Assistant
Consolidation Officer was maintainable
and the Deputy Director of Consolidation
erred in rejecting the revision as not
maintainable on the erroneous ground
that the petitioner has not filed appeal
against that order.

10. It, therefore, appears to me that
the revision filed by the petitioner could
not be thrown out merely on the ground
that he had not filed an appeal against the
impugned order dated 17.9.1982 passed
by the Consolidation Officer. Similar
question cropped up for consideration
before me in writ petition no. 2202 of
1976, Ram Ajore v. Deputy Director of
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
308
Consolidation, decided on 14.10.1981:
1982 All.L.J. 1160, wherein it was held
that a revision can be filed by the
aggrieved party under Section 48 of the
Act without preferring an appeal before
the Settlement Officer of Consolidation
against that order; See also 1982 All.
Learned Single Judge 223 Hori Lal v.
Deputy
Director
of
Consolidation,
Allahabad. Similar view was taken by
K.P. Singh, J. in Smt. Taluka Devi v.
Assistant
Director
of
Consolidation,
Azamgarh, 1981 RD 120. In another
decision Ram Das v. Deputy Director of
Consolidation 1979 All. W. 513; (1979
All. L.J. 761) R.M. Sahai, J. also took
similar view.

11. It is, thus, well settled that
revisional jurisdiction can be invoked by
the aggrieved party even without filing an
appeal, and as such, the Deputy Director
of
Consolidation,
in
my
opinion,
committed grave error of jurisdiction in
dismissing the revision filed by the
petitioner on the aforesaid erroneous
ground."

14. From the above discussion, it is
clear that although the language of
Section 48 is in very wide term and does
not admit any exception to the effect that
the power of revision cannot be invoked
against an appealable order passed by the
Consolidation Officer if the appeal has
not been filed but in view of conflicting
views of different Learned Single Judges
on the aforesaid controversy it has
become necessary to refer this matter to
Hon'ble the Chief Justice for constituting
a larger Bench to resolve the conflict
between the conflicting decisions of
different Learned Single Judges of this
Court. Following are the questions which
need consideration by the larger Bench.
A. Whether the Deputy Director of
Consolidation can exercise revisional
jurisdiction under section 48 against the
appealable
order
passed
by
the
Consolidation Officer where no appeal
has been filed?

B. Whether the decisions of learned
Single Judges in:-

1.
1995 R.D. page 534 Damodar
Prasad
vs.
Deputy
Director
of
Consolidation, Allahabad and others.

2. 1998 (89) R.D. page 578 Santosh
Kumar and others vs. U.P. Sanchalak
Chakbandi, Faizabad and others.

3.
1999 (90) R.D. page 363 Ranjeet
and others vs. Deputy Director of
Consolidation Ballia and others.

4.
2000 R.D. page 608 Hari Har Ram
vs. Deputy Director of Consolidation
Ballia and others.

5.
Judgment dated 28.9.1999 passed in
writ petition No.26527 of 1999 Rama
Shanker Singh and others vs. Deputy
Director of Consolidation, Varanasi
and another.

lays down correct law or the view taken
by the learned Single Judge in following
cases lay down the correct law?

1.
1979 R.D. page 308 Ram Das and
another
vs.
Deputy
Director
of
Consolidation and others.

2.
1982 R.D. page 78 Hori Lal vs.
Deputy
Director
of
Consolidation,
Allahabad and others.
2 All] Rakesh Singh Vs. State of U.P. and others
309
3.
1985 All.L.J. 1343 Ram Saran vs.
Assistant Director of (Consolidation)
and others.

4.
1990 R.D. page 160 Ram Surat and
others vs. Gram Sabha, Nagar, Haraiya
Mirzapur and others.

Let the record of this writ petition be
placed before the Hon'ble Chief Justice
for constituting a larger Bench.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 4.2.2002

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE S.K. SINGH, J.

Habeas Corpus Writ Petition No. 38414 of
2001

Rakesh Singh

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri I.M. Khan

Counsel for the Respondents:
Sri S.N. Srivastava
S.C.
A.G.A.

Constitution of India, 226- Detention
order- challenged on the ground of 5
days
delay
in
deciding
the
representation- Petitioner usurped the
Gaon Sabha Land - depriving general
Public from use- held- effecting Public
life. Detention order is proper.
Held- Para 5
Learned
counsel
for
the
petitioner
submitted that it is a case of law and
order and not public order. We do not
agree with this submission. Apparently
the petitioner with his associates had
grabbed the Gram Sabha property and
the deceased was trying to get it
released. It is well known that in Uttar
Pradesh almost the entire land of the
Gram Sabha has been grabbed by the
people having muscle power and money.
The land of the Gram Sabha is meant to
be used for serving the people of the
village, particularly the poor people by
setting up a school or dispensary or cold
storage or for some other such purpose,
but instead people with power or money
have grabbed the entire land of the Gram
Sabha and the result is that the poor
people of the Villages are deprived of the
use of such land.

(Delivered by Hon'ble M. Katju, J.)

Heard learned counsel for the parties.

1. The petitioner has challenged the
impugned detention order dated 23.8.2001
Annexure-1 to the petition passed under
the N.S.A. A perusal of the grounds of
detention shows that it is alleged that on
27.6.2001 the petitioner and his two
associates at about 4.30 P.M. shot dead
one Sunil Kumar Singh on National High
Way because Sunil Kumar Singh was
objecting to the petitioner getting the two
ponds of the Gram Sabha released and
had been doing pairvi to get the illegal
possession of the petitioner over the said
ponds vacated. Litigation was going on in
this connection in various courts. The
petitioner after the murder went with a
revolver in his hand firing in the air to
create panic and terror in the public on the
road, and due to terror in the locality the
shopkeepers closed their shops. The
residents of the village ran to their fields
and starting running here and there. There
was terror in the area. There are
allegations that the petitioner had earlier
committed several crimes under various
provisions of the Indian Penal Code