# Chandra Bhan and others v. Deputy Director, Consolidation and others

- **Citation:** (2007) 2 ILRA 412
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-01-18
- **Case number:** Civil Misc. Review Application No. 63852 of 2006
- **Bench:** S.N. Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandra-bhan-and-others-v-deputy-director-consolidation-and-others-40926
- **Pages:** 6

## Headnote

Constitution of India Article-226- Power
to
decide
the
revenue
cases-by
administrative
officer-cannot
be
equipped with qualification of law-High
Court following the decision of Apex
Court-issued Mandamus to create a
separate
judicial
cadre-cannot
be
2 All] Chandra Bhan and others V. Dy. Director of Consolidation and others
413
ignored by Government Order-State can
create Revenue judicial Service -no
ground
to
review
direction
-issued
following the decision of Apex Court
made out.

Held Para 7

Moreover, the question involved in the
writ petition was not the question akin
to one referred to the High Court on
administrative
side
before
the
G.O.
Dated 29.9. 1967 and the State rightly
took decision permitting to constitute
separate judicial cadre of judicial officers
working in the revenue side under the
supervision of the High Court. Further it
is clear that by the aforesaid G.O the
judicial officers who became member of
a
separate
judicial
service
were
permitted to decide revenue cases with
the permission of the High Court on
deputation. Since the government order
dated 29.9.1967 issued by the State
specifically mentions that revenue cases
could-be-disposed of even after creation
of separate judicial service of judicial
offices
on
deputation
with
the
permission of the High Court, it is
clarified that the State can create
revenue
judicial
service
by
direct
recruitment
or
by
way
of
getting
members of the Civil Services (Judicial
Branch) appointed on deputation till
regular separate judicial revenue cadre
is
created
as
is
clear
from
the
Government order dated 29.9.1967. Such
a deputation can be granted with the
permission of the High Court to dispose
of revenue cases as was done under the
Government order dated 29th Sept 1967
Case Law discussed
AIR 1977 Alld 310
1995(I) J.T. SC-180

## Text

412 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
custody without being informed, as soon
as may be, of the grounds for such arrest
nor shall he be denied the right to
consult, and to be defended by, a legal
practioner of his choice."

7. It is important to note here that
justice not only be done but appears to be
done. The appointing of amicus curiae for
defending the case of the applicant shows
that he was unable to engage any
Advocate in the district of Varanasi as
well as out side of district Varanasi
according to his choice. It appears that
there is violation of provision of Section
302 of the Code-of Criminal Procedure,
1973 as well as the fundamental rights
conferred by Articles 21 and 22(1) of the
Constitution of India, as the applicant is
ready to engage an Advocate of his choice
for doing the Pairvi of his case. In such
circumstances, it will be appropriate in
the ends of justice that the above three
connected sessions trials pending in the
court
of
Special
Judge
(E.C.Act),
Varanasi be transferred to any other
district.

8. It is worthwhile to mention here
that about fifty five prosecution witnesses
in each sessions trial, aforementioned, are
to be produced for their examinations.
The applicant is resident of district
Allahabad and it will not be appropriate to
transfer the cases from Varanasi Sessions
Division to nearby Sessions Division of
districts. In the circumstances, in my
view, it will be justified in the interest of
justice that the aforementioned sessions
trials be transferred to the Sessions
Division, Ghaziabad as there will be no
problem for engaging the counsel by the
applicant of his choice of Ghaziabador
nearby districts or New Delhi for
conducting his trials fairly.
9. After considering the facts and
circumstances
of
the
case
and
submissions made on behalf of both the
parties, this transfer application is liable
to be allowed.

10. Consequently, the transfer
application is hereby allowed and the L
aforementioned three connected sessions
trials, pending in the court of Special
Judge (E.C. Act), Varanasi are hereby
recalled and transferred to the court of
Sessions Judge, Ghaziabad for trial. The
Sessions Judge, Gbaziabad is specially
directed to conduct the trial of the
aforementioned sessions trials himself
according to law.
Transfer application allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.01.2007

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Review Application No. 63852
of 2006

Chandra Bhan and others ...Petitioners
Versus
Deputy
Director,
Consolidation
and
others

...Respondents

Counsel for the Petitioners:
Sri. S.N. Tripathi

Counsel for the Respondents:
Sri. Sanjay Goswami
S.C.

Constitution of India Article-226- Power
to
decide
the
revenue
cases-by
administrative
officer-cannot
be
equipped with qualification of law-High
Court following the decision of Apex
Court-issued Mandamus to create a
separate
judicial
cadre-cannot
be
2 All] Chandra Bhan and others V. Dy. Director of Consolidation and others
413
ignored by Government Order-State can
create Revenue judicial Service -no
ground
to
review
direction
-issued
following the decision of Apex Court
made out.

Held Para 7

Moreover, the question involved in the
writ petition was not the question akin
to one referred to the High Court on
administrative
side
before
the
G.O.
Dated 29.9. 1967 and the State rightly
took decision permitting to constitute
separate judicial cadre of judicial officers
working in the revenue side under the
supervision of the High Court. Further it
is clear that by the aforesaid G.O the
judicial officers who became member of
a
separate
judicial
service
were
permitted to decide revenue cases with
the permission of the High Court on
deputation. Since the government order
dated 29.9.1967 issued by the State
specifically mentions that revenue cases
could-be-disposed of even after creation
of separate judicial service of judicial
offices
on
deputation
with
the
permission of the High Court, it is
clarified that the State can create
revenue
judicial
service
by
direct
recruitment
or
by
way
of
getting
members of the Civil Services (Judicial
Branch) appointed on deputation till
regular separate judicial revenue cadre
is
created
as
is
clear
from
the
Government order dated 29.9.1967. Such
a deputation can be granted with the
permission of the High Court to dispose
of revenue cases as was done under the
Government order dated 29th Sept 1967
Case Law discussed
AIR 1977 Alld 310
1995(I) J.T. SC-180

(Delivered by Hon'ble. S.N.Srivastava. J.)

1. This review petition has been
preferred on behalf of the State of U.P.
seeking reconsideration of certain points
considered and decided by this Court by
means of judgment and order dated Dec
13,2005.

2. After the review petition had been
filed by the State on 24.3.2006 alongwith
an accompanying application to condone
the delay, the same was presented before
the Court on 18.5.2006 alongwith office
report dated 17.5.2006 on which date
learned Standing counsel prayed for
adjournment on the ground that learned
Advocate General would appear to argue
the case. On the request aforesaid the case
was adjourned to 22.5.2006 on which date
on further. request made by learned
Standing counsel, the case was adjourned
to 25.5.2006. Learned Advocate General
was heard on 25.5.2006 but on his
request, the case was adjourned to 14th
July 2006. On 14.7.2006, the case was
directed to be put up on 17.7.2006 on the
request
made
by
learned
Standing
counsel. On 17.7.2006, Chairman Board
of Revenue appeared in person and
prayed for permission to seek clarification
and also to discuss the nitty gritty of the
consequences flowing from the main
decision
aforesaid.
Thereafter,
on
28.7.2006, judgment was reserved in the
review petition. On 2.8.2006, learned
Advocate General appeared and prayed
for rehearing of the matter on certain
points claiming the same to be of pivotal
significance and in deference to the
request, the matter was directed to be put
up on 3.8.2006. On 3.8.2006, the learned
Advocate General stated across the bar
that
the
matter
was
under
active
consideration of the Government and on
this ground sought adjournment and again
in deference to the request, the case was
directed to be put up on 18.8.2006. On
18.8.2006, again the case was adjourned
to 11th Sept 2006 on the request of learned
Advocate General. Thereafter, the matter
414 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
stood de-listed and has come up today for
hearing.

3. It may be aptly mentioned here
that learned Advocate General was heard
at prolix length on earlier occasion who
was then assisted by Sri Sanjai Goswami
learned Standing counsel and the learned
Advocate General assisted by Sri Sanjai
Goswami had then pressed into service
two arguments cloaking the same as the
basis for review of the judgment of this
Court but today Sri Sanjai Goswami
learned Standing counsel appeared and
argued only those two points. The first
argument brought to bear was that this
Court
framed
certain
issues
for
determination including issue whether the
qualification and training as conceived in
the
relevant
service
Rules
of
the
consolidation authorities dealing with
consolidation cases is sufficient training
to meet the essentials required of a
judicial
officer
performing
judicial
functions but no specific issue was
formulated regarding creation of separate
revenue judicial cadre for the purpose and
by this reckoning, it is further argued, the
Court was precluded from issuing writ of
mandamus commanding the State to
create separate judicial cadre for trial of
consolidation cases as also the suit arising
out of U.P.Z.A. & L.R. Act.

4. The specific argument advanced
across the bar on behalf of the State was
that order to create revenue cadre should
not have been made and further that the
power to be exercised by the Authorities
dealing with consolidation cases as well
as cases arising out of U.P.Z.A. & L.R.
Act were strictly in accordance with law
the same having been conferred by the
provisions of the statute i.e. the U.P.
Consolidation of Holdings Act and also of
the U.P. Zamindari Abolition and Land
Reforms Act and by this reckoning, were
intra-vires the Constitution of India. It is
significant to mention here that Sri Sudhir
Agarwal, learned Addl. Advocate General
(as he then was) was called upon to argue
on the question of creation of separate
judicial revenue cadre and consequently,
he made elaborate submissions on this
point and judgment was pronounced after
hearing both the parties on this question.
The case laws were profusely cited on
behalf of the State, which were duly
noticed and discussed in the judgment of
the Court itself. No precise ground then
was raised opposing creation of separate
judicial cadre for revenue/consolidation
cases. Come what may, one very Import
aspect may be referred to here. At page 20
of the judgment of this Court, the objects
embodied in Amending Act XXXVIII of
1958 were excerpted and cited from a
perusal of which it would appear that
while conferring power on consolidation
authorities
through
U.P.
Act
No.
XXXVIII of 1958, the State had enlisted
the basis to the effect that "Since the
jurisdiction for Bhumidhari suits is being
transferred to revenue courts, it has
become necessary to do away with the
provisions for arbitration, which used to
cause great delay." It is also worthy of
mention herein this connection that after
coming into force the Constitution of
India, the power to deal with all revenue
suit pertaining to title of Bhumidhari
rights in agricultural land vested in the
civil court and it was subsequently that
the power to decide title was transferred
to revenue courts. In proceeding for
consolidation
on
notification
under
section 4 of the U.P. Consolidation of
Holdings Act, the power to decide title in
the land in consolidation area stands
transferred
to
the
Consolidation
2 All] Chandra Bhan and others V. Dy. Director of Consolidation and others
415
authorities to decide title but after
notification under section 52 i.e. after
closure of the consolidation operation, the
power stands revived for being exercised
by the revenue authorities for deciding the
title. The Court has already dilated upon
the matter in detail in its judgment dated
13.12.2005 the quintessence of which is
that consolidation as well as revenue
authorities decide that right of a tenure
holder i.e. Bhumidhar with transferable
rights
and
Bhumidhar
with
nontransferable rights and other rights of the
tenure holder relating to agricultural land
conferred by the State under the U.P.Z.A.
& L.R. Act and further that both the
courts decide the title in the matter
emanating from U.P.Z. A & L.R. Act
only. In this perspective, considering that
had there been no such direction for
creating separate revenue judicial cadre
for trying revenue suit or other title
matters, relating to land by the revenue
authorities and also by the consolidation
authorities, it would have amounted to
invidious discrimination and therefore
regard being had to the intendment of the
legislature while conferring powers on the
consolidation authorities on the ground
that jurisdiction has been conferred to
decide the revenue suits to the revenue
courts, direction was rightly given by this
Court to create a separate judicial cadre
for
trial
of
revenue
as
well
as
consolidation cases. The direction to
create separate revenue judicial cadre was
given for determination of the title in the
agricultural land in the light of the fact
that prior to it the power had vested in
civil courts under section 9 of the C.P.C.
and that power was taken away from the
civil court and it was conferred by various
amendments to revenue authorities under
the U.P.Z.A. & L.R. Act and subsequently
to Consolidation authorities presided over
by such authorities wholly incompetent to
decide the issues on law. The Court has
elaborately discussed all these issues in
the judgment in all its ramifications and
by this reckoning, the first ground of
review as urged on behalf of the State is
devoid of force and falls to the ground.

5. The second ground urged on
behalf of the State is that State of U.P. by
a Government order dated 29th Sept 1967
has already taken a decision for separation
of judiciary from executive and further
urged that by this Govt. order, judicial
officer who were then had the appellation
"Add. District Magistrate (Judicial)" and
were earlier members of judicial officers
Services were included in a separate
judicial cadre under the policy of
separation of judiciary from executive but
all the suits and proceedings under the
U.P.Z.A. & L.R. Act were transferred to
S.D.Os. The learned counsel further urged
that the G.O. aforesaid was issued after
eliciting the concurrence of the High
Court in its administrative side vide
reference at page 75 of the judgment of
this Court. From a perusal of the aforesaid
Government order particularly para 3 of
the said G.O. it would crystallize that the
High Court had merely concurred to
create
a
separate
judicial
services
comprising officers who were empowered
to deal exclusively with the criminal
works under the control of the High Court
the necessary consequence of which was
that revenue works pending before these
judicial officers were transferred to
S.D.Os or Judicial officers who were
posted for revenue cases. It is significant
to
mention
here
that
under
this
Government order, all the members
belonging to earlier judicial officers
services were included in a separate
judicial service hedged with certain
416 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
condition. It would further appear that this
Government order was considered by a
Division Bench of this Court in Dinesh
Chand Srivastava v. State of U.P. AIR
1977 Alld 310 which matter journeyed
upto the Apex Court and the decision of
the Apex Court is reported in 1995 (1) JT
SC 180. The ratio flowing from the
decision rendered by the Apex Court was
that a separate judicial cadre could be
created other than U.P. Civil Services
(Judicial) and in view of the above, this
Court following the ratio of the Apex
Court-issued mandamus to create a
separate revenue judicial cadre. This
Government Order issued. by the State
Govt does not confer any power on the
State to act against the mandate of Article
50 of the Constitution. In my considered
view,
after coming into force the
Constitution, that power cannot be taken
away
and
conferred
on
such
Administrative authorities who are neither
equipped with qualification of law or have
training for judicial work to deal with
important issue like adjudication of title in
land which is the very backbone of India
economy. There is yet another aspect to
be reckoned with and it is that all the land
has already vested in the State by virtue of
Section 4 of the U.P.Z.A. & L.R. Act and
the State in turn has conferred different
kind of rights on various tenure holders
namely,
Bhumidhari,
Sirdari,
Asami
rights or other rights. It appears that the
State has not carefully gone through its
own Government order dated 29th Sept
1967 quoted in the main judgment of this
Court
dated
13.12.2005
by
which
accepting policy of separation of judiciary
from executive, the State placed all
judicial officers under the control of the
High Court. The State has further
mentioned in the G.O. that revenue
matters may be decided by the Sub
Divisional Officer, Deputy Collectors or
such
judicial
officers
obtained
on
deputation from the High Court from time
to time for the purpose and the High
Court agreed to lend service of judicial
officers for revenue work vide D.O. letter
dated 7th Sept 1967. It was further
mentioned in paragraph 4 that those
judicial officers who will work and
dispose of revenue cases on deputation
from High Court will not be assigned any
duties relating to maintenance of law and
order.

6.
There
is nothing in the
Government relied upon by the standing
counsel to show that members of earlier
judicial officer cadre transferred to the
High Court will not try and dispose of
revenue
cases.
The
effect
of
the
Government order was that all judicial
officers
may
work
thereafter
on
deputation and may also try and dispose
of revenue cases with the permission of
the High Court on deputation only.

7. In view of the above, the
argument of learned Standing counsel that
this Government order supports the case
of the State that the revenue cases may be
decided by the Deputy Collector/Sub
Divisional officer only and direction to
create separate judicial cadre for revenue
cases is against policy decision taken by
the Government in the G.O. mentioned
above, is not loaded with any substances.
Rather,
it
would
appear
that
the
Government
order
aforesaid
lends
affirmance to the view taken by this Court
that there should be separation of
judiciary from executive. Moreover, the
question involved in the writ petition was
not the question akin to one referred to the
High Court on administrative side before
the G.O. Dated 29.9. 1967 and the State
2 All] Vishwanath Ram V. G.M., Obra Thermal Power Station and others
417
rightly
took
decision
permitting
to
constitute separate judicial cadre of
judicial officers working in the revenue
side under the supervision of the High
Court. Further it is clear that by the
aforesaid G.O the judicial officers who
became member of a separate judicial
service were permitted to decide revenue
cases with the permission of the High
Court
on
deputation.
Since
the
government order dated 29.9.1967 issued
by the State specifically mentions that
revenue cases could-be-disposed of even
after creation of separate judicial service
of judicial offices on deputation with the
permission of the High Court, it is
clarified that the State can create revenue
judicial service by direct recruitment or
by way of getting members of the Civil
Services (Judicial Branch) appointed on
deputation till regular separate judicial
revenue cadre is created as is clear from
the Government order dated 29.9.1967.
Such a deputation can be granted with the
permission of the High Court to dispose
of revenue cases as was done under the
Government order dated 29th Sept 1967.

8. In view of the above discussion,
the second ground too has no force and
falls to the ground.

9.

No
other
point
of
any
consequence was raised capable of
interference with the main judgment of
the Court.

10. In the result, the review
application is rejected being bereft of any
merit.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.02.2007

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 1893 of 2007

Vishwanath Ram

...Petitioner
Versus
General Manager Obra Thermal Station,
U.P. Rajya Vidyut Utapadan Nigam Ltd.,
District Sonbhadra & others ...Respondents

Counsel for the Petitioner:
Sri K.S. Ojha

Counsel for the Respondents:
Sri A.K. Mehrotra

Constitution of India, Art. 226-Reduction
of Salary-petitioner was getting salary of
Rs.9700 at time of retirement-monthly
pension fixed Rs.4679/- deduction of
Rs.1871/-
per
month-held-illegalpetitioner not found instrumental in
wrong fixation-Govt. may take action
against the erring officer but after
retirement
petitioner
can
not
be
penalized.

Held: Para 10

There was nothing to show that he was
instrumental in grant of such benefits. If
any state officials have wrongly fixed the
salary it is upon the State to fix
responsibility upon such erring person
but petitioner cannot be penalized for
wrong act of others.
Case law discussed:
2004 (1) UPLBEC-127 relied on.

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. List has been revised. None has
appeared for the respondents. Heard Sri
K.S. Ojha, counsel for the petitioner.