# Deena Nath and others v. Deputy Director of Consolidation and others

- **Citation:** (2008) 2 ILRA 529
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-04-29
- **Case number:** Civil Misc. Writ Petition No. 10166 of 2008
- **Bench:** Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deena-nath-and-others-v-deputy-director-of-consolidation-and-others-41185
- **Pages:** 11

## Headnote

U.P. Consolidation of Holding Act 1935Section 48-Revision against then orderpassed by S.O.C.-remanding the case to
be
decided
by
the
Consolidation
Authority-amounts
to
final
or
interlocutory-held-question referred to
larger Bench.

Held-Para 22

In view of the above, I am of the
considered opinion that against those
orders
of
Settlement
Officer
Consolidation passed in appeal which
have effect of finally deciding the appeal
be it may an order of remand, the
provisions of section 48 shall apply but
in view of the fact that a contrary view
has been taken in the above noted cases,
judicial propriety demands that the
question be referred to the Hon'ble the
Chief Justice for constituting a Division
Bench for consideration.

In view of the foregoing discussions,
following questions are framed to be
considered by a Division Bench:

(i) Whether an order passed in appeal
under
section
11
of
the
U.P.
Consolidation of Holdings Act by the
Settlement
Officer
Consolidation
deciding the appeal finally by setting
aside the order of the Settlement Officer
Consolidation and remanding the matter
to
the
Consolidation
Officer
is
an
interlocutory order within the meaning
of section 48 of the U.P. Consolidation of
Holdings Act and revision is barred
against such order under section 48.

(ii) Whether the law down in Ajab Singh
and
others
Vs.
Jt.
Director
of
Consolidation and others, reported in
1996 R. D. 104, Rajbir Vs. Dy. Director of
Consolidation, reported in 1999 (90) R.D.
313, Rajit Ram Singh and others Vs.
Mahadev Singh and others, reported in
530 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
2002 (93) R.D. 224 lay down the correct
law.
Case law discussed:
AIR 1981 Supreme Court 707, 1996 R.D. 104,
1999(90) R.D. 313, 2002(93) R.D. 224, AIR
1960 Supreme Court 941, (1996) 2 Supreme
Court Cases 270, (1977) Supreme Court Cases
155, (1979) 2 Supreme Court Cases 463,
2001(92) R.D. 330, AIR 1965 Allahabad page
172, 1996 R.D. 104, 1996(90) R.D. 313,
2002(93) R.D. 224

## Text

2 All] Deena Nath and others V. The Dy. Director of Consolidation and others
529
the conclusion that revision against the
order dated 11th February, 1981 is to be
dismissed.

12. In so far as the challenge to the
order of Consolidation Officer dated 10th
April, 2006 and the order of Deputy
Director of Consolidation dated 26th
December, 2007 passed under Rule 109
of U.P. Zamindari Abolition and Land
Reforms Rules, 1952 are concerned, in
view of the above mentioned observation
that the order of Settlement Officer of
Consolidation dated 11th February, 1981
was correct and the revision having been
dismissed,
the
orders
passed
by
Consolidation Officer dated 10th April,
2006 and the order dated 26th December,
2007 being consequential cannot be
interfered with.

13. In view of the foregoing
discussions, no error has been pointed out
in the impugned orders, which may
warrant interference under Article 226 of
the Constitution of India.

14. The writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.04.2008

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 10166 of 2008

Deena Nath and others ...Petitioners
Versus
Deputy Director of Consolidation and
others

...Respondents

Counsel for the Petitioners:
Sri Rahul Sahai

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

U.P. Consolidation of Holding Act 1935Section 48-Revision against then orderpassed by S.O.C.-remanding the case to
be
decided
by
the
Consolidation
Authority-amounts
to
final
or
interlocutory-held-question referred to
larger Bench.

Held-Para 22

In view of the above, I am of the
considered opinion that against those
orders
of
Settlement
Officer
Consolidation passed in appeal which
have effect of finally deciding the appeal
be it may an order of remand, the
provisions of section 48 shall apply but
in view of the fact that a contrary view
has been taken in the above noted cases,
judicial propriety demands that the
question be referred to the Hon'ble the
Chief Justice for constituting a Division
Bench for consideration.

In view of the foregoing discussions,
following questions are framed to be
considered by a Division Bench:

(i) Whether an order passed in appeal
under
section
11
of
the
U.P.
Consolidation of Holdings Act by the
Settlement
Officer
Consolidation
deciding the appeal finally by setting
aside the order of the Settlement Officer
Consolidation and remanding the matter
to
the
Consolidation
Officer
is
an
interlocutory order within the meaning
of section 48 of the U.P. Consolidation of
Holdings Act and revision is barred
against such order under section 48.

(ii) Whether the law down in Ajab Singh
and
others
Vs.
Jt.
Director
of
Consolidation and others, reported in
1996 R. D. 104, Rajbir Vs. Dy. Director of
Consolidation, reported in 1999 (90) R.D.
313, Rajit Ram Singh and others Vs.
Mahadev Singh and others, reported in
530 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
2002 (93) R.D. 224 lay down the correct
law.
Case law discussed:
AIR 1981 Supreme Court 707, 1996 R.D. 104,
1999(90) R.D. 313, 2002(93) R.D. 224, AIR
1960 Supreme Court 941, (1996) 2 Supreme
Court Cases 270, (1977) Supreme Court Cases
155, (1979) 2 Supreme Court Cases 463,
2001(92) R.D. 330, AIR 1965 Allahabad page
172, 1996 R.D. 104, 1996(90) R.D. 313,
2002(93) R.D. 224

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

1. Heard Sri Rahul Sahai, learned
Counsel for the petitioner and Sri Sanjay
Singh, learned Counsel appearing for the
contesting respondent no. 2.

2. By this writ petition, the petitioner
has prayed for quashing the order dated
13.2.2008, passed by the Deputy Director of
Consolidation, Ballia holding the revision
filed by the respondents against the order
dated 27.9.2007 of the Settlement Officer,
Consolidation as maintainable.

3. Brief facts of the case necessary to
be noted for deciding the issue raised in the
writ petition are; an objection under Section
9-B of the U.P. Consolidation of Holdings
Act, 1953 was filed by the respondent no. 2
praying that plot no. 603/1 area 40 Are be
kept out of consolidation after condoning
the delay in filing the objection. The
Consolidation Officer passed an order dated
18.1.2005 condoning the delay in filing the
objection directing plot no. 603/1 area 40
Are be kept out of consolidation. Against
the order passed by the Consolidation
Officer, an appeal was filed by the
petitioner before the Settlement Officer
Consolidation. The Settlement Officer,
Consolidation by order dated 27.9.2007
allowed the appeal and set aside the order of
the Consolidation Officer dated 18.1.2005
and
remanded
the
matter
to
the
Consolidation Officer to pass a fresh order
after hearing both the parties. Against the
order dated 27.9.2007 of the Assistant
Settlement Officer, Consolidation, the
respondent no. 2 filed revision No. 674
under Section 48 of the U.P. Consolidation
of Holdings Act, 1953. An objection was
raised by the petitioners who were
respondents in the revision that the revision
having been filed against the remand order,
is not maintainable and the question of
maintainability of the revision be decided
first after hearing the parties. The Deputy
Director of Consolidation heard the parties
on the question of maintainability of
revision and by the impugned order dated
13.2.2008 held that the revision is
maintainable, which has been challenged in
the present writ petition.

4. Sri Rahul Sahai, learned Counsel
for the petitioners challenging the order of
the Deputy Director of Consolidation
contended that the order of Settlement
Officer, Consolidation being only a remand
order, the revision was not maintainable. He
submits
that
remand
order
is
an
interlocutory order and revision against an
interlocutory order is expressly excluded
under Section 48 of the U.P. Consolidation
of Holdings Act. Learned Counsel for the
petitioner placed reliance on the judgment
in the cases of Kshitish Chandra Bose Vs.
Commissioner of Ranchi, reported in AIR
1981 Supreme Court 707, Ajab Singh and
others Vs. Jt. Director of Consolidation
and others, reported in 1996 R.D. 104,
Rajbir Vs. Dy. Director of Consolidation,
reported in 1999 (90) R.D. 313, Rajit Ram
Singh and others Vs. Mahadev Singh and
others, reported in 2002 (93) R.D. 224.

5. Sri Sanjay Singh, learned Counsel
for the contesting respondents refuting the
submission of learned Counsel for the
2 All] Deena Nath and others V. The Dy. Director of Consolidation and others
531
petitioners, contended that appeal having
been finally allowed by the Settlement
Officer, Consolidation after setting aside the
order of the Consolidation Officer, the order
of the appellate court is not an interlocutory
order
and
the
revision
was
fully
maintainable. He further submits that
according to section 48 Explanation (3), the
Deputy Director of Consolidation has very
wide power and the revision is fully
maintainable.

6. I have considered the submissions
of learned Counsel for the parties and have
perused the record.

7. The only issue which has arisen for
consideration in this writ petition is as to
whether against an order of Settlement
Officer, Consolidation, passed in appeal
under Section 11 of the Act, remanding the
case to the Consolidation Officer, a revision
is maintainable under Section 48 of the U.P.
Consolidation of Holdings Act, 1953. It is
useful to look into the provisions of section
48 of the U.P. Consolidation of Holdings
Act, 1953 before proceeding further to
examine the issue. Section 48 of the Act
empowers the Director of Consolidation to
examine the record of any case decided or
proceeding taken by any subordinate
authority for the purpose of satisfying
himself as to the regularity of the
proceedings or the correctness, legality or
propriety of any order. By U.P. Land Laws
(Amendment) Act No. 20 of 1982, the
words 'other than interlocutory order' has
been added excluding the correctness or
otherwise of an interlocutory order. An
explanation (2) was also added by same
U.P. Land Laws (Amendment) Act No. 20
of
1982
explaining
the
expression
'interlocutory order'. Section 48 as stood
after the above amendment is as follows:

"48. Revision and reference. - (1) The
Director of Consolidation may call for and
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 subsection (1)

Explanation (1).- for the purposes of this
section, Settlement Officers, Consolidation
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 proceeding or collateral
thereto as does not have the effect of finally
disposing of such case or proceeding.

Explanation (3). - for the purposes of this
section to examine the correctness, legality
or propriety of any order includes the
power to examine any finding, whether of
532 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
fact or law, recorded by any subordinate
authority, and also includes the power to reappreciate any oral or documentary
evidence. "

8. A perusal of section 48 thus,
indicate that the power of revision can be
exercised with regard to an order passed by
any subordinate authority of any case
decided or proceedings taken other than
interlocutory
order.
The
expression
'interlocutory order' has been explained in
Explanation (2) which means in relation to a
case or proceedings such order deciding any
matter arising in such case or proceeding or
collateral thereto as does not have the effect
of finally disposing of such case or
proceeding.

9. The question to be answered thus, is
as to whether an order passed by the
Settlement Officer, Consolidation allowing
the appeal after setting aside the order of the
Consolidation Officer and remanding the
matter is an 'interlocutory order' and
secondly as to whether against such
interlocutory order, the revision is barred.
Learned Counsel for the petitioner has
relied on the judgement of Kshitish
Chandra Bose (supra) for the proposition
that the order of remand is an interlocutory
order. In the above case, the suit filed by the
plaintiff was decreed by the trial Court. The
first appeal was filed which court affirmed
the order of the trial court. Second appeal
was filed before the High Court in which
second appeal, the High Court by judgment
dated 17.2.1967 remanded the case to the
trial court for decision on the question of
title. After remand, suit was dismissed. An
appeal was filed before the High Court and
High Court dismissed the appeal by
judgment dated 13.9.2007 thereafter the
appeal was filed before the Apex Court. It
was contended that the plaintiff did not
come up in the appeal against the first
judgment of the High Court because the
order passed by the High Court was not a
final order but was in the nature of
interlocutory order. The Apex Court in
paragraph 6 laid down that it was open for
the appellant to assail even the first
judgment of the High Court. Paragraphs 5
and 6 of the judgment are being quoted
herein below:

"5. Secondly, it was contended that
even so the finding of the High Court on
the question of adverse possession was
given without at all considering the
materials and evidence on the basis of
which the two posts had concurrently found
that the plaintiff had acquired title by
adverse possession. It is contended that the
plaintiff did not come up in appeal before
this court against the impugned judgment of
the High Court obviously because the order
passed by the High Court was not a final
one but was in the nature of an
interlocutory order as the case had been
remanded to the Additional Judicial
Commissioner and if the revisional court
had affirmed the finding of the trial court,
no question of filing a further appeal to the
High Court could have arisen. Thus, the
appellant could not be debarred from
challenging the validity of the first judgment
of the High Court even after the second
judgment by the High Court was passed in
appeal against the order of remand. In
support of this contention, the counsel for
the appellant relied on a decision of this
Court in the case of Satyadhavan Ghosal V.
Shiksha Mitra. Deorajin Debi, (1960) 3
SCR 590: (AIR 1960 SC 941) where under
similar circumstances this Court observed
as follows:

"In our opinion the order of remand was an
interlocuroty judgment which did not
2 All] Deena Nath and others V. The Dy. Director of Consolidation and others
533
terminate the proceedings and so the
correctness thereof can be challenged in an
appeal from the final order. " In coming to
this decision this Court relied on an earlier
decision in the case of Keshardeo Chamria
V. Radha Kissen Chamria and vice versa,
1953 SCR 136: (AIR 1953 SC 23) where the
same view was taken.

6. Mr. Sinha appearing for the respondent
was unable to cite any authority of this
Court taking a contrary view or overriding
the decisions referred to above. In this view
of the matter we are of the opinion that it is
open to the appellant to assail even the first
judgment of the High Court and if we hold
"that this judgment was legally erroneous
then all the subsequent proceedings,
namely, the order of remand, the order
passed after remand, the appeal and the
second judgment given by the High Court in
appeal against the order or remand would
become non est. "

10. The proposition laid down in the
above case was thus that even if against the
first judgment passed by the High Court,
appeal was not taken to the Supreme Court
since it was a remand order, in appeal
against the latter judgment of the High
Court, the correctness of the first order of
the High Court can be looked into. The
Apex Court also referred to the earlier
judgment of the High Court as an
interlocutory order. There cannot be any
dispute to the proposition laid down by the
Apex court in the said case. It is however,
relevant to note that the question as to
whether against the first judgment i.e. the
remand order passed by the High Court, the
appeal was maintainable to the Supreme
court in the above case was not there in the
said case nor it was held that against an
interlocutory order appeal did not lie.

11. The judgment on which much
emphasis was laid by learned counsel for
the petitioners is the case of Ajab Singh
(supra). The other cases relied by learned
Counsel for the petitioners i.e. Rajbir Vs.
Dy. Director of Consolidation (supra),
Rajit Ram Singh and others Vs.
Mahadev Singh and others, also take the
same view that the remand order by
Settlement Officer, Consolidation being an
interlocutory order, the revision shall not lie
under Section 48 of the Act.

12. The judgment in the case of Ajab
Singh (supra) is required to be noted in
some detail. An objection was filed by the
petitioner under Section 9-A (2) of the Act
claiming succession to one Smt. Nihali on
the basis of the Will. Another objection was
filed by another set. The Consolidation
Officer by order dated 18.9.1992 rejected
the objection of the petitioner. Appeal was
filed
before
the
Settlement
Officer,
Consolidation.
Settlement
Officer,
Consolidation allowed the appeal, set aside
the order of the Consolidation Officer and
remanded the matter to the Consolidation
Officer with a view to give an opportunity
to the petitioner to prove execution and
attestation of the Will. A revision was filed
before the Deputy Director of Consolidation
which was allowed and the order of the
Consolidation Officer was restored. The
writ petition was filed challenging the order
of the Deputy Director of Consolidation.
One of the submissions raised before the
High Court was that order of remand being
interlocutory order, the revision was not
maintainable.
This
Court
laid
down
following in paragraph 15:

"15. It is next to be seen whether the
order of remand passed by Settlement
Officer Consolidation was not open to
revision it being an 'interlocutory order'
534 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
within the meaning of section 48 of the U.P.
Consolidation of Holdings Act which
excludes, in no uncertain terms, an
'interlocutory order' from the purview of
revisional jurisdiction. In Satya Dhayan
Ghosal V. Smt. Oeo Rajan Oevi an order of
remand has been held to be an interlocutory
judgment in that it does not terminate the
proceeding and its correctness can be
challenged in appeal from the final order.
In coming to the aforesaid conclusion the
Apex Court has relied on its earlier decision
rendered in Keshar Deo Chamaria Vs.
Radhey
Kissen
Chamaria
and
the
proposition laid down therein has been
reiterated
in
Kshistish
Chandra
vs.
Commissioner of Ranchi. In view of these
authorities, I am of the considered view that
the order of remand passed by Settlement
Officer Consolidation was an 'interlocutory
order' within the meaning of section 48 of
the U.P. Consolidation of Holdings Act and,
therefore, not open to revision. Its legality
can, however, be examined in revision
against the final judgments and orders
rendered pursuant to the order of remand
and if at that stage the Deputy Director of
Consolidation finds that the order of
remand
was
legally
erroneous,
all
subsequent proceedings, viz. The order
passed by the Consolidation Officer
pursuant to the order of remand as also the
appellate order passed in appeal preferred
against such order of the Consolidation
Officer would become non est. Since the
order of remand is neither appealable nor
revisable, its correctness is open to
examination at subsequent stage when the
matter comes up finally in revision. The
impugned order is therefore, liable to be
quashed on this ground as well. The
decision in Bhawat and others v. Deputy
Director of Consolidation and others has no
application to the facts of this case and in
any case it cannot be accepted in view of
the Apex Court's direct decisions on the
point. "

13. This court relied on three
judgments of the Apex Court in coming to
the conclusion that revision was not
maintainable. The first judgment relied was
Satyadhan Ghoshal Vs. State of U.P,
reported in AIR 1960 Supreme Court 941.
The apex Court in the aforesaid case had
occasion to consider the principle of resjudicata as enshrined under Section 11
C.P.C. as well as section 105 C.P.C. The
apex Court laid down that principles of resjudicata applies as also between two stages
in the same litigation. The Apex Court in
the said judgment also laid down that
correctness of the remand order can be
challenged in an appeal from final order.
Following was laid down in paragraph 16:

(16) It is clear therefore that an
interlocutory order which had not been
appealed from either because no appeal lay
or even though an appeal lay an appeal was
not taken could be challenged in an appeal
from the final decree or order. A special
provision was made as regards order of
remand and that was to the effect that if an
appeal still the appeal was not taken the
correctness of the order of remand could
not later be challenged in an appeal from
the final decision. If however an appeal did
not lie from the order of remand the
correctness thereof could be challenged by
an appeal from the final decision as in the
cases of other interlocutory orders. The
second subsection did not apply to the Privy
Council and can have no application to
appeals to the Supreme Court, one reason
being that no appeal lay to the Privy
Councilor lies to the Supreme Court against
an order of remand.
2 All] Deena Nath and others V. The Dy. Director of Consolidation and others
535

14. The judgment of the Supreme
Court in the case of Keshar Deo Chamaria
V. Radhey Kissen Chamaria, reported in
A. I. R. 1953 Supreme Court 23 was also
not a case where the question as to whether
against a remand order appeal or revision
will lie or not, was considered. The third
judgment relied was judgment of the Apex
Court in the case of Kshitish Chandra
Bose Vs. Commissioner of Ranchi (supra)
which has already been noticed in the
preceding paragraph, and was also a case
where the proposition was laid down that a
remand order which was not challenged
earlier can be challenged against the final
order. Another judgment which is relevant
to be noticed is the case of Preetam Singh
Vs. Assistant Director of Consolidation
reported in (1996) 2 Supreme Court Cases
270. In the case before the Apex court
against the order of Consolidation Officer
an appeal was filed which was allowed and
the
matter
was
remanded
to
the
Consolidation Officer for a fresh decision.
On remand, the Consolidation Officer
allowed
the
objection.
Appeal
was
dismissed. A revision was filed before the
Assistant Director of Consolidation, who
also dismissed the revision. A writ petition
was filed in this court in which the question
was referred as to whether the finding
recorded
by
the
Settlement
Officer,
Consolidation for remand order was open to
correction in revisional jurisdiction since the
remand order had not been directly
challenged in the revision. The High Court
took the view that the remand order of
Settlement Officer, Consolidation became
final. The apex Court referring to two
judgements in the case of Jasraj Inder
Singh Vs Hemraj Multanchand, reported
in (1977) Supreme Court Cases 155 and
Sukhrani Vs. Hari shanker reported in
(1979) 2 Supreme Court Cases 463, laid
down that the Assistant Director of
Consolidation had ample power to examine
the correctness of the order of the
Settlement Officer, Consolidation even if
remand
order of Settlement Officer,
Consolidation have not been specifically put
to challenge in separate and independent
proceedings. Following was laid down in
paragraph 6:'

"When the matter was in revision
before
the
Assistant
Director
(Consolidation), he had to the entire matter
before him and his jurisdiction was
unfettered. While in seisin of the matter in
his revision a jurisdiction, he was in
complete control and in position to test the
correctness of the order made by the
Settlement Officer (Consolidation) effecting
remand. In other words, in exercise of
revisional
jurisdiction
the
Assistant
Director (Consolidation) could examine the
finding recorded by the Settlement Officer
as to the abandonment of the land in dispute
by those tenants who had been recorded at
the crucial time in the Khasra of 1359 Fasli.
That power as a superior court the Assistant
Director (Consolidation) had, even if the
remand order of the Settlement Officer had
not been specifically put to challenge in
separate and independent proceedings. It is
noteworthy that the Court of the Assistant
Director (Consolidation) is a court or
revisional jurisdiction otherwise having suo
motu power to correct any order of the
subordinate officer. In this situation the
Assistant Director (Consolidation) should
not have felt fettered in doing complete
justice between the parties when the entire
matter was before him. The war of
legalistics fought in the High Court was of
no material benefit to the appellants. A
decision on merit covering the entire
controversy was due from the Assistant
Director (Consolidation). "
536 INDIAN LAW REPORTS ALLAHABAD SERIES [2008

15. The above judgment of the apex
Court is also an authority for the proposition
that the remand order if not challenged can
be questioned subsequently when challenge
is put to final order after remand before the
higher Court. No such proposition was laid
down in the above case that remand order
could not be challenged in revision. The
basis of judgment of this Court is the cases
of Ajab Singh, Rajbir and Rajit Ram
Singh (supra) that remand order being
interlocutory order, revision is barred.
However, the judgment of the Supreme
Court referred by this Court in the above
cases also held that that remand order is
interlocutory order. One more judgment
which is required to be noted is the
judgment of this Court in the case of Ram
Bhajan
Vs.
Deputy
Director
of
Consolidation, reported in 2001 (92) R.D.
330. This Court in the said judgment further
classified a remand orders in two categories.
The Court held that order of remand will be
interlocutory, if they are simplicitor remand.
However, if the Court while remanding the
matter records finding of fact or law which
may be binding, the remand order could not
be interlocutory order. Following was laid
down in paragraph 3 of the judgment:

"3. Learned counsel for the petitioner
contends
that
the
revision
of
the
respondents was not maintainable because
the order of S. O. C. Dated 5. 1. 1985
passed in appeal was remand order and,
therefore, interlocutory order as held by
decision of this Court in the case of Ram
Narayan
v.
Deputy
Director
of
Consolidation and decision reported in
1990 (90) RD 313. Both these decisions rely
upon the decision of the Supreme Court in
the case of Kshitish Chandra Bose V.
Commissioner, Ranchi. The decision of the
Supreme Court has been given in the
context of Civil Procedure Code. Learned
counsel for the respondents has relied upon
a decision of the Division Bench of this
Court in the case of Pritam Singh V.
Assistant Director of Consolidation, for the
proposition that remand orders are not
always interlocutory order and it depends
upon the remand order. Learned counsel
for the petitioner has argued that the bar of
revision against interference order was
introduced in section 48 of the U.P.
Consolidation of Holdings Act in the year
1982 for the first time and, therefore, the
decision of the Division Bench of the year
1978 cited by the respondents is no longer
good law. Having considered all the
decisions as well as logical points I am of
the opinion that remand orders would be
interlocutory order if they are simplicitor
remand orders. However, if the Court
remanding matter has recorded finding of
facts or even finding of law which would be
binding after remand upon the Court to
which matter has been remanded, the
remand order would not be interlocutory
order, as in respect of those issues it has
finally decided the controversy."

16. In view of the law laid down in the
above noted case, treating the order of
remand as an interlocutory order, the second
question which still is to be answered is as
to whether against such an interlocutory
order of remand by which the appeal has
been finally decided by setting aside the
order of the Consolidation Officer and
remanding the matter, the revision is
maintainable.

17. Section 48 Explanation (2) of the
U.P. Consolidation of Holdings Act, 1953
while defining the expression 'interlocutory
order' confines the 'interlocutory order' to
mean such order deciding any matter arising
in such case or proceeding or collateral
thereto as does not have the effect of finally
2 All] Deena Nath and others V. The Dy. Director of Consolidation and others
537
disposing of such case or proceeding. A
plain reading of section 48 (1) with
Explanation (2) is that revision only such
interlocutory order was barred which does
not have the effect of finally disposing of
such case or proceeding. The remand order
which have effect of finally disposing of
such case or proceedings are not included
where revision is contemplated to be barred.
Thus, each and every interlocutory order is
not contemplated to be covered by
prohibition under Section 48. Only a
particular category of interlocutory orders
have been contemplated to be excluded
from the scrutiny of section 48. For
example, if objection under Section 9-A or
in appeal an interim order is passed granting
injunction or any kind of Interim relief, the
revision will be barred since that order does
not have the effect of finally disposing of
case
or
proceeding
but
when
an
interlocutory order has consequences of
finally disposing of case or proceeding that
is clearly out of prohibition contemplated
under section 48. The judgment of this
Court in the case of Ajab Singh (supra) has
not adverted to Explanation (2) of Section
48 which defines the 'interlocutory order'. In
the facts of the present case, the appeal was
finally decided by setting aside the order of
the Consolidation Officer and remanding
the matter to the Consolidation Officer, the
order
of
the
Settlement
Officer,
Consolidation thus, finally terminated the
appellate proceeding. Such kind of order
was not contemplated to be interlocutory
order against which revision was barred.

18. There is one more aspect of the
matter which cannot be lost sight of i.e. as
to whether the appeal under Section 11 of
the U.P. Consolidation of Holdings Act,
1953 can be said to be a proceeding because
section 48 refers to any case decided or
proceeding taken. In case the appeal is
treated to be a case then obviously the
appeal having been decided, the case is
decided. The word 'proceeding' is a wider
term than a case. This court in Ram Nayan
Vs. Director of Consolidation, reported in
AIR 1965 Allahabad page 172 held that
"word 'proceeding' is wider than the word
'case' it may also include administrative
proceeding." The word proceeding has been
used in several provisions of the U.P.
Consolidation of Holdings Act and it is
useful to refer sections 40 and 41 of the Act,
which throw considerable light as to what is
contemplated by proceeding under the U.P.
Consolidation of Holdings Act. Sections 40
and 41 are quoted below:

"40. Proceedings before Settlement
Officer
Consolidation,
Consolidation
Officer
and
Assistant
Consolidation
Officer to be judicial proceedings. _ A
proceeding
before
a
Director
of
Consolidation,
Deputy
Director
of
Consolidation,
Settlement
Officer,
Consolidation, Consolidation Officer and
Assistant Consolidation Officer, shall be
deemed to be judicial proceedings within
the meaning of sections 193 and 228 and
for the purposes of Section 196 of the Indian
Penal Code.
41. Application of U.P. Land Revenue Act,
1901. Unless otherwise expressly provided
under this Act, the provisions of Chapter IX
and X of the U.P. Land Revenue Act, 1901,
shall apply to all proceedings including
appeal and applications under this Act. "

19. Section 40 of the Act provides that
a proceeding before the Director of
Consolidation shall be deemed to be judicial
proceeding within the meaning of section
193 and 228. An appeal before Settlement
Officer Consolidation under section 11 is
also a judicial proceeding as per section 40.
538 INDIAN LAW REPORTS ALLAHABAD SERIES [2008

20. Section 41 of the Act more clearly
explain the intendment of the Legislature.
Section 41 provides that provisions of
Chapter IX and X of U.P. Land Revenue
Act shall apply to all proceedings including
appeal and applications under this Act. Thus
proceeding has been defined in an inclusive
manner which includes the appeal also.
Section 41 clearly indicates that appeal is a
proceeding. The appeal before Settlement
Officer Consolidation being a proceeding
and it has been finally decided by the order
of the Settlement Officer Consolidation
dated 27.9.2007 since nothing more was to
be done in the appeal, the said order is
clearly not covered by the definition of
'interlocutory order' as given in Explanation
(2). Thus, the bar under section 48 against
filing of revision was not attracted.

21. From the judgment of this Court in
Ajab Singh and others Vs. Jt. Director of
Consolidation
and
others
(supra),
Kshitish
Chandra
Bose
Vs.
Commissioner of Ranchi (supra), Rajbir
Vs. Dy. Director of Consolidation, Rajit
Ram Singh and others Vs. Mahadev
Singh and others (supra), it is clear that
Explanation of section 48 has not been
considered and without considering the
distinction
between
two
kind
of
interlocutory orders, a general proposition
has been laid down that revision is barred
against interlocutory orders.

22. In view of the above, I am of the
considered opinion that against those orders
of Settlement Officer Consolidation passed
in appeal which have effect of finally
deciding the appeal be it may an order of
remand, the provisions of section 48 shall
apply but in view of the fact that a contrary
view has been taken in the above noted
cases, judicial propriety demands that the
question be referred to the Hon'ble the Chief
Justice for constituting a Division Bench for
consideration,

In view of the foregoing discussions,
following questions are framed to be
considered by a Division Bench:

(i) Whether an order passed in appeal
under section 11 of the U.P. Consolidation
of Holdings Act by the Settlement Officer
Consolidation deciding the appeal finally by
setting aside the order of the Settlement
Officer Consolidation and remanding the
matter to the Consolidation Officer is an
interlocutory order within the meaning of
section 48 of the U.P. Consolidation of
Holdings Act and revision is barred against
such order under section 48.

(ii) Whether the law down in Ajab
Singh and others Vs. Jt. Director of
Consolidation and others, reported in
1996 R. D. 104, Rajbir Vs. Dy. Director of
Consolidation, reported in 1999 (90) R.D.
313, Rajit Ram Singh and others Vs.
Mahadev Singh and others, reported in
2002 (93) R.D. 224 lay down the correct
law.

23. Let the papers be placed before
Hon'ble the Chief Justice for constituting a
Division Bench to consider the above noted
questions.
 Referred to larger bench.
---------
2 All] Ramesh Chandra Pathak V. State of U.P. and others
539
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.04.2008

BEFORE
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No.46568 of 2000

Ramesh Chandra Pathak
...Petitioner
Versus.
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri. A.P. Tewari
Sri. S.S. Tripathi

Counsel for the Respondents:
Sri. Ravi Ranjan
S.C.

U.P.
Government
Servant
Seniority
Determination
Rules
1991-Rule
6Seniority-person senior in feeding cadrepromoted subsequent to his junior-by
applying wrong criteria-suitability cum
seniority-no adverse entry or allegation
of
misconduct-held-after
promotionpetitioner entitled to maintain seniority
of his feeding cadre.

Held: Para 11

It is no doubt true that the petitioner has
been
promoted
subsequent
to
the
aforesaid
persons
on
the
post
of
Assistant Accountant but once he has
been promoted on the post of Assistant
Accountant even subsequent to the
aforementioned persons he will regain
his seniority position as it was in the
feeding cadre of Junior Accounts Clerk.
In my opinion the view taken by
concerned authority while preparing the
impugned seniority list, contrary to it
,appears to be contrary to the statutory
provisions of Rule 6 of 1991, cannot be
sustained,
therefore,
the
impugned
seniority list dated 1.9.1998 of Assistant
Accountant
cannot
be
maintained
accordingly, the same is hereby quashed.
Case law discussed:
AIR 1985 SC 582, AIR 1999 SC 2583, JT 2003
(3) SC 183, JT 2005 (4) SC 40.

(Delivered by Hon'ble Sabhajeet Yadav, J.)

1. A short question which arises for
consideration is that as to whether a
senior person in the feeding cadre if
promoted subsequent to his juniors on
next higher post can regain his seniority
as it was in feeding cadre on his such
subsequent promotion?

2. The brief facts leading to the case
is that the petitioner was initially
appointed on the post of Junior Clerk in
the Office of Laghu Krishak Vikas
Abhikaran, Gorakhpur on 14/15.11.1980
on regular basis after due process of
selection, and by efflux of time the
persons appointed as Junior Clerk in
Laghu Krishak Vikas Abhikaran were
redesignated as Junior Accounts Clerk on
its redesignation as Zila Gramya Vikas
Abhikaran. Thereafter the petitioner was
given promotion to the next higher post of
Assistant Accountant vide order dated
23.11.1990. Next promotion from the post
of Assistant Accountant is the post of
Accountant. A tentative seniority list for
the post of Assistant Accountant was
published on 13.6.1996 inviting objection
against the said seniority list. The
petitioner
moved
his
representation/objection against the said
tentative seniority list on 24.7.1996.
Thereafter a final seniority list was
published by the respondent vide covering
letter dated 1.9.1998 (Anneuxre-6 to the
writ petition). Thereafter on the basis of
aforesaid seniority list promotion order
from the post of Assistant Account to the
post of Accountant was issued vide order