# Faujdar v. D.D.C.and others

- **Citation:** (2006) 1 ILRA 202
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-01-06
- **Case number:** Civil Misc. Writ Petition No. 1056 of 2002
- **Bench:** A.K. Yog, Prakash Krishna
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/faujdar-v-d-d-c-and-others-40634
- **Pages:** 15

## Headnote

Sri G.C. Upadhyaya
Sri M.R. Jaiswal
Sri O.P. Rai
Sri R.P. Gupta (Amicus Curiae)
S.C.

(A) U.P. Consolidation of Holding Act,
1953-Section
48-Revisional
Powerwhether the D.D.C. can exercise its
revisional
power
against
the
order
passed
by
subordinate
consolidation
authorities-where the order appealable
but no appeal filed? Held-"yes"

Held: Para 36

In view of the above discussion we are
of
the
opinion
that
the
aforesaid
decisions laying down that an order of an
authority subordinate to Deputy Director
1 All] Faujdar V. D.D.C.and others
203
of
Consolidation
can
be
challenged
directly by filing revision under section
48 of the Act without resorting to the
remedy of filing appeal under section 11
of
the
Act
and
thus
revision
is
maintainable lay down law correctly.
There is no bar to compel a litigant to
invoke the appellate jurisdiction first,
before filling a revision under section 48
of
the
Act.
The
decisions
holding
otherwise, in our considered opinion
does not lay down the law correctly and
all such decisions are hereby overruled.

(B)
Constitution
of
India,
Art-226judgement-binding
effect-not
holding
correct law-cannot be relied on-after
consideration
on-after
considerationcourt held-the law laid down by Single
Judge-in case reported in 1995 RD-534,
1998 (89) RD-578, 1999(90) RD-363,
2000 R.D.-608, judgment date 28.9.99
passed in w.p. no.26527 of 99 are not
correct law.

Held: Para 42, 43

We decide Question - 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?" --
Answer in affirmative.

C.
Deputy Director of Consolidation
can exercise revisional jurisdiction under
section 48 in respect to an appealable
order passed by the Consolidation officer
where no appeal has been filed. We
decide the question - B. Whether the
decisions of learned Single Judges in:-

## Text

_Characters 0–39,774 of 47,053. This is a partial read: ask again with offset=39774 for what follows._

202 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
contemplation of departmental inquiry as
envisaged by Rule 4(1) of Rules 1999.
Besides this, it is also necessary to
mention that no interim order has been
granted by this Court at any point of time
either staying suspension order or staying
the disciplinary inquiry contemplated
against
the
petitioner.
In
such
circumstances we have no hesitation to
hold that inspite of lapse of a period of
more than 2 years the respondent could
not be able to frame the charge and issued
any
charge-sheet
and
initiate
any
disciplinary proceeding as contemplated
in rule 7 for imposition of major penalty
against the petitioner.

(55) Thus there was no scope for the
respondent to sit idle without holding
disciplinary inquiry to be initiated against
the petitioner. Thus we have no hesitation
to hold that keeping the petitioner under
suspension for such a long period without
holding any disciplinary inquiry against
him as indicated in the order of
suspension, the respondents have no
justification under law. Suspension of the
petitioner in such a circumstances cannot
be said to be bonafide action of the
respondent and accordingly the same can
be termed as arbitrary, malafide and
resorted to as administrative routine,
which would not be justified under law.
Thus in given facts and circumstances of
the case impugned order of suspension
vitiates from its very inception and liable
to be quashed. Accordingly impugned
order of suspension dated 21.7.2003
(Annexure-5 of the writ petition) is
hereby quashed. With the result the
petitioner shall be reinstated in service
and paid balance salary for the period of
suspension, within two months from the
date of production of certified copy of the
order passed by this Court, before the
respondent no.1.

(56) In the result the writ petition
succeeds and is allowed.

There shall be no order as to costs.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.01.2006

BEFORE
THE HON'BLE A.K. YOG, J.
THE HON'BLE PRAKASH KRISHNA, J.

Civil Misc. Writ Petition No. 1056 of 2002

Faujdar

...Petitioner
Versus
Deputy Director of Consolidation and
others

 ...Respondents

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

Counsel for the Respondents:
Sri G.C. Upadhyaya
Sri M.R. Jaiswal
Sri O.P. Rai
Sri R.P. Gupta (Amicus Curiae)
S.C.

(A) U.P. Consolidation of Holding Act,
1953-Section
48-Revisional
Powerwhether the D.D.C. can exercise its
revisional
power
against
the
order
passed
by
subordinate
consolidation
authorities-where the order appealable
but no appeal filed? Held-"yes"

Held: Para 36

In view of the above discussion we are
of
the
opinion
that
the
aforesaid
decisions laying down that an order of an
authority subordinate to Deputy Director
1 All] Faujdar V. D.D.C.and others
203
of
Consolidation
can
be
challenged
directly by filing revision under section
48 of the Act without resorting to the
remedy of filing appeal under section 11
of
the
Act
and
thus
revision
is
maintainable lay down law correctly.
There is no bar to compel a litigant to
invoke the appellate jurisdiction first,
before filling a revision under section 48
of
the
Act.
The
decisions
holding
otherwise, in our considered opinion
does not lay down the law correctly and
all such decisions are hereby overruled.

(B)
Constitution
of
India,
Art-226judgement-binding
effect-not
holding
correct law-cannot be relied on-after
consideration
on-after
considerationcourt held-the law laid down by Single
Judge-in case reported in 1995 RD-534,
1998 (89) RD-578, 1999(90) RD-363,
2000 R.D.-608, judgment date 28.9.99
passed in w.p. no.26527 of 99 are not
correct law.

Held: Para 42, 43

We decide Question - 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?" --
Answer in affirmative.

C.
Deputy Director of Consolidation
can exercise revisional jurisdiction under
section 48 in respect to an appealable
order passed by the Consolidation officer
where no appeal has been filed. We
decide the question - 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 & others.
3.
1999 (90) R.D. page 363 Ranjeet
and
others
vs.
Deputy
Director
of
Consolidation Balia 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?" ---
Answer no.

Decisions of Learned Single Judges in the
cases
of
Damodar
Prasad
(supra),
Santosh Kumar and others (supra),
Ranjeet and others (supra), Hari Har
Ram (supra) and Rama Shanker Singh
and others (supra) do not lay down
correct law and hereby overruled. The
correct law is as expounded by Learned
Single Judges in the case of Ram Das
(supra) and Ram Saran (supra).
Case law discussed:
1995 RD-534 not correct law
1979 RD-308
1982 RD-78
1985 AL-J-1343
1990 RD-?
1998 (80) RD-578
1999(90) RD-363
2000 RD-608
W.P. 26527 of 99 decided on 28.9.99
AIR 1970 Alld.-376
2003 (2) SCC-577
AIR 2003 SC-1405
2003 (4) J.T. 435
J.T. 2004 (2) SC-510
1979 AWC-513
1988 (2) SCC-602
1991 (4) SCC-139
2000 (4) SCC-462
2003 (5) SCC-448

(Delivered by Hon'ble A.K. Yog, J.)

1. Faced with conflicting opinion
expressed by different ''benches' of coordinate strength (All Single Judges) &
Learned Single Judge referred the matter
for consideration by a larger bench and
204 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
the Hon'ble Chief Justice as contemplated
under Rules of Court 1952 (as amended
upto date) has nominated this Bench to
resolve the conflict and set at rest the
legal position. Consequently the matter
has come up for before this Bench for
adjudication.

2. Can a party to the Proceedings
under U.P. Consolidation of Holdings
Act, 1953 (hereinafter referred to as the
Act)
directly
invoke
''
Revisional'
jurisdiction of DDC U/S 48 of the Act by
passing statutory remedy of Appeal under
section 12 of the Act.

3. The pith and substance of the
issue in ''controversy' can be summarized,
for ready reference, as follows:-

4. Following two questions have
been framed and referred by Learned
Single Judge for decision:-

"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 &
others.
3.
1999 (90) R.D. page 363 Ranjeet
and others vs. Deputy Director of
Consolidation Balia 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.
3.
1985 All. L.J. 1343 Ram Saran Vs.
Assistant Ddirector of
(Consolidation) and others.
4.
1990 R.D. page Ram Surat and
others vs. Gram Sabha, Nagar,
Haraiya Mirzapur and others.

Facts of the Case :-

5. A dispute arose in between one
Faurjdar
(the
petitioner)
and
Smt.
Prabhawati
(the
respondent)
during
consolidation operations. Matter was
placed before the Consolidation Officer
for decision of the dispute under section
9-A
(2)
of
the
Act.
An
alleged
compromise purporting to be on behalf of
the respective parties was presented
before the Consolidation Officer, who
decided the dispute vide the order dated
October, 8, 1996 in terms of the said
compromise. Subsequently an application
dated September, 4, 1997 was filed by
Smt. Prabhawati for the recall of the order
dated 8.10.1996 on the ground that the
order dated 8.10.1996 was obtained by
1 All] Faujdar V. D.D.C.and others
205
playing fraud; no notice or summon of the
case was served on her nor she filed any
such compromise; there is no order sheet
on the record which may show that any
proceedings were taken out before the
Consolidation Officer. She pleaded that
compromise has been got verified by
impersonation as she did not appear
before the Court nor engaged any counsel.
The allegations made in recall application
were duly supported by statement on oath.
The said recall application was dismissed
in default by the order dated 13th of
December, 1999.

6. Smt. Prabhawati filed two
revisions being revision no.812 of 2000,
(annexure 9 to the writ petition) against
the order dated October, 8, 1996 passed in
original case No.3173 and revision
No.707 of 1998 against the order dated
18.10.1996, on similar pleas. In the memo
of revision she has set up plea of fraud
against the present petitioner and others
and pleaded that no notice or summon
was served on her by the Consolidation
Officer before recording the compromise
nor she ever entered into any such
compromise. It has been also stated that
Faujdar, the petitioner has filed a belated
objection
before
the
Consolidation
Officer, notice of which was not given to
her. An objection was raised by the
present petitioner before the respondent
no.1 about maintainability of the revision
on the ground that it is barred by time.

7.

The
Deputy
Director
of
Consolidation by the impugned order
dated 27th December, 2001 held that the
question ''whether the revision is barred
by time, and, therefore not maintainable,
shall be heard and decided at the time of
hearing of the revision being heard on
merits itself. Aggrieved against the
aforesaid order the present writ petition
has been filed.

Contention of the Petitioner:

8. It appears that in the present writ
petition the petitioner has endeavoured to
raise and press a new plea with regard to
the non maintainability of the revision
before the respondent no.1 which was,
though mentioned in the objection but
appears to have been not pressed as it
does not find mention in the impugned
order; there is also no objection that said
plea, though pressed but not dealt with by
the court below.

9. It is submitted that the order
passed by the Consolidation Officer dated
October, 8, 1996 is an appealable order
under section 11 of the Act and as such
the revision filed by the contesting
respondent no.2 Smt. Prabhawati under
section 48 of the Act is not maintainable
and is liable to be rejected as such.

Before Learned Single Judge reliance
is sought to be placed by the learned
counsel for the petitioner upon the
following cases:-

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 &
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.
206 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
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.

10. Shri Ram Niwas Singh, the
learned
counsel
for
the
petitioner
contends that legislative intent is clear;
viz,
orders,
which
are
otherwise
appealable under section 11 of the Act,
cannot be challenged directly by filing
revision under section 48 of the Act
before Dy. Director of Consolidation. He
seeks to support his contention with the
help of Rule 111 of the Rules framed
under the Act. It is pointed out, that in the
said Rule, limitation for filing a revision
against an order is ''thirty days' but there
is no such period of limitation is
prescribed for a revision (if filed) against
a proceeding. On that basis he contends
that one can infer from the above
circumstance
that

legislature
did
contemplate revisions of two kinds before
the Respondent No.1, - (a) against an
''order' and (ii) against a ''proceeding'.
Further elaborating the argument, it is
argued that a conjoint reading of section
11 and section 48 of the Act makes it
clear that a revision against an order
which is appealable under section 11 of
the Act, is not conceived by the
legislature and, hence it should be held as
''not maintainable' in law. He also submits
that regular forum of ''Appeal' if provided
in the Statute, should not be allowed to be
rendered redundant

Contention of the Respondents:-

11. In reply, the learned standing
counsel Shri M.R. Jaiswal and Shri O.P.
Rai, representing Respondent No.2 submit
that legislature is competent to provide
more than one remedy in a statute against
an order in a given situation, it is the
choice of ''aggrieved person' to avail
oneself of either of these remedies and
there is no bar to provide two forums.
According to the Respondent, a plain
reading of Section 48 of the Act, does not
show any ''inhabitation' or ''hitch' or
restriction upon the right of ''aggrieved
person' against an order of Consolidation
Officer etc., or during Proceeding to first
challenge order ''wrong' or Proceeding by
way of appeal under section 11 before
Settlement Officer Consolidation or, in
the
alternative
invoke
''revisionaljurisdiction' before Higher Authority i.e.
DDC. It was further submitted that, if any,
restriction is imposed, as suggested by the
petitioner it will amount to rewrite
''Statute' which is neither permissible in
law nor warranted in the facts of the
present case.

12. Section 48 as originally enacted
of U.P. Act No.5 of 1954 is reproduced
below:-

"48. Revision- 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 may think fit."

It was amended and was substituted
by U.P. (Amendment Act No.24 of 1956).
The
provision,
thus,
amended
is
reproduced below:-
1 All] Faujdar V. D.D.C.and others
207
"48.
Powers
of
Director
of
Consolidation to call for records and to
revise
orders
-
The
Director
of
Consolidation may call for the record of
any case or proceeding if the Officer
(other than the Arbitrator) by whom the
case was decided or proceeding taken
appears to have failed to exercise
jurisdiction so vested, or to have acted in
the exercise of his jurisdiction illegally or
with substantial irregularity and pass
such orders in the case as it think fit."

13. Above section was further
amended by U.P. (Amendment Act No.38
of 1958) as well as by Section 38 of U.P.
(Amendment
Act
No.38
of
1963).
Amended Section 48, as it stands today, is
quoted below:-

"Section 48. Revision and reference -
(1) The Director of Consolidation may
call for and examine the record of
any case decided or proceeding
taken by any subordinate authority
for the purpose of satisfying himself
as to 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 a opportunity of being
heard, make such order in the case
or proceedings as he thinks fit.

(2)
Powers under sub section (1) may
be exercised by the Deputy 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 purpose of this
section Settlement Officer, Consolidation,
Consolidation
Officer,
Assistant
Consolidation Officer, Consolidator and
Consolidation
Lekhpal
shall
be
subordinate
to
the
Director
Consolidation.

Explanation - (II) For the purpose of this
section the expression "interlocutory
order' in relation to a case or proceeding
or collateral thereto as does not have the
effect of finally disposing of such case or
proceeding.

Explanation - (III) The power under this
section to examine the correctness,
legality or propriety of any order includes
the power to examine any findings,
whether of fact or law, recorded by any
subordinate authority, and also includes
the power to re-appreciate any oral or
documentary evidence."

It may be pointed that Explanation -
III was inserted by U.P. Act No.3 of 2002
w.e.f. 21st of June, 2002.

14. It may be pointed out that this
Court in a Full Bench decision Zila
Parishad Vs. Bramha Rishi Sharma AIR
1970 Allahabad 376 has held that if two
remedies have been provided by an
enactment it is open to the aggrieved
person to choose either of them, unless
there is any prohibition. In this case an
exparte injunction order was passed. The
said order was appealable. The defendant
had also a right to apply for the vacation
of the injunction order before the Court
208 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
who passed the injunction order. In this
fact situation, the Full Bench has made
the following observation:-

"The language and the object of Rule
1(r ) of Order 43 and the scheme of Rules
1 to 4 of Order 39 show that an appeal
also lies against the exparte order of
injunction. As soon as an interim
injunction is issued and the party affected
thereby is apprised of it, he has two
remedies: (1) he can either get the ex
parte injunction order discharged or
varied or set aside under Rule 4 of O. 39
and if unsuccessful avail the right of
appeal as provided for under Order 43,
Rule 1 (r ), or (2) straightway file an
appeal under Order 43, Rule 1 (r) against
 the injunction order passed under Rules
1 and 2 of Order 39, C.P.C. It is not
unusual
to
provide
for
alternative
remedies. For instance, when an ex parte
decree is passed against a person, he has
two remedies: either he may go up in
appeal against the ex parte decree or he
may seek to get the ex parte decree or he
may seek to get the ex parte decree set
aside by the same court."

15. Under the Civil Procedure Code
against an ex parte decree two remedies to
the defendant have been provided. He can
file an application for setting aside the
exparte decree under Order IX Rule 13 of
C.P.C. or to file appeal against the exparte
judgment. By an amendment through
which an Explanation has been added
being C.P.C Amendment Act 1976 w.e.f.
1st of February, 1977 now it has been
provided that if a party has availed
remedy of filing appeal against the
exparte judgment he is debarred to file an
application under Order IX Rule 13
C.P.C.

16. Under the Income Tax Act
against the assessment order it is upon an
assessee to file an appeal before the First
Appellate Authority or to file ''revision'
directly before the Commissioner of
Income Tax under section 263 of the
Income Tax Act. U.P. Minor Mineral
Rules, Rules 77, 78 and 79 are also to the
same effect.

17. The argument of the learned
counsel for the petitioner is that this Court
should interpret section 48 in such a
manner so as to exclude the direct filing
of revision against such orders or
proceedings which are appealable first
under section 11 of the Act. Under section
11 of the Act any aggrieved party to the
proceedings under section 9-A by an
order
passed
by
the
Assistant
Consolidation
Officer
or
the
Consolidation Officer may file appeal
within 21 days before the Settlement
Officer Consolidation. On comparing the
section 11 with section 48 of the Act it is
clear that only limited orders which are
passed under section 9 - A by Assistant
Consolidation
Officer
or
the
Consolidation
Officer
are
made
appealable. On the other hand under
section 48 the Deputy Director of
Consolidation is empowered to examine
the proceedings and the order of not only
Assistant Consolidation Officer or the
Consolidation
Officer
but
also
of
Settlement
Officer
Consolidation,
Consolidator and Consolidation Lekhpals
also, thus we find no justification to
accept the aforesaid argument of the
petitioner.

18. Language of section 48 is plain
and simple and admits of no doubt. It was
not disputed, and could not be disputed by
the
petitioner,
that
on
the
plain
1 All] Faujdar V. D.D.C.and others
209
interpretation of section 48 of the Act, the
section does not provide any bar to
entertain a revision by the Deputy
Director of Consolidation even if the
order under revision is appealable and the
appeal has not been filed. Shri R.P.
Gupta, advocate, who appeared as amicus
curie on the request of the Court has
referred
to
a
Constitution
Bench
Judgment of Supreme Court in the case of
Nathi Devi Vs. Radha Devi Gupta AIR
2005 SC 648, wherein it was held that the
interpretative function of the Court is to
discover the true legislative intents. It has
been said that in interpreting a Statute, the
court must, if the words are clear, plain,
unambiguous and reasonably susceptive
to only one meaning, irrespective of the
consequence. They must be expounded in
their natural and ordinary sense. When
language is plain and unambiguous and
admits of only one meaning no question
of construction of Statute arises and the
Act speaks for itself. Courts are not
concerned with policy involved or that the
results are injurious or otherwise, which
may fall from giving effect to the
language used. If the words used are
capable of one construction only, then it
would not be open to the Courts to adopt
any other hypothetical construction on the
ground that such construction is more
consistent with the alleged object and
policy of the Act. In considering whether
there is ambiguity the Court must look at
the Statute as a whole and consider the
appropriateness of the meaning in a
particular context, to avoid absurdity and
inconsistencies, unreasonableness which
may render Statute unconstitutional. In
para 5 of the judgment it has been stated
in the following words:-

"It is well settled that literal
interpretation should be given to the
Statute if the same does not lead to an
absurdity."

19. In para 16 of the judgment, it has
quoted an excerpt from its earlier
judgment in the case of Nasiruddin and
others Vs. Sita Ram Agrawal (2003) 2
SCC 577, which is reproduced below:-

"37. The court's jurisdiction to
interpret a statute can be invoked when
the same is ambiguous. It is well known
that in a given case the court can iron out
the fabric but it cannot change the texture
of the fabric. It cannot enlarge the scope
of legislation or intention when the
language of provision is plain and
unambiguous. It cannot add or subtract
words to a statute or read something into
it which is not there. It cannot rewrite or
recast legislation. It is also necessary to
determine that there exists a presumption
that the legislature has not used any
superfluous words. It is well settled that
the real intention of the legislation must
be gathered from the language used. It
may be true that use of expression ''shall
or may' is not decisive for arriving at a
finding as to whether statute is directory
or mandatory. But the intention of the
legislature must be found out from the
scheme of the Act. It is also equally well
settled that when negative words are used
the courts will presume that the intention
of the legislature was that the provisions
should be mandatory in character."
"Interpretation postulates the search
for the true meaning of the words used in
the statute as a medium of expression to
communicate a particular thought. The
task is not easy as the ''language' is often
misunderstood
even
in
ordinary
conversation or correspondence. The
tragedy is that although in the matter of
correspondence
or
conversation
the
210 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
person who has spoken the words or used
the language can be approached for
clarification, the legislature cannot be
approached as the legislature, after
enacting a law or Act, becomes functus
officio so far as that particular Act is
concerned and it cannot itself interpret it.
No doubt, the legislature retains the
power to amend or repeal the law so
made and can also declare its meaning,
but it can be done only by making another
law or statute after undertaking the whole
process of law making. J.P. Bansal Vs.
State of Raj. (A.I.R. 2003 S.C. 1405, para
12)."

G.P.
Singh
in
Statutory
Interpretation (8th Vol.) 2001 has
observed as follows, which has been
reproduced by the Apex Court in D.
Saibaba Vs. Bar Council of India 2003
(4) J.T. 435 (P.16):-

"It may look some what paradoxical
that plain meaning rule is not plain and
require some explanation. The rule, that
plain words, require no construction,
starts with the premise that the words are
plain, which itself is a conclusion reached
after construing the words. It is not
possible to decide whether certain words
are plain or ambiguous unless they are
studied in their context and construed."

In J.T. 2004 (2) S.C. 510 Prakash
Nath Khanna Vs. C.I.T., the Apex Court
has observed as follows: -

"It is well settled principle in law
that the court can not read anything into a
statutory provision which is plain and
unambiguous. A statute is an edict of the
lelgislature. The language employed in a
statute is the determinative factor of
legislative intent. The first and primary
rule of construction is that the intention of
the legislation must be found in the words
used by the legislature itself. The question
is not what may be supposed and has been
intended
but
what
has
been
said........................"

20. In view of the above, we are of
the opinion that on the plain language of
section 48 the argument of the petitioner
cannot be accepted. If we accept the
argument of the petitioner's counsel it
would virtually amount to re-writing
section 48, which is, normally, and as of
course, permissible under law.

21. Now we take up the cases
referred in the referring order by the
Learned Single Judge and relied upon by
the petitioner.

22. In the case of Damodar Prasad
Vs. Deputy Director of Consolidation
(Supra) only this much has been said that
an order under section 9-B being
appealable, if it is challenged in revision
without availing remedy of appeal it
would be destructive of a remedy under
the 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. On a close reading of
the said judgment we find the aforesaid
observations
were
only
tentative
observations made by the Learned Single
Judge and were not conclusive in as much
as in the very next sentence it has been
observed "that this aspect of the matter
also needs to be examined at the end of
Deputy Director of Consolidation." It is
difficult to deduce a ratio that in the
aforesaid case as a matter of law filing of
such revision was held to be not
maintainable. Be that as it may, with great
respect to the Learned Judge we fail to
1 All] Faujdar V. D.D.C.and others
211
understand how the filing of revision is
''destructive of a remedy under the Act'.
Rather, in our opinion it advances the
aims and objects of the Act as it facilitates
the early disposal and settlements of
dispute. Choice has been given to litigants
to reach to the higher authority directly
instead of approaching the said authority
through the route of first filing appeal
before
the
Settlement
Officer
Consolidation and then revision before
the Deputy Director of Consolidation.
We, therefore, are unable to subscribe
with the view of the judgment of the
Learned Single Judge in the aforesaid
case.

23. The next case relied upon is
Santosh Kumar Vs. U.P. Sanchalak
Chakbandi 1998 (89) RD 578. In the
aforesaid case the Learned Single Judge
after noticing the argument of the counsel
for the petitioner passed the order at the
admission stage of the revision, while
issuing notice to the opp. parties directing
the Deputy Director of Consolidation not
to dispose of the revision and with further
direction that the opp. party be directed to
prefer an appeal. No reasoning or ratio
has been laid down in the said case. The
aspect that it is open to legislature to
provide more than one remedy was
neither argued nor was considered by the
Learned Single Judge and therefore, we
are of the opinion, that the said judgment
is not a binding precedent and was not
correctly decided. The case of Ranjeet Vs.
DDC 1999 (90) RD 363 is distinguishable
on facts in as much as an appeal was filed
against the order of the Consolidation
Officer and thereafter a revision was also
filed against the said order. In this fact
situation it was held as follows:-

"Where the appeal is pending, it is
not appropriate for the Deputy Director of
Consolidation to interfere in revision,
specially, when the scope of interference
in appeal is much wider than the scope of
interference in revision."

24. In this case also in the
penultimate paragraph the Learned Single
Judge has said that the jurisdiction
exercised by the Deputy Director of
Consolidation
is
destructive
of
the
statutory remedy of appeal. We, with
great
respect,
disapprove
the
said
observation made by the Learned Single
Judge as it does not borne out from the
scheme of the Act or on the plain
language of sections 11 and 48 thereof.

25. The next case relied upon is Smt.
Madhuri Vs. DDC 2004 (96) RD 46. In
this case without filing objection revision
was preferred by the petitioner which was
dismissed on the ground of alternative
remedy. The High Court observed that it
is still open to the petitioner to file
objection under section 12 of the Act
before the Consolidation Officer. We do
not find any applicability of the said
judgment on the issue in hands.

26. On the other hand we find that
this Court in the case of Ram Das Vs.
DDC 1979 AWC 513 has dealt with the
present issue directly. The relevant
portion of the judgment is reproduced
below:-

"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
212 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
implied either u/Sec. 21 or Section 48
prohibiting a direct revision. Even 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
Consolidation within 30 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."

27. This judgment was not noted by
the Learned Judges in the case of
Damodar
Prasad
(supra),
Santosh
Kumar and others (supra), Ranjeet and
others (supra) and Rama Shanker and
others (supra). Therefore on the principle
of per incurium the judgments delivered
in the case of Damodar Das and other
judgments are liable to be ignored.

28. We note that doctrine of per
incuriam
is
applicable
where
by
inadvertence a binding precedent or
relevant provisions of the Statute have not
been noticed by the Court.

In Halsbury's Laws of Ingland (4th
Edn.) Vo.l. 26 on pages 297-98, para 578
per incuriam has been stated as follows:

"A decision is given per incuriam
when the court has acted in ignorance of a
previous decision of its own or of a court
of coordinate jurisdiction which covered
the case before it, in which case it must
decide which case to follow; or when it
has acted in ignorance of a House of
Lords decision, in which case it must
follow that decision; or when the decision
is given in ignorance of the terms of a
statute or rule having statutory force. A
decision should not be treated as given
per incuriam, however, simply because of
a deficiency of parties, or because the
court had not the benefit of the best
argument, and, as a general rule, the only
cases in which decision should be held to
be given per incuriam are those given in
ignorance of some inconsistent statute or
binding authority. Even if a decision of
the Court of Appeal has misinterpreted a
previous decision of the House of Lords,
the Court of Appeal most follow its
previous decision and leave the House of
Lords to rectify the mistake".

In the case of Mamleshwar Prasad vs.
Kanhaiya Lal [(1975) 2 SCC 232] the
Apex Court has held as follows:

"Certainty of law, consistency of
rulings and comity of courts- all flowering
from the same principle--converge to the
conclusion that a decision once rendered
must later bind like cases. We do not
intend to detract from the rule that, in
exceptional instances, where by obvious
inadvertence or oversight a judgment fails
to notice a plain statutory provision or
obligatory authority running counter to
the reasoning and result reaching, it may
not have the sway of binding precedent. It
should be a glaring case, an obtrusive
omission. No such situation presents itself
here and we do not embark on the
principle of judgment per incuriam.

Finally it remains to be noticed that
a prior de/.cision of this Court on
identical facts and law binds the Court on
the same points in a later case. Here we
have a decision admittedly rendered on
facts and law indistinguishably identical
and that ruling must bind."

29. In the case of A.R.Antulay vs.
R.S.Nayak [(1988) 2 SCC 602] the Apex
1 All] Faujdar V. D.D.C.and others
213
Court has quoted the observations of Lord
Goddard in Moore v. Hewitt [(1947) 2 All
ER 270(KBD) and Penny vs. Nicholas
[(1950) 2 All ER 89 (KBD) to the
following effect:

''Per incuriam' are those decisions
given in ignorance or forgetfulness of
some inconsistent statutory provision or
of some authority binding on the Court
concerned, so that in such cases some part
of the decision or some step in the
reasoning on which it is based, is found,
on that account to be demonstrably
wrong."

30. In the case of State of U.P. vs.
Synthetics & Chemicals Ltd. [(1991)4
SCC 139] the Apex Court has observed as
follows:

"'Incuria'
literally
means
''carelessness'. In practice per incuriam
appears to mean per ignorantium. English
Courts have developed this principle in
relaxation of the rule of stare decisis. The
''quotable in law' is avoided and ignored if
it is rendered, ''in ignorantium of a statute
or other binding authority' Young v.
Bristol Aeroplane Co. Ltd. [(1944) 2 All
ER 293].

In the case of Fuerst Day Lawson
Ltd. vs. Jindal Exports Ltd. [(2001) 6
SCC 356] the Apex Court has held that a
prior decision of this Court on identical
facts and law binds the Court on the same
points of law in a latter case. This is not
an exceptional case by inadvertence or
oversight of any judgment or statutory
provisions running counter to the reason
and result reached. Unless it is a glaring
case of obtrusive omission, it is not
desirable to depend on the principle of
judgment ''per incuriam'.
31. In the case of Government of
A.P. vs. B. Satyanarayana Rao [(2000) 4
SCC 462] the Apex Court held that the
rule of per incuriam can be applied where
a Court omits to consider a binding
precedent of the same Court or the
superior Court rendered on the same issue
or where a Court omits to consider any
statute while deciding that issue.

32. In the case of State of Bihar vs.
Kalika Kuer alias Kalika Singh and
others [(2003) 5 SCC 448] the Apex
Court has held that per incuriam would
mean such element of rendering a
decision in ignorance of any provision of
the statute or the judicial authority of
binding nature and earlier decision cannot
be said to have been rendered per
incuriam and liable to be ignored on the
ground that a possible aspect of the matter
was not considered or not raised before
the Court or more aspect should have
been gone into by the Court deciding the
matter earlier.

33. The Supreme Court in the case
of N. Bhargawan Pillai v. State of Kerala
AIR 2004 S.C. 2317 in para 14 has held
that if a view has been expressed without
analyzing the statutory provision, cannot
be treated as a binding precedent and at
the most is to be considered as having
been rendered per incurium.

34. We may also notice here the
observation made in the judgment of
Division Bench of this Court in Mst.
Kailashi Vs. DDC 1972 RD 80.

"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
214 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
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."

35. The Learned Single Judge
referring the case in the reference order
has rightly pointed out that the above
observations of the Division bench
supports the view that Deputy Director of
Consolidation can revise every order
passed by any subordinate consolidation
authority. Another Learned Single Judge
in Ram Sharan Vs. Assistant Director
(Consolidation) 1985 Allahabad Law
Journal 1343 has held as follows:-

"In sub-cl.(1) of S.11 it is provided
that any party to the proceedings under
S.9-A, aggrieved by an order of the
Assistant Consolidation officer or the
Consolidation Officer, under that section
may, within 21 days of the date of the
order, file an appeal before the Settlement
Officer Consolidation, who shall, after
affording opportunity of hearing to the
parties concerned, give his decision
thereon. It is, therefore, clear that a
person who is not a party to the
proceedings under S. 9-A cannot file an
appeal as of a right, although he may, if
aggrieved by the order prefer an appeal
with leave of the Court, as held in
Basalat's case (1983 All LJ NOC 37)
(supra). However, when a thing which
cannot be done as of a right its noncompliance would not operate as a bar to
taking recourse to other available legal
remedy. Thus, when an appeal cannot be
filed as of a right under S.