# Hanuman & Ors v. State of U.P. & Ors

- **Citation:** (2022) 9 ILRA 683
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-03
- **Case number:** Writ B No. 1767 of 2022
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hanuman-ors-v-state-of-u-p-ors-49102
- **Pages:** 4

## Headnote

Law
-
U.P.
Consolidation
of
Holdings Act (5 of 1954) - Section 48 -
during pendency of the revision u/s 48
of the U.P.C.H. Act, one of the opposite
party, Bhagwan Das, died - however, his
heirs
were
not
substituted
in
the
revision - the revision was allowed and
the matter was remanded back to the
Consolidation
Officer
to
decide
the
objection afresh - Held - Explanation (3)
of the Section 48 of the U.P.C.H. Act
states that the Deputy Director of
Consolidation
has
wide
power
to
appreciate the evidence etc. & in place
of
remanding
the
matter
back,
he
himself can decide the revision on merit
after
affording
the
opportunity
of
hearing
to
both
the
parties
in
accordance of law - Also, allowing the
revision without substituting the legal
heirs of deceased party in the revision
makes the revisional order illegal -
matter remanded back to the D.D.C. to
decide the revision in accordance with
law after substituting the legal heirs of
deceased opposite party (Bhagwan Das)
(Para 8, 9, 12)

Allowed. (E-5)

List of Cases cited:

## Text

9 All. Hanuman & Ors. Vs. State of U.P. & Ors.
683
whatsoever has been produced before the
Court either showing the nature of the
injuries or the lodging of the complaint or
FIR against them. As it is well settled that
enmity emanating as a motive is two-sided
dagger and thus in order to put the motion
of motive for conviction, same is to be
proved beyond doubt also.

34. This Court while bestowing
anxious consideration on the judgment
passed by the Trial Court finds its inability
to interfere in the present proceedings as
according to this Court the view taken by
the Trial Court does not seem to be
suffering from any perversity, and this
Court further finds that there is no other
view ought to be taken, other than the view
so taken by the court below. In the absence
of any perversity or misreading of the
evidences so sought to be adduced by the
prosecution, this Court has no option but to
concur with the judgment of the Trial Court
acquitting the accused herein.

35. Resultantly, present criminal
appeal is dismissed.

36. Records of the present case be
sent back to the concerned court below.
----------
(2022) 9 ILRA 683
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.08.2022

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ B No. 1767 of 2022

Hanuman & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Sachida Nand Tiwari, Sri Murli Dhar
Mishra

Counsel for the Respondents:
C.S.C., Sri Arvind Kumar Srivastava, Sri
Bhaju Ram Prasad Sharma

Civil
Law
-
U.P.
Consolidation
of
Holdings Act (5 of 1954) - Section 48 -
during pendency of the revision u/s 48
of the U.P.C.H. Act, one of the opposite
party, Bhagwan Das, died - however, his
heirs
were
not
substituted
in
the
revision - the revision was allowed and
the matter was remanded back to the
Consolidation
Officer
to
decide
the
objection afresh - Held - Explanation (3)
of the Section 48 of the U.P.C.H. Act
states that the Deputy Director of
Consolidation
has
wide
power
to
appreciate the evidence etc. & in place
of
remanding
the
matter
back,
he
himself can decide the revision on merit
after
affording
the
opportunity
of
hearing
to
both
the
parties
in
accordance of law - Also, allowing the
revision without substituting the legal
heirs of deceased party in the revision
makes the revisional order illegal -
matter remanded back to the D.D.C. to
decide the revision in accordance with
law after substituting the legal heirs of
deceased opposite party (Bhagwan Das)
(Para 8, 9, 12)

Allowed. (E-5)

List of Cases cited:

1.
Chandrama
Vs
Deputy
Director
of
Consolidation Ballia & ors. (134) RD 555

2. Gajjoo Vs Deputy Director of Consolidation &
ors. 1995 R.D. 231

3.
Bansi
Kanhai
Vs
Deputy
Director
of
Consolidation U.P. Lucknow & ors. AIR 1967
Allahabad 592

(Delivered by Hon'ble Chandra Kumar
Rai, J.)
684 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard Sri Murli Dhar Mishra,
learned counsel for the petitioners, Sri
B.R.P.
Sharma,
learned
counsel
for
respondent nos.3 and 4 and learned
Standing Counsel for respondent nos.1 and
2.

2. With the consent of the parties, writ
petition is being heard and decided finally
at the admission stage.

3. Learned counsel for the petitioners
submitted that in the revision under Section
48 of the U.P.C.H. Act filed at the instance of
respondent nos.3 and 4 in which petitioners
were opposite parties, was allowed without
substitute the heir of deceased- Bhagwan Das
and the revision was allowed and the matter
was remanded back to the Consolidation
Officer for fresh decision. He further
submitted that in view of the provisions
contained under Section 48 of the U.P.C.H.
Act, the Deputy Director of Consolidation
himself can decide the revision on merit in
place of remanding the matter back to the
Consolidation Officer.

4. On the other hand, Sri B.R.P.
Sharma, learned counsel for respondent nos.3
and 4 submitted that by the impugned order,
the matter has been remanded back to the
Consolidation Officer, as such, there is no
necessary to substitute the heir of deceased
opposite party and entire parties will be heard
by the Consolidation Officer while deciding
the objection afresh in pursuance of the
revisional order, as such, no interference is
required.

5. I have considered the argument
advanced by learned counsel for the parties
and perused the record.

6. There is no dispute about the fact that
during pendency of the revision under
Section 48 of the U.P.C.H. Act, one of the
opposite party- Bhagwan Das has died and
his heirs were not substituted in the revision
and the revision was allowed by the
impugned order and the matter was remanded
back to the Consolidation Officer to decide
the objection afresh.

7. The provisions of Section 48 of the
U.P.C.H. Act 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 an interlocutory order
passed by such authority in the case or
proceedings, may, after allowing the parties
concerned an 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 Director of
Consolidation also on a reference under subsection (3).

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

Explanation
(1)-
For
the
purposes
of
this
section,
Settlement
Officers,
Consolidation,
Consolidation
Officers, Assistant Consolidation Officers,
Consolidator and Consolidation Lekhpals
shall be subordinate to the Director of
Consolidation.
9 All. Hanuman & Ors. Vs. State of U.P. & Ors.
685

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

Explanation
(3)-
The
power
under
this
section
to
examine
the
correctness, legality or propriety of any
order includes the power to examine any
finding, whether of fact or law, recorded by
any
subordinate
authority,
and
also
includes the power to re-appreciate any
oral or documentary evidence."

8. Explanation (3) of the Section 48
of the U.P.C.H. Act specifically states
that
the
Deputy
Director
of
Consolidation
has
wide
power
to
appreciate the evidence etc., as such, in
view of the provisions contained under
Section 48 of the U.P.C.H. Act in place
of remanding the matter back, he himself
can decide the revision on merit after
affording the opportunity of hearing to
both the parties in accordance of law.
This Court in a Case reported in 2017
(134) RD 555 Chandrama Vs. Deputy
Director of Consolidation Ballia and
Others has held that order of remand
passed
by
Revisional
Court
under
U.P.C.H. Act is not going to serve any
useful purpose except prolonging the
litigation.

9. The order passed by the
Revisional Court without substituting
the heirs of the contesting opposite party
is also fatal. This Court in a case
reported in 1995 R.D. 231 Gajjoo Vs.
Deputy Director of Consolidation and
Others has held that allowing the
revision without substituting the legal
heirs of deceased party in the revision
will make the revisional order illegal.

10. In another decision of this
Court reported in AIR 1967 Allahabad
592 Bansi Kanhai Vs. Deputy Director
of Consolidation U.P. Lucknow and
Others has held that Deputy Director of
Consolidation in Revision cannot reject
the application for bringing on record
the legal heir of deceased respondent on
the ground of delay.

11. Considering the provision of
Section 48 Explanation (3) of the
U.P.C.H. Act as well as the ratio of law
laid down by this Court in Gajjoo
(supra) and Bansi Kanhai (supra)
impugned
revisional
order
dated
24.6.2022 appears to be based on wrong
assumptions and manifestly illegal.

12. In the result, the writ petition is
allowed,
impugned
order
dated
24.6.2022 passed by respondent no.2 i.e
Deputy
Director
of
Consolidation,
Mahrajganj is set aside. The matter is
remanded back to respondent no.2 i.e
Deputy
Director
of
Consolidation,
Mahrajganj to restore the revision on its
original number and decide the same in
accordance with law after substituting
the legal heirs of deceased opposite
party (Bhagwan Das) on the application
of
the
revisionist,
expeditiously
preferably within a period of four
months from the date of production of
certified copy of this order before him
without
granting
unnecessary
adjournment to the parties.

13. With the above observations,
the writ petition is allowed. No order as
to costs.
686 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2022) 9 ILRA 686
APPALLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.09.2022

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE SHREE PRAKASH SINGH, J.

Writ A No.182 of 2021

C/M Narpati Singh Inter College Hardoi
 ...Appellant
Versus
Vipin Kumar & Ors. ...Respondents

Counsel for the Appellant:
SriSantosh Kr. Yadav Warsi

Counsel for the Respondents:
C.S.C., Sri Amit Kumar Gupta,Sri Surendra
Pratap Singh

A. Service Law - Appointment - Arrears
of Salary - Regulations framed under
U.P. Intermediate Education Act, 1921 -
Regulation 101 of Chapter III - There is
a
prohibition
for
the
appointing
authority to fill up any vacancy on a
non-teaching
post
without
prior
approval of the District Inspector of
Schools. The appointing authority, in fact,
has been injuncted by the said provisions not
to fill up any vacancy on a non-teaching post
except with the prior approval of the District
Inspector of Schools. The said provision
simply construed would mean that before
issuing appointment order, approval of the
District Inspector of
Schools (DIOS) is
needed. (Para 13)

Recruitment to a class IV post in a recognized
aided institution in the State of U.P. is
governed by Regulation 101 of Chapter III of
the
Regulations
framed
under
U.P.
Intermediate
Education
Act.
The
said
Regulations having been framed under
the aforesaid Act are statutory in nature
and
hence,
binding.
Any
process
of
appointment in deviation of such statutory
provisions cannot be justified and will in fact
not confer any right on any such person, of
either being appointed or continued or paid
salary of the post concerned. (Para 11, 15)

In the entire writ petition, no document or
any other material has been annexed whereby
it can be inferred that before issuance of
appointment order, any prior approval to the
selection/appointment of the respondent Nos.
1 and 2 was accorded by the DIOS. (Para 10,
17)

B. No finding has been returned in the
judgment
under
appeal,
passed
by
learned
Single
Judge
about
noncompliance/compliance of the statutory
provisions of Regulation 101. (Para 20)

At the time of filing of writ petition learned
Single Judge had passed the interim order on
23.09.2002 directing therein the respondents
in the writ petition shall pay the salary to
respondent Nos. 1 and 2-petitioners and
further that they shall be allowed to continue
till the next date of listing. (Para 18)

C. There lies a difference between
permission/approval
required
for
initiating the process of recruitment/
appointment/selection
and
prior
approval required for appointment. In
the first case, approval shall precede the
selection process whereas in the second case
the approval has to follow the selection
process, that is say, prior approval is needed
before issuance of the appointment order or
before actual appointment is made. (Para 21)

The DIOS passed the order on 19.07.2010 for
ensuring compliance of the interim order passed
by learned Single Judge on 14.09.2009 coupled
with the earlier interim order dated 23.09.2002.
In compliance of the said order, the DIOS
accorded his approval to the appointment of
respondent Nos. 1 and 2 against the vacancies
which
had
occurred
on
account
of
superannuation of earlier regular class IV
employees, namely, Sunder Lal and Sarwan Lal
(on 31.08.2006 and 31.08.2009, respectively).
Thus, respondent Nos. 1 and 2 will be entitled