# Kameshwar and others v. The Dy. Director of Consolidation, Kushinagar and others

- **Citation:** (2008) 2 ILRA 523
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-03-07
- **Case number:** Civil Misc. Writ Petition No. 3475 of 2008
- **Bench:** Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kameshwar-and-others-v-the-dy-director-of-consolidation-kushinagar-and-others-41178
- **Pages:** 7

## Headnote

U.P. Consolidation of Holding Act 1953Section 48-Revision-Appeal decided by
S.O.C. on the basis of consent-petitioner
has
been
given
more
excess
land
consequent to low valuation-variation of
valuation not more than 25%-revision
against consent order-not maintainableunless the consent challenged before the
same
Court-petitioner
can
not
be
allowed
to
raise
technical
plea-Dy.
Director
rightly
refused
to
exercise
revisional power.

Held: Para 10
The less valuation plot having been
given, the petitioners' area has been
increased but it is relevant to note that
variation is not of more than 25% in the
original
area
of
the
petitioners
as
compared
to
the
area,
which
was
allotted in pursuance of the order of
Settlement Officer of Consolidation. Thus
the increase of the area by Settlement
Officer
of
Consolidation
of
the
petitioners and allotment of the less
valuation plot does not violate the
provisions
of
Section
19
of
U.P.
Consolidation of Holdings Act, 1953
moreso when the petitioners consented
that their chak on Plot No.1267 be
removed and the valuation be added on
Plot No.1170. The petitioners' father was
aware
of
the
consequence
because
valuation of the plot was already fixed
on the record. When the chaks were
modified by consent, the petitioners'
submission that their good quality land
was taken away and they were given
less valuation land cannot be heard.
Case law discussed:
1999(90) R.D. 212, AIR 1982 S.C. 1249, AIR
2003 Supreme Court 2418.

## Text

2 All] Kameshwar and others V. The Dy. Director of Consolidation and others
523
dismissal
he
could
be
paid
such
subsistence
allowance
during
the
pendency of writ petition till now but by
virtue of this order since his suspension
would be deemed to be revived from
initial date of suspension, therefore, he is
entitled for -Subsistence allowance for the
aforesaid period as admissible to him
under rule. The arrears of subsistence
allowance for the aforesaid period shall be
paid to him within one month from the
date of production of certified copy of this
order before the Disciplinary Authority
and only on payment of arrears of
subsistence allowance fresh disciplinary
inquiry shall be held against the petitioner
as indicated in this judgement. However,
such subsistence allowance shall be
continuously
paid
to
him
till
the
conclusion of inquiry.

18. With the-aforesaid observation
and direction, writ petition succeeds and
is allowed to the extent indicated
hereinabove.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.03.2008

BEFORE
THE HON'BLE ASHOK BHUSHAN,J.

Civil Misc. Writ Petition No. 3475 of 2008

Kameshwar and others ...Petitioners
Versus
The
Dy.
Director
of
Consolidation,
Kushinagar and others ...Respondents

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

Counsel for the Respondents:
Sri. R.C. Singh, S.C.
U.P. Consolidation of Holding Act 1953Section 48-Revision-Appeal decided by
S.O.C. on the basis of consent-petitioner
has
been
given
more
excess
land
consequent to low valuation-variation of
valuation not more than 25%-revision
against consent order-not maintainableunless the consent challenged before the
same
Court-petitioner
can
not
be
allowed
to
raise
technical
plea-Dy.
Director
rightly
refused
to
exercise
revisional power.

Held: Para 10
The less valuation plot having been
given, the petitioners' area has been
increased but it is relevant to note that
variation is not of more than 25% in the
original
area
of
the
petitioners
as
compared
to
the
area,
which
was
allotted in pursuance of the order of
Settlement Officer of Consolidation. Thus
the increase of the area by Settlement
Officer
of
Consolidation
of
the
petitioners and allotment of the less
valuation plot does not violate the
provisions
of
Section
19
of
U.P.
Consolidation of Holdings Act, 1953
moreso when the petitioners consented
that their chak on Plot No.1267 be
removed and the valuation be added on
Plot No.1170. The petitioners' father was
aware
of
the
consequence
because
valuation of the plot was already fixed
on the record. When the chaks were
modified by consent, the petitioners'
submission that their good quality land
was taken away and they were given
less valuation land cannot be heard.
Case law discussed:
1999(90) R.D. 212, AIR 1982 S.C. 1249, AIR
2003 Supreme Court 2418.

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

1. Heard Sri A.P. Tiwari, learned
counsel for the petitioners and Sri R.C.
Singh, learned counsel appearing for the
contesting respondents.
524 INDIAN LAW REPORTS ALLAHABAD SERIES [2008

2. By this writ petition, the
petitioners have prayed for quashing the
order dated 26th December, 2007 passed
by the Deputy Director of Consolidation
in
Revision
No.
5/390/468/537/81,
Revision No.6/642/791 of 2005 and the
order dated 11th February, 1981 passed by
the Settlement Officer of Consolidation as
well as the order dated 10th April, 2006
passed by the Consolidation Officer.

3. Brief facts necessary for deciding
the writ petition are; the petitioners were
allotted Chak No. 571 in chak allotment
proceedings under the U.P. Consolidation
of Holdings Act, 1953. The Assistant
Consolidation Officer proposed three
chaks to the petitioners father, Madan
Gopal. An objection was filed by
petitioners' father under Section 20 of U.
P. Consolidation of Holdings Act, 1953
objecting allotment of Chak on Plot
No.1163 etc. The Consolidation Officer
decided the objection affecting certain
changes in the chak of the petitioners and
other tenure holders. An appeal was filed
by the petitioners before the Settlement
Officer of Consolidation. The respondents
and other tenure holders also filed
appeals.
The
Settlement
Officer
of
Consolidation made spot inspection and
after hearing all the parties decided the
appeal by order dated 11th February, 1981.
The Settlement Officer of Consolidation
recorded in the order that petitioners'
father was agreeable that his chak at Plot
No.1267 be totally removed and the
valuation be added in his chak at Plot
No.1170. Against the order passed by
Settlement Officer of Consolidation a
revision was filed by petitioners' father
challenging
the
orders
passed
by
Settlement Officer of Consolidation in
different appeals. The Deputy Director of
Consolidation initially by order dated 15th
April, 2002 allowed the revision, which
order,
however,
was
subsequently
recalled. An order was passed on 12th July
1996
rejecting
the
impleadment
application of one Yasin and thereafter
dismissing the revision. Against the said
orders a writ petition being Writ Petition
No.26420 of 1996 was filed by the
petitioners, which writ petition was
disposed of directing the Deputy Director
of Consolidation to dispose of the revision
finally within a period of three months.
An objection regarding maintainability of
the
revision
was
raised
by
the
respondents, which was decided by order
dated 28th February, 2002 holding the
revision maintainable. Subsequently on an
application moved for recall of the order
by Manokamna and others the order dated
28th February, 2002 was recalled on 12th
May, 2006. The petitioners filed a writ
petition challenging the aforesaid order.
This Court by order dated 10th July, 2006
passed in Writ Petition No.30957 of 2006
disposed of the writ petition directing the
Deputy Director of Consolidation to
decide the revision after hearing the
concerned
parties
on
merits.
The
respondents moved an application for
modification of the above order of this
Court, which application was disposed of
permitting the respondents to raise all the
questions of law and facts before the
Deputy
Director
of
Consolidation
including the question of maintainability.
Subsequently, the Deputy Director of
Consolidation by the impugned order
dated 26th December, 2007 has rejected
the revision. In the writ petition order
dated 26th December, 2007 has been
prayed to be quashed. Another set of
orders, which have sought to be quashed
in the writ petition are the order dated 10th
April, 2006 passed by the Consolidation
Officer
under
Rule
109
of
U.P.
2 All] Kameshwar and others V. The Dy. Director of Consolidation and others
525
Consolidation of Holdings Rules, 1954
and the order of Deputy Director of
Consolidation dated 26th December, 2007
dismissing the revision filed by the
petitioners against the order dated 10th
April, 2006.

4.

Learned
counsel
for
the
petitioners
challenging
the
orders,
contended that the order of the Settlement
Officer of Consolidation dated 11th
February, 1981 was an order by which
petitioners' chak, which was in good
quality fertile land, was removed and the
chak had been given to the petitioners in
low water logging land of less valuation.
Learned counsel for the petitioners
contends that petitioners' father did not
enter into any compromise before the
Settlement
Officer
of
Consolidation
agreeing to take chak in Tal area. He
contends
that
Deputy
Director
of
Consolidation having once held that
revision was maintainable by order dated
28th February, 2002, it was not open for
the Deputy Director of Consolidation to
hold that revision was not maintainable.

5. Sri R.C. Singh, leanred counsel
appearing for the contesting respondents,
refuting the submission of counsel for the
petitioners, contends that the order of
Settlement Officer of Consolidation was
passed on consent given by petitioners'
father and it was not open for the
petitioners' father to file a revision or
challenge the amendment made by the
Settlement Officer of Consolidation. He
contends that in the revision filed against
the order dated 11th February, 1981 even
the consent was not challenged. Learned
counsel submits that petitioners' father
having
once
given
consent
for
modification of his chak, it was not open
for him to challenge the said consent.
Reliance has been place on the judgment
of this Court reported in 1999(90) R.D.
212; Som Datta vs. The Deputy Director
of Consolidation, Saharanpur and the
judgment of the Apex Court reported in
A.I.R.
1982
S.C.
1249;
State
of
Maharasthra
vs.
Ramdas
Shrinivas
Nayak and others and A.I.R. 2003
Supreme Court 2418; Roop Kumar vs.
Mohan Thedani.

6. I have considered the submissions
raised by learned counsel for the parties
and perused the record.

7. The order of Settlement Officer of
Consolidation dated 11th February, 1981
has been filed as Annexure-1 to the writ
petition. A perusal of the said order
indicates that Settlement Officer of
Consolidation specifically recorded in the
order that Madan Gopal, father of the
petitioners, was agreeable that his chak on
Plot No.1267 be removed and the
valuation be added in his chak at Plot
No.1170. The amendment chart, which is
part of the order of Settlement Officer of
Consolidation, has been brought on the
record
as
Annexure
SA·3
to
the
supplementary affidavit, which chart
indicates that chak on Plot No.1267 has
been removed and the valuation has been
given at Plot NO.1170 and others. The
ground of revision filed by the petitioners
against the order of Settlement Officer of
Consolidation has been brought on the
record
as
Annexure
SA-4
to
the
supplementary affidavit. Although the
petitioners took as may as ten grounds
challenging the order of Settlement
Officer of Consolidation but in none of
the grounds it was even claimed that no
such consent was given by the revisionist
before
the
Settlement
Officer
of
Consolidation for affecting his chaks. It is
526 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
useful to note that in the earlier writ
petition,
which
was
filed
by
the
petitioners being Writ Petition No. 26420
of 1996 the submission raised by the
respondents that the order of Settlement
Officer of Consolidation being based on
sent the revising authority cannot interfere
was specifically noted, which was to the
following effect:-

"Learned counsel for the respondent
has, however, urged that in view of the
observations made in the judgment passed
by
Assistant
Settlement
Officer
(Consolidation), which is the subject
matter of the revision it is apparent that
the alterations made by the Assistant
Settlement Officer (Consolidation) in the
chak of the revisionists were made with
the consent of the revisionists and in this
view of the matter there was no scope for
any interference by the revising authority
specially when the correctness of the
observations noticing the consent of the
revisionist had not been challenged."

8. Although in this writ petition as
well as in the supplementary affidavit, the
petitioners have come up with the case
that no such consent was given by the
father of the petitioners before the
Settlement Officer of Consolidation. An
observation recorded in an order of
consolidation
authorities
of
the
proceedings as transpired before the Court
has to be accepted as true. In chak
allotment proceedings the equities of the
parties and their convenience are to be
looked
into
while
deciding
chak
objections, appeals and revisions. When
in a chak appeal filed before the
Settlement Officer of Consolidation the
parties come up with some prayer with
their consent for amendment of their
chaks, no exception can be taken to the
procedure adopted by Settlement Officer
of Consolidation. It is categorically
recorded in the order of Settlement
Officer of Consolidation that Madan
Gopal was agreeable that his chak at Plot
No.1267 be removed and the said
valuation be added at Plot No.1170. The
amendment chart, which is part of the
order
of
Settlement
Officer
of
Consolidation dated 11th February, 1981
also indicates that chak of Madan Gopal
being Chak No.571 was accordingly
changed. The judgment relied by counsel
for the respondents in Som Datta's case
(supra) fully supports the submission of
learned counsel for the respondents. In the
above case the adjustment of chak was
made in the appeal on the agreement of
the
parties.
A
revision
was
filed
challenging the said order, which was
allowed on the ground that there was no
written compromise before the Settlement
Officer of Consolidation. This Court setaside the order of Deputy Director of
Consolidation and laid down following in
paragraph 4:-

"4. It is well settled that statement of
fact appearing in the judgment of a Court
below as to what happened before Court
below cannot be challenged in appeal or
revision and the statement of fact
incorporated in judgment is to be taken to
be correct unless both parties to litigation
agree that it was not so (see State of
Bihar vs. Mahabir Lal). Same principle of
law will apply to statement of fact
incorporated
in
judgment
of
Consolidation Authority. Referring to the
remedy available to such a person, the
Apex Court held, "if the record of a Court
is to be assailed a review in that Court
and not SLP or appeal in the Supreme
Court is the remedy." There cannot be
any any different view for seeking remedy
2 All] Kameshwar and others V. The Dy. Director of Consolidation and others
527
in this respect for the party before any
Court or tribunal subordinate to this
Court in this respect. Consolidation
Authorities discharging functions similar
to Courts, adjudicating disputes, have to
proceed accordingly and, therefore, it
was not open to contesting opposite party
to challenge the concession made in
appeal before the Deputy Director of
Consolidation in revision. The opposite
parties could approach the Assistant
Settlement Officer Consolidation and
point out that no concession for making
adjustment was made by him. As the
contesting opposite-party did not take
recourse to such remedy before Assistant
Settlement Officer Consolidation, the
setting aside of such an order passed in
appeal by exercising revisional power by
Deputy Director of Consolidation is bad
in
law.
The
Deputy
Director,
Consolidation exceeded his revisionaI
power conferred on him under Section 48
of the Act in doing so.

9. The Apex Court in the case of
State
of
Maharashtra
vs.
Ramdas
Shrinivas Nayak also laid down the same
principle. Following was laid down in
paragraph 4 of the said judgment:-

"4. When we drew the attention of
the learned Attorney General to the
concession made before the High Court,
Shri A.K. Sen, who appeared for the State
of Maharashtra before the High Court
and led the arguments for the respondents
there was who appeared for Sri Antulay
before us intervened and protested that he
never made any such concession and
invited
us
to
peruse
the
written
submission made by him in the High
Court. We are afraid that we cannot
launch into an inquiry as to what
transpired in the High Court. It is simply
not done. Public policy bars us Judicial
decorum restrain us. Matters of judicial
records are unquestionable. They are not
open to doubt. Judges cannot be dragged
into the arena. 'Judgements cannot be
treated as mere counters in the game of
litigation".
(Jper
Lord
Atkinson
in
Somasundaran v. Subramaniam, AIR
1926 PC 136). We are bound to accept
the statement of the Judges recorded in
their judgment, as to what transpired in
court. We cannot allow the statement of
the
Judges
to
be
contradicted
by
statements at the Bar or by affidavit and
other evidence. If the Judges say in their
judgment that something was done, said
or admitted before them, that has to be
the last word on the subject. The principle
is well settled that statements of fact as to
what transpired at the hearing, recorded
in the judgment of the Court, are
conclusive of the facts so stated and no
one can contradict such statement by
affidavit or other evidence. If a party
thinks that the happenings in court have
been wrongly recorded in a judgment, it is
incumbent upon the party, while the
matter is still fresh in the minds of the
Judges, to call the attention of the very
Judges who have made the record to the
fact that statement made with regard to
his conduct was a statement that had been
made in error (Per Lord Buckmaster in
Madhusudan v. Chandrabati, AIR 1017
PC 30). That is the only way to have the
record corrected. If no such step is taken,
the matter must necessarily end there..."

10. To the same effect there is a
judgment of the Apex Court in Roop
Kumar's case (supra). The submission of
the petitioners on which much emphasis
has been laid is that petitioners entire
good quality land was taken away by
Settlement Officer of Consolidation and
528 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
they were given land of less valuation by
the Settlement Officer of Consolidation.
From the amendment chart it does appear
that plots of petitioners, which were taken
away were the plots of valuation 11 anna
and 12 anna and the plots which were
given were of less valuation, ie., 5 anna, 9
anna, 10 anna and 11 anna but it is also
apparent that area which was taken away
from the petitioner was 2.95 hectare
whereas the petitioners were given an area
of 5.71 hectare in place of the plots,
which were taken away. The less
valuation plot having been given, the
petitioners' area has been increased but it
is relevant to note that variation is not of
more than 25% in the original area of the
petitioners as compared to the area, which
was allotted in pursuance of the order of
Settlement Officer of Consolidation. Thus
the increase of the area by Settlement
Officer of Consolidation of the petitioners
and allotment of the less valuation plot
does not violate the provisions of Section
19 of U.P. Consolidation of Holdings Act,
1953
moreso
when
the
petitioners
consented that their chak on Plot No.1267
be removed and the valuation be added on
Plot No.1170. The petitioners' father was
aware
of
the
consequence
because
valuation of the plot was already fixed on
the record. When the chaks were modified
by consent, the petitioners' submission
that their good quality land was taken
away and they were given less valuation
land cannot be heard.

11. The last submission of the
petitioners' counsel is that once the
Deputy Director of Consolidation has
held that revision was maintainable, it
was not open for him to dismiss the
revision. Under Section 48 of U.P.
Consolidation of Holdings Act, 1953, the
Deputy Director of Consolidation has
very wide power. When an order was
passed
by
Settlement
Officer
of
Consolidation on 11th February, 1981, the
revision filed by the petitioners against
the said order was clearly maintainable.
The maintainability of the revision is
clearly different from the grounds to
interfere in the revision. Every order
passed by the subordinate consolidation
authorities be that of Settlement Officer of
Consolidation can be challenged before
the Deputy Director of Consolidation
under Section 48 but as to whether in the
said revision grounds have been made out
to interfere with the order is clearly a
different thing. The revision filed by the
petitioners' father was maintainable but
the Deputy Director of Consolidation was
entitled to consider the merits of the
revision and decide as to whether the
order is to be interfered with or not. The
Deputy
Director
of
Consolidation
dismissed the revision observing that the
order
of
Settlement
Officer
of
Consolidation dated 11th February, 1981
was passed on the basis of consent given
before him. It was also noticed by the
Deputy Director of Consolidation that
revisionist has not even challenge giving
his consent. The Deputy Director of
Consolidation further observed that even
if consent was to be challenged, the same
ought to have been done in the same
Court, i.e., before the Settlement Officer
of Consolidation, which having not done,
the revision is to be dismissed. The
Deputy Director of Consolidation in
substance has taken the view that revision
is liable to be dismissed due to above
reason. Mere use of words by Deputy
Director of Consolidation that revision is
not maintainable is of no consequence.
The substance of the order is that revision
is to be dismissed. The Deputy Director of
Consolidation has, thus, rightly come to
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