# Ram Narain v. D.D.C. & Others

- **Citation:** (2012) 2 ILRA 950
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-08-30
- **Case number:** Civil Misc. Writ Petition No. 1959 of 1976
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-narain-v-d-d-c-others-42313
- **Pages:** 5

## Headnote

Sri A. K. Singh
Sri H.S.N. Tripathi
S.C.

U.P.
Consolidation
of
Holdings
ActSection-48-Power
of
Review-once
revision decided on merit-recall and
review application rejected-in garb of
compromise-can
not
be
reviewed-in
absence of statutory provisions.

Held: Para 14

In view of the Full Bench decision of this
Court, it is now well settled that the DDC
has no power of review, and once the
order dated 3.1.1974, by which the
revision was dismissed after hearing
both
the
parties
and
the
review
application filed by the respondents was
also dismissed after hearing both the
parties on 15.3.1974, there was no
occasion for the DDC to entertain the
review application and set aside the
earlier order on the basis of compromise.
Therefore, I am of the considered
opinion that the impugned order dated
2 All] Ram Narain V. D.D.C. & Others
951
21.3.1975, passed by the DDC is without
jurisdiction and the same is liable to be
set aside.
Case law discussed:
1997 (88) RD 562

## Text

950 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
the petitioner or at any stage the petitioner
was heard before the impugned order was
passed. The impugned order is of single
operation which takes away the power
vested in the Committee of Management
and before any such power could have
been passed show cause notice or
opportunity of hearing ought to have been
given to the petitioner. The impugned
order of single operation visits the
petitioner with civil consequences and the
law in this regard is well settled and
followed from time time right from the
case of Dr. Bina Pani Dey till date the law
laid
down
by
the
Supreme
Court
consistently has been that the order which
visits a person with civil consequences,
opportunity of hearing must be given
otherwise such an order cannot survive on
the anvil of natural justice. Learned
standing counsel was not able to point out
from the counter affidavit whether any
opportunity of hearing was given to the
petitioner before passing the impugned
order nor whether any sanction had been
granted before passing the order of single
operation.

11. In the above backdrop, I find that
the impugned order is absolutely illegal,
arbitrary, violative of principles of natural
justice and without jurisdiction and
deserves to be quashed.

12. For the aforesaid reasons, the writ
petition is allowed and the impugned order
dated 19.2.2000 passed by the District
Inspector of Schools, Maharajganj is
quashed.

13. It will however be open for the
competent authority to proceed afresh in
the matter strictly in accordance with the
provisions of Section 60-D and the second
proviso
thereof
of
the
U.P.
State
Universities Act, 1973 after affording
adequate opportunity of hearing to the
petitioner and thereafter to take a decision
in accordance with law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.08.2012

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 1959 of 1976

Ram Narain

...Petitioner
Versus
D.D.C. & Others

 ...Respondents

Counsel for the Petitioner:
Sri S.L. Yadav

Counsel for the Respondents:
Sri A. K. Singh
Sri H.S.N. Tripathi
S.C.

U.P.
Consolidation
of
Holdings
ActSection-48-Power
of
Review-once
revision decided on merit-recall and
review application rejected-in garb of
compromise-can
not
be
reviewed-in
absence of statutory provisions.

Held: Para 14

In view of the Full Bench decision of this
Court, it is now well settled that the DDC
has no power of review, and once the
order dated 3.1.1974, by which the
revision was dismissed after hearing
both
the
parties
and
the
review
application filed by the respondents was
also dismissed after hearing both the
parties on 15.3.1974, there was no
occasion for the DDC to entertain the
review application and set aside the
earlier order on the basis of compromise.
Therefore, I am of the considered
opinion that the impugned order dated
2 All] Ram Narain V. D.D.C. & Others
951
21.3.1975, passed by the DDC is without
jurisdiction and the same is liable to be
set aside.
Case law discussed:
1997 (88) RD 562

(Delivered by Hon'ble Ran Vijai Singh, J.)

1. Through this writ petition, the
petitioners have prayed for issuing writ of
certiorari
quashing
the
orders
dated
21.3.1975 and 27.7.1976 passed by the
Deputy Director of Consolidation (in short,
"DDC") in revision no. 854/199 and
revision no. 855/200, in between Rehman
Vs. Sanjira. Vide order dated 21.3.1975, the
DDC has set aside the order dated 3.1.1974
and decided the case in terms of the
compromise, whereas vide order dated
27.7.1976, the restoration application, filed
by the petitioners, who claim themselves to
be the purchasers of the land in dispute from
Sanjira, who was the respondent in the
aforesaid revisions.

2. Heard Sri S.L. Yadav, learned
counsel for the petitioners and learned
Standing Counsel.

3. It is stated in the writ petition that
Chak No. 21 Village Sonughat and plots in
chak no. 14 Village Pipra Chandrabhan
were recorded in the basic year in the name
of Kurban S/o Bandhoo. During the
consolidation proceedings the chaks were
formed in the name of Kurban and
respondent nos. 3 to 5 did not lay their
claim till the allotment of the chaks in the
name of Kurban. On 9.11.1977, after death
of Kurban, his mother Sanjira (widow of
Bandhu) filed objection under section 12 of
the U.P. Consolidation of Holdings Act,
1953 before the Assistant Consolidation
Officer, Deoria for being recorded over the
plots in dispute in place of late Bandhu,
being widow of Bandhu (father of Kurban
and mother of deceased). The Assistant
Consolidation Officer vide order dated
29.7.1972, decided the case in favour of
Sanjira holding her to be the mother of
Kurban, deceased and widow of Bandhu
and ordered her name to be recorded over
the chaks belonging to deceased Kurban.
Against the order dated 29.7.1972, the
respondent no. 3 filed an appeal before the
Settlement Officer of Consolidation on the
ground that Smt. Sanjira was not mother of
Kurbaan and he was only heir, hence name
of Sanjira may not be entered in place of the
deceased. The appeal was allowed vide
order dated 29.7.1972 and by setting aside
the order of Assistant Consolidation Officer,
the matter was remanded back before the
Consolidation Officer.

4. After remand, it appears, Sanjira
and Rehman have entered into compromise,
but the Consolidation Officer did not accept
the compromise and the case was decided
on merit. The Consolidation Officer, vide
order dated 12.2.1973, directed to record the
name of Sanjira over the chaks in dispute,
copy of this order has been brought on
record as annexure 1 to the writ petition.
The Consolidation Officer has also recorded
that the compromise was not in accordance
with the rules, therefore, he declined to
accept the compromise and passed the order
on the basis of material produced before
him on merit.

5. Thereafter, two appeals were
preferred by the respondent Rehman before
the Settlement Officer of Consolidation and
the appeals were dismissed on 25.6.1973.
The copy of the judgment has been brought
on record as annexure 2 to the writ petition.
Against the order passed by the Settlement
Officer of Consolidation, dismissing the
petitioners' appeals, two revisions were filed
by the respondent no. 3 before the DDC.
952 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
The revisions were heard and decided vide
order dated 3.1.1974, by which the revisions
were dismissed.

6. It appears, thereafter restoration /
review application was filed before the
DDC and the review application was
dismissed vide order dated 15.3.1975,
holding that earlier order was passed on
merit, therefore, there was no question to
recall the order. This order has been brought
on record as annexure 4 to the writ petition.

7. The petitioners herein have
purchased the land in dispute through
registered sale deed on 22.10.1973 for the
consideration of Rs. 20,000/- and applied
for mutating his name. The said proceeding
is still pending and in this proceeding,
Rehman has filed objection.

8. However, after the order dated
3.1.1974, by which the revisions filed by
respondent no. 3 were dismissed and order
dated 15.3.1974 dismissing the review
application of respondents, Sanjira died on
6.3.1975. After her death, it appears, a
compromise was entered in between Sanjira
(showing her to be alive), Rehman and
Islam (the respondent nos. 3 and 4) on
14.3.1975, in which it was agreed upon that
in place of Kurban (deceased), only
respondent no. 3 was the heir. The copy of
the compromise has been brought on record
as annexure no. 6 to the writ petition. It is
stated, in paragraph 14 of the writ petition,
that when the compromise was entered into,
Sanjira had already died and on the basis of
the compromise, the same DDC, Sri
Sukhdeo Prasad Tripathi, set aside the
earlier order dated 3.1.1974 and decided the
case in terms of the compromise. This order
was passed on 21.3.1975. The petitioners,
who are purchasers of the land, have filed
the restoration application, but the same was
dismissed.

9. Sri Yadav contends that once the
revision was dismissed on 3.1.1974 on
merit and the review application was also
dismissed on 15.3.1974, it was not open for
the DDC to re-open the issue in terms of the
compromise,
particularly,
in
the
circumstances when the petitioners have
already purchased the land on 22.10.1973
and in the application for mutating his
name, respondent no. 3 has already filed
objection. On the date of compromise, it
was in the notice of the respondents that
third party right has already been created in
the meantime.

10. A counter affidavit has been filed
by Sri A.K. Singh. At some stage, Sri
H.S.N. Tripathi has also filed Vakalatnama.
The case has been taken in the revised list,
neither Sri A.K. Singh nor Sri H.S.N.
Tripathi has appeared in the Court.

11. In the counter affidavit, filed by
the respondents, it is stated that the order
dated 15.3.1975, dismissing the review
application for reviewing the order dated
3.1.1974, was passed in the absence of the
counsel for the respondents. It is also stated
that the alleged sale deed dated 22.10.1976
was executed during the pendency of the
revision, therefore, the same is hit by
section 52 of the Transfer of Property Act.
Otherwise also, the aforesaid sale deed was
not brought in the notice of the DDC. It is
also stated that the order dated 3.1.1974 was
passed ex parte. The death of Sanjira has
also been disputed by stating that she died
on 28.4.1975, instead of 6.3.1975.

12. The short question involved in this
case is as to whether the DDC has got
power of review to review his own order
2 All] Ram Narain V. D.D.C. & Others
953
once the order has been passed on merit. In
the submissions of Sri Yadav, the review
application was not maintainable as the
DDC has no power to review his own
judgment which was passed on merit after
hearing all concerned. In support of his
submissions, he has placed reliance upon
the Full Bench judgment of this Court in the
case of Smt. Shivraji and Others Vs.
Deputy Director of Consolidation and
Others, 1997, (88) RD 562, where this
Court has held that the DDC is not vested
with any power of review of his order,
therefore, cannot re-open the proceedings
and cannot review or revise his earlier
order.

13. Here in this case, the factum of the
judgments,
either
passed
by
the
Consolidation Officer or the DDC dated
3.1.1974 has not been denied by the
respondents. The DDC, while rejecting the
restoration
application
filed
by
the
petitioners, has observed that Sanjira has
not died on 6.3.1975, but she died on
28.4.1975. For deciding the case, it is not
material as to whether Sanjira has died on
6.3.1975 or 28.4.1975, the crucial point is as
to whether, after the dismissal of the
revisions on 3.1.1974 and rejection of the
review applications on 15.3.1975, was it
open for the DDC to re-open the issue on
the basis of the compromise and decide the
same in terms of the compromise, when
Sanjira, assuming has entered into the
compromise after executing the sale deed in
the year 1973. It may be noticed that the
order dated 21.3.1975, setting aside the
order dated 3.1.1974, was passed on the
basis of compromise in between Sanjira,
Rehman and Islam dated 14.3.1975,
whereas the review application filed by the
respondents was dismissed on 15.3.1975 by
the same DDC in presence of both the
parties. It is surprising that when the parties
have
entered
into
compromise
on
14.3.1975, why it was not brought in the
notice of the DDC on 15.3.1975, on which
date review application was rejected, after
hearing both the parties. The Full Bench of
this Court in the case of Smt. Shivraji
(supra), in paragraph 36, has held as under:

"36. Coming to the provisions of the
U.P. Consolidation of Holdings Act, it is
our considered view that the consolidation
authorities,
particularly
the
Deputy
Director of Consolidation while deciding a
revision petition exercises judicial or quasi
judicial power and, therefore his order is
final subject to any power of appeal or
revision vested in superior authority under
the Act. The consolidation authorities,
particularly
the
Deputy
Director
of
Consolidation, is not vested with any power
of review of his order and, therefore, cannot
reopen any proceeding and cannot review
or revise his earlier order. However, as a
judicial or quasi judicial authority he has
the power to correct any clerical mistake /
arithmetical error, manifest error in his
order in exercise of his inherent power as a
tribunal."

14. In view of the Full Bench decision
of this Court, it is now well settled that the
DDC has no power of review, and once the
order dated 3.1.1974, by which the revision
was dismissed after hearing both the parties
and the review application filed by the
respondents was also dismissed after
hearing both the parties on 15.3.1974, there
was no occasion for the DDC to entertain
the review application and set aside the
earlier order on the basis of compromise.
Therefore, I am of the considered opinion
that the impugned order dated 21.3.1975,
passed by the DDC is without jurisdiction
and the same is liable to be set aside.
954 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

15. The matter may be examined from
another angle also. It is well settled that
when the rights and liability are created
under the statute then in that eventuality, the
same has to be seen and decided in
accordance with the provisions contained
under the aforesaid statute and if the statute
becomes silent at particular stage, meaning
thereby the statute intends to attach finality
to the proceeding at that very stage and after
that, in absence of any provision, the
proceeding cannot be re-opened under that
statute, as at one stage finality has to be
attached to the proceeding. However, it can
be challenged before the higher forum.

16. In the result, the writ petition
succeeds and is allowed. The orders dated
21.3.1975 and 27.7.1976 passed by the
Deputy Director of Consolidation in
revision no. 854/199 and revision no.
855/200, (Rehman Vs. Sanjira) are hereby
quashed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.08.2012

BEFORE
THE HON'BLE RAJIV SHARMA, J.
THE HON'BLE SURENDRA VIKRAM SINGH
RATHORE, J.

Writ Petition No. 453 (SB) of 2006

S.P. Srivastava

 ...Petitioner
Versus
State of U.P. and another ...Respondents

Constitution
of
India,
Article
226Dismissal order-petitioner working as
Assistant Sale Tax Commissioner-passed
wrong
assessment
order-causing
pecuniary
loss
to
Government-order
passed
by
exercising
Quasi-judicial
order-subject to appeal and revision-no
allegation regarding personal benefiteven enquiry conducted ignoring the
procedure under Rule-held-order not
sustainable-however
considering
retirement of petitioner-no direction for
fresh enquiry-but salary for period under
which was out of job during period of
dismissal-not
given
except
pension
gratuity for entire period of working till
age of superannuation.

Held: Para 21 and 39

Therefore, in view of the aforementioned
discussion, it is clear that the petitioner
in exercise of lawful jurisdiction while
working
on
the
post
of
Deputy
Commissioner Assessment Trade Tax
passed
the
assessment
orders
and
without any oral enquiry these orders
were held by the inquiry officer to be
wrong. Mere wrong exercise of lawful
jurisdiction
cannot
be
said
to
be
misconduct. There was no charge against
the petitioner that they passed such
orders
for
extraneous
consideration.
Perusal of the inquiry report shows that
no witness was examined to prove the
case of the department and only on the
basis of the charges and the assessment
orders and the written reply submitted
by
the
petitioner,
the
inquiry
was
concluded.

Since the petitioners have attained the
age of superannuation and have retired
from
service,
therefore,
it
is
not
desirable to direct enquiry afresh from
the stage of charge-sheet. Therefore
they shall be entitled only for the
consequential financial benefits. The
pension of the petitioners shall be
recalculated treating them to be in
service
till
the
date
of
their
superannuation,
they
shall
not
be
entitled to the salary for the period
during which they remained out of job
because of the dismissal order. The
orders of the recovery of amount are also
hereby
quashed.
The
exercise
for
consequential benefits shall be carried
out within three months from today.
Case law discussed:
(1999) 7 SCC 409; [1992 (3) SCC 124]; [2007
(4) SCC 247]; [2008 (26) LCD 1522]; [2003