# Smt. Khummani v. D.D.C., Jalaun & Ors. 518 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2022) 9 ILRA 517
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-08
- **Case number:** Writ-B No. 9500 of 1980
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-khummani-v-d-d-c-jalaun-ors-518-indian-law-reports-allahabad-series-49080
- **Pages:** 6

## Headnote

Civil Law - U.P. Consolidation of Holdings
Act (5 of 1954) - Section 48 - Revisional
power of Director of Consolidation - Scope
- may 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 passed
by such authority - prior to 10.11.1980,
Revisional court had limited jurisdiction
(Para 12, 13)

Consolidation Officer considered oral as well as
documentary evidence as well as provisions of
Hindu Minority and Guardianship Act -recorded
finding of fact that adoption deed set up by
respondent no. 2 was not proved and cannot be
believed - but DDC held that adoption deed is
proved and respondent no.2 is to be recorded
over disputed plot in place of petitioner, without
considering the oral as well as documentary
evidences - DDC failed to consider the reasoning
and findings recorded by the Consolidation
Officer and Settlement Officer (Consolidation)
on the question who is heir of Mathuri -
revisional order quashed.

Allowed. (E-5)

List of Cases cited:

## Text

9 All. Smt. Khummani Vs. D.D.C., Jalaun & Ors.
517
medical certificates were granted, as such,
the petitioner preferred a delay condonation
application alongwith the appeal. The
Appellate Authority was of the view that in
view of the Bar created under Section
107(4) of the GST Act, the delay cannot be
condoned, as such, he proceeded to dismiss
the appeal holding that no power of
condonation of delay exists in the statutory
scheme of Section 107 of GST Act.

6. Learned counsel for the petitioner
argues that although no fault can be found
with the appellate order dismissing the
appeal as Aappellate Authority does not
have the power to condone the delay in
terms of the scheme of the Act, however, he
argues that the order cancelling the
registration is without application of mind;
he draws my attention to the impugned order
dated 13.02.2020, which does not disclose
any application of mind. He, thus, argues
that the quasi judicial order which has an
adverse effect on the right of the petitioner
to run business as guaranteed under Article
19 of the Constitution of India, the same has
been done without any application of mind
which is neither the intent of the Act nor can
it be held to be in compliance of the
mandate of Article 14 of the Constitution of
India. He further argues that as the appeal
has not been decided on merit, the doctrine
of merger will have no application and it is
only the order dated 13.02.2020 which
affects the petitioner and as the same is
devoid of any reasons, the same can be
challenged before this Court as decided by
the Hon'ble Supreme Court in the case of
Whirlpool Corporation v. Registrar of
Trademarks, Mumbai and Ors. - (1998) 8
SCC 1.

7. He further places reliance on the
judgment of this Court in the case of Om
Prakash Mishra v. State of U.P. & Ors.;
Writ Tax No.100 of 2022 decided on
06.09.2022 wherein this Court had recorded
that every administrative authority or a quasi
judicial authority should necessarily indicate
reasons as reasons are heart and soul of any
judicial or administrative order.

8. In the present case from the perusal
of the order dated 13.02.2020, clearly there
is no reason ascribed to take such a harsh
action of cancellation of registration. In view
of the order being without any application of
mind, the same does not satisfy the test of
Article 14 of the Constitution of India, as
such, the impugned order dated 13.02.2020
(Annexure - 2) is set aside. The petition is
accordingly allowed.

9. It is, however, directed that the
petitioner shall file reply to the show-cause
notice within a period of three weeks from
today. The Adjudicating Authority i.e.
Assistant Commissioner, Lucknow shall
proceed to pass fresh order after giving an
opportunity of hearing to the petitioner and
after considering whatever defence he may
take.

10. As the order dated 13.02.2020 is
set aside, the further action shall prevail in
accordance with law as prescribed under
Section 29 of the GST Act.
----------
(2022) 9 ILRA 517
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.08.2022

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ-B No. 9500 of 1980

Smt. Khummani ...Petitioner
Versus
D.D.C., Jalaun & Ors. ...Respondents
518 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Sri Kamal Mehrotra, Sri Randhir Jain, Sri
Pradeep Chandra, Sri Pramod Kumar Yadav, Sri
Pratik Chandra, Sri Pritam Das, Sri Shri Prakash,
Sri Shri Prakash Saroj

Counsel for the Respondents:
C.S.C., Sri Babu Lal Ram, Sri R. Singh, Sri Sushil
Kumar, Sri V.K.S. Chaudhary, Sri Sushil Kumar
Rathore

Civil Law - U.P. Consolidation of Holdings
Act (5 of 1954) - Section 48 - Revisional
power of Director of Consolidation - Scope
- may 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 passed
by such authority - prior to 10.11.1980,
Revisional court had limited jurisdiction
(Para 12, 13)

Consolidation Officer considered oral as well as
documentary evidence as well as provisions of
Hindu Minority and Guardianship Act -recorded
finding of fact that adoption deed set up by
respondent no. 2 was not proved and cannot be
believed - but DDC held that adoption deed is
proved and respondent no.2 is to be recorded
over disputed plot in place of petitioner, without
considering the oral as well as documentary
evidences - DDC failed to consider the reasoning
and findings recorded by the Consolidation
Officer and Settlement Officer (Consolidation)
on the question who is heir of Mathuri -
revisional order quashed.

Allowed. (E-5)

List of Cases cited:

1. Sher Singh (dead) by legal representatives Vs
Jt. Director of Consolidation & ors., 1978 R.D. 170

(Delivered by Hon'ble Chandra Kumar
Rai, J.)

1. Heard Sri Kamal Mehrotra and Sri
Randhir Jain, learned counsel for the
petitioner and Sri Babu Lal Ram, learned
counsel for the contesting respondents.

2. Brief facts of the case are that in
the Basic Year of the consolidation
operation,
Mathuri
(husband
of
the
petitioner) along with other co-sharer was
recorded over plots of Khata Nos.343, 219
& 276, situated in village - Kursara,
Pargana- Jalaun, District Jalaun.

3. Against the Basic Year entry,
several objections were filed under Section
9-A(2) of the U.P. C.H. Act, one set of
objection was filed by respondent no.2 /
Sukh Ram on the basis of adoption deed
alleged to be executed by Sri Mathuri in his
favour on 13.6.1973 and another set of
objection was filed by petitioner - Smt.
Khumani, being daughter of deceased Shri
Mathuri, so both claimed that their name be
recorded on the place of deceased Shri
Mathuri. In order to appreciate the
controversy, family pedigree will be
relevant which is as follows:-

4. Before Consolidation Officer, 4
issues were framed in which issue no. 2
was, who is legal heir of deceased Mathuri
and issue no. 3 was whether Sukh Ram is
adopted son of Mathuri?

5. Oral and documentary evidences
were adduced before Consolidation Officer
by petitioner as well as respondent no.2.
9 All. Smt. Khummani Vs. D.D.C., Jalaun & Ors.
519
While deciding the issues nos. 2 & 3,
Consolidation Officer considered the oral
and documentary evidence, the provision of
Hindu Adoption and Maintenance Act as
well as Hindu Minority and Guardianship
Act were also taken into consideration.
Consolidation Officer recorded finding of
fact that formalities of adoption as provided
under Section 9 of the Hindu Adoption and
Maintenance Act is not proved so Sukh
Ram cannot be held as heir of Mathuri
rather petitioner Khummani is the legal heir
of deceased Mathuri, being his daughter,
accordingly, Consolidation Officer by his
order dated 30.4.1974 directed that name of
Smt. Khummani - petitioner be recorded as
legal heir of Mathuri, in respect of plots of
Khata Nos.323, 276 & 219 and the
objection of Sukh Ram - respondent no.2
on the basis of adoption deed was rejected.
Respondent no.2 challenged the order dated
30.4.1974 through appeal under Section
11(1) of the U.P. C.H. Act which was
dismissed
by
the
Settlement
Officer
(Consolidation) by order dated 20.11.1974.
Respondent no.2 challenged the appellate
order dated 20.11.1974 through revision
under Section 48 of the U.P. C.H. Act and
the Deputy Director of Consolidation by
order
dated
24.09.1980,
allowed
the
revision filed by respondent no.2, setting
aside the orders of Consolidation Officer
and Settlement Officer (Consolidation) and
ordered to record the name of respondent
no.2 over disputed Khata Nos. 343, 219 &
276 after expunging the name of petitioner-
Mathuri, hence, this writ petition on behalf
of the petitioner.

6. The writ petition was admitted on
8.1.1981 and the interim order was also
granted staying the operation of the
impugned order dated 24.9.1980. In the
meanwhile, on 3.8.1982, interim order
dated 8.1.1981 was modified to the extent
that if the order dated 24.9.1980 has
already not been implemented, then the
operation of the order shall remain
suspended till further orders.

7. Learned counsel for the petitioner
submitted that revisional court while
passing
the
impugned
order
dated
24.9.1980 has exceeded his revisional
jurisidiction as that time revisional court
was having limited jurisdiction. He placed
upon Section 48 of the U.P. C.H. Act as on
prior to 10.11.1980 and subsequent with
effect from 10.11.1980 which are as
follows:-

Section 48 of the U.P. C.H. Act before
10.11.1980 was as follows:-
48(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 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
sub-section (3).

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

Explanation- For the purposes of this
section, Settlement Officers, Consolidation,
Consolidation
Officers,
Assistant
Consolidation Officers, Consolidator and
520 INDIAN LAW REPORTS ALLAHABAD SERIES
Consolidation
Lekhpals
shall
be
subordinate
to
the
Director
of
Consolidation.

Section 48 of the U.P. C.H. Act with
effect from 10.11.1980 as amended by U.P.
Act No.3 of 2002 which is as follows:

48(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
sub-section (3).

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

Explanation (1)- For the purposes of
this
section,
Settlement
Officers,
Consolidation,
Consolidation
Officers,
Assistant
Consolidation
Officers,
Consolidator and Consolidation Lekhpals
shall be subordinate to the Director of
Consolidation.

Explanation (2)- For the purposes of
this section the expression 'interlocutory
order' in relation to a case or 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 reappreciate
any
oral
or
documentary
evidence."

(Explanation (3) has been inserted by
Legislature by U.P. Act No.3 of 2002 w.e.f.
10.11.1980)

8. Accordingly, learned counsel for
the petitioner
submitted that Deputy
Director of Consolidation illegally allowed
the revision, setting aside the order of
Consolidation
Officer
and
Settlement
Officer
(Consolidation)
who
recorded
finding of fact on the issue of execution of
adoption deed.

He next submitted that revisional court
has failed to consider the school certificate
of the respondent no.2 in which name of his
natural father was mentioned rather name
of adopted father. He also submitted that
revisional court has failed to notice that
tenure holder Mathuri died on 10.8.1973
and petitioner applied for mutation on
4.8.1973.
He
further
submitted
that
revisional court failed to notice the
provisions of Section 9 of Hindu Adoption
and Maintenance Act and which was
discussed in detail by Consolidation Officer
and recorded finding that adoption deed set
up by respondent no.2 is not proved. He
further
submitted
that
oral
evidence
adduced
and
documentary
evidences
adduced by both parties were fully taken
into consideration by Consolidation Officer
but Deputy Directory of Consolidation
without considering the evidences on
record, in accordance with law, arbitrarily
allowed the revision which is illegal and
liable to be quashed and the order of
9 All. Smt. Khummani Vs. D.D.C., Jalaun & Ors.
521
Consolidation
Officer
and
Settlement
Officer (Consolidation) be maintained.

9. On the other hand, counsel for the
respondent no.2 submitted that revisional
court has rightly allowed the revision while
exercising revisional power under Section
48 of the U.P. C.H. Act. He further
submitted that adoption was duly proved by
respondent no.2 but Consolidation Officer
has recorded wrong finding that adoption
deed was not proved, the Deputy Directory
of Consolidation has rightly allowed the
revision, holding that adoption deed has
been proved, as such, no interference is
required against the impugned orders.

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

11. There is no dispute about the fact
that petitioner was claiming right under
Section 9A(2) of the U.P. C.H. Act, being
widow of recorded tenure holder Mathuri and
respondent no.2 was claiming on the basis of
adoption deed alleged to be executed on
13.6.1973 by Mathuri in favour of respondent
no.2. Consolidation Officer allowed the
objection of the petitioner in respect to Khata
No.343, 276 & 219 and claim of respondent
no.2 on the basis of alleged adoption deed
was
not
accepted.
Settlement
Officer
(Consolidation) maintained the order of
Consolidation Officer by dismissing the
appeal of respondent no.2. In revision,
Deputy Director of Consolidation allowed the
revision, set aside the orders of Consolidation
Officer
and
Settlement
Officer
(Consolidation) and ordered to record the
name of respondent no.2 on the basis of
adoption deed.

12. The Apex Court in Sher Singh
(dead) by legal representatives vs. Jt.
Director of Consolidation and Others,
1978 R.D. 170 held as under:-

"The principal question that falls for
our determination in this case is whether
in passing the impugned order, the Joint
Director of Consolidation, exceeded the
limits of the jurisdiction conferred on
him under section 48 of the 1953 Act. For
a proper decision of this question, it is
necessary to advert to section 48 of the
1953 Act is it stood on the relevant date
before its amendment by Act No. VIII of
1963
"Section
48
of
the
U.P.
Consolidation of Holdings Act: 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 thinks
fit."

As the above section is pari materia
with section 115 of the Code of Civil
Procedure, it will be profitable to
ascertain the scope of the revisional
jurisdiction of the High Court. It is now
well
settled
that
the
revisional
jurisdiction of the High Court is
confined to cases of illegal or irregular
exercise
or
non-exercise
or
illegal
assumption of the jurisdiction by the
subordinate courts. If a subordinate
court is found to possess the jurisdiction
to decide a matter, it cannot be said to
exercise it illegally or with material
irregularity even if it decides the matter
wrongly. In other words, it is not open to
the High Court while exer- cising its
jurisdiction under section 115 of the
Code of Civil Procedure to correct errors
522 INDIAN LAW REPORTS ALLAHABAD SERIES
of fact howsoever gross or even errors of
law unless the errors have relation to the
jurisdiction of the- court to try the
dispute itself.

13. Since the order passed by revisional
court, was of 24.9.1980 when revisional
court was having limited jurisdiction under
Section 48 of the U.P. C.H. Act as quoted
above, as such, impugned revisional order
is
without
jurisdiction.
Consolidation
Officer after considering each and every
oral as well as documentary evidence on
record as well as provisions of Hindu
Minority
and
Guardianship
Act
has
recorded finding of fact that adoption deed
dated 13.6.1973 set up by respondent no.2
is not proved and cannot be believed but
Deputy Director of Consolidation has
arbitrarily held without considering the oral
evidence as well as documentary evidences
adduced by the parties that adoption deed is
proved and respondent no.2 is to be
recorded over disputed plot in place of
petitioner
which
is
wholly
without
jurisdiction, order as Deputy Director of
Consolidation while exercising revisional
power on 24.9.1980 was having limited
jurisdiction.
Deputy
Director
of
Consolidation further failed to consider the
reasoning and findings recorded by the
Consolidation
Officer
and
Settlement
Officer (Consolidation) on the question
who is heir of Mathuri and whether
Sukhram is adopted son of Mathuri, as
such, impugned revisional order cannot be
sustained.

14. In view of the facts and
circumstances mentioned above as well as
ratio of law laid down in Sher Singh
(supra), the impugned revisional order
dated 24.9.1980 passed by Deputy Director
of Consolidation, Jalaun, Urai in Revision
No.258, under Section 48 of the U.P. C.H.
Act is liable to be quashed and the same is
hereby quashed.

15. Writ petition is allowed. Order
passed by the Consolidation Officer dated
30.4.1974
and
Settlement
Officer
(Consolidation)
dated
20.11.1974
are
hereby maintained. No order as to costs.
----------
(2022) 9 ILRA 522
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.09.2022

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ-C No. 279 of 2002

Smt. Sheela Srivastava ...Petitioner
Versus
Housing Commissioner U.P. Housing &
Dev. Board & Ors. ...Respondents

Counsel for the Petitioner:
B R Singh, Ishan Baghel, Mukesh Kumar

Counsel for the Respondents:
Mahesh Chandra, Km. Vishwa Mohini, Ratnesh
Chandra, Vimal Kumar

A. Constitution of India - Article 226 -
Writ - Maintainability - Title of property -
Question of fact - Scope of interference -
Held, adjudication of disputed question of
fact is a matter of discretion and not a bar
to the exercise of jurisdiction under Article
226, but it is well known that one of the
grounds
against
the
exercise
of
discretionary power vested in the High
Court under Article 226 is where disputed
facts have to be investigated - When such
dispute exists between the parties, the
right claimed by the petitioner is not
capable of being adjudicated in the
summary proceedings under Article 226 of
the Constitution, because, it requires a
detailed examination of evidence as may
be had in a suit. (Para 18)