# Subba and another v. Deputy Director of Consolidation and another

- **Citation:** (2008) 2 ILRA 504
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-04-02
- **Case number:** Civil Misc. Writ Petition No. 2350 of 2008
- **Bench:** Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/subba-and-another-v-deputy-director-of-consolidation-and-another-41156
- **Pages:** 10

## Headnote

U.P. Consolidation of Holding Act 1953Section 48-Revision-against the order
passed
by
appellate
authority
in
proceeding 109 of the U.P. Consolidation
of
Holding
Rules,
1954-heldmaintainable.

Held: Para 23
The judgement in the case of Ram Pujan
(supra) also fully supports the view
taken by me in this case. In Ram pujan's
case same question fell for consideration
as to whether an order passed in appeal
under Rule 109-A is revisable. This Court
after considering the the provisions of
section 48 of U.P. Consolidation of
Holdings Act, took the view that Deputy
Director of Consolidation can exercise
the powers under section 48.
Case law discussed:
AIR 1973 SC 203, (1988) 1 SCJ 598, AIR 1989
Supreme Court 922, AIR 1938 Alld 456, 1972
R.D. 228, 2000(91) R.D. 43, (1987) 66 STC
145 (All).

## Text

504 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.04.2008

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 2350 of 2008

Subba and another
...Petitioners
Versus
Deputy Director of Consolidation and
another

...Respondents

Counsel for the Petitioners:
Sri. Abhishek Kumar

Counsel for the Respondents:
Sri Rahul Sahai
S.C.

U.P. Consolidation of Holding Act 1953Section 48-Revision-against the order
passed
by
appellate
authority
in
proceeding 109 of the U.P. Consolidation
of
Holding
Rules,
1954-heldmaintainable.

Held: Para 23
The judgement in the case of Ram Pujan
(supra) also fully supports the view
taken by me in this case. In Ram pujan's
case same question fell for consideration
as to whether an order passed in appeal
under Rule 109-A is revisable. This Court
after considering the the provisions of
section 48 of U.P. Consolidation of
Holdings Act, took the view that Deputy
Director of Consolidation can exercise
the powers under section 48.
Case law discussed:
AIR 1973 SC 203, (1988) 1 SCJ 598, AIR 1989
Supreme Court 922, AIR 1938 Alld 456, 1972
R.D. 228, 2000(91) R.D. 43, (1987) 66 STC
145 (All).

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

1. Heard Sri Abhishek Kumar,
learned counsel for the petitioner and Sri
Rahul Sahai, learned Counsel for the
contesting respondents.

2. By this writ petition, the
petitioner has prayed for quashing the
order dated 27.7.2007, passed by the
Deputy
Director
of
Consolidation
rejecting the objection raised by the
petitioners regarding maintainability of
the revisions filed by the respondent no. 2
before
the
Deputy
Director
of
Consolidation under Section 48 of the
U.P. Consolidation of Holdings Act, 1953
and the order dated 18.10.2007 by which
the application to recall the order dated
27.7.2007 has also been rejected.

3. Brief facts necessary for deciding
the issues raised in the writ petition are;
the Consolidation Officer passed an order
under Rule 109 of the U.P. Consolidation
of Holdings Rules, 1954. Against the
aforesaid order, an appeal was filed by the
respondents which was dismissed by the
Settlement Officer, Consolidation. In the
revision, objection was raised by the
petitioners
that
revision
is
not
maintainable under Section 48 of the U.P.
Consolidation of Holdings Act, 1953. The
Deputy Director of Consolidation by
order dated 27.7.2007 overruled the
objection
and
held
the
revision
maintainable. Again the petitioner moved
an application for recall of the order of the
Deputy Director of Consolidation taking
the ground that during the arguments
reliance had been placed on Rule 109 (3)
by which the order of the Settlement
Officer, Consolidation had been made
final hence, the revision did not lay but
the
said
argument
had
not
been
considered by the Deputy Director of
Consolidation. The Deputy Director of
Consolidation rejected the application by
order dated 18.10.2007 holding that
2 All] Subba and another V. D.D.C. and another
505
earlier order having been passed after
hearing the parties, deciding the issue of
maintainability of revision, the same
cannot be permitted to be raised again.
This
writ
petition
has
been
filed
challenging the aforesaid order of the
Deputy Director of Consolidation.

4. Sri Abhishek Kumar, learned
Counsel for the petitioner contended that
the order passed by the Settlement
Officer, Consolidation has been given
finality under Rule 109 (3) of the U.P.
Consolidation of Holdings Rules, 1954
hence, the revision under Section 48 of
the Act is barred. Reliance has been
placed by learned Counsel for the
petitioner on the judgment of the Apex
Court in the case of Aundal Ammal Vs.
Sadasivan Pillai reported in AIR 1973
SC. 203, M/s Jetha Bai and sons, New
Town
Cochin
etc
etc.
Vs.
M/s
Sunderdal Rathemal etc., reported in
(1988) 1 S.C.J. 598, Commissioner of
Sales Tax U.P. Vs. M/s. Super Cotton
Bowl Refilling Works, reported in AIR
1989 Supreme Court 922.

5. Sri Rahul Sahai, learned Counsel
for
the
respondents
refuting
the
submission of learned Counsel for the
petitioner contended that section 48 of the
Act is wide enough to examine the
correctness, legality or propriety of any
order or of any case decided by
subordinate authority hence, the order
passed
by
the
Settlement
Officer,
Consolidation under Rule 109 is also
subject to such scrutiny. He further
submits that the power of section 48 of
the Act cannot be whittled down by the
provision of Rule 109 (3). Reliance has
been placed by learned Counsel for the
respondent on the judgement of the Full
Bench of this Court in the case of Shah
Chaturbhuj Vs. Shah Mauji Ram
reported in AIR 1938 ALLD 456, Smt.
Devi Vs. Board of Revenue U.P. at
Allahabad, reported in 1972 R.D. 228
and Ram Pujan and others Vs. Dy.
Director of Consolidation Ghazipur
and others, reported in 2000 (91) R.D.
43.

6. I have considered the submission
of the learned Counsel for the parties and
have perused the record.

7. The issue which has arisen in the
present writ petition is as to whether
against an order passed by the Settlement
Officer, Consolidation in appeal under
Rule 109, a revision is maintainable under
Section 48 of the Act before the Deputy
Director of Consolidation or not. Section
48 of the Act and the relevant Rule 109 A
are 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 interlocutory order passed by such
authority in the case of proceedings and
may, after allowing the parties concerned
an opportunity of being heard, make such
order in the case of 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
506 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
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)."

Rule 109-A. (1) Order passed in cases
covered by subsection (2) of section 52
shall
be
given
effect
to
by
the
consolidation authorities, authorised in
this behalf under sub-section (2) of
section 42. In case there be no such
authority,
the
Assistant
Collector-
incharge of the subdivision, the Tahsildar,
The Naib- Tahsildar, the Supervisor
Kanungo, and the Lekhpal of the area to
which the case relates shall respectively,
perform the functions and discharge the
duties
as
the
Settlement
Officer,
Consolidation, Consolidation Officer, the
Assistant
Consolidation
Officer,
the
Consolidator , and the Consolidation
Lekhpal respectively for the purpose of
giving effect to the order, aforesaid.

(2) If the purpose of giving effect to an
order referred to in sub-rule (1) it
becomes necessary to reallocate affected
chaks, neceDsary orders may be passed
by the Consolidation Officer, or the
Tahsildar, as the case may be, after
affording proper opportunity of hearing
to the parties concerned. ,..

(3) Any person aggrieved by the order of
the
Consolidation
Officer,
or
the
Tahsildar, as the case may be, may,
within 15 days of the order passed under
sub-rule (2), file appeal before the
Settlement Officer, Consolidation or the
Assistant Collector incharge of the subdivision, as the case may be, who shall
decide the appeal and after affording
reasonable opportunity of being heard to
the parties concerned, which shall be
final.

(4) In case delivery of possession becomes
necessary as a result of orders passed
under sub-rule (2) or sub-rule (3), as the
case may be, for the provisions of Rules
55 and 56 and shall, mutatis mutandis, be
followed. "

8. Section 48 of the Act is couched
in a very wide language and confers the
powers
upon
the
Director
of
Consolidation to call for and examine the
record of any case decided or proceedings
taken by any subordinate authority. The
power under Sub Section (1) can be
exercised both suo-moto or on an
application filed by any person as well as
on a reference made by any authority
subordinate to Director of Consolidation
under sub section (3) of Section 48.
Explanation (1) provides that for the
purpose of section 48 Settlement Officer,
Consolidation shall be treated to be
subordinate to Director of Consolidation.
Thus, on a plain reading of the language
of section 48, for an order passed by
Settlement Officer, Consolidation who is
explained to be subordinate to the
Director of Consolidation, there is no
exception to such exercise of power
except in respect to interlocutory orders
which has been added by U.P. Land Laws
(Amendment) Act No. 20 of 1982. The
power
of
Revision
conferred
upon
Director of Consolidation is to be
exercised with regard to any case decided
or proceedings taken.

9. Rule 109 A sub rule (3) which is
sheet anchor of the submission of learned
Counsel for the petitioner provides that
any person aggrieved by the order of the
Consolidation Officer, or the Tahsildar,
2 All] Subba and another V. D.D.C. and another
507
may file appeal before the Settlement
Officer, Consolidation or the Assistant
Collector who shall decide the appeal
after affording reasonable opportunity of
being heard to the parties concerned,
which
shall
be
final.
The
similar
provisions are contained in several other
statutes
including
U.P.
Zamindari
Abolition and Land Reforms Act, 1950
and U.P. Zamindari Abolition and Land
Reforms Rules, 1952. Such issues came
up for consideration in context of U.P.
Agriculturist Relief Act 1934 also.
Section 5 of the Act provides an appeal to
a court to which the Court passing the
order under sub-section (1) of Section 5 is
subordinate and decision of the appellate
court was treated to be final. In Shah
Chaturbhuj (supra), the question arose
as to whether an appellate order passed
under sub section (2) of section 5 can be
challenged in the revision before the High
Court under Section 115 of the C.P.C. on
strength of sub-section (2) of section 5. It
was contended before the Full Bench that
the order was not revisable since finality
was not attached under section 1934 Act.
Following was laid down by the Full
Bench:

" By Cl. (2), S. 5, a judgement-debtor
is no doubt placed in a more favourable
position than a decree-holder in the
matter of appeal and a right of appeal is
not given to a decree-holder against an
order passed under Cl. (1) of that section.
But the mere denial to the decree-holder
of a right of appeal cannot warrant the
inference that the Legislature intended to
bar the revisional jurisdiction of this
Court. In the first place the remedy open
to a litigants by means of an application
in revision to this Court is a much
narrower and restricted remedy than the
remedy open to him by way of appeal. It
follows that the mere fact that a right of
appeal is denied to a litigant is no ground
for holding that he is debarred from
invoking the revisional jurisdiction of this
Court. In the second place the jurisdiction
of this Court to revise the orders passed
by the Courts below is independent of a
motion being made by a party to the case.
This Court can of its own motion exercise
its revisional jurisdiction even though no
application has been made for the
revision of the order passed by a
subordinate Court. The fact that a right of
appeal is not given to the decree-holder
cannot therefore in any way affect the
jurisdiction vested in this Court by S. 115,
Civil P. C.

In our judgment the provision in Cl.
(2) of S. 5 that "the decision of the
Appellate Court shall be final" means no
more than this that the order passed by
the Appellate Court cannot be made the
subject of a second appeal."

10. The Full Bench took the view
that finality attached to an order passed
under Section 5 (2) does not take away
the right of revision given to the High
Court.

11. Again a similar issue arose
before the Division Bench in the case df
Smt. Krishna Devi (supra). Before the
Division Bench, a question was referred
as to whether the revision lie to the Board
of Revenue under Section 333 of the U.P.
Zamindari abolition and Land Reforms
Act against an order of the Assistant
Collector passed under Rule 115 N of the
U.P. Zamindari Abolition and Land
Reforms Rules. Section 333 of the U.P.
Zamindari Abolition and Land Reforms
Act and Rule 115 N (before 1975) being
508 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
relevant in the present context are being
quoted herein below:

"333. Power of Board to call for
cases.-The Board may call for the record
of any suit or proceeding decided by any
subordinate court in which no appeal lies
or where an appeal lies by has not been
preferred, and if such subordinate court
appears
(a) to have exercised a jurisdiction not
vested in it in law, or
(b)
to
have
failed
to
exercise
a
jurisdiction so vested, or
(c) to have acted in the exercise of
jurisdiction illegally or with material
irregularity,
the Board may pass such order in the case
as it thinks fit. "

"Rule 115-N. (1) The Assistant Collector
incharge of the sub-division shall, on the
application of any person interested, filed,
within three months of the date of auction,
and may, at any time in his own motion,
cancel for reasons to be recorded in
writing, the allotment order on one or
more of the following grounds:
(i) the bid accepted was inadequate;
(ii) the auction was collusive or unfair;
(ii) the auction proceedings were not
followed in accordance with the rules;
(iv) any other ground.

(2) No order under sub-rule (1) shall be
passed unless the allottee has been given
an opportunity to show cause against the
proposed action.

(3) The
decision
of
the
Assistant
Collector incharge of the sub-division
shall be final.

Provided that the limit of 250 sq. yds.
Shall not apply to case of allotment of
land for construction of buildings in an
area of waste land earmarked for a new
abadi site and to cases of allotment for
construction of building for a charitable
purpose or for setting up a cottage
industry in the existing abadi sites. "

12. It is relevant to note that under
Rule 115 N (3) as it existed at the relevant
time, the decision of the Assitant
Collector was made final. The question
before the Division Bench was as to
whether revision lay. The Division Bench
took the view that rule 115-N (3) by
which finality is attached to the order of
the Assistant Collector does not restrict
the jurisdiction of the Revisional Court as
conferred by Section 333 of U.P.
Zamindari Abolition and Land Reforms
Act, 1950. Following the judgment of the
Full Bench in Shah Chaturbhuj (supra),
following was laid down by the Division
Bench in paragraph 11:

11. It is true that Rule 115-N (3)
provides that the decision of the Assistant
Collector shall be final. It is well settled
that such finality does not restrict the
revisional jurisdiction conferred upon
higher courts. In the case of Shah
Chaturbhuj Vs. Mauji Ram (2) a Full
Bench of this Court interpreted the phrase
"the decision of revenue court shall be
final" occurring in Section 5 of the U. P.
Agriculturists Relief Act, 1934, as not
depriving the higher courts of revisional
powers under section 115 of the C.P.C.
The Full Bench held that the finality
mentioned in the provision only meant
that there was o right of appeal vesting in
the litigants against such an order. In our
opinion, this Full Bench decision equally
applies to Section 333. The finality
mentioned by sub-Rule (3) of Rule 115-N
cannot whittle down the amplitude of the
2 All] Subba and another V. D.D.C. and another
509
revisional power conferred upon the
Board of Revenue by section 333 of the
Z.A. And L. R. Act."

13. I had also an occasion to
consider the similar issue in context of
Rule 115 P and section 333 of the U.P.
Zamindari Abolition and Land Reforms
Act in the case of Wahajuddin Vs.
Board of Revenue U.P. at Allahabad,
reported in 2002 (93) R.D. page 186.
Under sub rule (5) of Rule 115-P , the
order of the Collector was made final. The
issue raised was as to whether against an
order passed by the Collector under Rule
115-P revision lay under Section 333 of
the U. P. Zamindari Abolition and Land
Reforms Act. Relying on the law laid
down by the Division Bench in the case of
Smt. Krishna Devi (supra) as well as Full
Bench judgment in the case of Ram
Swaroop
Vs.
Board
of
Revenue,
reported
in
1990
R.D.
Page
291,
following was laid down in paragraph 13:

"The law laid down by the aforesaid
Division Bench is fully applicable to an
order passed by the Collector under Rule
115-P. Thus despite sub-rule (5) of Rule
115-P. Thus despite sub-rule(5) of Rule
115-P making the order of the Collector
under Rule 115-P final the revision is
maintainable under section 333 of the
U.P. Zamindari Abolition and Land
Reforms Act. In the present case the
application was filed under Rule 115-P
and the allotment is not claimed under
section 122-C since the respondent no.3 is
neither agricultural labourer nor village
artisan or member of the Scheduled Caste
or Schedule Tribes. Thus the order of the
Collector is not referable to sub-section
(6) of Section 122-C; hence sub-section
(7) of Section 122-C is not attracted and
revision is maintainable under section 333
against the order of the Additional
Collector dated 23.3.1990. "

14. The Full Bench judgement of
this Court in the case of Ram Swaroop
(supra) is also necessary to be noted. The
question arose in the Full Bench was as to
whether
the
order
passed
by
the
Commissioner under Rule 285-1 U.P.
Zamindari Abolition and Land Reforms
Rules
is
amenable
to
revisional
jurisdiction before the Board of Revenue
under Section 333 of the U.P. Zamindari
Abolition and Land Reforms Act. Rule
285-1 is as follows:

" 285-1. (i) At any time within thirty
days from the date of sale, application
may be made to the Commissioner to set
aside the sale on the ground of some
material
irregularity
or
mistake
in
publishing or conducting it; but no sale
shall be set aside on such ground unless
the applicant proves to the satisfaction of
the Commissioner that he has sustained
substantial injury by reason of such
irregularity or mistake. "

(ii) The order of the Commissioner under
this rule shall be final. "

15. The finality is also attached to an
order passed by the Commissioner under
Rule 285-1 by virtue of sub-rule (ii) of
Rule 285-1. Despite that finality, the Full
Bench held that the order of the
Commissioner was subject to revisional
jurisdiction of the Board of Revenue
under Section 333 of the U.P. Zamindari
Abolition and Land Reforms Act.

16. The Apex Court in the case of
Aundal Ammal (supra) relied by learned
Counsel for the petitioners, considered the
provisions of sections 18 and 20 of the
510 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Kerala
Buildings
(Lease
and
Rent
Control) Act, 1965. Under Section 18 (b),
the decision of the appellate authority and
subject to such decision an order of the
Rent Controller was made final except as
provided in section 20. Section 20
provided
that
where
the
appellate
authority empowered under Section 18 is
a subordinate judge to the District Judge
and in other cases the High Court may, at
any time, on the application of any
aggrieved party, call for and examine the
records relating to any order passed or
proceedings taken. In the case before the
Apex Court, a revision was filed before
the District Court under Section 20
against the order of the Rent Control
Appellate Authority which was dismissed
then the revision was filed in the High
Court under Section 115 of the C.P.C. In
the above context, the Apex Court laid
down
that
the
revision
was
not
maintainable in the High Court. The ratio
of the judgment of the Apex Court is that
since revision was already filed under
Section 20 before the District Court, the
second revision in the High Court is not
maintainable. Following was observed in
paragraph 15:

''Under the Scheme of the Act it
appears that a landlord who wants
eviction of his tenant has to move for
eviction and the case has to be disposed
of by the Rent Control Court. That is
provided by sub-section (2) of Section 11
of the Act. From the Rent Control Court,
an appeal lies to the Appellate Authority
under the Conditions laid down under
sub-section (1) (b) of S. 18 of the Act.
From the Appellate Authority a revision
in certain circumstances lies in case
where the appellate authority is a
Subordinate Judge to the District Court
and in other cases to the High Court. In
this case as mentioned hereinbefore the
appeal lay from Rent Control Court to the
appellate
authority
who
was
the
Subordinate Judge and therefore the
revision lay to the District Judge. Indeed
it is indisputed that the respondent has in
his case taken resort to all these
provisions. After the dismissal of the
revision by the District Judge from the
appellate decision of the Subordinate
Judge who confirmed the order of the
Rent Controller, the respondent-landlord
chose again to go before the High Court
under section 115 of the Code of Civil
Procedure. The question is, can he have a
second revision to the High Court? Shri
Poti submitted that he cannot. We are of
the opinion that he is right. This position
is clear if sub-section (5) of S. 18 of the
Act is read in conjunction with S. 20 of
the Act. Sub-section (5) of Section 18, as
we have noted hereinbefore, clearly
stipulates that the decision of the
appellate authority and subject to such
decision, an order of the Rent Controller
'shall be final' and 'shall not be liable to
be called in question in any Court of law',
except as provided in Section 20. By
Section 20, a revision is provided where
the appellate authority is Subordinate
Judge to the District Judge and in other
cases, that is to say, where the appellate
authority is District Judge, to the High
Court. The ambits of revisional powers
are well-settled and need not be restated.
It is inconceivable to have two revisions.
The Scheme of the Act does not warrant
such a conclusion. In our opinion, the
expression 'shall be final' in the Act
means what it says. "

17. The above case is clearly
distinguishable since in the relevant
statute
only
one
revision
was
contemplated either to the District Court
2 All] Subba and another V. D.D.C. and another
511
or to the High Court when one revision
was filed before the District Court, the
second revision was obviously barred.

18. The next case relied by learned
Counsel for the petitioner in the case of
M/s Jetha Bai and Sons (supra) was also
a case which considered the provisions of
section 20 of Kerala Buildings (Lease and
Rent Control) Act, 1965. The Apex Court
reiterated the same view as was taken in
the case of Aundal Ammal (Supra) and
held that second revision before the High
Court when one revision was taken before
the District Court, was not maintainable.
The judgment in the case of Jetha Bai
(supra) is also clearly distinguishable
since
a
different
issue
fell
for
consideration before the Apex Court in
the said case. The next judgment of the
Apex Court in the case of Commissioner
of Sales Tax (supra) was a case where the
Apex Court had occasion to consider
Section 35 (5) of U.P. Sales Tax Act,
1948. The question was as to whether
revision lay to the High court against an
order passed by Commissioner of Sales
Tax which had been the subject matter of
an appeal before the Tribunal. The Apex
Court in the said judgment approved an
earlier Division Bench judgment of this
Court in the case of Indo Lube
Refineries Vs. Sales Tax Officer SectorI, Gorakhpur (1987) 66 STC 145 (All).

19. The Apex Court noted the
legislative history of section 35 and
noticed that earlier the appeal lay to the
High Court against the order of the
Commissioner
Sales
Tax
and
by
amendment U.P. Act No. 12 of 1999, the
word 'High Court' has been deleted and
substituted by the word 'Tribunal'. The
Apex Court also noticed the constitution
of the Tribunal which provided that
Government from time to time appoint
from amongst persons who have been or
who are qualified to be Judges of the High
Court and the persons who hold or held
the post a post not below the rank of
Deputy
Commissioner
of
Sales-tax.
Following was observed by the Apex
Court in paragraph 8:

"Section 10-A deals with orders
against which no appeal or revision lies
and Section 10-B stands for revision by
the Commissioner of Sales-tax. Section
11, as mentioned hereinbefore, stands for
revision by the High Court and has been
amended from time to time. In the
aforesaid background the question posed
in those appeals will have to be examined
in the light of the decision of the High
Court. The High court in its judgment
under
appeal
aster
analysing
the
provisions of Section 35 observed that the
Commissioner
entered
into
the
determination of the disputed questions.
Sub-clause (2) of Section 35 of the Act,
according to the High Court, enjoins on
the commissioner to decide the questions
referred to him as he deems fit after
giving the applicant an opportunity of
being heard. Under sub-clause (5) of
Section 35 it has been stated that the
decision given by the Commissioner of
Sales-tax shall subject to an appeal to the
Tribunal be final. The High court while
examining the section noticed that when
an appeal against the order passed under
section 35 of the Act is before the
Tribunal, the appeal is to be heard and
disposed of by a bench of three members,
although in regard to other appeals
before the Tribunal these can be disposed
of even by a single member or by a bench
consisting of two members. The High
Court noted that under sub-clause (5) of
Section 35 of the Act prior to its
512 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
amendment brought out by U. P. Act No.
12 of 1979, an appeal used to lie to the
High Court against the order of the
Commissioner of the Sales-tax. By the
aforesaid amendment brought out by U.P.
Act No. 12 of 1979, under clause (5) of
section 35 the words "High Court" have
been deleted and substituted by the word
"Tribunal". The learned Judge of the
High Court observed that an appeal
before the Tribunal was specially treated
by the Legislature and it was enjoined
that it should be disposed of by a bench of
not less than three members. The learned
Judge noted that the Division Bench of
the High Court in the case of Indo Lube
Refineries Vs. Sales-tax Officer, Sector-I,
Gorakhpur, (1987) 66 TC 145 (All) had
taken the view that an order passed by the
Commissioner under section 35 of the Act
was an administrative order and in so
doing he did not act as a Tribunal. "

20. In the Sales Tax Act section 11
which was noticed by the Apex Court in
the said judgment, the revision was
provided in limited category of cases as
enumerated in section 11 (1) and taking
into consideration the provisions of
section 11 and section 35, the Apex Court
observed
that
revision
was
not
contemplated against the order passed by
the Commissioner. The provisions of
revision contemplated under section 48 of
the U.P. Consolidation of Holdings Act,
1953 gives very wide power to the
Deputy Director of Consolidation and is
not limited to any category of cases and
exclusion was only interlocutory orders.
Thus, the revision provided under section
11 of the Sales Tax Act, 1948 was a
limited right of revision provided in a
limited category of cases. Further only on
the ground that case involves any question
of law. Following was further observed in
paragraph 11:

"............. In the scheme of the Act, in
our opinion, it was enjoined that such an
appeal is to be heard by a bench of three
judges. Where it was provided that the
decision of the Commissioner would be
final subject to an appeal to the Tribunal,
in our opinion, it would be incorrect to
contemplate that in such a situation a
further revision under section 11 lay to
the High Court, Revision to the High
Court in special cases under section 11 is
contemplated on the ground that the case
involved a question of law. It may be
mentioned that the High Court had
mentioned that under sub-clause (5) of
section 35 of the Act prior to its
amendment that an appeal used to lie to
the High Court against an order of the
Commissioner
of
Sales-tax.
By
the
aforesaid amendment brought forward by
the U.P. Act 12 of 1979 under clause (5)
of Section 35 the words "High Court"
have been deleted and substituted by the
word "Tribunal". It appears that the High
Court was right, therefore, in holding that
an appeal to the Tribunal against an
order of the Commissioner lies. So far as
the appeal before the Tribunal against the
order
passed under section 35 is
concerned, special treatment has been
provided for by the legislature. The
Tribunal has come in place of the High
Court in hearing the appeal. In such a
situation
to
contemplate
when
the
language of the section envisages that the
order of the Commissioner would be final,
subject to an appeal to the Tribunal that a
further revision lay to the High court
would be unwarranted. As mentioned
hereinabove, we have to find out the
intention of the Legislature in such a
situation. The intention of the Legislature
2 All] Shyam Kumar V. State of U.P. and others
513
is slippery phrase as observed in Aron
Salomon V. A. Solomon and Company
Ltd.
1897
AC
22,
38:
See
also
observations
in
Lord
Howard
departmental enquiry Walden V. Inland
Revenue Commissioners, (1948) 2 All ER
825. In such cases it is better to find out
the intention of the legislature from the
words used by the natural meaning of the
words and the spirit and reason of the
law.
See
Cross
on
Statutory
Interpretation, Second Edition, page 21."

21. Thus, the judgment of the Apex
Court in Commissioner of Sales Tax is
also distinguishable and does not help the
petitioners in the present case.

22. As noticed above, the Division
Bench judgment in the case of Smt.
Krishna Devi (supra) as well as earlier
Full Bench judgment in the case of Shah
Chaturbhuj (supra) had considered the
similar issues in context of other Statutes
despite the finality of the order as
provided under U.P. Zamindari Abolition
and Land Reforms Rules. The Division
Bench in the case of Smt. Krishna Devi
(supra) held that revision under section
333 of the U.P. Zamindari Abolition and
Land Reforms Act, 1950 is not barred.
The revisional power provided under
section 48 is equally extensive and wide
as revisional power under section 333
U.P. Zamindari Abolition and Land
Reforms Act, 1950. Hence, the above
judgments apply to the facts of the present
case in full force. The Full Bench in the
case of Ram Swaroop (supra) after
noticing that finality has been attached to
an order passed by the Commissioner
under Rule 285-I, held that said order is
revisable under section 333 of U.P.
Zamindari Abolition and Land Reforms
Act, 1950.

23. The judgement in the case of
Ram Pujan (supra) also fully supports
the view taken by me in this case. In Ram
Pujan's case same question fell for
consideration as to whether an order
passed in appeal under Rule 109-A is
revisable. This Court after considering the
provisions
of
section
48
of
U.P.
Consolidation of Holdings Act, took the
view
that
Deputy
Director
of
Consolidation can exercise the powers
under section 48.

24. In view of the above discussions,
it is to be held that Director of
Consolidation is not precluded from
examining the correctness of an order
passed
by
the
Settlement
Officer
Consolidation under Rule 109 of the U.P.
Consolidation
of
Holdings
Rules.
Although
the
Deputy
Director
of
Consolidation in the impugned order has
not considered the submissions raised by
learned counsel for the petitioner but in
view
of
the
fact
that
respective
submissions have been examined in this
writ petition, I do not find it a fit case to
interfere in the impugned order, passed by
the Deputy Director of Consolidation
rejecting the objection of the petitioner
regarding maintainability of the revision.
In the result, the writ petition is
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.04.2008

BEFORE
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No.58441 of 2006

Shyam Kumar

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