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Judgment
Ramesh Ranganathan, C.J. (Oral)
Delay Condonation Application (CLMA) No.10753 of 2019
Delay in preferring the appeal is not opposed by Mr. Arvind Vashistha, learned Senior Counsel appearing on behalf of the respondent-writ petitioner
and the delay is, therefore, condoned.
This appeal is preferred against the order passed by the learned Single Judge in WPMS No.1250 of 2015 dated 30.05.2017. The first-respondent in
this appeal invoked the jurisdiction of this Court, by way of WPMS No.1250 of 2015, seeking a writ of certiorari to quash the interim inquiry report
dated 24.06.2014, the final inquiry report dated 27.09.2014 and the consequential orders, and to quash implementation of the impugned orders in the
Khatoni.
Facts, to the limited extent necessary, are that an order was passed under Section 33-A of the Uttar Pradesh Land Revenue Act, 1901 on
24.08.2008 in favour of the first respondent-writ petitioner. While there appears to exist several other legal proceedings inter-se between the appellant
and the first-respondent, (both of them are siblings i.e. brother and sister), we are concerned, in the present case, with the action taken by the
Commissioner in entertaining the complaint of the appellant that the order, passed under Section 33-A of the Act on 24.10.2008, was vitiated by fraud.
On receipt of the complaint of the appellant, the Commissioner (Kumaon Mandal) directed that an inquiry be caused by the then Officiating Director,
who submitted his report on 24.06.2014 holding that the earlier order obtained by the first respondent-writ petitioner, under Section 33-A of the Uttar
Pradesh Land Revenue Act, 1901, was illegal. The validity of the Preliminary Inquiry Report dated 24.06.2014, among others, is subjected to
challenge, by the first-respondent-writ petitioner, on the ground that it was passed without application of mind; and there was no material before the
Inquiry Officer to arrive at such a conclusion.
The jurisdiction of this Court was invoked by the respondent-writ petitioner on two grounds:- (i) the Commissioner, while exercising administrative
power, lacked jurisdiction to set aside the statutory order passed under Section 33-A, (ii) When a final report was submitted, no conclusive decision
could have been taken to set aside the order dated 24.10.2008, passed under Section 33-A of the Land Revenue Act, and that too without giving any
opportunity to the petitioner against the findings recorded in the Inquiry Report.
In the order under appeal, the learned Single Judge examined the contention urged on behalf of the appellant that, though the question of fraud can
be examined in an appeal under Section 210 of the Act, it could not have been examined by the Commissioner on the administrative side, as an
administrative authority cannot override an order made under the Act. The learned Single Judge observed that, if the contention urged on behalf of the
4th respondent pertaining to fraud is accepted, it would lead to a situation where the administrative authority could, in a very convenient manner,
sideline the provisions of the statute, and take a decision overriding the order passed under the Act, which will create social chaos; such illegalities
cannot be permitted to be perpetuated at the behest of an Administrative Officer; and the authority concerned should realize its limitations and function
within the ambit of the statute, while entertaining such complaints. On the maintainability of the writ petition, the learned Single Judge held that the
Commissioner exercised two simultaneous powers i.e. Judicial power and Administrative Power; and since the order in question was passed not on
the Judicial side, it was amenable to the writ jurisdiction under Article 226 of the Constitution of India.
Holding that the Commissioner lacked competence to entertain any complaint filed by the appellant-writ petitioner, against the order passed under
Section 33-A of the Land Revenue Act dated 28.10.2008, and he could not take a decision on the administrative side, the learned Single Judge set
aside the order.
Aggrieved thereby the present appeal is preferred by the fourth-respondent, in the writ petition, on legal aid being provided to her by the High Court
Legal Services Committee. In examining the question whether the learned Single Judge was justified in holding that the Commissioner lacked
jurisdiction to interfere with an order passed under Section 33-A of the Uttar Pradesh Land Revenue Act, 1901, it is necessary to refer to certain
provisions of the said Act.
Section 4(8) defines a “Revenue Court†to mean all or any of the following authorities (that is to say), the Board and all members thereof,
Commissioners, Additional Commissioners, Collectors, [Additional Collector] Assistant Collectors, Settlement Officers, Assistant Settlement Officers,
Record Officers, Assistant Record Officers and Tahsildars. Section 4(9) defines “Revenue Officer†to mean any officer employed under the
1901 Act in maintaining revenue records, or in the business of the land revenue. Section 12 relates to Commissioners of divisions, and thereunder the
State Government shall appoint, in each division, a Commissioner who shall, within his division, exercise the powers and discharge the duties conferred
and imposed on a Commissioner under the 1901 Act, or under any other law for the time being in force, and who shall exercise authority over all
revenue officers in his division. Section 33-A relates to correction of annual registers in cases of uncontested successions and, under sub-section (1)
thereof, where a person obtains possession of any land by succession, the Kanungo shall make such enquiry as may be prescribed; and, if the case is
not disputed, record the same in the annual registers.
The Kanungo, referred to in Section 33A, is not a Revenue Court under Section 4(8) of the Act and can, at best, be held to be a Revenue Officer
under Section 4(9) thereof.
Section 34 of the 1901 Act, relates to the report of succession or transfer of possession and, under sub-section (1) thereof, every person obtaining
possession of any land by succession or transfer, (other than a succession or transfer which has already been recorded under Section 33-A), shall
report such succession or transfer to the Tahsildar of the Tahsil in which the land is situated. Section 34 would apply only to cases other than a
succession or transfer recorded under Section 33-A. Section 35 relates to the procedure on report and, thereunder, on receipt of a report of
succession or transfer under Section 34, or upon facts otherwise coming to his knowledge, the Tahsildar shall make such inquiry as appears necessary,
and if the succession or transfer appears to have taken place, he shall direct the annual register to be amended accordingly.
While Section 33-A confers power on the Kanungo to record the succession in the annual register in case there is no dispute regarding possession
or succession, Section 34, which applies to every case other than Section 33-A, enables the Tehsildar, (in terms of Section 35), after inquiry and if he
satisfied that the succession or transfer appears to have taken place, to direct the annual register to be amended accordingly. Section 210 provides for
appeals and, under sub-section (b)(1) thereof, an appeal would lie to the Commissioner from orders passed by the Collector or Assistant Collectors
first class or Assistant Collector In-charge in the sub-division; and (ii) to the Collector from orders passed by an Assistant Collector second class or
Tahsildar. Section 219 confers the power of revision and, under sub-section (1) thereof, the Board or the Commissioner or the Additional
Commissioner or the Collector or the Record Officer, or the Settlement Officer, may call for the record of any case decided or proceeding held by
any revenue court subordinate to him in which no appeal lies, or where an appeal lies but has not been preferred, for the purpose of satisfying himself
as to the legality or propriety of the order passed or proceeding held and, if such subordinate revenue court appears to have- (a) exercised a
jurisdiction not vested in it by law, or (b) failed to exercise a jurisdiction so vested, or (c) acted in the exercise of jurisdiction illegally or with material
irregularity, the Commissioner may pass such order, in the case, as he thinks fit.
The power conferred on the Commissioner, under Section 219 of the 1901 Act, is extremely wide, and enables him to call for the records in any
case decided in, or proceedings held by, any revenue court subordinate to him. The use of the word “Revenue Court†would show that it is only
against orders passed by such officers, who constitute the Revenue Court under Section 4(8) of the 1901 Act, that a revision would lie. A Kanungo,
who has been conferred power under Section 33-A, is not a revenue court and is, at best, a revenue officer under Section 4(9) of the Act. No revision
would, therefore, lie against such an order.
It is true that the action taken by the Kanungo, under Section 33-A of the 1901 Act, is an exercise of statutory power. As Section 12 of the 1901
Act empowers the Commissioner to exercise authority over all revenue officers in his division, the Commissioner would be entitled to exercise his
authority over the Kanungo, and the orders passed by him including those under Section 33-A of the Act.
We are satisfied, therefore, that the learned Single Judge was in error in holding that, while the Commissioner could have exercised jurisdiction on
the judicial side in the exercise of his powers as an appellate or revisional authority, he could not have exercised his administrative powers. The source
of power for the Commissioner, to interfere with the order passed by the Kanungo under Section 33-A of the 1901 Act, is referable to Section 12
thereof. The Commissioner, undoubtedly, has jurisdiction to interfere and to exercise authority over the Kanungo, including on the orders passed by
him under Section 33-A of the Act.
While we are satisfied that the order under appeal must be set aside, since the learned Single Judge has held that the Commissioner lacks
jurisdiction to examine the validity of the order passed by the Kanungo under Section 33-A, the fact remains that, though the respondent-writ petitioner
had raised several contentions before the Inquiry Officer, the Commissioner does not appear to have dealt with those contentions, or to have assigned
reasons for holding against the respondent-writ petitioner. In this context it is necessary to note that the first-respondent-writ petitioner had earlier
invoked the jurisdiction of this Court by filing WPMS No.1784 of 2014, and a learned Single Judge of this Court had, in his order dated 31.07.2014,
recorded the consent of both the counsel that the inquiry officer would take into consideration all objections raised by the petitioner while taking a
decision on the inquiry, and would conclude the inquiry within 60 days. While the Commissioner can, undoubtedly, exercise administrative control over
the Kanungo, and is entitled to examine the orders passed by him under Section 33-A, such a power, statutorily conferred on him under Section 12 of
the Act, must be exercised by him alone, and cannot be delegated to any other authority. While it is always open to him to call for such information as
he desires from any other officer, the final decision must be his, and none other. In the present case, the Commissioner appears to have merely
expressed his concurrence with what the Inquiry Officer has held, and does not appear to have dealt with the objections raised by the respondent-writ
petitioner.
Yet another reason, why we are satisfied that the order under appeal necessitates interference, is that the appellant-fourth respondent has alleged
fraud. Fraud vitiates all judicial acts ecclesiastical or temporal. Any order, obtained by playing fraud on any authority, is a nullity and is non est in the
eye of law. Such an order must be treated as a nullity by every Court or authority superior or inferior, and can be subjected to challenge even in
collateral proceedings (A.B. Papaiyashastri Vs. Government of A.P., and 2007(4) SCC 21 ;S.P. Chingalrai Naidu Vs. Jagan Nath, 1994(1)
SCC, 1). While taking note of the submissions urged on behalf of the appellant-fourth respondent, that the order under challenge before the
Commissioner was vitiated by fraud, the learned Single Judge did not leave it open to the authorities concerned to examine whether or not the
appellant’s claim, of the entire transaction being vitiated by fraud, was justified or not. We may not be understood to have expressed any opinion
on the appellant’s claim, that the earlier orders were vitiated by fraud, for these are all matters for the Commissioner to examine. All that we have
held is that the question of fraud should have been left open, by the learned Single Judge, for examination by the authority concerned.
Suffice it in such circumstances, while setting aside the order under appeal, to permit both the appellant and the first-respondent herein to file their
objections, if any, to the Inquiry Report, before the Commissioner, within one month from the date of production of a certified copy of this order. The
Commissioner shall, thereafter, examine the matter in detail, and pass a reasoned order in accordance with law at the earliest and, in any event, within
two months thereafter. Since the respondent-writ petitioner has had the benefit of an order of stay during the pendency of the writ petition, suffice it to
direct that status quo, as on today, shall be maintained till final orders are passed by the Commissioner. The order impugned in the writ petition is also
set aside; and the Commissioner shall examine the matter afresh as directed herein above.
Both the order under appeal, and the order of the Commissioner impugned therein, are set aside. The matter is remanded to the Commissioner for
his examination afresh in terms of the directions issued hereinabove, and in accordance with law. No costs.