Mahadev Singh vs Deputy Director of consolidation and Others

K.P. Singh, J.—In this case an apparent conflict was felt between the decision reported in Bajai v. D.D.C. 1970 AWR 305 and Shri Nath v. Dy. Director of Consolidation, Sultanpur 1986 AWC 248 therefore it was referred to a larger bench.

In Bajai v. D.D.C. 1970 AWR 305 a learned single Judge of this Court had considered the provisions of Section 19(1)(e) of the U.P. Consolidation of Holdings Act and had emphasised:

that the proviso clearly shows that the principle that no tenure holder should be given more than three chaks must prevail over the requirement mentioned earlier unless there is an approval in writing given by the Deputy Director. This implies that the approval will be given only in exceptional cases. The writing must therefore indicate why a case is exceptional so as to condone violation of the prohibition. (See para 3 of the ruling).

In Srinath v. Deputy Director of Consolidation, Sultanpur 1986 AWC 248 a learned single Judge of this Court while considering the provisions of Section 19(1)(b) of the Act has indicated that where the Director of Consolidation or the Deputy Director of Consolidation, who exercises delegated powers of the Director of Consolidation under the Act, has made allotment of such a chak to a tenure-holder having a difference of more than 25 per cent in area, it would not be invalid because the permission for such an allotment would be inherently manifest therein. If the Authority which is required to give permission to an allotment of chak having a difference in area by more than 25 per cent itself makes the allotment of such a chak in the process of making appropriate adjustment in chaks of parties while deciding a revision, it cannot be taken to be invalid and without jurisdiction and no interference would be called for by this Court in exercise of writ jurisdiction.

Before me it was emphasised that written permission by the Director of Consolidation or the Deputy Director of Consolidation was necessary for any breach of the aforesaid Clauses of Section 19.

The Division Bench has answered the question referred to in the following words:

For the reasons stated above, we do not consider that there is any conflict in the two decisions given by two learned single Judges in the case of Bajai and Ors. (supra) and Shri Nath (supra).

The learned Judges have also observed as below:

In the case of Shri Nath (supra) learned single Judge of this Court had, however, held that in case the Deputy Director of Consolidation exercises delegated powers conferred on him under the Act, then, in case, he makes an allotment of chak to the tenure-holder having a difference of more than 25 per cent in area, the same would not be invalid because permission for such an allotment would be inherently manifest from the order itself. We would further go to the extent that the Deputy Director of Consolidation in such case looks into all the facts and circumstances of the case and thereafter carves out chaks and the reasoning which he gives for allotting more chaks than 3 would be equivalent to the approval in writing of the Deputy Director of Consolidation as contemplated u/s 19(e) first proviso. It may also at this stage be noted that the order of the Deputy Director of Consolidation will not become sacrosanct only on that ground and in appropriate proceedings the aggrieved party will be well entitled to show that he has neither applied his mind on facts or that the reasoning given by him are either perverse or based on no evidence.

Proviso to Sections 19(1)(b) and 19(1)(e) contemplate permission of the Director of Consolidation for breach thereof. While interpreting Section 19(1)(e) a learned single Judge of this Court has emphasised about permission in writing (1970 AWR 305) and while interpreting Section 19(1)(b) another learned single Judge of this Court has justified that the allotment in breach of the provision of Section 19(1)(b) would be valid if the Deputy Director of Consolidation has himself allotted the chak to a tenure-holder in breach thereof and has given reasons therefor.

However, in the present case, the revisional Court in its impugned judgment dated 30-9-1985 contained in annexure ''6'' attached with the writ petition, does not appear to have applied its mind to the question of allotment of four chaks to the Petitioner. I think that the revisional Court was not apprised of the situation that the Petitioner was getting four chaks which is in contravention of the provisions of Section 19(1)(e) of the Act. No reasons have been assigned for the situation which has emerged regarding allotment of four chaks to the Petitioner. According to the answer of the Division Bench, an aggrieved party will be entitled to show that the revisional Court has neither applied its mind on the facts or that the reasonings given by the revisional Court are perverse or bassd on no evidence. In my opinion, the impugned judgment of the revisional Court in this case is patently erroneous as it has not given any reason for allotment of four chaks to the Petitioner. Therefore, the impugned judgment suffers from patent error of law and deserves to be quashed.

A perusal of Sections 19 and 19A of the U.P. Consolidation of Holdings Act indicates that the guide lines provided under the aforesaid Section 19 should be observed by the Assistant Consolidation Officer while preparing the consolidation scheme and in that event it is, required of him to seek permission of the Director of Consolidation or the Deputy Director of Consolidation contemplated by proviso to Sections 19(1)(b) and 19(1)(e) of the Act. u/s 44A read with Section 48 of the U.P. Consolidation of Holdings Act when the revisional Court decides the revision petition, it is under obligation to apply its mind to the relevant provisions relating to the question of allotment. Section 44A provides as below:

Where powers are to be exercised or duties to be performed by any authority under this Act or the rules made thereunder such powers or duties may also be exercised or performed by an authority superior to it.

If the revisional Court fails to give reasons for breach of the provisions of the Act, I find it difficult to hold that the revisional Court can be said to have applied its mind to the relevant question.

During the course of argument, the learned Counsel for the Petitioner has emphasised that the Petitioner had a tube-well and bandhi where the revisional Court has not allotted chak to the Petitioner, therefore the impugned judgment should be quashed. I express no final opinion on this question and I expect that the revisional Court shall deal with this question hereafter.

In the result, the writ petition succeeds and the impugned judgment of the revisional Court dated 30-9-1985 contained in annexure ''6'' attached with the writ petition, is hereby quashed and the revisional Court is directed to re-examine the claim of the Petitioner strictly in accordance with law. It is expected that the revisional Court shall decide the case within one month from the date when a copy of this order is produced before him as the case is an old one.

Parties are directed to bear their own costs.