Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2578 OF 2009
(Arising out of SLP No. (C) 27022 OF 2004)
Guljar Singh and Ors. …. Appellants
Versus
Deputy Director Consolidation and Ors. ….
Respondents
W I T H
C.A.No.2577/2009 @ SLP©No.1214 of 2005 and
C.A.No2579/2009 @ SLP© No.5328 of 2005
J U D G M E N T
TARUN CHATTERJEE,J.
1. Leave granted.
2. This appeals are directed against the judgment and final order
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dated 19 of November, 2004 of the High Court of Uttaranchal at
Nainital in W.P.Nos. 1231 (M/S), 1083(M/S) and 1084(M/S) of 2004
whereby, the High Court had dismissed the writ petitions and affirmed
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the order dated 20 of October, 2004 passed by the Deputy Director
of Consolidation (in short D.D.C.), Udham Singh Nagar.
3. The relevant facts, which would assist us in appreciating the
controversy involved are narrated in a nutshell, which are as follows:
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Mohan Singh, Bhan Singh and Ram Singh jointly purchased an
area of 302 Bighas in the village of Jagannathpur, Tehsil Kashipur,
and District Udham Singh Nagar (hereinafter referred to as ‘the
property in dispute’), out of which the share of Mohan Singh was
recorded as 101 Bighas. Thereafter, all these persons together with
three other persons, namely, Saudagar Singh, Sohan Singh and Atma
Singh acquired 1486 Bighas and 6 Biswas by a lease deed executed by
Zaminder Radhey Shayam in their favour. In the said deed, share of
Mohan Singh was specified as 464 Bighas. Therefore, in total, Mohan
Singh claimed his share in the property in dispute as 565 Bighas in
respect of the aforesaid lands. Various objections and counter
objections were filed by other co-sharers disputing the claim of
Mohan Singh. In the Khatauni of 1359 F, the names of 14 persons
were recorded as tenure holders. The tenure holders moved an
application in the year 1959 before the Sub-Divisional Officer, stating
therein that 17 tenure holders divided the property in dispute in 1951
and from that time, they were in possession according to their
division, but their names had not been recorded in the revenue records
according to their divisions and possession. It was alleged that they
prayed for correction of their names in the revenue records according
to amicable arrangement. The Sub-Divisional Officer allowed their
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application, but in spite of that, it was claimed that their names were
not entered in the relevant revenue records. Thereafter, correction
proceedings started in the concerned village and the matter came up
before the Asstt. Recording Officer, and Mohan Singh (the father of
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the appellants) filed an application on 11 of January, 1963 before the
Asstt. Recording Officer to give effect to the order passed by the Sub-
Divisional Officer on the basis of the amicable arrangement arrived at
between the parties. The Assistant Recording Officer passed an order
directing to make entries in accordance with the order of the Sub-
Divisional Officer. In spite of that, according to the appellants, the
revenue records were not corrected and the property in dispute was
kept as separate Khatas in the name of different tenure holders.
Thereafter, Ram Singh and others also filed an application before the
Consolidation Officer praying that the Khatas be divided in pursuance
of the order passed by the Sub-Divisional Officer. Mohan Singh,
however, alleged that the present entries in the revenue record must be
maintained. It was the claim of Mohan Singh that he was ignorant
about the order of the Sub-Divisional Officer, which was passed on
the basis of the alleged amicable arrangement entered into by the
parties and also claimed ignorance about the application which was
alleged to have been filed by him before the Assistant Recording
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Officer, thus refuting the claim of the Respondents that he was a party
to the proceedings before the Assistant Recording Officer. The
Consolidation Officer allowed the claim of Mohan Singh to the effect
that his total share in the aforesaid land was 564 Bighas, but he
directed that since Mohan Singh had co–opted his son, nephews,
brothers, and widow of his brother as co-tenants in his share, his share
was reduced. The appellants thereafter filed two appeals against the
order of the Consolidation Officer. The appeal filed by the appellants
was dismissed by the Settlement Officer (Consolidation), whereas the
appeal filed by Hari Singh and others was allowed. The Settlement
Officer (Consolidation) while allowing the appeal of Hari Singh and
others had set aside the order of the Consolidation Officer and
directed that the entries in the record of rights may be prepared in
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accordance with the order of the Sub-Divisional Officer dated 31 of
August, 1959. The appellants thereafter had filed two revision
petitions against the order of the Settlement Officer (Consolidation)
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and both the said petitions were rejected by the DDC on 7 of July,
1975. Mohan Singh, the father of the appellants then challenged the
aforesaid orders before the High Court of Allahabad by way of Writ
Petition No. 7625 of 1975. While disposing of the writ petition setting
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aside the order of DDC and remanding the case back to DDC, the
High Court made the following observations :-
“This effect is apparent from the order of the Settlement
Officer (Consolidation) which has been affirmed by the
DDC, that the order of the Consolidation Officer has
been set aside and without recording his own finding on
the point indicated above, he has directed to implement
the order of the Sub-Divisional Officer on 31.8.1959.
This, on the face of it, is illegal. The order passed in a
mutation proceeding has no evidentiary value in Court or
Authority, deciding the title of the partition merit. It was
necessary for the Settlement Officer (Consolidation) and
the DDC to consider and decide the case on merit and to
pass the specific order. The orders of the Settlement
Officer (Consolidation) and the DDC and manifestly
erroneous in law and are not liable to be maintained.
Although the order of the Settlement Officer
(Consolidation) is also illegal, but the justice will be met
if the case is decided by the Director of Consolidation
has the jurisdiction to consider the case of the parties on
the facts as well as law.”
4. After remand by the High Court at Allahabad, the DDC allowed
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the revision petition of the appellants by his order dated 20 of
October, 2004 and the entries of Bandobast and consolidation were
cancelled and the shares of the parties were decided in the manner
indicated in the said order. From a bare reading of this order of DDC,
it would be evident that the DDC while deciding the matter afresh, all
the questions directed to be considered by the Allahabad High Court
in the writ petition were duly considered after appreciating the
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evidence and the respective cases made out by the parties and the
DDC finally came to the conclusion that the order of Consolidation
Officer and the Assistant Settlement Officer (Consolidation) must be
set aside and the entries of Bandobast and consolidation must be
cancelled. This is seen from the above order that all questions were
duly decided and evidence, oral and documentary, were duly
considered and after that the aforesaid findings were arrived at by the
DDC. A thorough examination of the findings arrived at by the DDC
would show that there was no question to be left out and for any
reason whatsoever, the findings were not arrived at in a perverse
manner or the findings were arbitrary in nature. The appellants
thereafter filed a writ petition being aggrieved by the order of the
DDC before the High Court of Uttaranchal, at Nainital. It may be
mentioned that when the order of DDC was passed, after remand, in
view of the U.P. Re-organisation Act, 2000 the writ petition then
could only be filed before the High Court at Uttaranchal and
accordingly the appellants, feeling aggrieved, filed a writ application
impugning the order of DDC before the High Court of Uttaranchal at
Nainital. The High Court by the impugned judgment had affirmed the
order of the DDC and feeling aggrieved, the appellants have filed this
appeal by way of a special leave in this Court under Article 136 of the
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Constitution, which on grant of leave, was heard in the presence of the
learned counsel appearing on behalf of the parties.
5. We have heard the arguments of the parties and perused the
materials on record. We have also examined the impugned order of
the High Court and also the orders passed by the authorities in respect
of which challenge was made before the High Court in the Writ
Petitions. After going through the judgment of the High Court, it is
imperative to note that all the facts leading to the dispute of this case
have been extensively deliberated in the High Court and the same had
reiterated in its judgment that the DDC had complied with the
judgment of the High Court of Allahabad in its order after following
the observations and directions made by it. It is well settled that we
are entitled to interfere with the judgment of the High Court under
Article 136 of the Constitution only when there is gross irregularity in
the judgment of the High Court or any substantial grounds of law
which are of public importance have been raised in such a petition. If
these conditions are not satisfied, it would not be open to this Court to
interfere with the concurrent findings of the High Court as well as of
the DDC in the exercise of our discretionary power under Article 136
of the Constitution.
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6. In our view, the concurrent findings of fact arrived at by the
authorities and affirmed by the High Court would clearly show that
such findings were arrived at on consideration of all materials placed
before the court and after giving proper hearing to the parties. Such
findings of fact, in our view, cannot be interfered with in the exercise
of our power under Article 136 of the Constitution. Therefore, the
instant appeal is liable to be dismissed for the reasons given
hereinunder.
7. From the record, it appears that the DDC, after remand, by the
High Court of Allahabad in a writ application to decide the dispute
between the parties afresh had considered all the evidence of the
present case and evidence on record by following such directions of
the High Court, and other materials on record and accordingly, had set
aside the order of the Consolidation Officer and the Assistant
Settlement Officer, Consolidation, Kashipur, and thereby cancelled
the entries of Bandobast and consolidation. Keeping the findings
arrived at by the DDC which was affirmed by the High Court and
while doing so, the High Court made the following observations :
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“This Court is of opinion that every time in such a old
case it is not just and proper to quash the orders on
technical grounds and force the litigants to go back
again and again to litigate on the same point. In other
words now in this round of litigation, after 25 years of
the order passed by the Allahabad High Court, this Court
should not go beyond examining if the directions of the
Allahabad High Court were complied with by the DDC in
disposing of the revision afresh or not.”
8. Thus being so observed, the Uttaranchal High Court went on to
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note that the perusal of the order dated 20 of October, 2004, showed
that the DDC had then recorded the findings as to the claims of the
parties keeping in view of the directions of the Allahabad High Court.
Therefore, the High Court was correct to observe that the DDC had
complied with the order of the Allahabad High Court and dismissed
the petition of the appellants. It is very important for the disposal of
this case to refer again to the relevant portion of the judgment of the
High Court to elaborate this observation made by the Court.
“Learned counsel for the appellants of all the three writ
petitions argued before me that share of one or the other
is being shown to be less than what they had claimed. It
is further argued by all the appellants that as to their
share, claims were not properly considered. I may
remind it here that this Court is exercising its
jurisdiction in supervisory-cum-revisional power and
cannot decide the intricate questions of facts relating to
shares. Rather, from the perusal of the impugned order,
it is clear that in a detailed judgment of 14 pages learned
Dy. Director of Consolidation has given reasons for its
findings on shares of each one of the parties. In the
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circumstances, it cannot be said that the Dy. Director of
Consolidation has not complied with the directions of
Allahabd High Court while disposing of the writ
petition.”
9. It has been rightly pointed out by the High Court that the High
Court in the exercise of its revisional-cum-supervisory power cannot
go into the intricate details of facts and decide the questions raised
therein. We are in agreement with these views of the High Court,
except that in exceptional cases such orders which are based on
perversity and arbitrariness could be interfered with by the High
Court. After a long period of litigation ranging for almost 50 years,
the DDC had decided according to the shares of the parties after
complying with the observations made by the Allahabad High Court
as had been noted by the High Court in its impugned judgment and it
is not proper to set aside the orders on technical grounds and force the
litigants to go back again and again to litigate on the same point. In
any view of the matter, we are not in a position to observe that there
was anything for the High Court to interfere with the order of the
DDC, as it appears from the observations made by the Allahabad High
Court that the DDC will decide the dispute and consider all aspects of
the matter and the entire materials including the oral and documentary
evidence on record.
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10. From the order dated 20 of October, 2004, passed by the
DDC, it is clear to us as to how the parties had got the shares given to
them by the DDC. Learned counsel for the appellants argued that the
DDC had wrongly shown some of the plots being submerged into the
river bed. This Court is not in a position to disbelieve what the DDC
had stated unless firm evidence to the contrary is on record. The
appellants had not been able to produce any evidence to satisfy this
contention.
11. The Learned Counsel for the appellants also raised a contention
that after the creation of the separate State of Uttaranchal, Additional
District Magistrate, Udham Singh Nagar had no jurisdiction to
exercise power of the DDC. We do not agree to this contention as
well. This is because all the notifications issued by the Govt. of Uttar
Pradesh are applicable to the state of Uttaranchal under Section 86 of
UP Reorganization Act, 2000 read with Section 88 of the said Act.
Sections 86 and 88 which are necessary for our purpose are
reproduced below :
“86. Territorial extent of laws:- The provisions of Part II
shall not be deemed to have affected any change in the
territories to which the Uttar Pradesh Imposition of
Ceiling on Land Holdings Act, 1961 (U.P. Act 1 of 1961)
and any other law in force immediately before the
appointed day, extends or applies, and territorial
references of any such law to the State of Uttar Pradesh
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shall, until otherwise provided by a competent
Legislature or other competent authority be construed as
meaning the territories within the existing state of Uttar
Pradesh before the appointed day.
88. Power to construe laws:- Notwithstanding that no
provision or insufficient provision has been made under
Section 87 for adaptation of a law made before the
appointed day, any court, tribunal or authority, required
or empowered to enforce such law may, for the purpose
of facilitating its application in relation to the State of
Uttar Pradesh or Uttaranchal, construe the law in such
manner, without affecting the substance, as may be
necessary or proper in regard to the matter before the
court, tribunal or authority.”
12. From the reading of the aforesaid two provisions, it would not
be possible for us to hold that the Additional District Magistrate,
Udham Singh Nagar had no jurisdiction to exercise power of the
DDC.
13. It was next contended that the order of the DDC, Udham Singh
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Nagar dated 20 of October, 2004 was passed in contravention of the
directions issued by the High Court of Allahabad as stated herein
earlier. As has been already mentioned above, the High Court at
Uttaranchal correctly noted that the order passed by the DDC was not
in contravention of the directions of the Allahabad High Court. The
DDC had taken into consideration the observations made by the
Allahabad High Court and after perusing all the material documents
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and contentions of the parties, passed the order dated 20 of October,
2004. Thus the contention that the DDC had not taken into
consideration the order of the Allahabad High Court cannot be
accepted and accordingly rejected.
14. It was next contended that the order of the Sub-Divisional
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Officer, Kashipur, passed on 31 of August, 1959 under Sections 33
and 39 of the UP Land Revenue Act, could not be relied on and form
the basis of the order passed by the DDC and the same cannot modify
and disturb the basic year entries as recorded in the Khata of the
appellants. We do not find any ground to uphold this contention. It
has to be noted that the proceedings started under the UP
Consolidation of Holdings Act, and the allocation of Chaks were
made pursuant to the orders passed by the Consolidation Officer and
the DDC, after duly considering the claims of the parties. It is well
settled that the DDC is conferred with wide powers under the Act to
adjudicate the issue posed before him. In order to elaborate this point,
it is essential to refer to the case of Sheo Nand & Ors vs. Deputy
Consolidation Allahabad and Ors. 2000 (3) SCC 103. In the said
case , this Court, referring to Section 48 of the Act had noted that:
“The Section gives very wide powers to the Deputy
Director. It enables him suo motu on his own motion or
on the (application of any person to consider the
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propriety, legality, regularity and correctness of all the
proceedings held under the Act and to pass appropriate
orders. These powers have been conferred on the Deputy
Director in the widest terms so that the claims of the
parties under the Act may be effectively adjudicated upon
and determined so as to confer finality to the rights of the
parties and the Revenue Records may be prepared
accordingly.
Normally, the Deputy Director, in exercise of his powers,
is not expected to disturb the findings of fact recorded
concurrently by the Consolidation Officer and the
Settlement Officer (Consolidation), but where the
findings are perverse, in the sense that they are not
supported by the evidence brought on record by the
parties or that they are against the weight of evidence, it
would be the duty of the Deputy Director to scrutinize the
whole case again so as to determine the correctness,
legality or propriety of the orders passed by the
authorities subordinate to him. In a case, like the present,
where the entries in the Revenue record are fictitious or
forged or they were recorded in contravention of the
statutory provisions contained in the U.P. Land Records
Manual or other allied statutory provisions, the Deputy
Director would have full power under Section 48 to re-
appraise or re-evaluate the evidence on record so as to
finally determine the rights of the parties by excluding
forged or fictitious revenue entries or entries not made in
accordance with law.
If, therefore, during the course of the hearing of the
revision filed by the appellant under Section 48 of the
Act, the Deputy Director reopened the whole case and
scrutinized the claim of the appellants in respect, of two
other villages, it could not be said that the Deputy
Director exceeded his jurisdiction in any manner. It will
be noticed that while scrutinizing the evidence on record,
the Deputy Director had noticed that the entries were
fictitious and in recording some of the entries in the
revenue record in favour of the appellants, statutory
provisions including those contained in U.P. Land
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Records Manual were not followed. In that situation, the
Deputy Director was wholly justified in looking into the
legality of the entire proceedings and disposing of the
revision in the manner in which he has done.”
15. From the above-quoted observations of this Court, it is clear
that the DDC has wide range of discretionary powers mandated under
the Act by which he could proceed to modify even the basic year
entries if found to be wrongly derived at. Therefore, the contention
that the DDC could not have modified the basic year entries was not
correct. It appears to us that the Khatuani prepared in the Bandobast
was incorrectly made and the courts below including the DDC had
been duly conferred with power under the Act to correct the same. In
fact, the Assistant Recording Officer, Kashipur had passed an order in
1963 to correct the entries as per the order of the Sub-Divisional
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Officer, Kashipur dated 31 of August, 1959 but the same was not
complied with.
16. The learned counsel for the appellants also contended that
relying on Section 11A of the Act, any objection for the first time
could not be entertained by the authorities. We do not agree with this
submission of the learned counsel for the appellants. We have already
observed that the respondents had not accepted the order passed by
the Settlement Officer, Consolidation, Kashipur and they had filed
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their separate objections to this regard, hence, the contention could not
be said to be correct and, therefore, it should be rejected. Further
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more, a reading of the application dated 6 of July, 1959 would
clearly show that the parties had appeared before the authorities below
before the remand of the case to the DDC which would be evident
from Annexure R2.
17. It is evident from the perusal of the order of the Allahabad High
Court while passing the order of remand that the several issues which
were raised by the parties were fully considered and finally directed
the DDC to follow the procedures for coming to a proper conclusion
afresh on merits. Since the High Court at Allahabad clearly directed
the DDC to decide the matter on merits and in compliance with the
said direction, the DDC considered all the entire materials, oral and
documentary, on record to decide the matter, we do not find any
excess jurisdiction exercised either by the DDC or by the High Court
in coming to a finding arrived at by them.
18. The DDC after complying with the observations made by the
Allahabad High Court had taken all steps to determine whether the
consolidation process was proper or not. On this count also, we are
unable to agree with the contentions of the learned counsel for the
appellants. It may be noted that many of the original parties to the
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consolidation proceedings had died over the period of time. At this
stage on consideration of the impugned judgment of the High Court as
well as of the DDC, we find that there is no evidence or material on
record to contradict or upset the findings of the High Court which
affirmed the findings of the DDC. In this connection, reliance can be
placed to a decision of this Court in the case of Vishnu Kamath vs.
Ahmad Syed Ishaque, [ AIR 1955 SC 283] in which this Court
observed that:
“The finality given to the decision of the Settlement
Officer (Consolidation) does not follow that it cannot be
questioned in the writ jurisdiction of the High Court
where there is an error apparent on the face of the
record”
19. The observations made by this Court as above that there must
be an error apparent on the face of the record affirms our observation
that for an appeal to be allowed in such a situation such as this, a high
standard must be met in the way of evidence produced to support the
case of the appellants as noted herein earlier. All the materials and
issues discussed in their petition were elaborately discussed and
argued before the High Court of Uttaranchal which had affirmed the
findings of the DDC and found no infirmity therein.
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20. Lastly it was contended that the DDC exceeded his jurisdiction
contrary to the decision of the Allahabad High Court. The Allahabad
High Court, as has been mentioned above, directed the DDC to decide
the case on merits. It has not come to our notice that the Allahabad
High Court, in any way, specified the way the merits of the case
should be determined. We, therefore, believe, based on the review of
his findings that he did the best he could do in performing his duty as
had been mandated by the Allahabad High Court.
21. Based on the reasons mentioned above, we do not find any
infirmity in the impugned judgment of the Uttaranchal High Court and
thus feel it unnecessary to interfere with the same.
22. The appeals are thus dismissed. There will be no order as to
costs.
…….……………………J.
[ARIJIT PASAYAT]
NEW DELHI; ………………………….J.
APRIL 15, 2009. [TARUN CHATTERJEE]
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