Ram Surat Ram (Maurya), J.—Heard Sri S.C. Tripathi, for the petitioners and Standing Counsel for State of U.P. and Sri A.N. Bhargava, for respondent-2.
2. The writ petition has been filed against the order of Consolidation Commissioner, U.P. dated 12.05.2009, canceling Provisional Consolidation Scheme of village Udhpur Gelhuwa, tahsil Badlapur, district Jaunpur and directing Settlement Officer Consolidation to frame Provisional Consolidation Scheme afresh in the village under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act) and for mandamus directing consolidation authorities not to interfere in possession of the petitioners over their chaks as allotted to them during consolidation proceeding.
3. According to the petitioners, village Udhpur Gelhuwa was placed under consolidation operation in 1981. Consolidation staff made sector roads in village on 17.07.1999, which was confirmed on 26.07.1999. Thereafter rectangulation was done and Statement of Principles were prepared. Assistant Consolidation Officer prepared Provisional Consolidation Scheme during 14.12.1999 to 02.07.2001, distributed CH Form-23 to the chak holders up to 20.02.2002 and published the village under Section 20 of the Act on 20.02.2002. Demarcation of chaks and delivery of possession was done during 2005 to 2007. Some of the chak holders made complaint relating to demarcation of their chaks and delivery of possession. On which Chief Revenue Officer constituted a committee, which has completed demarcation of the chaks and delivery of possession to the complainants up to 07.07.2008.
4. The villagers and Consolidation Committee were not satisfied with the consolidation proceeding in the village. A meeting of chak holders of the village was called by Chairman, Consolidation Committee, in which a resolution, for cancellation of Provisional Consolidation Scheme and framing fresh Provisional Consolidation Scheme, was unanimously passed. In pursuance thereof, a representation was made to Deputy Director of Consolidation Jaunpur and Consolidation Commissioner U.P. on 08.09.2008, in this respect. On which Deputy Director of Consolidation called for a report from a committee consisting of Settlement Officer Consolidation, Consolidation Officer and Assistant Consolidation Officer, who submitted its report on 05.05.2009, which was forwarded by Deputy Director of Consolidation to Consolidation Commissioner, U.P., on which, he passed impugned order on 12.05.2009, canceling Provisional Consolidation Scheme and directing Settlement Officer Consolidation to frame Provisional Consolidation Scheme afresh. Hence this writ petition has been filed.
5. Consolidation Commissioner U.P. found that (i) Inquiry Committee has not conducted any inquiry in village nor recorded statement of the villagers due to which complainants version have not been noticed. (ii) There were total 1802 chak holders in the village but 401 chak holders were kept out of consolidation scheme. (iii) Valuation of 14 plots, recorded as banjar, grove, abadi and bhita in revenue records, were determined and included in consolidation. (iv) Although 10 chak holders were having their houses over part of their holdings but they were not allotted chaks on it and other chak holders were allotted chaks on their holdings. (v) Assistant Consolidation Officer has not conducted actual survey in the village, due to which Provisional Consolidation Scheme could not be framed in correct manner. (vi) Publication under Section 20 was made prior to distribution of CH Form-23 to the chak holders, due to which none of the chak objections could be filed within time. (vii) Sector road were also made in zigzag. (viii) Several chak holders were allotted chaks on the land of sector road, chak road and chak nali. (ix) 310 small chaks holders having up to 30 decimal original holdings were allotted uran chaks. (x) Demarcation and delivery of possession over confirmed chaks were not completed rather paper works was made and (xi) 105 chak holders were given possession at the different places, which was not allotted to them.
6. The counsel for the petitioners submitted that impugned order has been passed in exercise of powers under Section 48 (3) of the Act. There is a statutory delegation of power of Director of Consolidation under Rule 111 of the Rules, 1954 to Joint/Deputy/Assistant Director of Consolidation of consolidation district, for the purposes of Section 48 of the Act. Without withdrawing powers already delegated, Consolidation Commissioner U.P. had no jurisdiction to pass impugned order. Section 48 (1) and (3) mandatorily require to give opportunity of hearing and examine record of subordinate authorities before passing any order. In the present case, joint committee submitted its report without spot inspection and without giving opportunity of hearing to the chak holders of the village, thus there was no valid reference under Section 48 (3) of the Act. Consolidation Commissioner U.P. also passed the impugned order without giving opportunity of hearing to the chak holders and without examining the record prepared during consolidation, as such correct facts could not be considered. Consolidation was started in 1981. During long span of time of about 28 years, lot of money and energy of chak holders as well as Government was wasted. Chak disputes were contested up to stage of revision. Some revisions and writ petitions are also pending before revisional court and this Court, in which interim orders have been granted. Impugned order set at naught all the judicial orders. 34 chak holders have raised constructions and 48 chak holders have sink boring and installed pumping set over their new chaks, Government has constructed a pitch road in the village, investing about Rs. 400 lakhs. These facts were escaped from consideration while passing impugned order. There is no provision of representation under the Act, no order would have been passed by respondent-1 on the complaint of respondent-2. In case confirmed Provisional Consolidation Scheme is canceled after delivery of possession, it will cause irreparable loss to the Chak holders of the village as they had been deprived from their original holdings which had also lost its identity after demarcation of new chaks. Impugned order is illegal and liable to be set aside. He relied upon judgment of Supreme Court in Gadde Venkateswara Rao v. Govt. of A.P., AIR 1966 SC 825, judgment of this Court in Syed Niyaz Ahmad v. State of U.P., AIR 1968 All 430 and M/S Sir Shadi Lal Distillery and Chemical Works v. State of U.P., AIR 1977 All 349 (DB) in which it has been held that if personal legal right is affected of a person, he can file writ petition under Article 226 of the Constitution. Judgment of this Court in Rajendra Prasad v. State of U.P., 1978 ALJ 724 (DB), in which it has held that adjudication of right of a tenure holder in consolidation proceeding is conclusive and entry made during consolidation cannot be questioned. Jaga v. Deputy Director of Consolidation, 1984 RD 176, in which it has been held that although Deputy Director of Consolidation can also exercise his powers under Section 21 (4) of the Act but there must be substantial reason for interference in Provisional Consolidation Scheme. Jhingai v. Deputy Director of Consolidation, 1991 RD 136, in which it has been held that when Statute provides a mode for exercising power, then power has to be exercised according to that mode only. Brij Lal v. Deputy Director of Consolidation, 1996 RD 115, in which it has been held that proceeding under Section 48 (3) of the Act are judicial proceeding and can be initiated only on valid reference of subordinate authorities. Ram Deo v. Consolidation Commissioner U.P., 2003 (95) RD 457, in which it has been held that Director of Consolidation has no power to sit in review over decision of Deputy Director of consolidation,
7. I have considered the arguments of the counsel for the parties and examined the record. Relevant provisions of the Act are quoted below:
Section-3 (4)—''Director of Consolidation'' means the person appointed as such by the State Government to exercise the powers and perform the duties of the Director of Consolidation under this Act or the rules made thereunder and shall include an Additional Director of Consolidation and a Joint Director of Consolidation.
Section-3 (4-A)—''Deputy Director of Consolidation'' means a person appointed as such by the State Government to exercise such powers and perform such duties of the Director of Consolidation as may be delegated to him by the State Government and shall include a District Deputy Director of Consolidation and Assistant Director of Consolidation.
Section-21 (4)- If during the course of the disposal of an objection or the hearing of an appeal, the Consolidation Officer or the Settlement Officer Consolidation, as the case may be, is of the opinion that material injustice is likely to be caused to a number of tenure-holders in giving effect to the provisional Consolidation Scheme, as prepared by the Assistant Consolidation Officer, or as subsequently modified by the Consolidation Officer, as the case may be, and that a fair and proper allotment of land to the tenure-holders of the units is not possible without revising the provisional Consolidation Scheme, or getting a fresh one prepared, it shall be lawful, for reasons to the recorded in writing for -
(i) the Consolidation Officer to revise the provisional Consolidation Scheme, after giving opportunity of being heard to the tenure-holders concerned, or to remand the same to the Assistant Consolidation Officer, with such directions as the Consolidation Officer may consider necessary; and
(ii) the Settlement Officer Consolidation, to revise the provisional Consolidation Scheme, after giving opportunity of being heard to the tenure holders concerned or to remand the same to the Assistant Consolidation Officer, or the Consolidation Officer, as the Settlement Officer Consolidation, may think fit with such directions as he may consider necessary.
Section-23 (1)—The Settlement Officer Consolidation shall confirm the provisional Consolidation Scheme-
(a) if no objections are filed within the time specified in Section 20; or
(b) where such objections are filed, after such modifications or alterations as may be necessary in view off the orders passed under sub-sections (1) to (4) of Section 21.
Section-44- Delegation- The State Government may, by notification in the Official Gazette, and subject to such restrictions and conditions as may be specified in the notification:
(i) delegate to any officer or authority any of the powers conferred upon it by this Act; and
(ii) confer powers of the Director of Consolidation, Deputy Director of Consolidation, the Settlement Officer, Consolidation and the Consolidation Officer under this Act or the Rules made thereunder, on any officer or authority.
Section-44-A - Powers of subordinate authority to be exercised by a superior authority - 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 any authority superior to it.
Section-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 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 sub-section (1).
Rule-111 of UP C. H. Rules 1954- Sections 48 and 54- An application under Section 48 of the Act shall be presented by the applicant or his duly authorised agent to the Joint/Deputy/Assistant Director of Consolidation, nominated by the Director of Consolidation, Uttar Pradesh for the District or Settlement Officer, Consolidation unit concerned or failing posting of any such Joint/Deputy/Assistant Director of Consolidation in the district, to the District Deputy Director Consolidation within 30 days of the order against which the application is directed. It shall be accompanied by copy of the judgment or order in respect of which the application is preferred. Copies of judgment or order, if any, of other sub-ordinate authorities in respect of dispute shall also be filed along with the application.
8. State of U.P. by notification Revenue (A) Department Notification No. 8524-(5)/IA-825-1954 dated November 22, 1956 authorised all Deputy Director of Consolidation of consolidation district to exercise powers under Sections 26, 43 and 48 of the Act. By notification Revenue (A) Department Notification No. 8524-(i)/IA-825-1954 dated November 22, 1956 authorised Deputy Director of Consolidation of consolidation district to exercise powers under Section 48 (3) of the Act. By notification Revenue (A) Department Notification No. 5630-CH/IA-351-1958 dated December 23, 1958 appointed "Consolidation Commissioner" as "Ex-officio Director of Consolidation". By notification Revenue (E) Department Notification No. 113-74 Revenue-8 (868) dated 22.11.1974 authorised all Additional District Magistrate of consolidation district to exercise powers under Section 48 of the Act. So far as Rule 111 of the Rules 1954 is concerned, it provides a procedure for presentation of revision.
9. Jurisdiction under Section 48 of the Act is conferred upon Director of Consolidation U.P. which includes Additional Director of Consolidation U.P. and Joint Director of Consolidation U.P. By virtue of notification dated December 23, 1958 "Consolidation Commissioner" is "Ex-officio Director of Consolidation" therefore he can exercise all powers of Director of Consolidation under the Act. Under various notifications as mentioned above as well as in view of Section 3 (4-A) of the Act, District Deputy Director of Consolidation, Deputy Director of Consolidation, Assistant Director of Consolidation and Additional District Magistrate of consolidation district were also conferred powers of Director of Consolidation U.P. under Section 48 of the Act. There is nothing either under the Act or the Rules and various notification, which excludes the powers of Director of Consolidation U.P. As such all the aforesaid authorities can concurrently exercise powers under Section 48 of the Act. Aforesaid notifications do not amount to delegation of powers within the meaning of Section 44 (i) of the Act. It only confer powers to various authorities as provides under Section 44 (ii) of the Act. Statute prevails over Rules and Notifications which are subsidiary legislation.
10. Privy Council in Block pool Corporation v. Locker (1948) 1 All E R 538, held that principal and delegate both can act simultaneously. Supreme Court in Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295, held that as a general rule, whatever a person has power to do himself, he may do by means of an agent. This broad rule is limited by the operation of the principle that a delegated authority cannot be re-delegated, delegates non protest delegate. The naming of a delegate to do an act involving a discretion indicates that the delegate was selected because of his peculiar skill and the confidence reposed in him, and there is a presumption that he is required to do the act himself and cannot re-delegate his authority. In Ishwar Singh v. State of Rajasthan, (2005) 2 SCC 334, held that expression ''''delegation of authority of power'' is a term which like the word ''''delegate'' does not imply a parting with powers by the person who grants the delegation, but points rather to the conferring of an authority to do things which otherwise that person would have to do himself."
11. Powers under Section 48 of the Act is supervisory in nature through which Director of Consolidation has administrative and judicial control over all the sub-ordinate authorities. For the purposes of judicial powers, Deputy Director of Consolidation etc. of consolidation district are co-ordinate authority but for administrative purpose they are subordinate authorities. Consolidation Commissioner has noted that impugned order was passed exercising powers under Section 48 (3) of the Act, as the report of joint committee was forwarded by Deputy Director of Consolidation to Consolidation Commissioner. In fact, he cancelled Provisional Consolidation Scheme framed under Section 19-A of the Act. Provisional Consolidation Scheme can be cancelled by Consolidation Officer and Settlement Officer Consolidation under Section 21 (4), while deciding chak objections and appeals. It has to be confirmed by Settlement Officer Consolidation under Section 23 (1) of the Act, which necessarily includes power to cancel it. Section 23 (1) does not contemplate for opportunity of hearing to the chak holders. Powers under Section 23 (1) of the Act can be exercised by Consolidation Commissioner also in view of Section 44-A of the Act as held by this Court in Jaga v. Deputy Director of Consolidation, 1984 RD 176. Consolidation Commissioner, after considering the complaint of respondent-2 and report of joint committee found that gross illegality had been committed in framing Provisional Consolidation Scheme. Due to mentioning wrong provision, the order can not held as illegal, as Consolidation Commissioner has otherwise jurisdiction to pass the order.
12. Provisional Consolidation Scheme is prepared under Section 19-A of the Act. Section 19-A and Rule 46 provides that Assistant Consolidation Officer shall prepared Provisional Consolidation Scheme in consultation with members of Consolidation Committee after making inquiries from as many as tenure holders as he is able to collect. From report of joint committee, it is proved that Assistant Consolidation Officer made sector roads in village on 17.07.1999, which was confirmed on 26.07.1999. Thereafter Statement of Principles must have been prepared. Assistant Consolidation Officer allegedly prepared Provisional Consolidation Scheme during 14.12.1999 to 02.07.2001. It has been held that publication under Section 20 was ante-dated. Large area of gaon sabha land was included in consolidation proceeding without assigning any reason. Land reserved for public purposes was not demarcated nor possession was given over it to Land Management Committee. The villagers and Consolidation Committee were not satisfied with Provisional Consolidation Scheme. A meeting of chak holders of the village was called by Chairman, Consolidation Committee, in which a resolution, for cancellation of Provisional Consolidation Scheme and framing fresh Provisional Consolidation Scheme, was unanimously passed in September, 2008. Illegalities have been mentioned in paragraph-5 (supra).
13. Although, the petitioners have stated that 34 chak holders had raised constructions and 48 chak holders had sink boring and installed pumping set over their new chaks, but no proof of the allegation has been filed. In any case, there is no evidence to show that prior permission of Settlement Officer Consolidation was obtained for making improvements as required under Section 5 (1) (c) of the Act. So far as construction a pitch road in the village, by investing about Rs. 400 lakhs, is concerned Provisional Consolidation Scheme is framed after making Sector Roads and rectangulation. In any case, while preparing fresh Provisional Consolidation Scheme, it may be taken in to account.
14. In view of the aforesaid discussions, writ petitions has no merit and is dismissed.
