KAILASH SHANKER Vs. UPPER ZILA ADHIKARI

JUDGEMENT

(1.) WHETHER Upper Zila Adhlkari has jurisdiction to decide revision under section 48 of the U. P. Consolidation of Holdings Act 1953 (for short the Act), and which out of two provisos added to a statutory provision shall prevail are short question that fall for determination in these three analogous writ petitions hereinafter referred to as 1st, Ilnd and IIIrd petition filed under Article 226 of the Constitution of India, seeking relief for issuance of a writ of Certiorari quashing the order dated 18-6-92 Annexure 7, and order dated 15-12-88 Annexure 2 in the first petition, and the order dated 18-12-88 Annexure 2 in the second writ petition, and the order of the same date i.e 18-6-92 Annexue 4 of the third petition.

(2.) THE factual matrix of the oase is that the petitioner Kailash Shanker in the first writ petition is chak holder No. 89 village Ata, Pergana Kalpi, District Jalaun. Assistant Consolidation Officer at the time of preparation of provisional Consolidation Scheme under section 19-A of the Act, proposed two Chaks to the petitioner. THE petitioner filed an objection under section 20 of the Act before the Consolidation Officer, Kalpi raising grievances that his first chak be corrected and the second chak may be allotted at the land 'Mar' in respect of Kaver. THE Consolidation Officer made changes in the first chak but not in the second chak. A copy of the order contained in C. H. form 23, has been filed as Annexure 9. Petitioner's appeal under section 21 (2) of the Act, was dismissed by the order dated 15-12-88 (Annexure 2 to the petition) A revision under section 48 of the Act was filed before District Deputy Director of Consolidation, who is District Magistrate and has power to hear the revision, but the District Magistrate by the order dated 27-6-91 transferred the revision to the court of Upper Zila Adhikari (Finance and Revenue) who was also having the power of Deputy Director of Consolidation for disposal of the revision. Revision was dismissed on 18-6-82, Annexure 5 of the Writ petition. THE application for staying change of possession consequent upon that order, was also dismissed on the same date i e. 18-6-92 Annexue 7.

(3.) LEARNED counsel for the petitioner urged that the petitioners in these petitions must have been given chak on the largest part of their holdings as contemplated by section 19 (1) (e) of the Act, and four chaks were allotted to the petitioner. It appears that the Deputy Director of Consolidation did not apply his mind to that aspect nor he granted approval by Specific order and the first proviso to section 19 (1) (e) would prevail and not the second proviso, and that the revision could be heard only by the District Deputy Director of Consolidation i.e. Zila Adhikari and the Upper Zila Adhlkari (Finance and Revenue) has no power to hear revision under section 48 of the Act.