RAM SARAN Vs. ASSISTANT DIRECTOR CONSOLIDATION

JUDGEMENT

(1.) THIS writ petition Is directed against the impugned judgment and order Dt/ -6 -1 -1983 (Annexure No. 3) passed by the Assistant Director of Consolidation dismissing the revisions filed by the Petitioner under Section 48 of the U.P. Consolidation of Holdings Act (for short the Act). Briefly stated the facts of the case are that one Bhagwati son of Ram Dutt was tenure holder of the land of Khata No. 846. He died on 25 -1 -1982. Opposite party No. 4. Smt. Mantoora filed an application under Section 12 of the Act for mutation of her name in place of deceased tenure holder Bhagwati. The Assistant Consolidation Officer passed mutation order in her favour vide order dated 17 -3 -1982 (Annexure No. 1). It appears that the Petitioner filed a mutation application under Section 12 before the Assistant Consolidation Officer on 19 -3 -1982 claiming mutation on the basis of an alleged will said to have been executed by the deceased tenure -holder in his favour. The Assistant Consolidation Officer submitted his report dated 15 -5 -1982 to the Consolidation Officer in which he had mentioned that mutation case with regard to land or said khata has already been decided by him vide order dated 17 -3 -1982 in favour of opposite party No. 4. The Consolidation Officer on the basis of said report rejected the mutation application of the Petitioner vide order dated 17 -9 -1982 (Annexure No. 2). He held that since already mutation order has been passed in proceedings under Section 12 of the Act by the Assistant Consolidation Officer, and, as such, the Petitioner 's application for mutation is not maintainable. The Petitioner thereupon preferred two revisions; one, against the order dated 17 -3 -1982 and the other against the order dated 17 -9 -1982. Both these revisions were dismissed by the Assistant Director of Consolidation vide order dated 6 -1 -1983. He has dismissed the revisions on the ground that the Petitioner 's revisions are not maintainable as the Petitioner has not filed appeals against the aforesaid impugned orders passed by the Assistant Consolidation Officer and Consolidation Officer respectively. Aggrieved by this order, this Petitioner has filed this writ petition.

(2.) LEARNED Counsel for the Petitioner Sri B.K. Singh urged that the Petitioner could challenge the aforesaid orders in the revision under Section 48 of this Act even without filing appeal against these orders. In reply learned Counsel for the opposite parties Sri Jagdisb Singh supported the order passed by the Assistant Director of Consolidation and urged that without availing the remedy of filing appeal, no revision could be filed by the Petitioner straight away. Although arguments on other points involved in the case were also urged by the learned Counsel for the parties, but since the Assistant Director of Consolidation has dismissed the revisions solely on the aforesaid ground, and, at such I do not want to refer to these arguments and express any opinion on these points urged by the learned Counsel for the parties.

(3.) SO far the revision against order dated 17 -1 -1982 is concerned I find that since the Petitioner was not a party to those proceedings, and, as such, he could not file appeal under Section 11(1) of the Act although he was aggrieved by that order of mutation passed in favour of opposite party No. 4. Similar question cropped up for consideration before me in Writ Petition No. 660 of 1978, Basalat v. Deputy Director of Consolidation decided on December 21, 1982 wherein I had held that a person who was not made party during the pendency of the case before the Consolidation Officer cannot, as of right, file an appeal. In Sub -clause (1) of Section 11 it is provided that any party to the proceedings under Section 9 -A, aggrieved by an order of the Assistant Consolidation Officer or the Consolidation Officer, under that section may, within 21 days of the date of the order, file an appeal before the Settlement Officer, Consolidation, who shall, after affording opportunity of hearing to the parties concerned, give his decision thereon. It is, therefore, clear that a person who is not a party to the proceedings under Section 9 -A cannot file an appeal as of a right, although he may if aggrieved by the order prefer an appeal with leave of the Court, as held in tessellates case (supra). However, when a thing which cannot be done as of a right its non -compliance would not operate as a bar to taking recourse to other available legal remedy. Thus, when an appeal cannot be filed as of a right under Section 11 of the Act by an aggrieved person who is not a party to the proceedings, I find it difficult to accept that the non -filing of an appeal would operate as a bar to invoking the revisional jurisdiction by the person aggrieved by the order passed by the Assistant Consolidation Officer or the Consolidation Officer under Section 9 -A of the Act. In my opinion the revision filed by the aggrieved person straight away without filing an appeal against the impugned order would be maintainable and it cannot be rejected being non -maintainable. The revisional jurisdiction of the Director of Consolidation under Section 48 of the Act is apparently very wide and it can be invoked without any let or hindrance by any person aggrieved by the order although he may not be party to the case. Section 48 contains no such clause nor it can be so construed as to be applicable only against the orders passed by the appellate authority under the Act. In my opinion the revisional jurisdiction under Section 48 of the Act can be exercised by the Director of Consolidation against any order passed by any subordinate consolidation authority in any case or proceedings under the Act, except an interlocutory order.