ALLAHABAD HIGH COURT
SMT. SHANTI DEVI WIFE OF SRI JHUNNI ... VS GOVERNMENT OF U. P. THROUGH ... ON 28 MARCH, 2006
Summarised Judgement (Scroll for Complete Judgement)
Facts of the Case:
Though the present petition has been filed assailing the order dated 26.7.2005 passed in revision No. 73/02-03 passed by Deputy Director Consolidation, Mohammdabad, a disconcerting feature forced itself on my notice that the original record containing original document of the petitioner had been missing since the year 1983 and further that the case has been lingering decision for the last 25 years and also noticing that despite peremptory direction of the Court embodied in writ petition No. 883 of 2004 to reconstruct the record and to expedite disposal of the case, no headway had been made to the detriment of the interest of the petitioner, it was directed by means of order dated 6.3.2006 that Sri D.S.Pathak, Deputy Director Consolidation Farukhabad shall put in appearance before this Court on 28th March 2006 alongwith the record of case No. 5152 decided on 25.6.1983.
Observation of Court:
Before parting, it should be noticed that a disapproving practice on the revenue side/consolidation side has been in vogue and it cannot be said that the practice of removing records to their respective residences by the officials working in the revenue courts/consolidation courts has gone unnoticed by the authorities. In the various subordinate courts, the practice was completely banned by means of various circulars issued from time to time by this Court followed by harsh action against the erring officials.
As stated supra, Since F.I.R. has already been lodged in the matter, the S.S.P. Farukhabad is directed to supervise investigation into the matter regard being had to the allegations made in the writ petition of certain hands bearing hand in the disappearance of record and submit a report to this Court on the date fixed listing the steps taken by the Police in the matter.
Judgement:
Office is directed to supply a certified copy of this order to the learned Standing Counsel and also Chief Standing counsel for onward transmission to the State Government. A Copy be also transmitted within a week from today to the Chief Secretary, State of U.P. for necessary information and action.
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Complete Judgement
ALLAHABAD HIGH COURT
SMT. SHANTI DEVI WIFE OF SRI JHUNNI ... VS GOVERNMENT OF U.P. THROUGH ... ON 28 MARCH, 2006
Equivalent citations: 2006 (2) AWC 1972
Author: S Srivastava
Bench: S Srivastava
JUDGMENT S.N. Srivastava, J.
1. Though the present petition has been filed assailing the order dated 26.7.2005 passed in revision No. 73/02-03 passed by Deputy Director Consolidation, Mohammdabad, a disconcerting feature forced itself on my notice that the original record containing original document of the petitioner had been missing since the year 1983 and further that the case has been lingering decision for the last 25 years and also noticing that despite peremptory direction of the Court embodied in writ petition No. 883 of 2004 to reconstruct the record and to expedite disposal of the case, no headway had been made to the detriment of the interest of the petitioner, it was directed by means of order dated 6.3.2006 that Sri D.S.Pathak, Deputy Director Consolidation Farukhabad shall put in appearance before this Court on 28th March 2006 alongwith the record of case No. 5152 decided on 25.6.1983.
2. Sarv/Sri D.S.Pathak, Deputy Director Consolidation, Farukhabad, Santosh Kumar Singh Ass. Settlement Officer Consolidation and Satya Prakash Sachan, Consolidation officer Farukhabad are present in Court today and produced the record.
3. As stated supra, the original record has been missing since the year 1983 and from a perusal of the record, it would transpire that the petitioner has been running from pillar to post but to no avail. The record is revealing that in appeal No. 390 filed under Section 11(1) of the U.P.C.H. Act by the mother of the petitioner before the Settlement Officer Consolidation against the alleged forged order dated 25.6.1983, the then Settlement Officer while remanding the matter had ordered reconstruction of the record and disposal of the matter by means of order dated 22.7.1997. The revision preferred against the said order of Settlement Officer Consolidation was also dismissed vide order dated 28.3.2003. No efforts seem to have been made to trace out the record and therefore, it is alleged that petitioner preferred objection under Section 9A(2) before the Consolidation Officer which it would appear came to be dismissed at the threshold by means of order dated 5.11.2003 allegedly on hyper-technical view that the case was already pending. It would also appear from the record that an unsigned application dated 18.2.2004 came to be made before the District Magistrate Farukhabad alongwith the original record of case No. 5152 by one Ram Prakash son of Manga Bihari Lal who was once a reader in the court of Consolidation officer and had since breathed his last, the text of which is that while rummaging through the papers of his deceased father Magan Bihari Lal, his hands alighted on the original record. The aforesaid officer also apprised the Court that a First Information Report has already bee lodged in the matter.
4. When the Court put a poser to the aforesaid orders as to how the judicial record was removed by the Reader to his residence, they through learned Standing Counsel unfolded the entire sordid and pitiable aspect of the working conditions of the Courts. To be precise, he informed the Court that there remains hardly any space for coping with the staggering case records further revealing that there is no pending record room and hence the files are hoarded up in different courts. It was also pointed out that though the revenue courts are performing judicial functions, there is no adequate arrangement such as library with a view to updating their knowledge on latest rulings and they have to manage the affairs with the minimum available law book such as bare Acts, U.P.C.H.Act, Consolidation of Holdings Rules and Consolidation instructions and they have no access to any journals and all relevant law books which are necessary for effective adjudication of disputes.
5. In a recent decision in CIVIL MISC. WRIT PETITION No. 3754 OF 2002 Chandra Bhan v. Deputy Director Consolidation and Ors., it was noticed that Consolidation authorities and revenue courts are to decide number of complicated questions, which usually arise for consideration which includes adverse possession, estoppels or acquiescence, rights of minors, the effect of the compromise and the compromise decree, void and voidable nature of instruments, family arrangements, rights of co-sharers, properties of mutts, the rights and duties of Shebaits, question relating to the property being waqfs property, law of partition, question and effect of mortgages, the rights of mortgagees and mortgagors, question of validity of Wills right to evacuee property and various allied matters. The Consolidation authorities also decide the questions arising out of Transfer of Property Act, law of succession both testamentary and non-testamentary involving interpretation of statute under Indian Succession Act, Hindu Succession Act, Muslim Personal laws Agra Tenancy Act, U.P.Tenancy Act, Oudh Rent Act and other relevant law books and their decisions have the effect of binding and conclusiveness and cannot be questioned in civil or revenue courts under Section 49 of the U.P. Consolidation of Holdings Act,
6. It was also noticed that Under the U.P. Consolidation of Holdings Act, the jurisdiction to adjudicate rights and title of the parties has now been delegated to the consolidation authorities mentioned above and amendment to that effect was made in U.P. Consolidation of Holdings Act on the only ground that as revenue courts under the U.P.Z.A. & L.R. Act were conferred jurisdiction to decide the title dispute relating to Bhumidhari rights over the agricultural land and as such jurisdiction has been conferred on consolidation authorities under the U.P. Consolidation of Holdings Act making it amply clear that the legislature has enumerated consolidation authorities i.e. Asstt. Consolidation officer, or Consolidation officer or Settlement officer consolidation, Deputy Director Consolidation are deemed courts of competent jurisdiction. It is thus explicit that determination of title or declaration of rights in relation to land, has the complexion and element of dispute of civil nature and it could only be determined by the courts in appropriate suit or proceeding.
7. From a perusal of the U.P. Consolidation of Holdings Act, different powers under the Act were conferred on various authorities under Section 44. Section 44 of the Act postulates that 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, Consolidation, the Settlement officer, Consolidation, and the Consolidation Officer under this Act or the rules made thereunder, on any officer or authority. Section 42 the U.P. Consolidation of Holdings Act, also makes it clear that the State Government may appoint such authorities and officers and for such areas, as may necessary, to give effect to the provisions of the Act. Sub-section (2) of Section 42 of the U.P.C.H. Act envisages that the District Deputy Director of Consolidation may, subject to such directions as the Director of consolidation may issue, from time to time, demarcate the circles to be assigned to Consolidation Lekhpals, Consolidators and other authorities for the district under Sub-section (1). Section 42 of the U.P. C.H. Act which was amended by the U.P. Amending Act 38 of 1958.
8. In exercise of power under Section 42 read with Section 44 of the U.P. Consolidation of Holdings Act, the State has delegated powers of district officers appointed as Asstt. Director to hear revision under Section 48 of the Act by notification dated 6th August 1955. By a notification dated 22nd Nov 1956, published in the U.P. Official Gazette dated 8th Dec, 1956, all Deputy Directors Consolidation were authorised to discharge adjudicatory judicial functions under Sections 26, 43 and 48 of the U.P.C.H. Act. By notification dated 21,11.1961, all Assistant Settlement Officers Consolidation were also empowered to perform functions of Settlement Officers Consolidation. By notification dated 29.1.1968, all the Addl. District Magistrates (Executive) of all the consolidation districts were delegated powers of Director Consolidation to exercise powers to decide revision under Section 48 of the Act. By notification dated 21.11.1974, all Addl. District Magistrates were conferred powers of Deputy Director Consolidation to be exercised under Section 48 of the U.P.C.H. Act. Similarly, the District Deputy Director Consolidation (District Magistrate) was also given powers to make appointment of Consolidation officer and Asstt. Consolidation officer in a vacancy not likely to exceed more than six weeks and Director Consolidation was given power to appoint these officers in case vacancy is likely to last for more than three months. Before coming into existence the Service Rules 1992, Director Consolidation of U.P. was the competent authority to make appointment of Asstt. Consolidation Officer.
Thus from a survey of all notifications pertaining to delegation of judicial powers by the State Government to different officers of executive cadre, it is explicit that powers delegated to officers of executive cadre by the State i.e. revisional authorities which is the highest authority under the U.P.C.H. Act vests in the Addl. District Magistrates (Executives) who are also the members of the executive subordinate to political executive having no qualification of law or experience of law at par with members of judicial service. The State has conferred jurisdiction to decide revision under Section 48 of the U.P.C.H.Act on Addl. District Magistrate. The Appellate authority under the U.P. Consolidation of Holdings Act is subordinate to Addl. District Magistrate and consolidation officers are much inferior in rank to all these three authorities. Under the U.P.Z.A. & L.R. Act, the power to try suits vests in Sub Divisional Officer/Asstt. Collector but in case of consolidation proceeding, the Settlement Officer Consolidation and appellate authority are in such rank and consolidation officer is subordinate to the same. The legislature has delegated powers of adjudication of title to such officers who are much inferior in rank so much so, even to the officers or authorities under the U.P.Z.A. & L.R.Act.
9. Recently, pursuant to the recommendations made by Setti Commission and also consequent upon judicial decision in All India Judges' Assn. v. Union of India, number of amenities/facilities have been ordered to be provided to officers belonging to judicial cadre of the State and it was palpably done with a view to tone up the judicial system of the State and to rejuvenate the judicial system. In view of the statement made before the Court, it is sacred duty of the Court to take judicial notice with a view to ameliorating conditions of service of those performing judicial functions on revenue side of the State. In my considered view, the minimum bare requirements such as library furnished with adequate number of law books and journals, record room, dignified place of sitting to perform the judicial works besides other amenities which may necessarily be required with a view to enabling them to keep abreast with the latest decisions of the High Court as well as of the Apex Court particularly in revenue as well as consolidation matters.
10. The Apex Court in i.e. All India Judges' Assn. v. Union of India, in paragraph 20, again marked distinction between the nature of work of executive officers and judicial officers which they are called upon to discharge. Paragraph 20 is quoted below.
There is a marked distinction between the nature of work which executive officers and judicial officers are called upon to discharge. The work of the judicial officers is usually sedentary while that of the executive officers involves a lot of physical movement. This is particularly so in the lower cadres of both the services. In view of this feature physical fitness is more important for an executive officer than in case of a judicial officer while in case of judicial officers, there is thus necessarily more of a mental activity than physical. Experience is an indispensable factor and subject to the basic physical fitness with growing age experience grows.
11. In paragraph 29 of the aforestated decision, it was observed as under:
Unlike the administrative officer, the judicial officer is obliged to work for long hours at home. When he reserves a judgment he has usually to prepare the same at his residence. For that purpose, he has to read the records as also the judicial precedents cited by counsel for the adversaries. Even otherwise with a view to keeping himself upto date about the legal position he has to read judgments of his own High Court, other High Courts and of the Supreme Court. He has also to read legal journals.
12. In paragraph 30 of the aforesaid decision, the Apex Court observed as under:
Law Books, law reports and legal journals are indispensable to a judicial officer. They are in fact his tools and in case a junior officer has to discharge his duties satisfactorily he has to get acquainted with these. His ability to perform his duty to a considerable extent depends upon his reading habit and devoting a sizeable working time to reading all this literature. Reading habit is indispensable to a judicial officer and possession of a small library of one's own helps generation of the proper reading habit.
13. As stated supra, it has been brought to the notice of this Court by the learned Standing Counsel that no such facilities are available to executive officers or consolidation officers to adjudicate upon the dispute.
14. It is expected that the State Government would take such expeditious and ameliorative steps within a reasonable time to improve the working conditions of those performing judicial functions on revenue as well as consolidation side in the State. Since the requirements as listed above, pertain to justice delivery system and also considering that confidence and faith of litigant public may not be eroded in the justice delivery system, it is desirable that the Court should monitor the actions which may be proposed to be taken by the State Government and in this view of the matter the case is directed to be listed on 4th July 2006 on which date such authority of the State Government as may be deployed by the State Government may file affidavit listing steps taken or proposed to be taken towards ameliorating the working conditions of officers working on revenue as well as consolidation side in the State of U.P.
15. Reverting to the core controversy involved in this case, considering that the original record of case No. 5152 is now available, it is directed that appropriate authority who is seized of the matter may decide the case by a speaking order within a period not exceeding two months from today. It needs hardly be said that the authority concerned would decide the matter on points involved on merits and after affording opportunity of hearing to parties concerned. The parties are directed to appear before the Settlement Officer Consolidation on 4th April 2006.
16. Before parting, it should be noticed that a disapproving practice on the revenue side/consolidation side has been in vogue and it cannot be said that the practice of removing records to their respective residences by the officials working in the revenue courts/consolidation courts has gone unnoticed by the authorities. In the various subordinate courts, the practice was completely banned by means of various circulars issued from time to time by this Court followed by harsh action against the erring officials. The learned Standing counsel is not in a position whether such practice has been disapproved and banned by the authorities concerned on revenue as well as consolidation side. However, this Court cannot shut eyes to the fact that petty officials on revenue side as well as consolidation still can be seen to be running parallel office at their residences. No doubt, nature of their duties require them to keep records with them but in my considered opinion, it should be reduced to bare minimum requirements and no original records should be permitted to be removed to the residence of any official. The revenue as well as consolidation authorities have to evolve a mechanism, which may be enough safe-guards against recurrence of the incident of loss of records as has happened in the instant case.
17. The original record produced in the Court today shall be returned to the Standing Counsel for transmission back to the authority for being kept in sealed cover concerned for being made available only at the time of hearing.
18. As stated supra, Since F.I.R. has already been lodged in the matter, the S.S.P. Farukhabad is directed to supervise investigation into the matter regard being had to the allegations made in the writ petition of certain hands bearing hand in the disappearance of record and submit a report to this Court on the date fixed listing the steps taken by the Police in the matter.
19. Office is directed to supply a certified copy of this order to the learned Standing Counsel and also Chief Standing counsel for onward transmission to the State Government. A Copy be also transmitted within a week from today to the Chief Secretary, State of U.P. for necessary information and action.
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