R. M. Sahai, J. - (1.) :-
(2.) AGAINST basic year entry, in favour of petitioners recording them as sirdar, an objection was filed by Gaon Sabha on 16th May 1971, under section 9 of U. P. Consolidation of Holdings Act, and it was claimed that land being tank the name of petitioner should be expunged and it should be entered in name of Gaon Sabha. The objection was contested by petitioners and it was alleged that plots in dispute were let out to petitioners in 1935 by the zamindar by a registered lease deed dated 30th August 1936 and as petitioners are in possession since then they acquired occupancy rights and the land in dispute was not such which could vest in State or in Gaon Sabha on the date when zamindari was abolished. On 16th August 71 the objection was allowed against which petitioners filed an appeal. It was held by Settlement Officer Consolidation that the land was used for growing Singhara and as this land was let out to petitioners by a registered instrument it was enforceable under sub-section (5) of Section 17 of Agra Tenancy Act, 1926 and therefore the petitioner was occupancy tenant and he acquired rights of sirdar under section 19 of U. P. Zamindari Abolition and Land Reforms Act I of 1951. This order was challenged in revision and it was heard by Sri Ram Mohan Singh, Deputy Director on 7th March 1972. It appears Gaon Sabha became apprehensive that decision by Deputy Director is likely to go against it therefore it filed an application for transfer before District Deputy Consolidation which was heard and decided by Sri M. S. Sand, Additional Collector who was at that time officiating as Collector Allahabad. He appears to have called for report from Sri Ram Mohan Singh which ran as under : "Records are sent herewith. The revision was heard on 7th March 72 but it could not be pronounced as it was not typed out. On 14th March an application for stay of proceedings was moved and it was rejected. The signed order has been kept under lock. If however considered proper the revision may be recalled from this court and disposed of". This report was sent on 1st April 72 and on 15th April Sri Sand dismissed the transfer application and held that there was no material from which it could be inferred that Deputy Director shall not decide the revision in accordance with law. He however while dismissing application observed that it is expected from the Deputy Director that he shall decide the matter after making local inspection. He directed the parties to appear before the Deputy Director on 24-4-72. In the meantime, it appears Sri Ram Mohan Singh was transferred and the revision was fixed for hearing before Sri Lalta Prasad. The petitioner moved application that as revision had already been decided and the order has been signed by Sri Ram Mohan Singh the same may be sent for and pronounced. This application was rejected on 12th May 1972. The revision was ultimately heard by Sri Sharbjeet Singh, Deputy Director on 6th September 72. He held that as it was admitted to parties that land in dispute was tank it was not necessary to make any local inspection. He further found that as land was tank the petitioners name should be expunged and that of Gaon Sabha be entered. This petition is directed against the order dated 15th April 72 passed by Sri M. S. Sand directing Deputy Director to decide the revision on merit, order dated 12th May 1972 passed by Sri Lalta Prasad rejecting application for pronouncing judgment and order dated 6th September 72 deciding revision of Gaon Sabha on merits. The first question that arises for consideration is whether Sri M. S. Sand had any jurisdiction to direct the Deputy Director to decide the revision after making local inspection. It was argued by K. B. Garg appearing on behalf of Gaon Sabha that District Deputy Director Consolidation being superior authority under the Act was empowered to pass the impugned order and as Sri Sand was officiating as Collector and was District Deputy Director of Consolidation the order passed by him was in accordance with law. The argument is without any merit. The power of transfer has to be culled from provisions of Act or rules. In this connection it is relevant to mention that sub-rules 1 and 3 of rule 65 of C. H. Rules permit withdrawal of cases pending before Consolidation Officer or Settlement Officer Consolidation. There is no such power in respect of revisions being heard by Deputy Director. Sub-rule (1-A) was added to Rule 65 in 1964 but it permits transfer of cases including revisions by the officer before whom they are instituted to any other officer. He is also authorised to recall case pending before any officer to his own file. The power to recall cannot be considered to be power of transfer as has been argued by Sri Garg. It is to effectuate the first-part of rule 1-A as the officer to whom the case may be sent for disposal may be transferred and then it may become necessary to recall and allot it to other officer. It can not be equated with power of transfer conferred an a superior authority to transfer a case pending before subordinate authority on the usual ground of bias etc.
(3.) THE absence of any provision in the Act or rules for transferring a revision being heard by a Deputy Director is based on salutary principle that he being the highest authority under the Act to adjudicate dispute between parties cannot be subjected to supervisory control of District Deputy Director. While exercising revisional power a Deputy Director is not subordinate to District Deputy Director notwithtanding his administrative powers and duty of maintaining record of rights etc. It is further clear from sub-sec. (4-A) of Sec. 3, which defines Deputy Director as including a District Deputy Director, that he exercises concurrent power. Under rules a revision is instituted before District Deputy Director and by virtue of sub-Rule 1-A to Rule 65 it can be transferred to another Deputy Director or recalled to own file but that does not make a Deputy Director subordinate to District Deputy Director. An officer exercising concurrent power cannot transfer a case pending before another officer on ground of bias etc. Sri Sand therefore had no jurisdiction to hear transfer application in respect of revision which was not only pending before Sri Singh but it had been heard, judgment dictated, signed and locked. The order of Sri Sand is also bad because he having found that no ground for transfer was made out committed grave irregularity in directing that it is expected that Deputy Director shall decide the revision after making local inspection. It having been brought to his notice that judgment had been signed he purported to act under assumed power of superiority to direct Deputy Director to make local inspection without being seized of the case. In doing so he attempted to interfere with judicial discretion which was proved to be baseless as after transfer of Sri Singh Gaon Sabha did not press its claim for local inspection and agreed for decision of revision on assumption that land was tank a fact which was never disputed by petitioners.;