- (1.) HEARD Sri Vishun Narain and Sri Arun Kumar Mishra, learned counsel for the petitioner , Sri Ajai Kumar Misra, learned counsel for the contesting respondents and learned State Counsel . Facts, in brief, in the present case are that the petitioner Sri Suneel Kumar is the holder of Chak no. 2045 Gata No. 15 area 0.539 hactare situate in village Grant Datpur, Pargan Kukubh, Tehsil -Gola District Kheri.
(2.) AFTER start of consolidation proceedings, objections were filed before opposite party no.3 in the matter in issue, thus litigation started in respect to the chak in question between the petitioner and opposite party no.4. Banke Lal , who is holder of Chak no.147. Accordingly a case has been registerd before opposite party no.3 . Consolidation Officer, First, Camp- Gola, District Kheri ( Case no. 117/2012) in which plea was taken by the petitioner in his defence was that petitioner may be allotted a chak at his original holding I.e. Gata -15 as there his private source of irrigation/ boring . However the case of the petitioner has been rejected by opposite party no.3 by an order dated 22.12.2011. Aggrieved by the said facts, petitioner filed an appeal( Appeal No. 327 of 2012, Suneela Kumar Vs. Banke lal and others ) alongwith application for condonation of delay before Settlement Officer Consolidation, Kheri, who by means of order dated 30.3.2012 condoned the delay and allowed the appeal with the following observations:- ...[VERNACULAR TEXT OMMITED]... Thereafter, Sri Banke Lal fled a revision ( Revision No. 393/ 2012 , Banke Lal Vs. Suneel Kumar ) under Section 48 of the U.P. Consolidation and Holdings Act, 1953 ( hereinafter referred to as "Act'), allowed by an order dated 18.8.2012 ( Annexure no.8) with the following observations:- ...[VERNACULAR TEXT OMMITED]... In view of the factual background, present writ petition has been filed. The main thrust of the arguments advanced by the learned counsel for the parties for consideration is whether the action on the part of opposite party no.1/Deputy Director of Consolidation, Lakhimpur Kheri, thereby passing the impugned judgment and order dated 18.8.2012 ( Anneuxre no.8) by reversing the judgment and order dated 30.3.2012 ( Annexure no.6) of Settlement Officer of Consolidation , Lakhimpur Kheri is in accordance with the provisions as provided under Section 48 of the Act. Section 48 of the Act was amended by amendment Act 8 of 1963. Before its amendment Section 48 read as under: "48. The Director of Consolidation may call for the record of any case if the officer (other than the Arbitrator) by whom the case was decided appears to have exercised a jurisdiction not vested in him by law or to have failed to exercise jurisdiction so vested, or to have acted in the exercise of his jurisdiction illegally or with substantial irregularity and may pass such orders in the case, as it thinks fit."
(3.) U .P. Act No.8 of 1963 the Section 48 was again amended and after amendment the same reads as under:- "It is clear that the Director had power to satisfy himself as to the legality of the proceedings or as to the correctness of the proceedings or correctness, legality or propriety of any order other than interlocutory order passed by the authorities under the Act. But in considering the correctness, legality or propriety of the order or correctness of the proceedings or regularity thereof it cannot assume to itself the jurisdiction of the original authority as a fact-finding authority by appreciating for itself of those facts de novo. It ha to consider whether the legally admissible evidence had not been considered by the authorities in recording a finding of fact or law or the conclusion reached by its is based on no evidence, any patent illegality or impropriety had been committed or there was any procedural irregularity, which goes to the root of the matter, had been committed in recording the order or finding." ;