Decided on April 23,1965

Lallo And Another Appellant
Joint Director Of Consolidation, U.P., Lucknow And Others Respondents

Referred Judgements :-



M.C. Desai, C.J. - (1.)This is a petition for certiorari for the quashing of an order passed by Sri. Syed Husain a Deputy Director of Consolidation on 6.3.1962 Under Sec. 11(2) of the U.P. Consolidation of Holdings Act and an order passed by a Director on 2.8.1962 refusing to revise it Under Sec. 48 of the Act.
(2.)One ground taken in the petition is that Sri. Syed Husain, who was a Deputy Director, had not been authorized to hear the appeal Under Sec. 11(2) by "the Director of Consolidation." An appeal Under Sec. 11(2) must be filed before the District Deputy Director and must be heard and decided either by him or by "such other Deputy Director, Consolidation as may be authorized in this behalf by the Director of Consolidation." "Director of Consolidation" is defined in Sec. 3(4) to mean "the person appointed as such by the State Government to exercise the powers and perform the duties of the Director of Consolidation under this Act.... and shall include an Additional Director of Consolidation and a Joint Director of Consolidation. Other Consolidation authorities defined in the Act are Consolidation Officer, Consolidator, District Deputy Director and Deputy Director. Sec. 42, as it existed prior to its deletion by Act No. XXXVIII of 1958, was to the effect that "the State Government may for the purpose of this Act appoint: (a i) Consolidator, (i) Assistant Consolidation Officer...(iv) Deputy Director of Consolidation; and (v) Director of Consolidation.'' The present Sec. 42 is simply that the State Government "may appoint such number of officers and authorizes as may be required for the purposes of consolidation.... Sec. 44 lays down that the State Government may (i) delegate to any office or authority any of its own powers and "(ii) confer powers of the Director of Consolidation....on any officer of authority." Sri. IDN Sahi was appointed by the State Government a Commissioner of Consolidation. On 23.12.1958 the State Government issues a notification in exercise of the power conferred by Sec. 44 conferring "the powers of Director of Consolidation under the said Act....on Sri IDI Sahi, Commissioner of Consolidation with effect from December 19, 1958. On 3.3.1960 Sri. IDN Sahi, describing himself as Commissioner of Consolidation "(Chakbandi Ayukta)" i(sic) purported exercise of the powers conferred by Sec. 11(2) authorized Sri. Syed Husain to hear and decide appeals filed under Sec. 11(2). On 18.1.1962 the contesting opposite party filed an appeal under Sec. 11(2) before the District Deputy Director, who transferred it for disposal to Sri. Syed Husain and the latter on 6.3.1962 heard and allowed it. The Petitioner did not challenge his jurisdiction to hear the appeal on the ground that he had not been authorized to hear it by the Director of Consolidation. The appeal was argued only on merits and on its being allowed, the Petitioner applied to a Director to revise the order of Sri. Syed Husain under Sec. 48. In this revision application also the Petitioner did not contend that Sri. Syed Husain was not competent to decide the appeal on account of his not being authorized to decide it by the Director of Consolidation. The Director dismissed the revision application on 2.8.1962 and on 4.9.1962 this petition for certiorari was filed for the quashing of his and Sri. Syed Husain's orders.
(3.)The first question is whether Sri Syed Husain had been authorized within the meaning of Sec. 11(2) to hear the appeal. Only the Director of Consolidation could authorize him and nobody else such as the Commissioner of Consolidation. Here he was authorized by Sri. IDN Sahi, who was Commissioner of Consolidation. In the order authorizing him he rightly did not claim to be Director; instead he claimed to be Commissioner of Consolidation. He had been conferred under Sec. 44 the powers of Director of Consolidation by the State Government but that did not convert him into Director. The Act distinguishes between appointment of an officer and conferment of that officer's powers upon some other officer or authority. "Director" means only the person appointed as Director by the State Government i.e. appointed in exercise of the powers conferred upon the State Government by Sec. 42. A person upon whom the State Government confers powers of Director under Sec. 44 is not Director because he is not appointed as such. The Commissioner of Consolidation upon whom Director's powers are conferred by the State Government under Sec. 44, remains Commissioner of Consolidation, though he also becomes competent to exercise Director's powers also. Merely because Director's powers are conferred upon him, he does not become Director; he does not become Director because he has not been appointed as such in exercise of the powers conferred by Sec. 42. What is required under the definition of "Director" is appointment and not conferment of powers. The provisions of Ss. 42 and 44 are independent provisions, mutually exclusive. If a person is appointed as Director he can do all that can be done by the Director under the Act; he needs nothing in addition to the order of appointment. By being appointed as Director he becomes competent to exercise all the Director's powers. Any other person who exercises any of the Director's powers legally does it not because he is Director but because the State Government can legally authorize and has in fact authorized, him to do (though he is not Director). The very fact that such authority is needed for his being competent to exercise them proves that he is not appointed as Director. In Paras Nath Singh v/s. Sate of U.P. (1)(1960 AWR 327) I pointed oat that an Assistant Collector, Second Class upon whom the powers of Assistant Collector First Class are conferred, does not thereby become Assistant Collector First Class. On the same reasoning I hold that Sri. IDN Sahi was not Director and had no power to authorize Sri. Syed Husain to hear the second appeal. This is also consistent with the use of the article 'the' in Sec. 11(2) which means the particular person appointed as Director and cannot include all other persons upon whom Director's powers may be conferred. In Gaya Dutt v/s. SDO II Mahamjganj, District Rae Bareli (2) (1964 ALJ 145. I had said that "the Sub -Divisional Officer" does not include any other person upon whom Sub -Divisional Officer's powers are conferred and means the particular officer appointed as Sub Divisional Officer."

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